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CHAPTER 1
MEANING, NATURE, SCOPE AND SIGNIFICANCE OF HUMAN RIGHTS

INTRODUCTION
Human beings are born equal in dignity and rights. These are moral claims which are inalienable and
inherent in all individuals by virtue of their humanity alone, irrespective of caste, colour, creed, and
place of birth, sex, cultural difference or any other consideration. These claims are articulated and
formulated in what is today known as human rights. Human rights are sometimes referred to as
fundamental rights, basic rights, inherent rights, natural rights and birth rights.

DEFINITION OF HUMAN RIGHTS

Dr. Justice Durga Das Basu defines “Human rights are those minimal rights, which every individual
must have against the State, or other public authority, by virtue of his being a ‘member of human
family’ irrespective of any consideration. Durga Das Basu’s definition brings out the essence of human
rights.
The Universal Declaration of Human Rights (UDHR), 1948, defines human rights as “rights derived from
the inherent dignity of the human person.” Human rights when they are guaranteed by a written
constitution are known as “Fundamental Rights” because a written constitution is the fundamental law
of the state.

Human rights are rights we have simply because we exist as human beings - they are not granted by
any state. These universal rights are inherent to us all, regardless of nationality, sex, national or ethnic
origin, color, religion, language, or any other status. They range from the most fundamental - the right
to life - to those that make life worth living, such as the rights to food, education, work, health, and
liberty. Human rights are sometimes referred to as fundamental rights, basic rights, inherent rights,
natural rights and birth rights. The evolution of human rights have taken place over centuries. Man had
to struggle hard in order to achieve the ultimate goal – living with dignity – which still has to be
realized in various societies. India itself is an example where women, children, dalits, bonded
labourers, etc, are trying hard to be a part of mainstream. In spite of all these, the world recognized
the U.N.Charter of 1945 which states that human rights are inalienable aspect of mankind.

ORIGIN OF HUMAN RIGHTS

The origin of human rights may be traced to the theory of Natural Rights derived from the concept of
Natural Law, as propounded by ancient Greek Stoic Philosophers and further developed by Thomas
Hobbes and John Locke. The American and French Revolution gave further impetus to the struggle of
human rights. The evolution and development of human rights in the international context can be
traced to the Magna Carta and the English Bill of Rights followed by the French Declaration and the
American Bill of Rights. The twentieth century witnessed the crystallization of the philosophy of
Human Rights when the United Nations adopted the UN Charter, 1945, The Universal Declaration of
Human Rights, 1948 and the International Covenants on Human Rights with further emphasis to
protection of rights of Women, Abolition of Slavery, Racial Discrimination, Civil and Political Rights,
Economic, Social and Cultural Rights and most importantly the Rights of children.
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LANDMARKS IN THE DEVELOPMENT OF HUMAN RIGHTS

The important landmarks in the progress of human rights are as follows:

The Magna Carta, 1215- The Magna Carta, also known as the Great Charter, of 1215 is the most
significant constitutional document of all human history. The main theme of it was protection against
the arbitrary acts by the king. The 63 clauses of the Charter guaranteed basic civic and legal rights to
citizens, and protected the barons from unjust taxes. The English Church too gained freedom from
royal interferences. King John of England granted the Magna Carta to the English barons on 15th June
1215. The king was compelled to grant the Charter, because the barons refused to pay heavy taxes
unless the king signed the Charter.

The English Bill of Rights, 1689-The next source and avenue of the development of the philosophy of
human rights is the English Bill of Rights, enacted on December 16, 1689, by the British Parliament. The
British Parliament declared its supremacy over the Crown in clear terms. The English Bill of Rights
declared that the king has no overriding authority. The Bill of Rights codified the customary laws, and
clarified the rights and liberties of the citizens. It lays down the twin foundations, viz., the supremacy
of the law, and the sovereignty of the nation, upon which, the English constitution rests.

American Declaration of Independence, 1776- The first colonies to revolt against England were the
thirteen States of America. These states declared their independence from their mother country on
4th July 1776. The declaration charges the king with tyranny and affirms the independence of the
American colonies. The declaration of independence has great significance in the history of mankind as
it justified the right to revolt against a government that no longer guaranteed the man’s natural and
inalienable rights.

The U.S. Bill of Rights, 1791- The U.S. Constitution was enacted on 17th September 1787. The most
conspicuous defect of the original constitution was the omission of a Bill of Rights concerning private
rights and personal liberties. Madison, therefore proposed as many as twelve amendments in the form
of Bill of Rights. Ten of these were ratified by the State legislatures. These ten constitutional
amendments came to be known as the Bill of Rights. The overall theme of the Bill of Rights is that the
citizen be protected against the abuse of power by the officials of the States.

The French Declaration of the Rights of Man and of the Citizen, 1789 -The fall of Bastille and the
abolition of feudalism, serfdom and class privileges by the National Assembly ushered France into a
new era. On 4th August 1789, the National Assembly proclaimed the Rights of Man and of the Citizens.
The Rights were formulated in 17 Articles. The Declaration of the Rights of Man and of the Citizen has
far reaching importance not only in the history of France but also in the history of Europe and
mankind. The declaration served as the death warrant for the old regime and introduced a new social
and political order, founded on the noble and glittering principles. Further the declaration served as
the basis for many Constitutions, framed in different countries, where the framers gave top priority to
human rights.
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Declaration of International Rights of Man, 1929- After World War I, questions about human rights
and fundamental freedoms began to be raised. In 1929, the Institute of International Law adopted the
Declaration of International rights of Man. The Declaration declared that fundamental rights of citizen,
recognized and guaranteed by several domestic constitutions, especially those of the French and the
U.S.A constitutions, were in reality meant not only for citizens of the states but for all men all over the
world, without any consideration.

The UN Charter, 1945- The United Nations Charter was drafted, approved and unanimously adopted
by all the delegates of the 51 states, who attended the United Nations Conference at San Francisco.
The UN Charter contains provisions for the promotion and protection of human rights. The importance
of the Charter lies in the fact that it is the first official document in which the use of ‘human rights’ is,
for the first time traceable and which also recognized the respect for fundamental freedom.

The Universal Declaration of Human Rights, 1948- The Universal Declaration of Human Rights was
adopted by the General Assembly of the United Nations on 10th December, 1948. The Declaration
consists of thirty Articles and covers civil, political, economic, social and cultural rights for all men,
women and children. The declaration however is not a legally binding document. It is an ideal for all
mankind.

International Covenants on Human Rights - The Universal Declaration of Human Rights, 1948 was not
a legally binding document. It lacked enforcements. This deficiency was sought to be removed by the
U.N. General Assembly by adopting in December, 1966, the two Covenants, viz,
1. International Covenant on Civil and Political Rights
2. International Covenant on Economic, Social and Cultural Rights.

The two International Covenants, together with the Universal Declaration and the Optional Protocols,
comprise the International Bill of Human Rights. The International Bill of Human Rights represents a
milestone in the history of human rights. It is a modern Magna Carta of human rights.

Nature of Human Rights

Human rights are said to be ‘inalienable’. Human rights are also recognized as being ‘universal,
interrelated and indivisible’. This means that they belong to everyone irrespective of one’s religion,
community, caste, class, gender, and age, social or economic status. Furthermore, respect for civil and
political rights cannot be divorced from economic, social and cultural rights. In other words, economic
and social development cannot be achieved without the political freedom to participate in that
process, including the freedom to dissent.

The nature and characteristics of Human Rights can be further understood as under:
1. Human Rights are essential and necessary. In the absence of human rights, the ethical, natural,
societal and spiritual welfare of an individual is impossible. Human rights are also indispensable
as they provide a conducive environment to augment the physical and moral life of society.
2.Human Rights support and advocate Human Dignity. To treat others with dignity irrespective of
whether that person is a male or female, rich or poor etc. is the basic concern of human dignity.
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3.Human Rights are universal. No one class of people however privileged they may be, have monopoly
over human rights. They are essentially universal without consideration and without exception. The
values such as divinity, dignity and equality which form the basis of these rights are inherent in human
nature.

4.Human Rights are inalienable. ‘Inalienable’ means unable to be taken away. When we say human
rights are inalienable, we are saying that the rights are inherent in us and we cannot give it away or
renounce it. For example, if an individual gives, even in writing, telling the police that he should be
arrested for a crime that he had committed and locked up without a trial. It cannot be considered a
valid statement. This would be a violation of his/her basic human right of life and personal liberty i.e.
Article 21 of Indian Constitution. These rights should be the same for individuals irrespective of their
caste, creed, religion, sex and nationality. As a matter of fact human rights are conferred on an
individual even after his death. The various rituals in different religions bear testimony to this fact.

5. Human Rights are dynamic. Human rights are ever changing, constantly dependent on the change in
the political, economic, social or environmental structures of the State. For example, the right to be
cared for in time of sickness has now been stretched to include free medical treatment in public
hospitals under different schemes of the Government of India. Free medical examination in schools
and also especially equipped schools for the physically handicapped have been included.

6. Human Rights are essential for gratification of aspirations. Every human life has a purpose. The
term ‘human right’ is applied to those conditions which are essential for the fulfillment of this purpose.
No government has the power to curtail or take away the rights which are sacrosanct, inviolable and
immutable.

7. Human Rights are never absolute. Man, lives in a society which invariably establishes some
limitations on the enjoyment of rights and freedoms. Human rights are those restricted privileges or
prerogatives, which subscribe to the common good. These are acknowledged and attested by the state
through its legislation. Each of these rights comes with restrictions.

8. Human Rights restrains State power. Human rights imply that all citizens have rightful demands
upon his or her society for certain freedoms and assistance. Thus, we could say that human rights limit
the State’s power. These may be in the form of restrictions on the powers of the State from violating
the inalienable freedoms of the individuals, or it may be in the obligations of the State to not to
interfere in the citizen’s personal life in as far as the six freedoms mentioned in the Right to freedom in
the Indian Constitution. i.e. Article 19.

The need for a charter of Human Rights

Human Rights cannot be different for different individuals, states, and countries. Thus, a charter of
Human Rights applicable for all and accepted by everyone is needed to:

1. Assure equal human rights for all human beings.

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2. Promote the idea of peaceful coexistence within the country and among various countries of
the world.
3. Protect and acknowledge rights.
4. Encourage the Government to make policies and laws for fulfillment of human rights.
5. Establish a peaceful environment for the development of human life and harmonious existence
of all mankind.
6. Promote human right & above all national or international politics and discretionary
government decisions.
7. Inculcate the values of respect for human rights, amongst the victorious nations of wars so as to
focus on environmental issues.

SCOPE OF HUMAN RIGHTS

In their contemporary manifestation, human rights are a set of individual and collective rights that
have been formally promoted and protected through international and domestic law since the 1948
Universal Declaration of Human Rights. Today, the numerous international treaties on human rights
promulgated since the Universal Declaration to which an increasingly large number of nation states are
a party. It defines the core content of human rights that ought to be protected across categories of
civil, political, economic, social, and solidarity rights.

These three categories are: (1) civil and political rights, (2) economic, social, and cultural rights, and (3)
solidarity rights

Civil and political rights uphold the sanctity of the individual before the law and guarantee his or her
ability to participate freely in civil, economic, and political society. Civil rights include such rights as the
right to life, liberty, and personal security; the right to equality before the law; the right of protection
from arbitrary arrest; the right to the due process of law; the right to a fair trial; and the right to
religious freedom and worship. When protected, civil rights guarantee one's 'personhood' and
freedom from state-sanctioned interference or violence. Political rights include such rights as the right
to speech and expression; the rights to assembly and association; and the right to vote and political
participation. Political rights thus guarantee individual rights to involvement in public affairs and the
affairs of state. In many ways, both historically and theoretically, civil and political rights have been
considered fundamental human rights for which all nation states have a duty and responsibility to
uphold.

Social and economic rights include such rights as the right to a family; the right to education; the right
to health and well being; the right to work and fair remuneration; the right to form trade unions and
free associations; the right to leisure time; and the right to social security. When protected, these
rights help promote individual flourishing, social and economic development, and self-esteem. Cultural
rights, on the other hand, include such rights as the right to the benefits of culture; the right to
indigenous land, rituals, and shared cultural practices; and the right to speak one's own language and
‘mother tongue’ education. Cultural rights are meant to maintain and promote sub-national cultural
affiliations and collective identities, and protect minority communities against the incursions of
national assimilationist and nation building project.
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Solidarity rights includes right to public goods such as development and the environment, seek to
guarantee that all individuals and groups have the right to share in the benefits of the earth's natural
resources, as well as those goods and products that are made through processes of economic growth,
expansion, and innovation.

Of the three sets of rights, this final set is the newest and most progressive and reflects a certain
reaction against the worst effects of globalization, as well as the relative effectiveness of 'green'
political ideology and social mobilization around concerns for the health of the planet.

CLASSIFICATION OF HUMAN RIGHTS

Human Rights can be broadly classified into different perspectives: Firstly the perspective of various
aspects to human life-civil, Social, Economic, Cultural, Political and Moral secondly, from the
perspective of the methods of securing them. On the second basis, they are constitutional or legal.

1. Natural Rights - Natural Rights are those rights which are considered to be inherent and integral to
human nature. In fact, every individual by nature is given an individual property of his own which
cannot be taken away by any authority. Such rights include intellectual rights, rights of the mind and
also rights of acting as an individual for his own comfort and happiness, provided they are not injurious
to natural rights of others.

2. Moral Rights - These rights are based on the general principle of fairness and justice. These are
simply aspirations and ideals of the people who claims for it. Sometimes, people justify these rights on
the ground of the role they perform or the position they occupy in society.

3. Fundamental Rights - There are certain rights which are more important and basic than the others.
For example, right to life is the most basic of all rights upon which the enjoyment of other rights
depends. These rights can never be restricted or taken away by any authority. That is why, every
society has a fundamental duty to protect it all the times. Among other basic rights are-the rights to be
recognized as a person before the law, the right to equal protection under law and freedom from
illegal arrest or detention.

4. Legal Rights- Legal Rights are otherwise known as positive rights. These rights are laid down in law.
They also guaranteed and protected by the law of the State. Thus, legal rights are uniform and open to
all irrespective of the caste, color, race or culture.

5. Civil and Political Rights- Rights that are granted by government or civil society are called Civil and
Political Rights. These rights provide the bases for the fulfillment of elementary conditions of the social
life without them, civilized life is not possible and they are, therefore, considered very essential for the
progressive life of man. Civil and political rights, however, include the right to freedom of speech, of
assembly, the right to move freely, to hold property and practice trade or profession and the right to
take part in the government of one's country.

6. Economic, Social and Cultural Rights These are entitlements of the individual vis-a-vis the State, in
order to eradicate social inequality, economic imbalances and to limit disadvantages caused by nature,
age and so-on. These rights, however, are bestowed by the state. The state is not bound to meet these
entitlements all at once. It depends upon the economic resources of the society. Most of the Socialist
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States recognize these rights as fundamental rights of the people. Right to equality, right to work, right
to have family, right to privacy, right to information, right to public assistance during old age and
sickness, right to health care, right to special care during childhood and during motherhood are some
of the examples of these rights.

SIGNIFICANCE OF HUMAN RIGHTS

Values of tolerance, equality and respect can help reduce friction within society. Putting human rights
ideas into practice can helps us create the kind of society we want to live in. Unfortunately, in recent
decades, there has been a tremendous growth in how we think about and apply human rights ideas.
This has had many positive results - knowledge about human rights can empower individuals and offer
solutions for specific problems.

Human rights are an important part of how people interact with others at all levels in society - in the
family, the community, schools, the workplace, in politics and in international relations. It is vital
therefore that people everywhere should strive to understand what human rights are. When people
better understand human rights, it is easier for them to promote justice and the well-being of society.
A person's human rights cannot be taken away. In its final Article, the Universal Declaration of Human
Rights states that no State, group or person '[has] any right to engage in any activity or to perform any
act aimed at the destruction of any of the rights and freedoms set forth herein’.

This doesn't mean that abuses and violations of human rights don't occur. However, the Universal
Declaration and other human rights treaties are more than just noble aspirations. They are essential
legal principles. To meet their international human rights obligations, many nations have incorporated
these principles into their own laws. This provides an opportunity for individuals to have a complaint
settled by a court in their own country. Individuals from some countries may also be able to take a
complaint of human rights violations to a United Nations committee of experts, which would then give
its opinion. In addition, education about human rights is just as important as having laws to protect
people. Long term progress can really only be made when people are aware of what human rights are
and what standards exist.

CHAPTER 2

GENERATION OF HUMAN RIGHTS

THE FIRST GENERATION OF SUBJECTIVE RIGHTS

This generation of subjective rights is the generation of civil and political rights acquired through the
force of writing and of arms. Once time passed and ideas and concepts about State were developed,
political power, and right and freedom (the works of philosophers John Locke, Montesquieu, Thomas
Hobbes, JJ Rousseau), appeared a fight against monarchical absolutism, struggle which will be
successful, success expressed by documents with legal force as: -
Magna Charta in 1215
Petition of Rights in 1628
The Bill of Rights (Declaration of Rights) in 1689, England
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The American Declaration of Independence in 1776

The French Declaration of Human and Citizen Rights in 1789.

Through the above documents of constitutional nature, rights were granted to people which
established early forms of limitation of absolute power in the following ways:
l. There were established safeguards against the introduction of taxes by the king, without the
approval of Parliament;
2. There were established safeguards against arrest of persons and confiscation of assets without
observance of procedure of courts;
3. They supported and declared the freedom of speech, that freedom of thought and the right to
petition;
4. There were stated principles of individualism, starting from the idea expressed by the French
Declaration of Human and Citizen Rights in1789 as "the purpose of each political associations is
keeping natural and indefeasible human rights”.

It is considered that the Declaration of human and citizens rights from 1789 expresses in the best way
the idea that there are inherent human rights, rights that are exercised in a state which is not an end in
itself, but only a mean to ensure coexistence of individuals and the exercise of individual rights. For
this reason, it is estimated that it is an expression of the first generation of subjective rights.

The French Declaration of Human and Citizens Rights from 1789 contained two new ideas:
1. The idea that man as an individual, benefits of "natural rights, inalienable and sacred” including
liberty and equality;

2. The second idea is that the "purpose of all political associations is the preservation of the natural
and indefeasible rights of man" (Article 2 of the Declaration).

There are two categories of rights which the Declaration of Human and Citizens Rights from 1789 is
referring to:
1. Civil rights or human rights as:
▪ Freedom of opinion (Article 10)

▪ Freedom of expression and press (Article 11)

▪ Personals ownership (Article 17)

▪ The right to personal security in relation to justice and police (art. 7-9)

▪ Equality before the law (Art. 6)

2. Political rights, those that allow citizen participation at power, namely:

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▪ Equal access to public (Article 6)

▪ Participation in elaboration of laws (Article 6)

▪ Control of taxes (Art. 13-14)

▪ Citizen control over the administration (Art. 15)

These rights represent the first generation of subjective rights, and more precisely those rights that
refer to personal autonomy of the individual and the rights that enable citizen participation in power in
a society where "the exercise of natural rights of each man has no limits, than those which ensure for
the other members of society the same rights" (Article 4). In the modern age, these rights have found
their consecration in constitutions and in the laws of most countries, as well as in international
documents.

Among them most important are;

▪ The Universal Declaration of Human Rights U.N.

▪ The International Pact on Civil and Political Rights.

▪ At regional level in Europe, there were created legal mechanisms for protecting these rights:
the system of the Council of Europe and of European Court of Human Rights, based on
European Convention of human rights and The Additional Protocols of this Convention.

In the system of protected rights which belong to the first generation protected by the European
Convention on Human Rights and by The Additional Protocols to this Convention are;

1. The right to life;

2. The Right to privacy;
3. Prohibition of torture and inhuman or degrading punishments;
4. Prohibition of slavery and forced labor.
5. Freedom and security of a person. - the Right to a fair trial.
6. The right to property of the person or of a legal person
7. Freedom of mind, of thought and religion.
8. Freedom of expression and information.
9. Freedom to free elections.

THE SECOND GENERATION OF SUBJECTIVE RIGHTS

In the category of socio-economic and cultural rights we can identify these categories of rights:

1. Right to work;
2. Freedom of association;
3. Right to education, learning;
4. Right to insurance for sickness, old age and disability (Social insurance).
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These rights come from positive law, as well as from international law (International Covenant on
Economic, social and cultural). This dedication has not the same coverage, as in the case of first-
generation rights, as consecration requires significant effort from the State and so it is appropriate to
everyone’s prosperity.

The second generation of rights, against the first generation of rights requires institutional support
from the State, the first-generation rights can be exercised independently and singular. The state must
intervene through legislation to create an institutional system that allows the exercise, for example, of
the right to education or retirement. It is estimated that if the first-generation rights form "free
status”, social economic rights are related to the “social status” of the individual.

In the system of rights that belong to the second generation and protected by Additional Protocols to
this Convention and The European Social Charter include:

1. Freedom of meeting, association and establishing unions;

2. Right to education;
3. Social rights (social security, pensions, medical services).

THE THIRD GENERATION OF HUMAN RIGHTS

In this category we can identify the solidarity rights, rights which cannot be exerted only by an
individual, but only collectively, like:

1. Right of people to self-determination;

2. Right to peace;

3. Right to development;

4. Right to humanitarian assistance;

5. Environmental law;

6. Right of sexual minorities, ethnic, religious, linguistic, etc.

These rights have a positive consecration, generally in international law. The rights in this category
cannot be exerted individually, but only by groups or collectivities of people. The third generation
rights require not only the need to create an institutional support by the State, but, as in the case of
second generation rights, they need to restrict the first generation of rights, through a so called
“positive discrimination”, in the sense that these rights , like the rights of any minority, require a
limitation of rights of first generation. The environmental law allows social groups to live in a healthy
environment, clean, without harmful agents to health but, in the same time, involves a number of
limitations of rights of first or second generation, like owning a forest or the right to work. There are
laws that recognize different kind of rights in this category eg., Environmental rights, Rights of
minorities. Romania is one of the countries that have recognized the great importance of third
generation rights.
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FOURTH GENERATION HUMAN RIGHTS

In this category are included the so called “Rights related to Genetic Engineering”, rights which are on
the doctrinal debate in recognition or prohibition of certain activities. We could put in the same
category the so called Rights of future generations, as well as rights that cannot belong to an individual
nor to social groups, including nations, they belong only to humanity as a whole. The rights of
humanity would treat the common assets of the whole humanity. In the same category it is possible to
insert rights deriving from exploration and exploitation of cosmic space. In the classic way it is
considered that rights related to genetics can be classified as belonging to this last generation of rights,
but even if fourth generation in itself is challenged as existence.

In doing so, there are identified rights that ensure the inviolability of individual rights and
unavailability of human body in terms of development of medical science, of genetics. Studying the
human genome, genetic manipulation, in vitro fertilization, experiences with human embryos,
euthanasia and eugenics are activities that can generate complicated legal issues, ethical, moral and
even religious, reason for which public opinion has led States to deal with regulation of these issues.

The European Council recommends to member states to adopt principles which will govern the
relation between genetic engineering and human rights, in such a way that the right to life and dignity
would be understood as a right over genetic characteristics of a person. (Recommendation 934/1982).
Thus, each person has its right to life, dignity, personal identity, closely linked to its genetic type
configuration, unique, right which it can transmit as genetic heritage to descendants, without being
subject to genetic manipulation. From this perspective, human organ donation is prohibited. In the
same time, taking into consideration the principles of inviolability of a person and unavailability of
human body, it must be accepted that genetic engineering can be applied for therapeutic purposes to
treat and eliminate genetic diseases. The central idea is that human being should not be genetically
influenced, in any way. There are mentioned Nazi ideas about the superiority of a race which required
the elimination of others, ideas embodied legal (and factual) in laws of euthanasia of mentally ill, the
sterilization of persons with hereditary abnormalities, or prohibiting interethnic marriages. Just to
avoid doing the same thing in history, the international community has proclaimed the fact that
human genome is part of the human heritage.

CHAPTER 03

UNIVERSAL DECLARATION OF HUMAN RIGHTS

Preamble
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, Whereas disregard and
contempt for human rights have resulted in barbarous acts which have outraged the conscience of
mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief
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and freedom from fear and want has been proclaimed as the highest aspiration of the common
people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to
rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations, Whereas
the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human
rights, in the dignity and worth of the human person and in the equal rights of men and women and
have determined to promote social progress and better standards of life in larger freedom, Whereas
Member States have pledged themselves to achieve, in cooperation with the United Nations, the
promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the
full realization of this pledge.

Now, therefore, The General Assembly, Proclaims this Universal Declaration of Human Rights as a
common standard of achievement for all peoples and all nations, to the end that every individual and
every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and
education to promote respect for these rights and freedoms and by progressive measures, national
and international, to secure their universal and effective recognition and observance, both among the
peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Article I 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 2 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, birth or other status. Furthermore, no distinction shall be made on the basis
of the political, jurisdictional or international status of the country or territory to which a person
belongs, whether it be independent, trust, non-self-governing or under any other limitation of
sovereignty.
Article 3 Everyone has the right to life, liberty and the security of person.
Article 4 No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in
all their forms.
Article 5 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.
Article 6 Everyone has the right to recognition everywhere as a person before the law.
Article 7 All are equal before the law and are entitled without any discrimination to equal protection of
the law. All are entitled to equal protection against any discrimination in violation of this Declaration
and against any incitement to such discrimination.
Article 8 Everyone has the right to an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the constitution or by law.
Article 9 No one shall be subjected to arbitrary arrest, detention or exile.
Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of any criminal charge against
him.
Article 11 1. Everyone charged with a penal offence has the right to be presumed innocent until
proved guilty according to law in a public trial at which he has had all the guarantees necessary for his
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defence. 2. No one shall be held guilty of any penal offence on account of any act or omission which
did not constitute a penal offence, under national or international law, at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the
penal offence was committed.
Article 12 No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks.
Article 13 1. Everyone has the right to freedom of movement and residence within the borders of each
State. 2. Everyone has the right to leave any country, including his own, and to return to his country.

Article 14 1. Everyone has the right to seek and to enjoy in other countries asylum from persecution. 2.
This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or
from acts contrary to the purposes and principles of the United Nations.

Article 15 1. Everyone has the right to a nationality. 2. No one shall be arbitrarily deprived of his
nationality nor denied the right to change his nationality.

Article 16 1. Men and women of full age, without any limitation due to race, nationality or religion,
have the right to marry and to found a family. They are entitled to equal rights as to marriage, during
marriage and at its dissolution. 2. Marriage shall be entered into only with the free and full consent of
the intending spouses. 3. The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State.

Article 17 1. Everyone has the right to own property alone as well as in association with others. 2. No
one shall be arbitrarily deprived of his property.

Article 18 Everyone has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom, either alone or in community with others and in
public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19 Everyone has the right to freedom of opinion and expression; this right includes freedom to
hold opinions without interference and to seek, receive and impart information and ideas through any
media and regardless of frontiers.

Article 20 1. Everyone has the right to freedom of peaceful assembly and association. 2. No one may
be compelled to belong to an association.

Article 21 1. Everyone has the right to take part in the government of his country, directly or through
freely chosen representatives. 2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this will shall be expressed
in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by
secret vote or by equivalent free voting procedures.
 14

Article 22 Everyone, as a member of society, has the right to social security and is entitled to
realization, through national effort and international co-operation and in accordance with the
organization and resources of each State, of the economic, social and cultural rights indispensable for
his dignity and the free development of his personality.

Article 23 1. Everyone has the right to work, to free choice of employment, to just and favourable
conditions of work and to protection against unemployment. 2. Everyone, without any discrimination,
has the right to equal pay for equal work. 3. Everyone who works has the right to just and favourable
remuneration ensuring for himself and his family an existence worthy of human dignity, and
supplemented, if necessary, by other means of social protection. 4. Everyone has the right to form and
to join trade unions for the protection of his interests.

Article 24 Everyone has the right to rest and leisure, including reasonable limitation of working hours
and periodic holidays with pay.

Article 25 1. Everyone has the right to a standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and medical care and necessary social
services, and the right to security in the event of unemployment, sickness, disability, widowhood, old
age or other lack of livelihood in circumstances beyond his control. 2. Motherhood and childhood are
entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the
same social protection.

Article 26 1. Everyone has the right to education. Education shall be free, at least in the elementary
and fundamental stages. Elementary education shall be compulsory. Technical and professional
education shall be made generally available and higher education shall be equally accessible to all on
the basis of merit. 2. Education shall be directed to the full development of the human personality and
to the strengthening of respect for human rights and fundamental freedoms. It shall promote
understanding, tolerance and friendship among all nations, racial or religious groups, and shall further
the activities of the United Nations for the maintenance of peace. 3. Parents have a prior right to
choose the kind of education that shall be given to their children.

Article 27 1. Everyone has the right freely to participate in the cultural life of the community, to enjoy
the arts and to share in scientific advancement and its benefits. 2. Everyone has the right to the
protection of the moral and material interests resulting from any scientific, literary or artistic
production of which he is the author.

Article 28 Everyone is entitled to a social and international order in which the rights and freedoms set
forth in this Declaration can be fully realized.

Article 29 1. Everyone has duties to the community in which alone the free and full development of his
personality is possible. 2. In the exercise of his rights and freedoms, everyone shall be subject only to
such limitations as are determined by law solely 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
 15

order and the general welfare in a democratic society. 3. These rights and freedoms may in no case be
exercised contrary to the purposes and principles of the United Nations.

Article 30 Nothing in this Declaration may be interpreted as implying for any State, group or person
any right to engage in any activity or to perform any act aimed at the destruction of any of the rights
and freedoms set forth herein.

UNIT II
CHAPTER 04
HUMAN RIGHTS, FUNDAMENTAL RIGHTS AND FUNDAMENTAL DUTIES IN INDIA

FUNDAMENTAL RIGHTS AND HUMAN RIGHTS

The term “human right” which does not mean any right is used in a special sense. Human rights are
those of legal and moral rights which can be claimed by any person for the very reason that he is a
human being. These rights come with birth and are applicable to all people throughout the world
irrespective of their race, color, sex, language or political or other opinion. These are, therefore, those
rights that are inherent in human person and without which they cannot live as human beings.’
Jacques Maritain says, “The human person possesses rights because of the very fact that it is a person,
a whole, a master of itself and its acts and which consequently is not merely a means to an end but an
end which must be treated as such these are things which are owed to man because of the very fact
that he is man. Human rights, therefore, have two inherent characteristics— universal inherence and
inalienability. These two characteristics distinguish the concept of human right from other right.
Universal inherence means that these rights are universally inherent in all human beings and anyone
can claim these rights after his birth. Inalienability as an essential feature of human rights means that
these rights cannot be taken away; they cannot be the object of sale or purchase or any kind of
transfer. In this sense human rights are different from citizens’ rights which are protected by the
positive law of the state and the state can any time take away or abolish any citizen’s right. But human
rights are rights that existed before the state came into being and for this they are natural and
inalienable rights.

The term fundamental right is a technical one, for when certain human rights are written down in a
Constitution and are protected by constitutional guarantees they are called fundamental rights. They
are called fundamental rights in the sense that they are placed in the supreme or fundamental law of
the land which has a supreme sanctity over all other law of the land.
Following the footsteps of the French Declaration of Rights of Man and Citizen, 1789 and the American
Declaration of Independence, 1776 and then the incorporation of a Bill of Right in the US Constitution
 16

in 1791 most of the democratic countries with written constitution are including a chapter for Bill of
Rights or Fundamental Rights with special sanctity.
Rights and freedoms form the bedrock of democracy. No democracy can function successfully in the
absence of some basic freedoms. The aim of having a declaration of fundamental rights in the
Constitution is to prevent such a possible danger. In other words, they provide a restraint on the
power of the government so that it cannot interfere with the peoples’ basic rights according to its
whims. When rights and freedoms are placed in the Constitution they become the part of the supreme
law and the government cannot take them away except by constitution amending process which is
always a rigid one. This is why insertion of a Bill of Rights in a written Constitution is considered to be
one of the safeguards of democracy.
FUNDAMENTAL RIGHTS IN INDIA
Art. 12- Definition of STATE
Art. 13- Laws inconsistent with or in derogation of the fundamental rights will be abrogated
Art 14 to 18- Right to Equality
Art. 14-Equality before the Law
Art. 15-Prohibition of discrimination on the grounds of religion, race, caste sex or place of birth
Art.16-Equality of opportunity in matters of public employment
Art.17-Abolition of untouchability
Art.18-Abolition of Titles
Art. 19 to 22- Right to Freedoms
Art. 19- Protection of certain rights regarding freedom of speech, association, reside, movement
profession and others.
Art. 20- Protection in respect of Conviction for Offences
Art. 21- Protection of Life and Personal Liberty
Art. 22- Protection against arrest and detention.
Art 23 to 24- Right against Exploitation
Art. 23- Prohibition of Traffic in human beings and forced labour
Art. 24- Prohibition of employment of children in Factories etc.,
Art. 25- 28 Right to Freedom of Religion
Art.25- Freedom of Conscience and free profession practice and propagation of religion
Art. 26- Freedom to manage religious affairs
Art. 27: Freedom from taxation for promotion of a religion
Art. 28- Freedom from attendance of religious instructions or worship in educational institutions
Art. 29 to 30 Cultural and Educational Rights
Art. 29- Protection of interests of Minorities
Art. 30- Right of Minorities to establish and administer educational institutions
Art. 32- Right to Constitutional Remedies
Right to move the courts to issue directions/orders/writs for enforcement of Fundamental Rights
Habeas Corpus
Mandamus
Certiorari
Quo warranto
Writ of Prohibition
Distinction between human rights and fundamental rights
 17

Firstly, all fundamental rights are human rights but all human rights are not fundamental rights.
Fundamental rights are those of human rights which are placed in a written constitution. Human
rights, therefore, are the whole of which fundamental rights are a part.
Secondly, the source of a fundamental right is the Constitution whereas the source of human rights is
the international law.
Thirdly, Fundamental rights have territorial limitations, Such as they have no application as
fundamental rights outside the territory of a particular state. But human rights have no territorial
limitations; they have universal application.
HUMAN RIGHTS, FUNDAMENTAL RIGHTS AND FUNDAMENTAL DUTIES IN INDIA

FUNDAMENTAL RIGHTS AND HUMAN RIGHTS

The term “human right” which does not mean any right is used in a special sense. Human rights are
those of legal and moral rights which can be claimed by any person for the very reason that he is a
human being. These rights come with birth and are applicable to all people throughout the world
irrespective of their race, color, sex, language or political or other opinion. These are, therefore, those
rights that are inherent in human person and without which they cannot live as human beings.’
Jacques Maritain says, “The human person possesses rights because of the very fact that it is a person,
a whole, a master of itself and its acts and which consequently is not merely a means to an end but an
end which must be treated as such these are things which are owed to man because of the very fact
that he is man. Human rights, therefore, have two inherent characteristics— universal inherence and
inalienability. These two characteristics distinguish the concept of human right from other right.
Universal inherence means that these rights are universally inherent in all human beings and anyone
can claim these rights after his birth. Inalienability as an essential feature of human rights means that
these rights cannot be taken away; they cannot be the object of sale or purchase or any kind of
transfer. In this sense human rights are different from citizens’ rights which are protected by the
positive law of the state and the state can any time take away or abolish any citizen’s right. But human
rights are rights that existed before the state came into being and for this they are natural and
inalienable rights.
The term fundamental right is a technical one, for when certain human rights are written down in a
Constitution and are protected by constitutional guarantees they are called fundamental rights. They
are called fundamental rights in the sense that they are placed in the supreme or fundamental law of
the land which has a supreme sanctity over all other law of the land.
Following the footsteps of the French Declaration of Rights of Man and Citizen, 1789 and the American
Declaration of Independence, 1776 and then the incorporation of a Bill of Right in the US Constitution
in 1791 most of the democratic countries with written constitution are including a chapter for Bill of
Rights or Fundamental Rights with special sanctity.
Rights and freedoms form the bedrock of democracy. No democracy can function successfully in the
absence of some basic freedoms. The aim of having a declaration of fundamental rights in the
Constitution is to prevent such a possible danger. In other words, they provide a restraint on the
power of the government so that it cannot interfere with the peoples’ basic rights according to its
whims. When rights and freedoms are placed in the Constitution they become the part of the supreme
law and the government cannot take them away except by constitution amending process which is
always a rigid one. This is why insertion of a Bill of Rights in a written Constitution is considered to be
one of the safeguards of democracy.
 18

FUNDAMENTAL RIGHTS IN INDIA

Art. 12- Definition of STATE
Art. 13- Laws inconsistent with or in derogation of the fundamental rights will be abrogated
Art 14 to 18- Right to Equality
Art. 14-Equality before the Law
Art. 15-Prohibition of discrimination on the grounds of religion, race, caste sex or place of birth
Art.16-Equality of opportunity in matters of public employment
Art.17-Abolition of untouchability
Art.18-Abolition of Titles
Art. 19 to 22- Right to Freedoms
Art. 19- Protection of certain rights regarding freedom of speech, association, reside, movement
profession and others.
Art. 20- Protection in respect of Conviction for Offences
Art. 21- Protection of Life and Personal Liberty
Art. 22- Protection against arrest and detention.
Art 23 to 24- Right against Exploitation
Art. 23- Prohibition of Traffic in human beings and forced labour
Art. 24- Prohibition of employment of children in Factories etc.,
Art. 25- 28 Right to Freedom of Religion
Art.25- Freedom of Conscience and free profession practice and propagation of religion
Art. 26- Freedom to manage religious affairs
Art. 27: Freedom from taxation for promotion of a religion
Art. 28- Freedom from attendance of religious instructions or worship in educational institutions
Art. 29 to 30 Cultural and Educational Rights
Art. 29- Protection of interests of Minorities
Art. 30- Right of Minorities to establish and administer educational institutions
Art. 32- Right to Constitutional Remedies
Right to move the courts to issue directions/orders/writs for enforcement of Fundamental Rights
Habeas Corpus
Mandamus
Certiorari
Quo warranto
Writ of Prohibition

PART IVA FUNDAMENTAL DUTIES 51A.

Fundamental duties.—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;
 19

F)to renounce practices derogatory to the dignity of women; 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 endeavour 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.
 20

CHAPTER 05

NATIONAL HUMAN RIGHTS COMMISSION

Human Rights are better protected at the national level with adequate laws, independent judiciary
and effective mechanisms. However, they seldom initiate action on their own except in public
interest cases and their educational role is very limited. The international community has increasingly
realized the importance of Human Rights implementation at the national level and the United
Nations started addressing the issue of National Human Rights Institutions since 1946. The United
Nations international workshop on National Institutions for promotion and protection of human
rights resulted in drafting of guidelines that were later adopted by the UN commission on human
rights as the "Paris principles "in 1992 and adopted by the UN General Assembly in 1993. The Vienna
World Conference on human rights and its declaration in 1993 also encouraged the establishment
and strengthening of national human rights institutions for effective realization of human rights.
The Paris Principles have become the focal point for development of national human
rights commissions all over the world. They deal with three important areas of national human rights
institutions. They are
• Autonomy and responsibility
• Composition and Methods of operations and
• Competence to settle individual complaints

The National Human Rights Commissions are unique independent institutions and play a supportive
and supplementary role to the existing institutions. The National Human Rights Commissions do not
replace the role of the already existing legal and administrative framework in the form of courts,
legislature and executive bodies and other institutions.
The National Human Rights Commission of India was set up in India under the Protection of Human
Rights Act, 1993. The then Prime Minister of India convened the Chief Minister’s Conference in 1992
to develop modalities of setting up the Human Rights Commissions. The meeting examined the
possibility of placing constitutional rights of civil liberties within the ambit of the Commission,
including issues of custodial human rights Violation within their states. Justice. The State
governments have also set Currently there are eighteen State human up state human rights
commission to deal with rights commissions in India.
Composition of NHRC
NHRC is an autonomous institution consisting of:
▪ A Chairperson who has been a Chief Justice of the Supreme Court

▪ One Member who is or has been a Judge of the Supreme Court;

▪ One Member who is or has been the Chief Justice of a High Court

▪ Two Members to be appointed from amongst persons having knowledge of, or practical
experience in matters relating to Human Rights
▪ The Chairperson of the National Commission for Minorities, National Commission for the
Scheduled Castes, National Commission for the Scheduled Tribes and National Commission for
Women are deemed Members of the Commission.
 21

▪ There is a Secretary General who is the Chief Executive Officer of the Commission and exercises
such powers and discharges such functions, as delegated to him by the Commission or
Chairperson, as the case may be.

There are six divisions in the NHRC. These have been entrusted with specific tasks and they work in
close consultation and coordination. The six divisions are:
• The Administrative Division
• The Law Division
• The Training Division
• The Policy, Research and Project Division
• The Investigation Division
• The Information and Public Relations Division
Functions of NHRC

The primary function of NHRC is to conduct inquiries into violations of human rights. NHRC conducts
inquiries for the following categories of violations:
• Violation of right to life, liberty, equality and dignity
• Violation of international treaties to which India is a party.
• Abetment of violation of human rights by a public servant.
• Negligence of public servant in prevention of human rights violations.
FUNCTIONS OF NATIONAL HUMAN RIGHTS COMMISSION
▪ Inquire into human rights violations on its own or on a petition by a victim or any person on his/
her behalf,-
▪ Intervene in any proceeding involving any allegation of violation of human rights pending
before a court
▪ Visit jails, hospitals, juvenile homes, mental hospitals, etc. to study the living conditions of the
inmates.
▪ Review the law and procedures for protection of human rights and make recommendations for
their effective implementation
▪ Review the factors, including acts of terrorism that inhibit the enjoyment of human rights and
recommend appropriate remedial measures.
▪ Study treaties and other international instruments on human rights and make
recommendations for their effective implementation.
▪ Undertake and promote research in the field of human rights;

▪ Spread human rights literacy;

▪ Encourage the efforts of non - Governmental organizations and institutions working in the field
of human rights;
▪ Procedure for Dealing with Complaints
 22

▪ One of the basic functions of NHRC is to deal with complaints. Any person or group of persons
or any organization can submit a complaint about human rights violations to NHRC. The
complaints received by the Commission are registered and given a specific number. These
complaints are placed before the Members. The Commission may ask for any further
information and affidavits in support of the allegations in the complaints. If the Commission
does not find any substance in the complaint, then the complaint can be dismissed.

▪ Once a complaint is admitted, the Commission directs further inquiry or investigation. The
Commission also calls for reports or comments from the respective state governments.
Subsequently, a detailed note on the merits of the case is prepared and placed before the
Commission. The complaint can be closed in case no further inquiry is required or the
concerned government has taken the required action.

▪ The Commission has its own investigation staff, headed by a Director General of Police, for
investigation into complaints of human rights violations. The Commission can also utilize the
services of any officer or investigation agencyof the Central Government or any
State Government in conducting an investigation. In some cases, the Commission has also
associated non Governmental organizations during enquiries.

▪ When the Commission decides to take up a case, then it can conduct investigation by its
members or by the investigation division. After the inquiry if it is found that there was a
violation of human rights or negligence by a public servant, then the Commission may
recommend to initiate proceedings for prosecution against the guilty persons. The Commission
can also recommend the concerned government for grant for immediate relief to the victim or
the members of the family. The Commission may also approach the Supreme Court or the
concerned High Court for the implementation of its orders and directions.

▪ In case the complaints are related to armed forces, the Commission calls for a report from the
central government. If the Commission is satisfied with the report of the government, it will not
proceed further with the complaint. If the Commission is not satisfied, then it makes its
recommendations to the government. The central government is required to inform the
Commission about the action taken on the recommendation within a period of three months.

FILING OF COMPLAINTS
• Complaints may be filed in Hindi, English or in any language included in the Eighth Schedule of
the Constitution.
• No fee is charged for filing complaints.
• The Commission may ask for further information and affidavits to be filed in support of
allegations whenever considered necessary.
• The Commission at its discretion, accept telegraphic complaints conveyed through FAX or email
[(covdnhrcHhub.nic.in (General)/ jrlawHhub.nic.in
• Complaints can also be made on the mobile telephone number, 9810298900 of the Commission.
COMPLAINTS ADMITTED BY NHRC
 23

▪ Failure of police to protect the life and property of citizens

▪ Failure in conducting effective investigations

▪ Beating, torture or rape in police custody or in judicial custody

▪ Denial of basic facilities of legal aid, decent food, hygiene in police stations and prisons

▪ Denial of clean drinking water

▪ Atrocities against Dalits and denial of access to village tanks, wells and water sources

▪ Forced or bonded labour

▪ Environmental pollution

▪ Deaths in police and judicial custody

▪ Fake encounters by police, army or paramilitary forces

▪ Illegal detention, extortion and intimidation by police

▪ Non-registration of cases
Types of Recommendations made by the Commission to Government

The NHRC issues the following kinds of directions based on the complaints taken up. Sometimes NHRC
can issue directions on its own based on the seriousness of the complaint. The Commission can also
approach a court and register a criminal cases against guilty persons.

▪ Pay compensation to the victim or to the victim’s family

▪ Take disciplinary action against the guilty persons

▪ Initiate proceedings for prosecution against the concerned person.

▪ Take preventive measures so as to stop further Human Rights violation

Important Guidelines issued by the National Human Rights Commission

One of the primary mandates of NHRC is to inquire into deaths in police custody and deaths in prison.
The first important instruction issued by NHRC in its first year to all the state governments is on
mandatory reporting of custodial deaths and rape. NHRC directed on 14 December 1993 to the district
magistrate and superintendent of police to report to the Commission incidences of custodial deaths
and rape within 24 hours and stated that failure to send a report within the stipulated time would be
presumed as suppression of the incidents. The mandatory reporting was extended to deaths in prison
in 1994. Later, NHRC also issued directions on encounter deaths. NHRC also issued comprehensive
guidelines on pre-arrest, arrest and post-arrest to the police administration.
 24

Important Cases decided by NHRC

The following are some of the important cases which have been taken up by the NHRC and created a
positive jurisprudence to prevent violations of human rights.
CASE ONE - GUJARAT Riots

The National Human Rights Commission had taken suo-moto cognizance of media reports about the
unearthing of a mass grave in Lunawada village of Panchmahal District of Gujarat. The Commission
sought a report from the State Government and CBI in the matter.

Large Scale incidences of communal violence were reported in Gujarat during February- March
2002. About three thousand people belonging to minority Muslim community were killed and
property was destroyed. The Gujarat state government and its police did not take appropriate
measures to prevent violence and failed to provide safety, security and justice to the victims of
Muslim minority community. What can be done in these type situations of massacre of people in
collusion with the state? Does NHRC have the power to inquire suo-moto into this case of gross
violation of human rights? Indeed, the NHRC initiated a suo-moto to inquiry into these incidents and
directed the state government to report the measures taken to restore peace in the state of
Gujarat. The Commission also approached the Supreme Court of India on behalf of the victims of the
Gujarat riots.
CASE Two - PUNJAB MASSCREMATIONS

The National Human Rights Commission awarded compensation of Rs.1.75 lakh each to the next of
kin of 1051 victims of the Punjab Mass Cremation Case. The Commission found that the bodies of
these per so ns were cremated by the State authorities in violation of rules on cremation of
unidentified bodies. The act amounted to violation of the dignity of the dead and hurt emotions and
sentiments of their kin, who would have preferred to perform their last rites, the Commission held.
The Punjab Government was directed to deposit Rs.18,39,25,000/- within three months for
disbursement to the next of kin.This case is a shocking incident of gross violation of human rights
wherein a large number of human bodies was cremated by the Punjab police. This case was referred
to NHRC by the Supreme Court. The Commission found the State of Punjab accountable and
responsible for the infringement of the right to life of the deceased. Again on 8 March 2006, the
Commission granted compensation in respect of 38 more persons.
CASE THREE - STARVATION DEATHS IN ORISSA
The NHRC took cognizance of the reports of deaths of people due to starvation in Koraput, Bolangie
and Kalahandi districts of Orrisa. It sent a team to report about the existing conditions. It also
appointed a special rapporteur to look after the relief and rehabilitation work. NHRC periodically
reviews the measures taken by the state government to prevent starvation deaths.
CASE F0UR - ENCOUNTER DEATHS IN ANDHRA PRADESH
The Andhra Pradesh Civil Liberties Committee (APCLC) complained to the NHRC about encounter
deaths wherein the police were killing people on the suspicion of being members of the People’s
War Group .The police said that the deaths took place when armed militants resisted arrest, but the
Andhra Pradesh Civil Liberties Committee insisted that there were extra-judicial killings amounting
to unjustified and unprovoked murders. They gave the details of 285 such incidents. NHRC inquired
 25

into six cases involving the death of seven people and formulated guidelines in 1997 for the first
time in India, detailing the procedure in respect of encounter deaths.

CASE FlVE - DEATHS DUE TO SILICOSIS

The National Human Rights Commission expressed deep concern at the deaths of tribals from
Alirajpur tehsil of Jhabua District of Madhya Pradesh, who worked as labourers in the quartz
crushing factories of Godhra in Gujarat due to silicosis/silico tuberculosis. The Commission learnt
about this tragedy when it went through a news report captioned ”Death Stalks Godhra again, in the
form of silicon dust” in the Indian Express on 19 September, 2007. As per the report, these tribals
were exposed to silica dust and no protection was given to them at their work place. The report also
said that about 200 tribals had died in the last four years. The report added that those labourers
who returned to their villages in Jhabua and died of silicotuberculosis in their villages were not
getting any compensation or retribution as they didn’t have documentary proof to process
compensation claims.
 26

Chapter-6
CIVIL SOCIETY AND HUMAN RIGHTS

On 3rd September, 2008, in the 3 day annual UN Civil Society Conference held at UNESCO Headquarter
in Paris and attended by some 2000 representatives of NGOs from 90 countries to mark the 60th
anniversary of Human Rights declaration of 1948, the UN highlighted the role played by civil society in
advancing human rights around the world. The Secretary General of UN, Ban-Ki-Moon delivered a
video message in the conference; "It is often those who most need their human rights protected, who
also need to be informed that the declaration exists - and that exists for them". He further said, w
human rights have been at the core of the UN's work since 1948".
Highlighting the indulgence of the civil society he observed, "At the same time civil society has been
on the front line," and added.;.... "For six decades human rights defenders have sacrificed liberty,
comfort and even life to ensure that all human beings can enjoy the rights enshrined in the Declaration
- irrespective of their race, religion, ethnicity, gender or other status." He stated that the human rights
and freedoms continue to be u a distant reality for too many people - and it is our duty to ensure that
these rights are a living reality - that they are known, understood and enjoyed by everyone,
everywhere."
The President of general Assembly Srgjan Karim (video message in the Conference), highlighting the
civil society's contribution in the advancement of human rights said, NGOs have played an important
role in putting human rights at the centre of humanity's agenda", he further stressed, "the value of
partnership between the UN, its member states and civil society, adding that the goal of achieving
human rights for all, while ambitious, can be achieved with such partnerships". - "working hand-in-
hand we can make universal human rights a reality for all of us."
"Civil society is composed of the totality óf voluntary civil and social organizations and institutions that
form the basis of a functioning society as opposed to the forced backed structures of a state
(regardless of that State's political system) and commercial institutions of the market." UNĎP explains
that, "civil society refers to non profit organizations and institutions, distinct from the state, the
market and the family. Civil society organizations include Community groups, academics and research
institutions, NGOs, cultural groups, professional associations and religious groups“.
The London School of Economics (Centre for Civil Societies) defines: "Civil Society re the arena of
uncoerced collective action around shared interests, purposes and values.
Civil society commonly embraces a diversity of spaces, actors and institutional forms, varying in their
degree of formality, autonomy and power, civil societies are often populated by organizations such as
registered charities, development non-governmental organizations, professional associations, trade
unions, self help groups, social movements, business associations, coalitions and advocacy groups.
“A dynamic and autonomous civil society, able to operate freely, knowledgeable and skilled with
regard to human rights bolsters OHCHR’s shared objectives, helps to address mutual concerns, and
supports the mission of OHCHR.” High Commissioner for Human Rights, Navi Pillay.
OHCHR recognises that durable and sustainable social change comes from civic organization motivated
by principles of non-discrimination, participation, accountability, and respect for human dignity.
Civil society actors also work to heal communities at conflict; give voice to the powerless; carry out
research and monitoring; and assist vulnerable populations to claim their rights. They work to advance
all human rights, including the right to development.
 27

More importantly, civil society incorporates notions of civility (i.e. an attitude of respect and
consideration among private citizens and in relations between the state and society) and notions of
citizenship (i.e. empowering individuals to seek control of the world in which they live). The strength of
civil society lies not in the numbers of people with membership in civil society organizations, but in the
legitimacy with which its participants can articulate issues and influence public and political thinking.
The civil society, thus in common parlance, refers to networks and relationships of those groups that
are not organised or managed by the State. It is expected to identify major problems in society,
articulate current issues, empower the disadvantaged, serve as an independent voice in strategic
debates, and provide a constructive forum for exchange of ideas and information between the key
actors in the policy process. The civil society encompasses enormous diversity. In terms of
membership and constituents, it includes just about all types of associations. For example, academic
institutes, community based organisations, consumer protection bodies, environmental campaigns,
human rights’ forums, labour unions, relief organisations, professional bodies, religious institutions,
women’s networks, youth campaigns and sometimes even business associations could fall under civil
society. The viewpoints on the composition of civil society are varied and debatable in the absence of a
consensus on its nature and scope.
Civil Society is necessary for all round development of the society, namely its civil, political, social,
cultural and economic development. Civil society, strictly, is a separate entity from the state, works in
an autonomous way. It has its own life and may not be confused with family or a clan or a locality. K.
Nielson says, "A viable civil society, a kind of third force between the state and the economy, on the
one hand, and the private sphere, on the other, seems to require some effective sense of community
and of there actually being a community to which people are committed.“
The concerns of the citizens and the voice of the people are reflected through the medium of civil
society. However in the context of India, the development of civil society, concerning the various
phases of human rights' movements in India has been traced by many Indian authors. In his article Ajay
Gudavarthy (2008) discussed in detail the human rights movements and development of civil society in
India concerning the human rights issues in governance of the country. (In the following paras
references have been largely drawn from the above article). The first phase of Human Rights
Movements was traced back to the year 1970 when Citizen for Democracy (CFD), an organization on
non- party basis was formed in the year 1974. The objective was to ensure the independence and
autonomy of various institutions such as judiciary, press, bureaucracy, election commission etc. After
the promulgation of emergency the movement got a set back but in 1976, People's Union of Civil
Liberties (PUCL) was constituted. The objective was to restore the rights curtailed during emergency;
to punish those who were responsible for excesses and to safeguard against taking recourse to
emergency provisions in future. During this period the civil society was mobilized within the
framework of the state and to make the state more responsive to recognize its constitutional
obligations towards the citizens. This was termed as 'State Civil Society Complementarity' phase to
achieve two programmes; "establishing the autonomy and independence of institutions of both the
state and civil society and entrenching and strengthening the project of citizenship by effectively
realizing citizens' civil, political and social rights."
With the 73rd and 74th amendment of the Constitution, a strong civil society has been formed at the
village, block, civil sub division and right up to the district level. The Panchayati Raj institutions
(including urban local bodies) both in rural and urban sector have played a very important role in
human rights movement in educating the people, making them aware about their rights and spreading
 28

the political consciousness. These grass root democracies have now emerged as potential vote banks
and the political process is not in a position to ignore their concerns. They have developed the
collective strength to demand their rights.
The UNDP has rightly advocated the concept of sustainable development and emphsised to eliminate
poverty, creating jobs, sustaining livelihoods, protecting and regenerating the environment and
promoting the advancement of women. It also emphasised further on strengthening the institutional
structure so that the civil society has the opportunity to effectively participate in decision making
process and thereby ensuring good governance. The UNDP legal empowerment cell strongly advocates
four focus areas for the poor property rights and tenure security, labour rights to livelihood &
entrepreneurship and rule of law and access to justice. Although, human right concerns were raised
since the advent of civil society yet their operation was confined within the framework of the state and
through the instrumentalities of the state institutions.

More attention to the right based approach have started in the late 1970s when international
attention was drawn towards the violation of human rights across the globe. The struggle to codify the
human rights jurisprudence was started in the late 1930s, with the efforts of the NGO named as 'the
Commission to Study the Organisation of Peace' (CSOP).
The following extract will be able to indicate the earlier efforts of civil society in assisting to codify the
UN declaration of Human Rights." exceptions, most studies of human rights NGOs focus on the period
beginning in the late 1970s when international attention turned in a concerted way to human rights,
and organizations like Amnesty International and Human Rights Watch (then Geneva Watch) gained
widespread popularity.
Through lobbying the US government and cultivating public support, the CSOP placed human rights on
the international agenda and demonstrated that NGOs have occupied a central place in the
development of international human rights from the very beginning. Now, the world has well codified
charter of human rights, the Covenants of Civil and Political Rights and on the Economic, Social and
Cultural Rights.
In view of the Paris Principles the protection and promotion of human rights has become a state
obligation for the Member States through legal institutions to be established within their respective
jurisdiction. Not only that the Office of United Nations High Commissioner for Human Rights was
created as a sequel to the Paris Principles to coordinate human rights charter at UN level but member
countries were obliged to create National Institutions of Human Rights for protecting and promoting
the human rights within the territorial jurisdiction of each member state.
The creation of National Human Rights Commission of India through the enactment of the Protection
of Human Rights Act, 1993 at the central level (optional at the regional levels) was necessitated largely
by the obligations of India under The UN protocols.
As is well known that India's vibrant civil society was voicing its concerns for the protection and
promotion of human rights of various sections of the society due to many specific happenings at the
political level in the country. The Naxalite movement in Punjab, Andhra Pradesh, the rise of terrorism
in Jammu & Kashmir and Punjab, the exploitation of tribal areas by dominant commercial and
industrial interests by certain sections of the society in collusion with Governments and many other
such activities have presented a very dismal record of the Indian government and State governments
at the National and International level, in abetting the violations of human rights in India, and
particularly dealing with radical and other movements in India.
 29

The civil society at the national level and also such international organizations as the Amnesty
International criticized the functioning of the Government of India and other State Governments which
compelled the Government of India to establish the institution of National Human Rights Commission
in India. Organisations such as Peoples Union for Civil Liberties (PUCL), Citizens for Democracy (CFD)
and many other such organizations contributed a lot in bringing reforms in educational institutions,
media, electoral reforms and establishing a rights based society whereby citizens could have access
not only to fundamental rights but also to challenge the authority of the state in other spheres too,
concerning economic, social and cultural rights of the citizens.
Various activists like leading lawyers, academicians, artists, poets, journalists, students and other NGOs
have given positive direction to the human rights movement and also enabled the civil society to raise
the issues like encounter deaths, lock up deaths and others.
Rajesh Tandon in his essay, "The civil society Governance Interface - An Indian perspective" states the
civil society is Voice of People'. Highlighting the role of civil society he records, "from green protestors
to self help groups, the message of civil society has become equivalent to hope, well being and reform
in many regions of the world.". He differentiated between government and governance. Civil society
has a positive role to play in both the processes of government and governance since 'public good' is
the purpose of civil society action. Public good is a wide arena and include, "promotion of education,
healthcare or sanitation, prevention of pollution and deforestation, peace or harmony, protection of
human rights and even expression of dissent".
Despite great thrust on economic progress, we have concentration of wealth in the hands of few while
a large section of society is living in abject poverty. The issues like social and economic exploitation,
crumbling law and order and rampant corruption are challenges before the civil society. Harsh
Mander, in his essay "Corruption and the rights to information" exposed the corruption by public
authorities and is of the view that through Right to Information act even ordinary citizen will be able to
question government actions, decisions and projects that will enable the civil society to bring
transparency and accountability to government action and thus promote public welfare. It is felt that
with the establishment of NHR Commission, The Civil Society got a formidable platform, either
individually, collectively or institutionally to voice their human rights concerns. NHRC is like the court
of records to absorb, study and expand the civil society agenda as well as define human rights in ever
developing area.
The National human rights commission as a voice of the civil society is taking up economic, social and
cultural rights and the issues related with right to health, right to equality, right to education, right to
women and children, elimination of bonded labour, rights of farmers, land acquisition issues, child
labour, rights to persons with disability, rights to displaced persons (including National Rehabilitation
and Resettlement Policies), eradication of manual scavenging, rights of Scheduled Castes and Schedule
Tribes, human rights education and awareness, international cooperation, and issues such as
starvation deaths, police atrocities, jail reforms, illegal detention, death in police custody, atrocities on
women, child abuse and ragging issues; these are all issues which our vibrant civil society is concerned
about.
In the recent times, the civil society has shown its ability to coalesce against various state and even
judicial actions for providing criminal justice in very important cases such as Ruchika suicide case,
Priyadarshni Mattoo murder case, Jessica Lal case, Nitesh Katara case and various corruption cases as
Commonwealth Games corruption, Kargil Gate (Adarsh Society) case, G 2 Spectrum case, 26/11
terrorist attack on Mumbai hotels. The powers that be are now compelled by the public opinion
 30

formed through the various section of the civil society to act in matters where state action is either
found inadequate or unjust by the people.
One remarkable achievement of civil society in India is the enactment and implementation of Right to
Information Act in 2005 which led to the empowerment of even the most ordinary member of the civil
society. The declaration of assets by judges, the electoral reforms and fight back of society against land
acquisition, mining exploitation and issues relating to tribal rights are all successful stories of civil
society of India

NATIONAL COMMISSION FOR WOMEN

By 1970s, as more and more evidence with regard to the subordinate status and position started
coming in and women’s issues were vociferously raised by women’s movements all over the world, it
was also emphasised that the state has to take the responsibility and lead in achieving the objective of
gender equality by incorporating women’s perspectives and concerns in its policies and structures. In
1971 on a request from United Nations to prepare a report on women’s status, the Government of
India (GOI) constituted a national level Committee to review the status of women in India since
independence. The Department of Social Welfare was identified to do this. Phulrenu Guha, then
minister-in-charge of Social Welfare who was given this responsibility insisted that such a study about
women’s status in Indian society should be considered a national imperative since, while reviews had
been undertaken of the condition and status of Scheduled Castes and Backward Classes, there has not
been a similar kind of study on women. She even proposed constitution of a Commission of Enquiry for
the purpose.
The Committee on the Status of Women in India, whose report coincided with the International
Women’s Year, compiled evidence of gender gaps in virtually every sector and highlighted the
inequalities suffered by women in the spheres of employment, health and education and the failure of
government to ensure the application of rights guaranteed by the Constitution to women.
The Committee pointed out that the Indian State has failed in its constitutional responsibility of not
discriminating on grounds of gender. On a stronger note it said that there seemed to be no
acknowledgement of women’s work and needs in all the major sectors of Indian economy. In fact
women had been increasingly viewed by the planners as not being in need of an independent
livelihood, to the point where women's decreasing work participation rate and share of employment
increasing poverty and insecurity in sectors of the economy in which they used to dominate earlier
(forestry, agriculture, livestock, cottage industry, sericulture, fisheries etc.) were not even viewed as
problems requiring change.
The report suggested that recasting the employment policy for women requires reexamination of
existing theories regarding their suitability for different types of work and special efforts to promote
equality of opportunity by giving due attention to disabilities and handicaps of women. This meant
that any policy or action programme for the emancipation and development of women must have an
integrated approach. The report pointed out that the processes of development had adversely
impacted on women by leaving them out of ‘both the discourse and practice’. The Committee
recommended that the Government of India should have a National Policy on Women’s Development
to give adequate attention and provide a frame of reference for assessment of government and
voluntary efforts. The report also suggested follow up mechanisms and processes, to be set up by the
state to look into the issues raised in the report and to achieve the constitutional goals of equality and
justice for women. The operationalisation of the recommendations of the Committee on the Stats of
 31

Women in India (CSWI) required new approaches and institutional support to translate intent into
action. The Parliamentary debate on the CSWI Report concluded in a very wide mandate to the
government “to remove all disabilities that Indian Women suffer from”. What followed was the
process of formation of National Machinery embedded within the larger structures of government.
At the same time, at the international level the UN led policy initiatives both in terms of requesting the
countries to bring out status reports on women in various countries and following that asking them to
create institutional mechanisms at the national and international levels to follow up the
recommendations of these reports, led to the establishment of different kinds of structures within the
governmental bureaucracy to look after women’s interests as chalked out in the various policy
documents of the government. The term that was used as these structures/mechanisms evolved with
the objective of supporting and monitoring women’s development was “National Machinery”. At the
international level three world conferences (1975 Mexico, 1980 Copenhagen, and 1985 Nairobi) gave
further impetus to the setting up of institutional mechanisms at the national level, to promote the
status of women.
The Committee on the Status of Women in India (CSWI) recommended nearly two decades ago, the
setting up of a National Commission for women to fulfil the surveillance functions to facilitate
redressal of grievances and to accelerate the socioeconomic development of women.
Successive Committees, Commissions and Plans including the National Perspective Plan for Women
(1988-2000) recommended the constitution of an apex body for women.
During 1990, the central government held consultations with NGOs, social workers and experts,
regarding the structure, functions, powers etc. of the Commission proposed to be set up.
In May 1990, the Bill was introduced in the Lok Sabha.
In July 1990, the Human Resource Development Ministry organized a National Level Conference to
elicit suggestions regarding the Bill. In August 1990, the government moved several amendments and
introduced new provisions to vest the commission with the power of a civil court.
The Bill was passed and received accent of the President on 30th August 1990.

NATIONAL COMMISSION FOR WOMEN- CHAIRPERSONS

▪ The First Commission was constituted on 31st January 1992 with Mrs. Jayanti Patnaik as the
Chairperson.
▪ The Second Commission was constituted on July 1995 with Dr. (Mrs.) Mohini Giri as the
Chairperson.
▪ The Third Commission was constituted on January 1999 with Mrs. Vibha Parthasarathy as the
Chairperson.
▪ The Fourth Commission was constituted on January 2002 and the government had nominated
Dr. Poornima Advani as the Chairperson.
▪ The Fifth Commission has been constituted on February 2005 and the government has
nominated Dr. Girija Vyas as the Chairperson.
▪ The sixth Commission was constituted on August 2011 with Mrs. Mamta Sharma as the
Chairperson.
 32

▪ The seventh commission has been constituted in 2014 with Ms. Lalitha Kumaramanglam as
Chairperson.
▪ The eighth commission constituted 7th August, 2018 with Mrs. Rekha sharma as chairperson.
OBJECTIVES OF NATIOANAL COMMISSION FOR WOMEN

The National Commission for Women was set up as statutory body in January 1992, under the National
Commission for Women Act 1990, ( Act No. 20 of 1990 of Govt. of India ) in order to:

▪ Review the Constitutional and Legal safeguards for women

▪ Recommend remedial legislative measures

▪ Facilitate redressal of grievances

▪ Advise the Government on all policy matters affecting women .

In keeping with its mandate, the Commission initiated various steps to improve the status of women
and worked for their economic empowerment during the years of the study. The Commission
completed it’s visits to all the States, UTs except Lakshdweep and prepared Gender Profiles to assess
the status of women and their empowerment. It received a large number of complaints and acted suo-
moto in several cases to provide speedy justice. It took up the issue of child marriage, sponsored legal
awareness programmes, Parivarik Mahila Lok Adalats and reviewed laws such as Dowry Prohibition
Act, 1961, PNDT Act 1994, Indian Penal Code 1860 and the National Commission for Women Act, 1990
to make them more stringent and effective. It organized workshops, consultations, constituted expert
committees on economic empowerment of women, conducted workshops, seminars for gender
awareness and took up publicity campaign against female foeticide, violence against women, etc. in
order to generate awareness in the society against these and to empower and provide protection to
women.

The Mandate of the Commission

Section 10(1) of the Act of 1990 provides a fourteen-point mandate for the National Commission for
Women. A general overview of the mandate has been provided11 and a few significant clauses have
been discussed below.
Broadly speaking, the Commission’s mandate can be divided under four heads –
(a) to safeguard of rights of women granted by the constitution and laws
(b) to study problems faced by women in the present circumstances and make recommendations
to eradicate these problems
(c) to evaluate the status of Indian women from time to time
(d) to fund and fight cases related to women’s rights violations.
(e) To safeguard Rights of Women These are enshrined in sub clauses (a) to (e) of Section 10 (1) of
the Act. They expect the Commission to examine the safeguards for women provided by the
law and the Constitution. The Commission is to submit report about these safeguards and make
 33

recommendations about the implementation of the same. The Commission is also expected to
review these safeguards periodically to identify and remedy any lacunae and inadequacies.
The Commission is to carry out studies involving the problems arising out of discrimination against
woman and provide remedies for these problems. As per this part of the mandate, the Commission is
also expected to advise the government about the socio – economic development of women based on
these studies.
Strategies of the NCW to empower women
▪ Economic Empowerment through building up skills and securing access to gainful employment.

▪ Political Empowerment through awareness, training and mobilization for equitable

representation in all fora.
▪ Prevention of violence and discrimination against women inside and outside the home through
legal reform and sensitive enforcement.
▪ Amelioration of conditions of disadvantaged women namely : Physically challenged women
including those who are visually disabled or mentally affected. Socially challenged women
including muslim women, SC/ST women, widows and women who are into prostitution.
▪ Prevention of indecent representation of women in the media through legal and social
sanctions.
Legal Interventions
The Commission’s mandate is related to legal research for safeguards of women, legal interventions,
recommendations on bills and similar matters relating to the legal system of India. The legal cell of the
Commission was set up in order to deal with these functions. The activities of this cell can be divided
into three categories: (a) legal amendments proposed (b) new laws and bills proposed and (c) court
interventions.
(a) Legal Amendments: the Commission’s mandate requires that it analyze and improve
existing laws from time to time. The Commission has proposed sixteen amendments till date. The
commission has sought to amend the Indian Penal Code, 1860 in order to curb the sale of minor girls;
the Hindu Marriage Act, 1955, in order to omit epilepsy as grounds for divorce; the Dowry Prohibition
Act of 1961, in order to bring the problems of Dowry deaths in to the lime light and deal with them
appropriately and the NCW Act, 1990, in order to gain greater autonomy and jurisdiction within the
country.
(b) New Bills Proposed: in the course of fourteen years the Commission has proposed a total of seven
bills and has drafted one convention for SAARC relating to trafficking of women and children. Amongst
other bills the Commission proposed the Marriage Bill, 1994; the Criminal Laws (Amendment) Bill,
1994 (with reference to child rape); the Criminal Laws (Amendment) Ordinance, 1996 and the
Domestic Violence to Women (Prevention) bill, 1994. The Protection of Women from Domestic
Violence Bill was passed in 2005.
(c) Court Intervention: the Commission has intervened in numerous court cases, in order to help
women whose rights have been violated, of these cases the researcher will only be able to mention
few of the more prominent ones. The Commission intervened in Bhateri gang rape case and supported
the victim and provided for her protection.
 34

To study and Research about Women Problems The research cell of the Commission is that organ of
the Commission that looks into the emerging problems of Indian women due to discrimination and
gender bias. This cell is also responsible for educating women about their rights through a variety of
seminars, workshops, conferences and public hearings. This cell has also organized various special
studies and set up expert committees to look into and suggest remedies for problems, which have
evolved recently. Currently the cell is dealing with issues related to Gender and Law Enforcement,
Impact of Displacement of Women, Sexual Harassment at Workplace, Issues concerning Prostitution
and Political Empowerment of Women
Importance of the Commission
Women as a class neither belong to a minority group nor they are regarded as a backward class. India
has traditionally been a patriarchal society and therefore, women have always suffered from social
handicaps and disabilities. Thus, became necessary to take certain ameliorative steps in order to
improve the condition of women in the traditionally male dominated society. The Constitution does
not contain any provision specifically made to favour women as such. Though Art. 15 (3), Art. 21 and
Art. 14 are in favour of women, they are more general in nature and provide for making any special
provisions for women. The Supreme Court through it’s interpretive processes has tried to extend some
safeguards to women. Through judgments in cases such as Bodhisattwa Gautam v. Subra Chakraborty
(AIR 1996 SC 922) and the Chairman Rly Board v. Chandrima Das( AIR 2000 SC 988) where rape was
declared a heinous crime, as well as the landmark judgment in Visakha v. State of Rajasthan, (AIR 1997
SC 3011). the courts have tried to improve the social conditions of Indian women. But these have
hardly sufficed to improve the position of women in India. Thus, in light of these conditions, the
Committee on the Status of Woman in India as well as a number of NGOs, social workers and experts,
who were consulted by the Government in 1990, recommended the establishment of a apex body for
woman. The lack of constitutional machinery and social interest formed the impetus and need for the
formation of the National Commission for Women. It is apparent from the prior mentioned conditions
and problems that women in India, though in a better position than their ancestors, were handicapped
to a great extent, in the early 1990s and these handicaps and injustices against the Indian women
prompted the Indian Government to constitute the first National Commission for Women in 1992.
NATIONAL COMMISSION FOR SC/STs
It was created by the 65th amendment and replaced the special officer for SC and ST. By
89th amendment it was bifurcated and a National commission for SC was created.
COMPOSITION
It has chairman, vice chairman and three other members. All appointed by the president. Their
condition of service and tenure is determined by the president. Currently three years.
Chairman has status of a cabinet minister and vice chairman has a rank of a minister of state.
POWERS
To regulate its procedure. Acts as a civil court when it tries a suit and can summon witness, official
records, examine a person on oath, receive affidavits, any other function as the president determines.
It also has to perform same functions for any backward caste as president may determine and the
Anglo Indian community. Centre and states have to consult this Commission while making policies for
SC and STs.
FUNCTIONS OF NATIONAL COMMISSION FOR SC/STs
 35

▪ To investigate and monitor all matters relating to the constitutional and other legal safeguards
for the SCs and to evaluate their working;
▪ To inquire into specific complaints with respect to the deprivation of rights and safeguards of
the SC’s;
▪ To participate and advise on the planning process of socio-economic development of the SCs
and to evaluate the progress of their development under the Union or a state;
▪ To present to the President, annually and at such other times as it may deem fit, reports upon
the working of those safeguards;
▪ To make recommendations as to the measures that should be taken by the Union or a state for
the effective implementation of those safeguards and other measures for the protection,
welfare and socio-economic development of the SCs; and
▪ To discharge such other functions in relation to the protection, welfare and development and
advancement of the SCs as the president may specify.
▪ To investigate and monitor all matters relating to the safeguards provided for the Scheduled
Tribes under the Constitution or under any other law for the time being in force or under any
order of the Government and to evaluate the working of such safeguards;

▪ To inquire into specific complaints with respect to the deprivation of rights and safeguards of
the Scheduled Tribes;

▪ To participate and advise in the planning process of socio-economic development of the

Scheduled Tribes and to evaluate the progress of their development under the Union and any
State;

▪ To present to the President, annually and at such other times as the Commission may deem fit,
reports upon the working of those safeguards;

▪ To make in such reports, recommendations as to the measures that should be taken by the
Union or any State for effective implementation of those safeguards and other measures for
the protection, welfare and socio-economic development of the Scheduled Tribes, and

▪ To discharge such other functions in relation to the protection, welfare and development and
advancement of the Scheduled Tribes as the President may, subject to the provisions of any law
made by Parliament, by rule specify.

The commission submits an annual report to the president. It can submit a report on any other time as
it may seem right to it. Such a report is tabled by president in parliament along with Action taken on it
and reasons for non acceptance of advice. Reports belonging to states are sent by president to
concerned governors who do the same in respective legislatures.
 36

Powers of the Commission

(Under Clause (8) of Art. 338A)
For Investigation and Inquiry, the Commission is vested with powers of a civil court having authority to:
• Summon and enforce attendance of any person and examine on oath;
• Discovery & production of any documents;
• Receive evidence on affidavits;
• Requisition any public record or copy thereof from any court or office;
• Issue Commissions for examination of witnesses and documents; and
• Any matter which President, by rule, may determine.
The Commission has arrived at a classification of the constitutional safeguards it seeks to monitor and
evaluate in terms of five broad categories. These are (a) social safeguards (b) economic safeguards(c)
educational and cultural safeguards (d) political safeguards (e) service safeguards.
Under social safeguards the Commission has identified four constitutional provisions. These are:
Article 17 that abolishes untouchability, and makes the enforcement of disability arising out of
untouchability, a punishable offence; Article 23 that prohibits traffic in human beings; Article 24,
pertaining to child labor; and Article 25(2)(b) that throws open all Hindu religious institutions of a
public character to all classes and sections of Hindus. Though neither Article 23 nor Article 24 contains
any reference to SCs and STs, the Commission may bring them within its ambit, on the grounds that
the content of these articles is of relevance to the welfare and well-being of those sections of society
whose responsibility has been entrusted to it.

The Commission has argued that the operation of these provisions fall within its domain as the large
majority of victims of the traditional practices of forced labor are from these sections of society, and a
substantial number of child labourers are also from these sections. Thus, there is a measure of
autonomy that the Constitution grants to the institution in its operation, and in interpreting the
meaning of Article 338 that grants the Commission powers to determine it own procedure.
The key legislations that the Commission has identified under these safeguards are: the Protection of
Civil Rights Act, 1955 and the Scheduled Castes and Scheduled Tribes (prevention of atrocities) Act,
1989, under Article 17; and the Bonded Labor System (Abolition) Act, 1976, under Article 23. The first
two are of central importance to the activities of the Commission, given the magnitude of the
atrocities against the SCs and STs and the widespread practice of untouchability in the country. The
Protection of Civil Rights Act was originally enacted in 1955, as the Untouchability (Offences) Act, 1955.
It was amended to its present form and renamed in 1976.
The Act specifies the offences under the constitutional proscription of untouchability, and the modes
in which the state and union governments are to act in the face of the occurrence of such acts.
Further, the Union Government formulated rules in continuation of this Act in September 1977, called
the Protection of Civil Rights Rules, 1977.
These rules prescribe that state governments shall appoint an officer of a rank not lower than sub-
divisional magistrate for purposes of making an enquiry into any alleged offence under this Act. They
also specify the procedures to be followed by the officer, and the timeframe for finishing and
submitting the inquiring officer’s report. Similarly, the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 defines the atrocities and provides for the special courts for the
trial of such offences. The rules range from definitive preventive measures to the prescription that all
 37

state governments send an annual report to the central government regarding the measures taken by
it in the previous year to implement the provisions of the act.
The Commission’s monitoring function makes it the responsibility of the Commission to ensure that all
the norms invoked in these laws and rules are adhered to, and no procedures are violated in the
process of addressing the grievances of the victims of offences. It can, moreover, initiate an inquiry of
is own accord if it wishes to find out if such a violation has indeed taken place, and can fix
responsibility and recommend action. However, the recommendations of the Commission are not
binding.
Under the economic safeguards the Commission (in its earlier form of the NCSCST) identified Articles
23, 24 and 46 (as discussed above) to constitute the general economic safeguards for the SCs as well as
STs. Beyond these provisions, it also identifies some specific constitutional safeguards provided for
ensuring the economic well being of the STs.
The Commission has identified Articles 15(4), 29(1), and 350 (A) as educational and cultural safeguards.
The most significant of these is Article 15(4) that was added as the First Amendment in 1951. This
article empowers the state to make provision for the social and educational advancement of backward
classes. This enables the state to provide reservations in educational institutions including in technical,
professional and specialized courses. The phrase `backward classes’ used here is a generic term that
includes SCs, STs, other backward classes, denotified tribes, nomadic and semi-nomadic communities.
The key political safeguards are contained in Articles 330 and 332, which provide for the reservations
of seats for SCs and STs in the Lok Sabha (the directly elected lower house of Parliament), and the
state legislative assemblies respectively. These provisions are to be read along with article 334, which
stipulates the time-frame for the reservations, and has been periodically amended to extend the
period from the initial ten years. Further, political safeguards are provided for STs in the states of
central and north-eastern India.
Finally there are the all-important service safeguards, contained in Articles 16 (4), 16(4A), 335 and 320
(4). Article 16 (4) lays down that the state may make reservations for the backward classes in
appointments to the services under the state, while Article 16(4A) - which was inserted through the
Seventy-Seventh Amendment Act, 1995 - provides for the application of reservations in matters of
promotion.
Further, a more specific mention of SCs and STs in respect of the reservations in service is made in
Article 335 which lays down that their claims have to be taken into consideration when making
appointments to services and posts in the union or state governments. Appointments in this respect
need not be routed through the Union Public Service Commission or the State Public Service
Commissions vide Article 320(4).
A significant component of the Commission’s mandate is to investigate, monitor and evaluate these
safeguards. The Commission’s interpretation of these three key terms is also an important aspect of
the framework within which it functions. To begin with, the Commission has unlimited power to
investigate any matter relating to the safeguards listed above. In the words of the Commission itself,
this is a “broad enabling provision”. The specifics of the matters to be investigated are decided by the
Commission from time to time.
Secondly, the monitoring of the working of the safeguards implies keeping a tab on whether all the
provisions listed above are being followed everywhere and at all times. This responsibility is specific to
the Commission in present incarnation, and was not a part of its earlier forms in either 1978 or 1987.
 38

Thus, the Commission has to keep a watch on, and point to discrepancies and deficiencies in, the
application of safeguards so that “midcourse correction can be applied immediately”. This capacity of
the Commission assumes great significance in the event where it has to intervene in cases of atrocities.
Here, as a part of its monitoring activity, the Commission immediately contacts the law enforcement
and administrative machinery of the relevant state to ensure that the provisions of the Prevention of
Atrocities Act, 1989 are adhered to.
Its monitoring activity is expected to be carried out scrupulously, starting from the mandatory visit of
district magistrate to the scene of crime, through the appointment of special public prosecutors, to the
last detail of the handling the case by the administration. It further monitors whether adequate
medical assistance, protection and mandatory compensation is provided to the victims .

It is clear from these observations that, in the understanding of the Commission, monitoring does not
mean merely the collection of statistics or figures but is an integral part of the process of intervention
and evaluation. However, the evaluative function of the Commission is much broader in scope than as
a component of the monitoring process.
All programs conceived under the provisions of constitutional safeguards are studied to assess their
successes and deficiencies, for the further refinement of programme formulation and implementation.
Further, as already noted, the Commission has the mandate to inquire into specific complaints
pertaining to the deprivation of rights, and safeguards for, the SCs.
The Commission has by rule determined that any member of the SC community might lodge a
complaint with the Commission, either by addressing it directly to the Chairperson or Vice-Chairperson
or secretary at the headquarters in Delhi, or to the heads of the state offices. The complainant has to
reveal his /her full identity. However, the Commission does not consider matters which are sub judice,
or matters over which a court has already pronounced a judgment. The remedial action that the
Commission suggests upon investigating the matter is purely recommendatory in character.
NATIONAL COMMISSION FOR MINORITIES
India attained independence from British colonial empire in 1947 after nearly two hundred years of
subjugation. The freedom struggle and independence came at a huge cost. In the ensuing struggle
against the British empire, religious lines divided the Indian population. A new nation, Pakistan, was
carved out from the eastern and western parts of India. The division of India left nearly fifteen million
people displaced and more than a million dead during one of the bloodiest mass migrations in history.
India is a multi-religious, multi-cultural, multi-lingual and multi-racial country, interwoven into an
innate unity by the common thread of national integration and communal harmony. 2. The social
pluralism of India is fortified by the unique Constitutional concept of secularism, and constitutionally
mandated protection and promotion of rights of all minority communities. The Indian Constitution
enshrines secularism in its Preamble. It guarantees fundamental rights to all its minorities.
Independent institutions, including Judiciary, Human Rights Commission, and Minorities Commission,
protect and promote these rights.
Nevertheless, as per the 1951 census, they constituted a minority of the Indian population (9.8
percent) alongside Christians (2.3 percent), Sikhs (1.89 percent), Buddhists (0.74 percent), and Jains
(0.46 percent). [5] As a result of the experiences of the partition of the nation and subsequent
incidences of religion-based violence in the nation, the need for a dedicated commission emerged to
safeguard the rights of the minorities laid down in the Constitution of India.
 39

On January 12, 1978, the Ministry of Home Affairs established the National Minorities Commission of
India in a resolution which specifically mentioned that: “despite the safeguards provided in the
Constitution and the laws in force, there persists among the Minorities a feeling of inequality and
discrimination. In order to preserve secular traditions and to promote National Integration the
Government of India attaches the highest importance to the enforcement of the safeguards provided
for the Minorities … in the Constitution…”. [7] In 1984, the Minorities Commission was detached from
Ministry of Home Affairs and placed under the newly created Ministry of Welfare. Once the National
Commission for Minorities Act was enacted in 1992, the Minorities Commission became a statutory
body (i.e. recognized by the constitution) and was renamed as National Commission for Minorities.
Since 1993 there have been eight successive National Commission for Minorities in place with
statutory status. The government of India recognizes six religious communities — Muslims, Christians,
Sikhs, Buddhists, Zoroastrians (Parsis), and, Jains – as minority communities. Together they constitute
20.22 percent of India’s population. The Commission requires representation from a member of each
of these communities in addition to a Chairperson and a Vice Chairperson. Together these eight
officials (six representatives from each of the six minority communities and a Chairperson along with a
Vice-Chairperson who belong to either of the six minority communities) constitute the Commission.
National Commission for Minorities Act 1992
Under the National Commission for Minorities Act, 1992 the government formed the National
Commission for Minorities (NCM) which consist of Chairperson, a Vice-Chairperson and five Members.
The five Members including the Chairperson shall be from amongst the minority communities.
Definition of minority
The act defines a minority as “a community notified as such by the Central government.”
Government of India has declared six religions namely, Muslims, Christians, Sikhs, Buddhist, Parsis and
Jain (included in 2014) as religious minorities in India.
Together they constitute 20.22 per cent of India’s population.

Constitutional provisions for minorities

Constitutional provisions related to minorities can be seen in Fundamental Rights (FR), Directive
Principles of State Policy (DPSP), and Fundamental Duties (FD).
Fundamental Rights:
• ARTICLE 14: people’s right to ‘equality before the law’ and ‘equal protection of the laws’
• ARTICLE 15: prohibition of discrimination against citizens on grounds of religion, race, caste, sex
or place of birth
• ARTICLE 16: 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 25: people’s freedom of conscience and right to freely profess, practice and propagate
religion – subject to public order, morality and other Fundamental Rights;
• ARTICLE 26: the 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 27: the prohibition against compelling any person to pay taxes for promotion of any
particular religion’
 40

ARTICLE 28: people’s ‘freedom as to attendance at religious instruction or religious worship in

educational institutions’ wholly maintained, recognized or aided by the State.

Ministry of Minority Affairs was established on 29th January, 2006. It has been mandated for
formulation of policies, schemes and programmes for welfare and socio-economic development of 6
(six) notified minority communities namely, Muslims, Christians, Sikhs, Buddhists, Parsis and Jains,
which constitute more than 19% of India’s population. From October 2016, the mandate of the
Ministry has been expanded to manage Haj Pilgrimage as well.
Ministry adopted a multi-pronged strategy for development of minority communities with focus on
educational empowerment; infrastructure development; economic empowerment; fulfilling special
needs; and strengthening of minority institutions.
The welfare and development schemes of the Ministry focus on poor and deprived sections of the
minorities. Majority of schemes have devised the eligibility criteria on economic basis to ensure that
the benefits reach to poor and deprived sections.
The educational schemes cover scholarships for all levels, fellowships and interest subsidy to promote
higher education and support for providing good quality coaching to enable minorities to go for
Government and private jobs.
In tune with “Skill India Mission” and “Make in India Mission”, the Ministry has strengthened and
expanded its job linked “Seekho aur Kamao” scheme and implemented schemes namely, USTTAD for
preservation of traditional crafts/arts and “Nai Manzil” to integrate education with skills for economic
empowerment of minority communities.
There is special scheme namely “Nai Roshni” for empowerment of minority women. The other special
programme “Jiyo Parsi” concerns population decline of Parsi community. “Hamari Dharohar” scheme
is for preservation of rich heritage and culture of minorities under overall concept of Indian Culture.
In tune with the Digital India campaign, the scholarship/stipend is being paid directly to the account of
beneficiaries in the schemes (1) Merit-cum-Means based Scholarship Scheme for Minorities,(2) Post-
Matric Scholarship Scheme for Minorities, (3) Pre-Matric Scholarship Scheme for Minorities, (4)
Maulana Azad National Fellowship for Minority Students, (5) Nai Udaan - Support for students clearing
prelims conducted by UPSC, SSC & State Public Service Commissions. Direct Benefit Transfers through
PFMS integration for rest of the schemes of the Ministry has been initiated. On-line Haj applications
through web portal and mobile applications were initiated and more than 50% of the Haj applications
are received online. Ministry has also taken action to shift to the e-office mode.
Ministry has undertaken various media campaigns for publicity through print and outdoor publicity
modes. The campaigns included print advertisements in various regional as well as national dailies,
which were aimed at publicizing several ongoing schemes of the Ministry.
Outdoor publicity campaigns were also conducted during the year 2019-20 with an aim to popularise
the initiatives of the Ministry under different ongoing schemes along with the Hunar Haat events.
Outdoor publicity has been done for ‘Hunar Haats’ at (i) Jaipur in August-September, 2019, (ii) Indian
International Trade Fair, New Delhi in November, 2019, (iii) Prayagraj in November, 2019, (iv) Mumbai
in December, 2019 and (v) Ahmedabad in December, 2019.
Ministry observed “Swachhata hi Sewa” Campaign during the period from September 11 to October 2,
2019. An exercise to assess the utility of all files, magazines/brochures was carried out and weeding
out of all old temporary files and other such records was done.
 41

Ministry celebrated Swachhta Pakhwada commencing from 16th December 2019 at the Pt. Deen
Dayal Antyodaya Bhawan, CGO Complex in the presence of Officials/Officers of the Ministry. A
workshop on Swachhata Pakhwada was organized by the Ministry on 16th December, 2019.
Five teams of officials of the Ministry visited Chhatarpur Mandir, Uttara Swamimalai Temple, Free
Church, Jantar Mantar, Fatehpuri Masjid, and Jain Temple during the period from 18th December 2019
to 24th December, 2019, and undertook cleaning activities in and around the respective premises.
Role of NCM
• The commission monitors the working of the safeguards provided in the Constitution and in
laws enacted by Parliament and the State Legislatures.
• It also makes recommendations for the effective implementation of safeguards for the
protection of the interests of minorities by the Central Government or the State Governments.
• Evaluation of the progress of the development of minorities under the Union and States.
• Looking into specific complaints regarding deprivation of rights and safeguards of minorities
and taking up such matters with the appropriate authorities.
• Undertaking research and study into the problems arising out of any discrimination against
minorities and recommending measures for their removal.
• Making special reports to the central government or any matter pertaining to minorities
particularly the difficulties faced by them.
• Any other matter which may be referred to it by the Central Government.
• To mark the adoption of the “Declaration on the Rights of Persons belonging to National or
Ethnic, Religious and Linguistic Minorities” by the United Nations in 1992, it observes the
Minorities Rights Day every year on 18th December.
Issues faced by the NCM

In a book titled Minorities Commission 1978-2015: Minor Role in Major Affairs authored by former
NCM chairman Tahir Mahmood, NCM is referred to as a toothless tiger, white elephant, Sarkari
puppet. It has been referred to as “National Commission for Tokenism” too.

▪ No constitutional status: NCM does not have a constitutional status (it is a statutory body)
which if bestowed upon it would give NCM autonomy and clout it needs to carry out its
functions effectively.

▪ Absence of any constitutional power: It lacks the constitutional power to conduct independent
enquiries or investigations in cases of the transgression of minorities’ rights, and especially in
cases of communal violence, render the Commission legally incapacitated to fulfil its duty. This
limitation has also been mentioned in a recommendation in the Commission’s 2007-08, 2008-
09, and 2010-11 annual reports of the Commission.

▪ NO LEGAL POWER: It hasn’t been provided with any “teeth” in terms of their legal capacity to
carry out their Constitutional mandate. The decision of the Commission can be overturned by
the district and high courts.

▪ No reports tabled: Section 13 of the NCM Act mandates that the annual report, “together with
the memorandum of action taken on the recommendations contained therein’’, as well as the
 42

reasons for non-acceptance of the recommendations be tabled before Parliament annually.

Sources said these reports have not been tabled in Parliament since 2010. Further, its
recommendations are routinely rejected or simply filed away and forgotten.

▪ Partisan representation: There has been a shift in the kind of members appointed to the body.
While past appointments included former chief justices, civil servants, academicians etc, the
recent appointees were mostly “social activists” with links to the ruling party.

▪ Capacity related challenges: These include human resource deficiency as is the case now. The
Commission is unable to effectively fulfil its mandate when the key positions of Commission
members remain vacant. For example, the Commission mandated to conduct hearing is unable
to process the numerous cases it receives.

▪ Underutilization of technology: there is no real-time communication of schedules and

appointments for hearings with the complainants which results in wastage of time and money.

▪ Only a few State minority commissions: A major recommendation of the Annual Conference of
State Minorities Commissions (2008) was “that the State Governments should also set up State
Minorities Commissions on similar lines (as that of the NCM).” However, only 16 states have set
up such commissions. These too remain understaffed and mostly dysfunctional due to lack of
capacity in human resource as well as in the absence of a regular monitoring mechanism of the
State Commissions’ workings.

▪ Pressure on NCM: with ineffective State Finance Commissions, the pressure is borne by the
NCM which further reduced its efficiency.

▪ Inadequate powers to State Minority Commissions: State Minority Commissions are not given
adequate powers to implement, monitor, and review developmental programs and welfare
schemes under the Prime Minister’s 15 Point Program for Minorities.

▪ Lack of research: Only a small proportion of the allocated budget of the Commission is spent in
research activities even when conducting “studies, research and analysis on the issues relating
to the socio-economic and educational development of minorities” is among the primary
mandates of NCM

CHAPTER 08- ISSUES AND CONCERNS OF WOMEN

▪ Missing of girl child: The idiom “missing women” was for the first time used by Prof. Amartya
Sen when he showed that in many developing countries the proportion of women as compared
to men in the population is suspiciously low. The lopsided sex ratio in many states in India is
one of the main reasons because of which women, and girls, go `missing’. The girls from the
 43

poor families in India are sold of by the brokers to the men resulting in imbalanced sex ratio.
Apart from these there are cases of women going missing from their marital homes.

▪ Dowry deaths: In India the unusual dowry deaths of the women at their matrimonial home has
been increasing at a startling rate. Dowry disputes are quite a serious problem. The National
Crime Records Bureau in India in its report had disclosed that in 2012 around 8233 newly
wedded brides were killed for dowry . “The role of husband’s reaction to dowry brought at the
time of marriage on subsequent experience of marital violence. The substantially reduced risk
of experiencing physical and sexual violence among women whose husbands were satisfied
with the dowry reflects the strong influence of dowry in determining women’s position within
the household” . In spite of the fact that Section 498A of the Indian Penal code strongly deals
with the person responsible for marital cruelty and has declared taking and giving of dowry as a
crime it is still been widely practised in India. Infact ‘The Dowry Prohibition Act’ has not been
adequately put into operation in India. It has been discovered that mostly a number of states
neither have a Dowry Prohibition Officers nor do they made it obligatory to keep the record of
things given and received.

▪ Domestic Violence: In spite of the fact that in India we have ‘Protection of Women from
Domestic Violence Act 2005’, domestic violence still remains a serious problem. In fact a major
scale of violence that a woman is subjected to in India is linked to the domain of domesticity.
The reasons for Domestic aggression are primarily ingrained in the patriarchal nature of the
Indian society which supports such violence at home. Besides this the problem of alcoholics of
husband or desire for endowments or a male child are some of the other factors liable for
household brutalities in India. The domestic violence had taken the form of psychological and
physical abuse against women like slapping, hitting, public humiliation, etc. In India the ‘Dowry
Prohibition Act and the Protection of Women from Domestic Violence Act and cruelty under
Section 498 A of the Indian Penal Code in 1983’4 declares brutality to a woman in her conjugal
house a punishable and non bailable offence that can lead to a sentence of up to three years
and fine.

▪ Sati: Even though Sati, an action whereupon the exercise of setting widows on the funeral pyres
of their spouse, was barred in the pre colonial India by social reformer Raja Rammohan Roy, but
this practice continued to prevail in post colonial India. The discourse on sati was invigorated in
the post independence India in 1986 when a young bride from Rajasthan named Roop Kanwar
was set on the pyre of her husband. As a consequence in 1987, the Sati Prevention Act was
passed which declared the practice of sati a crime for which death penalty can also be given to
the perpetrators of such crime. The act also declared that the ‘glorification’ of sati by erecting a
temple and worshipping of the deceased women as a god is also prohibited. However certain
section of people perceives this law as interference in their right to practice the dictates of their
religion.
 44

▪ Child Marriage: In India although there exist a law barring the marriages of children at primitive
age, but it is still being practised in different parts of India. Chid Marriage Act 2006 prohibits
child marriage and declares 18 years and 21 years as the marrigable age for the girls and boys.
According to the National Population Policy, “over 50% of the girls marry below the age of 18,
resulting in a typical reproductive pattern of ‘too early, too frequent, too many’, resulting in a
high IMR .” Child marriage takes away from a girl child the innocence of her formative years of
life necessary for physical, emotional and psychological development. Spousal violence
especially sexual violence perpetrated by husbands has severe effect on the innocent mind and
body of the child. Even today in India a number of children’s are married off on the auspicious
day of Akas Teej in Rajasthan.

▪ Preference for a son: The preference for a son is a phenomenon which is historically rooted in
the patriarchal system of the Indian society. The strong preference for having a son emerged
with the transition of the Indian society from primitive stage which used to be primarily a
matrilineal to feudal stage where agriculture emerged as the primary established occupation of
the people to be controlled by the male. The concept of private property emerged and the land
began to be divided among the families. The families having control over the larger part of land
were seen with pride. Thus, in such a patriarchal landowning society the sons were seen as the
major contributor to the family workforce vis a vis a girl. The desires for a son often have an
adverse effect on the health of the mother also. All these issues gradually led to the neglect of
the female child who are often relgated to the background even in the present day Indian
society.

▪ Female foeticide: The low status of women goes on with the practice of infanticide, foeticide,
sex-selective abortion which has become common due to the amniocentesis technology, and
mal-nourishment among girl children . In India it is estimated that around “10 million female
foetuses have been aborted in the last 20 years ”. “The child sex ratio in Punjab declined from
894 in 1961 to 793 in 2001. In Haryana, the child sex ratio plummeted from 910 in 1961 to 820
in 2018 .” In spite of the fact that the Government of India have declared pre birth sex
determination through the use of amniocentesis as unlawful, still Illicit termination of female
foetuses by untrained nurses and staff is widely prevalent particularly in Northern states of
India like Haryana, Rajasthan and Punjab. All these have resulted in the escalation of maternal
mortality rate .

▪ Education: Education is one of the most critical areas of empowerment for women. Although
the right to education under Article 21 of the Indian Constitution have made it compulsory for
the government to provide free education to everybody, the high rate of women’s education is
still a distant dream. In spite of the fact that Sarva Shiksya Abhiyan to an extent has been
successful in bringing the girl child back to the schools, yet their retention rate in the school is
lower as compared to their male counterpart. In fact it has been found that there is a gradual
drop out of the girl students as they move up to the higher classes. This is particularly true in
 45

the rural areas in India. The main reasons associated with this is that the parents expects girls
to look after the siblings while they are at work, working with the parents as seasonal labour
during the cultivation period and managing the household work while the parents are at work,
the parents take more interest in boys education as against the girls as they feel that the girls
are to be married off, increasing cost of education etc. Thus the universalisation of primary
education in India remains a remote daydream for the women.

▪ Forced evictions and exclusion: In India often the widows are evicted from their matrimonial
home and are left alone to feed themselves and their children following the demise of their
spouses. The UN Special Rapporteur on Adequate Housing argues: “In almost all countries,
whether ‘developed’ or ‘developing’, legal security of tenure for women is almost entirely
dependent on the men they are associated with. Women headed households and women in
general are far less secure than men. Very few women own land. A separated or divorced
woman with no land and a family to care for often ends up in an urban slum, where her security
of tenure is at best questionable”. “There is increasing clinching evidence that, in poor
households, women spend more on basic family needs, while men spend a significant part on
personal goods, such as alcohol, tobacco, etc”.

▪ Sexual harassment at the workplace: The initiative on a discourse on sexual harassment of

women at their workplace in India started with Supreme Court’s Vishaka guidelines in 1997.
However it was the passage of the ‘Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Bill 2013’ that helped in translating these guidelines into concrete
rules that are to be implemented. But even today “the issue of sexual harassment has largely
been swept under the carpet in India. The provisions have never been successfully invoked
because of social taboos still associated with sexual harassment”. In India the women are
discriminated against in terms payment of remuneration for their jobs. This is true for both
urban as well as rural areas. Women entrepreneurs often have to deal with more complications
in getting credits to start their independent business.

▪ Rape: In India there has been a significant increase in the numbers of rape cases in the last 10
years. According to National Crime Records Bureau, in 2012, 25000 rape cases were reported.
In India in the rural areas, particularly in Northern India, the upper caste people use mass rapes
as a strategy to have power over the members of the lower caste groups. The brutal gang rape
case in Delhi had led to the passage of a stricter Law i.e. The Criminal Law (Amendment) Act
2013 to deal with the rape cases in India.

▪ Societal violence against women: The communities and societies in India in most of the places
are bound up with patriarchal normative universe from which women could hardly get true
justice. The religious communities, village communities or the artificial communities like
professional bodies are hardly epitome of equality between men and women. Quite often the
 46

religious communities have made the life of the women worse by forcing them to adopt
conservative practices that are harmful to women.

▪ ISSUES AND CONCERNS OF CHILDREN

▪ In 1923, the Save the Children International Union adopted as its charter a five-point
declaration which described the basic conditions a society should meet in order to provide
adequate protection and care for its children. The next year, the Union persuaded the League
of Nations to adopt the same declaration. Since the League of Nations held its meetings in
Geneva, this 1924 Declaration of the Rights of the Child came to be known as the “Declaration
of Geneva”. Recognising that ‘mankind owes to the child the best that it has to give’, the five
simple principles of the Declaration established the basis of child rights in terms of both
protection of the weak and vulnerable and promotion of the child’s development. The
Declaration also made it clear that the care and protection of children was no longer the
exclusive responsibility of families or communities or even individual countries; the world as a
whole had a legitimate interest in the welfare of all children. In 1945, the United Nations
Organisation replaced the League of Nations. In 1946, the Economic and Social Council of the
United Nations recommended that the Geneva Declaration be reaffirmed as a sign of
commitment to the cause of children. The same year, the United Nations established a
specialised agency — UNICEF with a mandate to care for the world’s children. Initially known as
the United Nations International Children’s Emergency Fund, it provided assistance to children
in Europe and elsewhere who had lost homes, family, and opportunity as a result of the war. Its
mandate was later redefined so as to give the agency responsibility for long-term assistance to
children who suffered from deprivation caused by economic and political conditions, as well as
the effects of war.
▪ “Declaration of Geneva” • Child must be given the means needed for its normal development,
both materially and spiritually. • Hungry child should be fed; sick child should be helped; erring
child should be reclaimed; and the orphan and the homeless child should be sheltered and
succoured. • Child must be first to receive relief in times of distress. • Child must be put in a
position to earn a livelihood and must be protected against every form of exploitation. • Child
must be brought up in the consciousness that its best qualities are to be used in the service of
its fellow men.
▪ Article 21 A: … shall provide free and compulsory education to all children of the age of six to
fourteen years…
▪ Article 24: 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. Directive Principles of State Policy •
Article 39: … (e) … the tender age of children are not abused… and 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… protected against exploitation and against moral and material
abandonment. • Article 45: …provide early childhood care and education for all children until
they complete the age of six years- TO 14 YEARS. • Article 51A: … (k) … parent or guardian to
 47

provide opportunities for education to his child or, as the case may be, ward between the age
of six and fourteen years.
▪ UN Declaration of the Rights of the Child • Non-discrimination. • Special protection,
opportunities and facilities to develop physically, mentally, morally, spiritually and socially in a
healthy and normal manner and in conditions of freedom and dignity. • The right to a name
and nationality. • The right to social security, adequate nutrition, housing, recreation and
medical services. • The differently-abled child to be given special treatment, education and
care. • The need for love and understanding so that the child grows in the care and
responsibility of his/her parents, and in an atmosphere of affection and moral and material
security. • Entitlement to education, which should be free and compulsory, at least in the
elementary stages. • The child should be among the first to receive protection and relief in all
circumstances. • Protection against all forms of neglect, cruelty and exploitation, including that
associated with employment. • Protection from practices that may foster racial, religious and
other forms of discrimination.
▪ At the regional level, India actively promoted and supported the 1986 decision of South Asian
Association for Regional Cooperation (SAARC) to take up the issue of children as a summit
concern, and to declare first a year and then a decade for the girl child (1990-2000). At the
international level, the Convention on the Rights of the Child (CRC) was approved by the
General Assembly of the United Nations on 20 November 1989 (the thirtieth anniversary of the
adoption of the Declaration of the Rights of the Child). When a country ratifies a UN
Convention, it becomes law within its territory. To monitor progress achieved in the realisation
of children’s rights, the CRC has established an international expert body, the Committee on the
Rights of the Child, which provides awareness and understanding of the principles and
provisions of this treaty. The CRC Committee consists of ten experts which ensures that the law
is being enforced. The Government of India ratified the CRC on 11 December 1992
▪ From 548 million persons in 1971, the population of India crossed the billion mark officially on
11 May 2000. The 2001 Census gives the total population for the country as 1,028.7 million
persons. This population is expected to reach 1,264 million in 2016 which means that
approximately 236 million persons are likely to be added to India’s population in the current
and ensuing decades. Such a massive increase in numbers will, to a large extent, offset the
gains of economic development and require massive inputs for social services, civic amenities
and infrastructure development. All this indicates how critically important it is to improve the
child development profile in these States if the national aggregate of child development
indicators is to show a significant improvement. Currently, several States are lagging behind on
social as well as economic development indicators. Given their current political and
administrative situation, the position is unlikely to change much in the near future in most of
these States. The children of these States will, therefore, continue to be more vulnerable than
those in most other parts of the country, especially those living in rural areas and urban slums
(Bose, 2003:21-24).
▪ The child sex ratio is calculated as number of girls per 1,000 boys in the 0-6 years age group. In
India, the 2001 Census reported a child sex ratio of 927 girls per 1,000 boys, that is definitely
 48

adverse to girls. The 1991 Census had reported child sex ratio of 945 girls per 1,000 boys, which
signifies that a decade later, the child sex ratio has worsened further by 18 points. Prior to the
1991 Census, this ratio had fallen from 976 in 1961, to 964 in 1971, and 962 in 1981. A stage
may soon come when it would become extremely difficult, if not impossible, to make up for the
missing girls. The declining child sex ratio has already started showing its ramifications in States
like Punjab, Haryana, Gujarat, Delhi, Rajasthan, Maharashtra, Tamil Nadu and Himachal
Pradesh. In States like Punjab, Haryana and Gujarat, this ratio has declined to less than 800 girls
per 1,000 boys. The Government needs to recognize this discrimination. Girls have a right to
live just as boys do. Moreover, missing numbers of either sex, and the resulting imbalance, is
bound to destroy the social and human fabric.
▪ Poverty exercises an adverse influence on the health and nutrition status of children.
Inadequate and irregular earnings affect the quantity and quality of food that a family can
consume throughout the year, its standard of living, and access and use of healthcare. The
extent of poverty varies considerably between States. Data from the Planning Commission with
regard to the number and percentage of population below poverty line in States shows that in
1999- 2000, among the bigger States, Orissa had the largest percentage of population below
the poverty line (47.15), followed by Bihar (42.60). In numbers, Uttar Pradesh and Bihar
together had 96 million persons below the poverty line or 37 per cent of the country’s poor.
Bihar (undivided) also had 38 districts, the largest number in the list of 100 most backward and
poorest districts in the country identified in 1997, followed by Madhya Pradesh (undivided)
with 19 districts and Uttar Pradesh (undivided) with 17 (Bose, 2003:36-36). Removal of poverty
is one of the central concerns of Indian planners and its reduction a key indicator of success in
implementation of policies and programmes, including those relating to children.
▪ As mentioned earlier, the Constitution of India and the laws enacted over the years have some
unique and far-reaching provisions to protect children. Yet, there are laws in which the age of
the child is not in consonance with the CRC, which the Government ratified way back in 1992.
Besides, the age of the child has been defined differently in different laws. These different age-
specifics under different laws not only create a dilemma, but also set the stage for injustice.
This is because, whether the same human being is or is not a child depends upon the law that is
being invoked in a given case. Moreover, when the laws are in conflict with one another due to
diverse definitions, it is but natural a difficult task to decide the ‘best interests of the child’. It is
thus necessary that the definition of the term ‘child’ be brought in conformity with the CRC, viz.
“below 18 years of age”, by establishing one standard ‘age of majority’.
▪ The 86th Amendment to the Constitution, on the Fundamental Right to Education for the 6 to
14 years age group, has also led to the inclusion of an additional clause under article 51A that
imposes a fundamental duty upon parents or guardians to provide opportunities for education
of their children/wards between the ages of 6 and 14 years. The amendment has provoked
agitation and criticism from all sections across the country. Their contention is that the State is
abdicating its responsibility for the provision of free and compulsory quality education that
must be accessible and appropriate, both socially as well as physically. In effect, it is penalising
the poor parents twice – for being poor and for their inability to send their children to schools,
 49

the causes for which may be beyond their control. Lack of quality, appropriate and accessible
education is one of the major reasons for children dropping-out of school.
▪ There is legal recognition of the fact that children must not be married before they are
physically and mentally ready for it. The Child Marriage Restraint Act, 1929 (CMRA) prescribes a
minimum age of 21 years for males and 18 years for females. As the title of the Act suggests, it
is merely a law to prevent the solemnisation of child marriages, but does not address the
situation of a child who has been married off before the law could prevent it. It does little to
protect children who have been married off, sometimes even before they can stand on their
feet.
▪ The Child Labour (Prohibition and Regulation) Act was enacted in 1986, to specifically address
the situation of child labour. However, this law is inadequate both in its understanding and the
framework that it provides for dealing with the problem of child labour. By distinguishing
between hazardous and nonhazardous forms of labour, and identifying certain processes and
occupations from which children are prohibited from working, it leaves out a large range of
activities that children are engaged in and thus continue to be exploited and abused. The large-
scale exploitation and abuse of children employed in domestic work and hotels are cases in
point. On August 1, 2006, the Ministry of Labour added the following occupations to the list of
hazardous occupations: domestic servants, workers in dhabas, restaurants, hotels, motels, tea
shops, resorts, spas or other recreational centres. The notification for this came into effect on
10 October 2006. This is a welcome step but far from adequate. Bonded child labour and other
extremely exploitative forms of child labour including slavery, prostitution, drug trafficking, etc.
are other grey areas which require priority attention.
▪ The coercive laws based on the State Population Policies are also having a negative impact on
children. Since adults will now not be able to stand for elections in some of the States if they
have more than two children, some are choosing to give away their ‘excess’ children in
adoption or disown them. The withdrawal of facilities after the second child is bound to have an
impact on the status and value that the girl child in the family will have.
▪ The Government has adopted a policy of affirmative action towards addressing issues of socially
backward groups, such as the Scheduled Castes/Tribes and the Other Backward Classes as well
as the girl child. Despite these, discrimination – overt and covert – occurs in various forms. The
guiding principles underpinning the Constitution of India are equality before law, equal
protection to all and non-discrimination. There is affinity between the standards set by the
Constitution and the standards set by Article 2 of the CRC. Equality is a dynamic concept with
many aspects and dimensions and therefore cannot be confined within traditional limits.
Articles 14, 15, 17, 25-28, 29 and 30 of the Constitution aims to secure social and economic
justice to all as well as remove all kinds of biases. Yet, children born in the categories of
Scheduled Castes/Tribes and Backward Classes including religious minorities start life with
severe handicaps. Considering that these children account for a clear majority of India’s child
population, it is necessary to look deeply into their problems from all angles rather than paying
a lip-sympathy to them.
▪ ISSUES AND CONCERNS OF DALITS/SCHEDULED CASTE
 50

▪ In the administration of justice, police, prosecutors and judges fail to properly pursue cases
brought by Dalits concerning discriminatory acts. This is evidenced by the high rate of acquittals
and the large number of cases involving offenses and atrocities against Dalits still pending
before the courts. Dalit women in particular lack sufficient redress for the crimes committed
against them due to the caste and gender biases of India’s law enforcement machinery.
▪ The police have systematically failed to protect Dalit homes and Dalit individuals from acts of
looting, arson, sexual assault, torture and other inhumane acts .Much like cases of police abuse
against Dalits, attacks by private actors often take the form of collective punishment, whereby
entire communities or villages are punished for the perceived transgressions of individuals who
seek to alter village customs or demand their rights.
▪ Dalits’ political rights, especially the right to vote freely and the right to stand for election, have
repeatedly been denied by upper-caste community members by booth-rigging and booth
capturing, denial of access to polls, intimidation, and violence.
▪ Dalits’ right to freedom of opinion and expression, and rights to freedom of peaceful assembly
and association are compromised by police abuse of Dalit activists; retaliatory attacks by private
actors that are carried out with impunity; and social and economic boycotts against Dalits.
▪ Dalits’ right to form and join trade unions is undermined by an unwillingness to register unions
where workers are illiterate.
▪ Dalits’ right to freedom of residence is severely curtailed by the practice of “untouchability”
which often dictates where Dalits must live. Dalits’ right to freedom of movement within India
is curtailed by conditions that make Dalits vulnerable to migratory labor and by the forced
displacement of Dalits in the aftermath of episodes of caste violence. Moreover, Dalits’ right to
leave India, while formally granted, is not substantively guaranteed, due to Dalits’
disproportionately low economic status and their inability to acquire relevant documents and
the proof necessary, for instance, to make a passport.
▪ Strict prohibitions on marriage and other social interaction between Dalits and the upper-caste
routinely violate the rights of Dalits to marry and choose their spouse. These prohibitions on
inter-marriage are a hallmark feature of the caste system and are designed to ensure rigid
social norms of purity and pollution. Inter-marriages are frequently the flashpoint for conflicts
and can be extra-judicially punished by upper-caste dominated panchayats (village councils)
through public lynching of couples or their relatives, murder (of the bride, the groom, or their
relatives), rape, public beatings, and other sanctions.
▪ Dalits in India face a number of restrictions on their right to freedom of thought, conscience
and religion. Dalits are, for instance, routinely denied entry into Hindu temples. Even when such
entry is sanctioned by the courts, priests and upper castes resist such moves, often leading to
violence.
▪ The right to own property is systematically denied to Dalits. Landlessness—encompassing a lack
of access to land, inability to own land, and forced evictions—constitutes a crucial element in
 51

the subordination of Dalits. When Dalits do acquire land, elements of the right to own property
—including the right to access and enjoy it—are routinely infringed. Land reform legislation is
neither implemented nor properly enforced. Dalits’ efforts to secure land have been met with
State violence or retaliation by private actors in the form of violence or economic sanctions.
Dalits’ right to housing is further undermined by residential segregation, discrimination in
housing in urban environments, and the aforementioned violations of their right to own
property.
▪ The denial of the right to work and free choice of employment lies at the very heart of the caste
system. Dalits are forced to work in “polluting” and degrading occupations such as manual
scavenging and are subject to exploitative labor arrangements such as bonded labor, migratory
labor, and forced prostitution. Dalit children are vulnerable to trafficking and the worst forms of
child labor in these and other areas. Dalits are also discriminated against in hiring and in the
payment of wages by private employers. Dalits’ attempts to enforce their rights are met with
retaliatory violence and social and economic boycotts. Laws designed to eradicate exploitative
labor arrangements—such as the Employment of Manual Scavengers and Construction of Dry
Latrines (Prohibition) Act, 1993, the Bonded Labour System (Abolition) Act, 1976, the Inter
State Migrant Workmen (Regulation of Employment and Service Conditions) Act, 1979, the
Child Labour (Prohibition and Regulation) Act, 1986, the Minimum Wages Act, 1948, the Equal
Remuneration Act, 1976, and the Karnataka Devadasi (Prohibition of Dedication) Act, 1992—
and where relevant, their accompanying rehabilitation programs, are largely ineffective.
▪ Dalits are often refused admission to hospitals, or access to health care and treatment in
violation of their rights to the highest attainable standard of health and social services. In a
number of cases those who are admitted receive discriminatory treatment. In addition, caste-
based occupations that Dalits are made to perform, such as manual scavenging and forced
prostitution, frequently expose Dalits to serious and sometimes fatal health hazards. Manual
scavengers are routinely exposed to both human and animal waste without the protection of
masks, uniforms, gloves, shoes, appropriate buckets, and mops. This has severe repercussions
for their health: the majority of scavengers suffer from anemia, diarrhea and vomiting, with, 62
per cent suffering respiratory diseases, 32 per cent suffering skin diseases, 42 per suffering
jaundice and 23 per cent suffering trachoma, leading to blindness. Many scavengers have also
died of carbon monoxide poisoning while cleaning septic tanks. In Mumbai, for instance, Dalits
are lowered into manholes to clear sewage blockages—often without any protection. More
than 100 workers die every year due to inhalation of toxic gases or drowning in excrement.
▪ The right to education free from discrimination is not secured for Dalit children. Ninety-nine
percent of Dalit students are enrolled in government schools that lack basic infrastructure,
classrooms, teachers, and teaching aids. Dalit children face continued hurdles and abuse from
teachers and fellow non-Dalit students, including through segregation both in classrooms and in
the provision of mid-day meals. Dalit schoolchildren also face discrimination and
discouragement from higher caste community members who perceive education for Dalits as
both a waste and a threat. Their hostility toward Dalits’ education—which includes
discrimination against Dalit teachers—is linked to the perception that Dalits are not meant to
be educated, are incapable of being educated, or if educated, would pose a threat to village
 52

hierarchies and power relations. Additionally, Dalit children are often subjected to corporal
punishment by their teachers. As the Special Rapporteur on the right to education noted in his
report before the 67th session of the then-Commission on Human Rights, “teachers have been
known to declare that Dalit pupils ‘cannot learn unless they are beaten.’” Dalits’ labor patterns
(migratory and child labor) also adversely affect access to education. A combination of these
factors results in low enrollment, high drop-out rates, and low literacy rates of Dalit students.
▪ Dalits are denied equal access to a spectrum of places and services intended for use by the
general public, such as police stations, government ration shops, post offices, schools, water
facilities, and village council offices. As a result of segregation in water facilities, more than 20
percent of Dalits do not have access to safe drinking water, only ten percent of Dalit households
have access to sanitation (as compared to 27 percent for non-Dalit households), and the vast
majority of Dalits depend on the “goodwill” of upper-caste community members for access to
water from community wells. Dalits are also excluded from, or receive discriminatory treatment
in, private businesses, including tea shops, food stalls, barber shops, and cinemas.
▪ NHRC In its periodic report, India cites to its constitutional provisions and legislative measures
(which constitutionally must apply to all people irrespective of caste) that open its courts to
victims of discrimination. In 2004, the NHRC released the findings of an in-depth examination of
the implementation of protective legislation for scheduled castes. The report is a strong
indictment of the government’s failure to carry out its promises to protect Dalits from atrocities
and violations of their fundamental rights and to grant remedies for rights’ violations. On the
question of remedies, the NHRC found that even where cases are properly registered, several
states are not providing economic relief or compensation to victims of atrocities as is required.
The problem is compounded by inadequate media representation of Dalit issues and the lack of
Dalit journalists generally. Since caste-based discrimination is not as highly visible in urban
settings, opinion makers, particularly the media, do not pay sufficient attention to the rampant
and continuing practice in rural areas.
▪ ISSUES AND CONCERNS OF MINORITIES

▪ In the past one hundred years or so the minority problems have occupied a very important
place in the politics of countries the world over. Many issues have, however, remained
unsolved. Even today minority problems in different forms appear very frequently in the West.
Thus, race riots occur in England and the USA. Chechnya has been problem for Russia. In
erstwhile Yugoslavia the Serbs and the Croats have fought wars of secession. The position of
the developing societies or the Third World is the same. Ethnic and communal riots are chronic
part of their politics.
▪ The Indian case is one of the saddest ones. India has a record of over hundred years of minority
problem. The major problem has been of the Muslims which split the country in 1947.
Communal riots have become a recurring phenomenon in the present day Indian society. In the
International Encyclopedia of the Social Science, Arnold Rose has defined minority without any
quantitative connotations. He defines it as ‘a group of people differentiated from others in the
same society by race, nationality, religion or language, who think of themselves as
differentiated group and are thought of by others as a differentiated group with negative
 53

connotations. Further, they are relatively lacking in power and hence are subjected to certain
exclusions, discrimination and other differential treatments.’
▪ Jagnath Pathy (1988) has also listed out the defining properties of minority group. In his
opinion, the minorities are: subordinate in someway to the majority, distinguishable from the
majority on the basis of physical or cultural features, collectively being regarded and treated as
different and inferior on the basis of these features, and excluded from the full participation in
the life of the society. He further says, discrimination, prejudice and exclusion by the dominant
group and self segregation by the subordinate or minority constitute the basis for minority
identification (Pathy, 1988 : 28).
▪ While the minority groups are allowed to preserve their distinct characteristics they are also
subjected to a great deal of discrimination. The discrimination may be in the form fewer
government funds for minority educational institutions etc. Very often they are discriminated in
their social life. They are subjected to ridicule and segregation which further compels them to
stay away from the majority. That is why we find that minority groups stay together in ghettos
away from the majority. This discrimination in fact leads to assimilation among some ambitious
members of the minority community. These people in order to advance themselves seek to rid
themselves of their disabilities by deliberately surrendering their typical features. These
disabilities may, many times, be sufficient to induce assimilation, also certain encouragement is
given to induce this change. In case assimilation is found to be impossible, some states resort to
the very direct method of annihilation. The members of minority group ire eliminated by
expulsion or by massacre. Genocide of the Jews by the Germans is a best example of this.
▪ Education is one of the challenges for the minority communities in India. They have low access,
participation and retention at school-level education system.In India, there are many minority
communities such as Muslims, Sikhs, Christians, Jain, Buddhists, Zoroastrians and so on.
However, Muslims constitute the largest minority in India, with 13% share of the total
population as per Census 2012 . Data show that minority communities are socially deprived,
economically backward and educationally under-privileged in India . Despite having many
efforts on educational development, the access and participation of minority communities are
less and insufficient. Muslim community has remained a priority for development agenda.
Education is an important aspect for their empowerment in India. The latest data of U-DISE
2015-16 show that they have low access and participation in the education sector. A significant
number of Muslim children are not even enrolled in primary-level education. The increasing
rate of dropout Muslim students raises many questions about the educational policies and
schemes. The status of school education of Muslims is low and the percentage share of Muslims
at a higher education level is even lower compared to other scheduled castes (AISHE, 2015–
2016).
▪ The drop out rate indicates the wastage of school education and tends to undermine benefits
of increased enrolments. According to the “Educational Statistics”, published by the Ministry of
Human Resource Development, during 1999-2000, out of students enrolled in classes I to V,
over 40 percent dropped out. Similarly, out of students enrolled in classes I to VIII over 55
percent dropped out. The drop out rate in classes I-X was over 68 percent. Further, the drop
 54

out rate has been higher for girls. Chief reasons for dropping out from schools could be
economic considerations, like compulsion to work for augmenting family income or need for
looking after younger siblings or unfriendly atmosphere in the schools etc. Among girls in rural
areas, these factors mostly accounted for the dropouts. Inability of students to cope up with
the studies or lack of interest among parents in the education of their children are the primary
reasons.
▪ Infant and child mortality rates among Hindus are much higher than Muslims, Christians, Sikhs,
Jains, and Buddhists. However, the infant and child mortality rate are higher among Scheduled
Castes and Scheduled Tribes. Among minorities infant and child mortality rates of other
minorities are lower than Muslims. Mortality rate differentials among different religious
communities or Scheduled Castes and Scheduled Tribes may be due to factors other than
religion alone e.g. urban or rural residence or economic conditions of the family or availability
of health facilities and access to them.
▪ Housing is a basic necessity as well as an important economic activity. According to the Tenth
Five Year Plan document, around 90 percent of housing shortage pertains to the weaker
sections. The need for the increase in the supply of affordable housing to the economically
weaker sections and those belonging to the low income category is emphasised through a
programme of allocation of land, extension of funding assistance and provision of support
services. The ratio of those living in rented houses was highest among Muslims (43.74 percent)
followed by Christians (33.91) percent and Sikhs (33.29 percent). Ownership of houses was
highest among Parsis (75.13) percent followed by Sikhs (65.89 percent). A few had other
arrangements, such as living with relatives etc.
▪ The safe drinking water supply within the premises is one of the basic needs of the people. It is
seen from Table 3.19, that more than 75 percent Parsis, Christians, Muslims and Sikhs had
source of drinking water within or near their house. The share of Buddhist households with
water supply within or near the house was only 67.38 percent. The data shows that
considerable effort needs to be made to provide water to these communities at the premises
where they live.
▪ According to 1931 and 1941 censuses, the Parsis and Jews were mainly urban, followed by
Muslims, Christians and Jains. In regard to education, the Parsis, Jains, Jews and Christians
showed higher percent of literacy in that order during 1891-1931 period. Thus, it is noticeable
that minority religions, except Muslims, showed a greater percent of literacy than majority
religions. Among Muslims, they have lower literacy where they are predominantly located,
except Kerala.
▪ Most significant aspect of Minority population of India is declining population of Parsis over the
years. As against 76,382 persons in 1991, their population has been returned as 69,601 in 2001
census. Fertility improvement measures need to be taken into consideration rather than
controls
▪ ISSUES AND CONCERNS OF TRANSGENDERS
 55

▪ Any discrimination based on any ground such as sex… or sexual orientation shall be
prohibited. EU Charter of Fundamental Rights (Article 21).
▪ The gender that we are officially assigned at birth (male or female) is based upon our physical
features. However, this might not match our gender identity – that is, the way we feel and think
about our gender. A transgender person is someone who has and/or expresses their gender
identity differently from the gender identity that they were assigned at birth. A transgender
person may choose to express their gender identity in different ways. To make more
permanent physical changes surgery and hormone treatment may be used. This can take
several years, and does not always involve complete gender reassignment (‘sex change’).
Gender identity may also be expressed through clothing and cosmetics (known as ‘cross-
dressing’ or ‘transvestism’). It should be noted that transgender persons face transphobia and
discrimination on grounds of their gender identity and not necessarily because of their sexual.
▪ Transgender is an umbrella term for persons whose gender identity, gender expression or
behaviour does not conform to that typically associated with the sex to which they were
assigned at birth. Gender identity refers to a person’s internal sense of being male, female or
something else, gender expression refers to the way a person communicates gender identity to
others through behaviour, clothing, hairstyles, and voice or body characteristics. “Trans” is
sometimes used as shorthand for “transgender.”
▪ Social Problems- Family members often do not support transgender. A variety of problems that
include verbal and physical abuse, isolation and rejection, denial of family property are faced by
transgender in family. Society often stigmatizes and discriminate transgender based on their
sexuality or gender identity. Social stigma includes being looked down upon, labeling and
negative/generalized attitude towards such as sex work or sex solicitors. The other fields where
this community feels neglected are inheritance of property or adoption of a child. They are
often pushed to the periphery as a social out caste and many may land up begging and dance.
This is by all means human trafficking. They even engage themselves as sex workers for survival.
There is need for social acceptance of transgender group. For instances, there is no space
available for them, say in hospital wards. The authorities do not admit them in women’s ward
because women do not feel comfortable or free in their presence and in men’s ward they face
sexual abuse. Besides there are no separate toilet facilities for transgender people.
▪ Economic and Health problems- Most of the transgender people are school dropouts. Similarly,
gays and bisexuals especially after voluntary or involuntary disclosure of their sexuality face a
lot of stigma and discrimination in schools. Lack of adequate education and lack of employment
opportunities, they are forced into sex work and begging. While some transgender manage to
sustain their job in spite of stigma and discrimination in workplace, most of them resign their
jobs without tolerating stigma and discrimination. A variety of multiple-level factors such as lack
of adequate education, lack of employment opportunities, and lack of familial support put the
male-born sexual minorities at risk of contracting HIV. Similarly, sexual and reproductive health
needs are often not adequately addressed. In particular, most transgender person does not get
adequate state’s support (except TamilNadu) for sex transition surgeries such as hormone
administration, emasculation, and breast augmentation surgery. This explored the impact of
 56

discrimination and stigma on health care access for rural and urban transgender individuals.
The research was conducted using with self-identified transgender individuals in the society.
▪ Transgender individuals feel that health care providers’ attitudes and behavior towards them
belie a lack of personal respect and believe that their health care is compromised as a result;
Transition health care is impeded by physicians and health insurance companies who do not
recognize gender transition as medically necessary;. Anti-trans discrimination in both rural and
urban communities leads Tran’s individuals to expect similar treatment from health care
providers; Participants prioritized the need to increase the number of health care professionals
who are well educated on transgender health concerns, and the importance of advocacy and
social support in facilitating health care access. This study concluded that medical education
and other professional health care training must be improved to address health care needs of
transgender individuals. Health research is lacking in key areas of transgender health, including
the implementation of a medical curriculum that successfully incorporates transgender health
care, and inadequate funding opportunities for transgender health research.
▪ Political Problems -Sexual minorities do not assume significant role in any state’s position or
political parties although there are many sexual monitories with adequate political and
governance knowledge and interest. Although transgender contested local body election with
social responsibility, they were not adequately recognized by public. Despite discrimination and
marginalization, a transgender person is emerging as successful personalities, thereby proving
their potential. There are instances of transgender persons occupying positions of political
power. For example – ShapnamMousi became Member of Parliament from Sahogpur in
Madhya Pradesh in 2000, KamlaJaan was elected as Mayor of Ketni in the same year. These odd
instances have not significantly empowered the large community. Such people cannot do things
which others do such as to find mainstream job, to vote, etc. In 1994 transgender persons got
the voting right, but the task of issuing them Voter Identity Cards got caught up in the male or
female question. Several of them were denied cards with their sexual category of their choice.
▪ PROBLEMS FACED BY TRANSGENDER IN WORK PLACE Verbal abuse, Physical abuse ,Sexual
abuse ,Lack of adequate knowledge about sexual minorities, Lack of freedom to expression, Not
providing importance to ideas, experience, and expertise of sexual minorities, Lack of
meaningful involvement of communities , Stress, depression, and other mental health issues.
▪ Problems of Homelessness: The myriad problems facing Transgender people who are homeless
include a lack of housing and services that meet their specific needs. They are living on city’s
streets because they were thrown out of their homes for being queer, or ran away to escape an
abusive situation. Family housing in the shelter system across the country is not available for
homeless same-sex couples. Transgender people are not allowed to choose with which gender
they are more comfortable living in the shelter system. Abuse and harassment of Transgender
homeless people is rampant in the shelter system. Most domestic violence shelters do not
accept gay men or transgender people. There has been also a lack of any comprehensive plan
for longterm housing for people with AIDS. Homeless Transgender youth are without economic
support, often engage in drug use and risky sexual behaviors, and often develop mental health
disorders. Homeless Transgender youth miss out on education and social support during critical
 57

formative years—more than half of homeless Transgender youth report experiencing

discrimination from peers.
▪ Problems of Transphobia: Transgender people are more likely to experience intolerance,
discrimination, harassment, and the threat of violence due to their sexual orientation, than
those that identify themselves as heterosexual. This is due to transphobia. Some of the factors
that may reinforce transphobia on a larger scale are moral, religious, and political beliefs of a
dominant group. Living in a transphobic environment forces many TG people to conceal their
sexuality, for fear of the negative reactions and consequences of coming out. Negative feelings
or attitudes towards non-heterosexual behaviour, identity, relationships and community, can
lead to transphobic behavior and this is the root of the discrimination experienced by many TG
people. Transphobia manifests itself in different forms, for example physical attacks,
discrimination in the workplace and negative media representation. Transphobia can cause
extreme harm and disruption to people's lives. For example, many TG people have become
homeless as a result of being rejected by their families after revealing their sexual orientation.
Transphobic individuals play an effective role in inferring with the lives of TG individuals. They
cannot suppress their feelings of hatred and the fact that they cannot accept TG individuals.
Thus, they harass TG individuals verbally or physically and expose them to violence. Such
attitudes direct TG individuals to stress, dissatisfaction of the place they live in, exposure to
physical disturbance, loneliness and ostracism.
▪ Psychological Distress: TG people face considerable levels of stigmatization, discrimination and
harassment in their daily lives. The majorities of Transgender people learn to cope with this,
particularly when they have the support of family and friends, and participate with Transgender
organizations and social networks. However, a significant number of Transgender people, most
particularly younger Transgender people, had to cope with stigmatization, discrimination and
harassment without support. Many also faced additional stress from experiences such as very
high levels of homophobic bullying in schools and physical and verbal attacks. This had a
negative impact on their mental health, leading to significant levels of psychological distress,
selfharm and suicidality.
▪ Victims of hate Crimes, Violence and Legal Injustice: Transgender people are regularly targeted
as victims of hate crimes and violence. They experience stigma and discrimination across their
life spans, and are targets of sexual and physical assault, harassment and hate crimes. As per
census 2011, there are around 4.9 lakh third genders in the country who faces social
discrimination and harassment. TG communities have also an important stake in legal injustice
issues. Specific groups within the TG community are disproportionately affected by violence
and discrimination, sometimes at the hands of law enforcement officials. In recent years, there
have been many documented instances of police brutality directed towards TG people in the
India. Many police departments continue to be accused of insensitivity, including not
appropriately responding to violence directed at TG people. A study shows that Majority of
hijras in Mumbai faced several health problems and also problems related to harassment,
unlawful penalties, sexual abuse, violence and deprivation of human rights. They chiefly named
the police including the traffic and railway police, as perpetrators of violence and abuse. A great
majority of the hijras (87.5per cent) in Mumbai stated that they have experienced problems
 58

caused by the police whether policemen from respective police stations (50.87per cent),
railway police (26.31per cent), or traffic policemen (8.77per cent).
Another survey, Problems Faced by Hijras (Male to Female Transgenders) in Mumbai with
Reference to Their Health and Harassment by the Police reported by the Swati Health Resource
Centre, asked 2,169 transgender people across three different states and found the shocking
statistics. Respondents reported that sexual violence could start as early as five years old, but
people aged 11 to 15 were most vulnerable. 44% of respondents reported 2,811 separate
occasions of violence – bring the average to three incidents per person. Emotional violence was
most common with 1,228 reporting an incident, followed closely by 802 reports of physical
abuse and 781 reports of sexual violence . A study by a team from the National Institute of
Epidemiology among 60,000 transgender people across 17 states, including Tamil Nadu, found
that the biggest perpetrators of violence against transgender people were police and law-
enforcing authorities. "Many community members said that they had faced discrimination,
physical and sexual abuse from law-enforcing authorities in majority of the states where the
study was conducted," said Thilakavathi Subramanian, corresponding author in the study,
which was recently published in the International Journal of Health Sciences and Research.
Citing an earlier study, she said approximately 60% of the transgenders experienced some form
of harassment or violence . That means, oppression by the police turned out to be one of the
major concerns of the transgender people. The police often threaten them and extort money
from them. No FIRs are recorded. The police in this case take people in for questioning and
detain them in the lock up for periods of time varying from overnight to a few days. They do not
file ﴾FIR﴿ and keep no documentary evidence of the person’s detention. The police often abuse
the men using filthy language, beat them up and even subject them to sexual abuse.
In a landmark judgement in 2014, the Supreme Court observed that “The transgender community,
generally known as “Hijras” in this country, are a section of Indian citizens who are treated by the
society as “unnatural and generally as objects of ridicule and even fear on account of superstition”. In
its judgement, the Supreme Court passed the ruling that “In view of the constitutional guarantee, the
transgender community is entitled to basic rights i.e. Right to Personal Liberty, dignity, Freedom of
expression, Right to Education and Empowerment, Right against violence, Discrimination and
exploitation and Right to work. Moreover, every person must have the right to decide his/her gender
expression and identity, including transsexuals, transgenders, hijras and should have right to freely
express their gender identity and be considered as a third sex.” Thus, today the transgender people in
India are considered to be the Third Gender . Hijras exist all over India. Indian Census has never
recognized third gender i.e. Transgender while collecting census data for years. But in 2011, data of
Transgender's were collected with details related to their employment, Literacy and Caste. In India,
total population of transgender is around 4.88 Lakh as per 2011 census . Uttar Pradesh tops the list
among 35 Indian states and Union Territories with 12,916 members, Bihar comes in second with 9,987
transgenders and rural Bengal ranks third with 9,868 members of the third gender8 . In India over 66%
of the population identified as third gender lived in rural areas, very close to the 69% of the overall
population that lives in villages. The census's gender analysis reports rural India has 74,286
transgenders. The census data also revealed the low literacy level in the community, just 46%,
compared to 74% literacy in the general population (Times of India May 30, 2014).
The legal obligations of States to safeguard the human rights of TG people are well established in
international human rights law on the basis of the Universal Declaration of Human Rights and
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subsequently agreed international human rights treaties. All people, irrespective of sex, sexual
orientation or gender identity, are entitled to enjoy the protections provided for by international
human rights law, including in respect of rights to life, security of person and privacy, the right to be
free from torture, arbitrary arrest and detention, the right to be free from discrimination and the right
to freedom of expression, association and peaceful assembly.
ISSUES AND CONCERNS OF PERSONS WITH DISABILITIES
Today, “Disability comes under within a human rights framework. This shift in perspective and the
marginalization of persons with a disability has pushed the issue of the rights of persons with a
disability to the forefront of international debate”(International Paralympics Committee, 2004).
Disability is commonly misunderstood early, with that of handicap and impairment. “Disability is a
condition caused by an accident, trauma, genetics or disease that may limit a person’s mobility,
hearing, vision, speech or mental function” (Reynolds and Janzen 2007 p.735). Disability exists as it is
situated in the larger context, while impairment is a biological condition (Braddock and Parish, 2001).
Handicap is a physical and attitudinal constraint that is imposed upon a person regardless of whether
the person has a disability. For example, some people with disabilities use wheelchairs. Stairs, narrow
doorways, and curbs are handicaps imposed upon people with disabilities who use wheelchairs
(Reynolds and Janzen, 2007 p.735). Different Countries has different definition regarding of disability.
According to the Persons with Disability Act (1995), In India Disability is mainly taken (Equal
Opportunities, Protection of Rights and Full Participation) where Disability means –mainly
• Blindness • Blindness refers to a person who suffers following conditions, namely: - • The total
absence of sight or inability to see or a person with a low vision. • Visual acuity or clearness not
exceeding 6/60 or 20/200 (Snellen) is better with correcting lenses. • Limitation of the field of
observation subtending of 20-degree angle or worse.
• Hearing Impairment • Hearing impairment means loss of hearing 60 (dB.) decibels or more then. He
or she does not hear without the gadget.
Low Vision • A person with low vision means if a person's visual functioning is not working properly for
daily lifestyle, him or her after treatment or standard remedial correction but who working help of
using vision for the planning or execution of a task with an appropriate assistive device Locomotor
disability • It means disabilities of bones, joints, or muscles, does not movement of the limbs.
Leprosy-Cured • “Leprosy cured person" means if any person is suffering from Loss of sensation in
hands or feet, as well as senseless and paresis in the eye-lid problem but with no manifest deformity.
Mental retardation • Mental retardation means incomplete development of the mind of a person,
major characterized by sub normality of intelligence.
Mental illness • Mental illness means any mental disorder other than a person with mental
retardation.
The National Trust for The Welfare of Persons with Autism Cerebral Palsy, Mental Retardation, and
Multiple Disabilities Act, 1999 Autism, and Cerebral Palsy are also included. “Autism” refers to the
children having facing problems in his or their whole life for the different kinds of immeasurable
disabilities condition those children are not grown and developed as a normal child, it is a kind of
immature skill development with low communication and social abilities. The cause of autism may be
environmental or genetic. “Cerebral palsy” cerebral means ‘brain’ and palsy means ‘disorder is a kind
of group of disorders when a specific area of the brain is damaged due to unconditional neurological
function. Due to this disorder body moment and muscle condition is damage.
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Rights of PWD Act, 2016 (RPWD Act, 2016) “December 28, was passed this Act by both the houses. To
empowerment, to inherent dignity, to freedom, and also own choice independent person”. This Act is
a paradigm shift for the disabilities section
Salient Features Of The Rights Of Persons With Disabilities Act, 2016
In the RPWD Act, 2016, “the list has been expanded from 7 to 21 conditions and it now also includes
cerebral palsy, dwarfism, muscular dystrophy, acid attack victims, hard of hearing, speech and
language disability, specific learning disabilities, autism spectrum disorders, chronic neurological
disorders such as multiple sclerosis and Parkinson's disease, blood disorders such as hemophilia,
thalassemia, and sickle cell anemia, and multiple disabilities”. The “mental retardation is replaced by
intellectual disability” at least 40% is the “benchmark for Persons with a disability under section 58(2)
of the Act”. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5419007/)
Inclusive education means integrating the educational platform in the common learning environment
for both students who have no special needs and the students who have special needs. It is an
integration process in a common classroom environment.
According to UNESCO, inclusive education is seen as “a process of addressing and responding to the
diversity of needs of all learners through increasing participation in learning, cultures, and
communities, and reducing exclusion from education and from within education.”
Inclusive education is facilitated learning environments where teachers, learners welcome the diverse
environment made a learning environment where every student has an opportunity to meets their
needs and succeed.
Physical inaccessibility- Physical barriers in educational institutions like availabilities of the ramp,
elevator in building block or the library, heavy doors, inaccessible washroom, etc.
“One of the big problems that we have here as students are that we need to study but the library has
no access to books ...because the library has upstairs that we have to climb. These restrict people with
disabilities to access some books. Some students fail to attend lectures because lecture rooms are
located upstairs and some disabled students fail to climb to attend their lectures” (Kabuta, L. 2014).
Also there is a problem in infrastructure from the secondary data it was found by taking interviews
from the participants that infrastructure in higher education is not normally accessible for disabled
learners.
Lishner D, et, al. (1996) stated that “PWDs in rural settings confront a wide range of informational,
geographical and financial barriers to health care access”. Accommodation process: like scholarship,
fellowship for the disabled students studying in higher education. Lack of individualization.
Negative attitude and stereotype towards PwDs. Lack of available options. Lack of information to
the families and prospective students about options. Insufficient equipment’s, technological tools,
and other devices for the teaching;
Mistry (2012) reported in his study that the students with disabilities did not have easy accessibility to
classrooms, libraries, and academic and administrative buildings in their respective universities. They
were also not provided with any kind of learning resources including assistive technology (Ahmad,
2016). Lack of proper training and support from the teachers: Teacher educators are not trained
properly for the inclusive classroom through the teacher educators are trained to handle the disabled
students theoretically but still, there is a gap in practical training to cope up with the disabled
students.
Large classroom size and lack of environment: due to the large classroom size the teacher can't keep
more attention to the disabled students as per their needs. Also, some classroom environments not so
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joyful for disabling learners. Lack of government support and facilities in Higher education for the
Disabilities.
Hasanuzzaman and Khan (2011) reported higher bureaucratized system with multiple controls and
regulations by Central and State Government and statutory bodies, outdated programs with inflexible
structure, inadequate infrastructural facilities, lack of trained manpower, funds, training facilities,
techniques, and research for the disabled and high unit cost of higher education, particularly of
professional education are the causes for the limited accessibility of higher education for individuals
with disabilities.( Ahmad, 2016). Disability is not a problem of a particular section of the people it’s a
problem of a different kind of awareness mindset. We have to move towards an Inclusive society by
making the chance and equal opportunities for disable learners in education. Written work is a not
only solution for it but also the focus should be on the grass-root level, so we have to make practical
opportunities for the disabled learners in education not only at primary and secondary level but also
higher education too. In the present situation disable learners can reach to meet their higher
secondary education but very few learners have got opportunities to join in higher education or
universities
HUMAN TRAFFICKING
The first-ever agreed definition of trafficking was incorporated into the 2000 Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United
Nations Convention against Transnational Organized Crime (Trafficking Protocol). That definition has
since been incorporated into many other legal and policy instruments as well as national laws. A. The
international definition of trafficking The Trafficking Protocol defines the term “trafficking in persons”
as follows: (a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring
or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction,
of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or
receiving of payments or benefits to achieve the consent of a person having control over another
person, for the purpose of exploitation. Exploitation shall include, at a minimum, 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; (b) The consent of a victim of
trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be
irrelevant where any of the means set forth in subparagraph (a) have been used; ... (art. 3).
The three key elements that must be present for a situation of trafficking in persons (adults) to exist
are therefore: (i) action (recruitment, …); (ii) means (threat, …); and (iii) purpose (exploitation).
International law provides a different definition for trafficking in children (i.e., persons under 18 years
of age). The “means” element is not required in this case. It is necessary to show only: (i) an “action”
such as recruitment, buying and selling; and (ii) that this action was for the specific purpose of
exploitation. In other words, trafficking of a child will exist if the child was subjected to some act, such
as recruitment or transport, the purpose of which is the exploitation of that child.
Trafficking affects women, men and children, and involves a range of exploitative practices. Trafficking
was traditionally associated with the movement of women and girls into sexual exploitation. The
international legal definition set out above makes clear that men and women, boys and girls can all be
trafficked—and that the range of potentially exploitative practices linked to trafficking is very wide.
The list of examples set out in the definition is open-ended and new or additional exploitative
purposes may be identified in the future. Trafficking does not require the crossing of an international
border. The definition covers internal as well as cross-border trafficking. That is, it is legally possible for
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trafficking to take place within a single country. Trafficking is not the same as migrant smuggling.
Migrant smuggling involves the illegal, facilitated movement across an international border for profit.
While it may involve deception and/or abusive treatment, the purpose of migrant smuggling is to
profit from the movement, not the eventual exploitation as in the case of trafficking. Trafficking does
not always require movement. The definition of trafficking identifies movement as just one possible
way that the “action” element can be satisfied. Terms such as “receipt” and “harbouring” mean that
trafficking does not just refer to the process whereby someone is moved into situations of
exploitation; it also extends to the maintenance of that person in a situation of exploitation. It is not
possible to “consent” to trafficking. International human rights law has always recognized that the
intrinsic inalienability of personal Freedom renders consent irrelevant to a situation in which that
personal freedom is taken away. This understanding is reflected in the “means” element of the
definition of trafficking. As noted by the drafters of the Trafficking Protocol: “once it is established that
deception, coercion, force or other prohibited means were used, consent is irrelevant and cannot be
used as a defence.”
Slavery, servitude, child sexual exploitation, forced marriage, servile forms of marriage, child marriage,
enforced prostitution and the exploitation of prostitution are also trafficking-related practices that are
prohibited under international human rights law
The human rights of trafficked persons Both the Charter of the United Nations and the Universal
Declaration of Human Rights confirm that rights are universal: they apply to everyone, irrespective of
their race, sex, ethnic origin or other distinction. Trafficked persons are entitled to the full range of
human rights. Even if they are outside their country of residence, international law is clear that
trafficked persons cannot be discriminated against simply because they are non-nationals. In other
words, with only some narrow exceptions that must be reasonably justifiable, international human
rights law applies to everyone within a State’s territory or jurisdiction, regardless of nationality or
citizenship and of how they came to be within the territory.
Human trafficking is a trade among all the peoples especially in children and women. According to a
report released by the International Labour Organisation (ILO), an amount of $150 billion in profits was
generated by only through forced labour in 2014.1 While in 2012, it was estimated by the ILO that
around 21 million victims were trapped in modern day slavery. Out of these 21 million victims, around
14 million were exploited for labour, 4.5 million were exploited sexually and rest of the 2.2 million
victims were exploited in the forced labour.
Among all the victims of human trafficking, the ILO reported that the child labourers, minorities and
migrants were exploited in the extreme nature and they all were at the considerable risk of more and
more exploitation. Even the data shows that more than half of the world’s 215 million workers are
engaged in various hazardous sectors which also included forced sexually exploited and street begging
workers. Various ethnic and highly marginalized groups were estimated to be engaged in the most
hazardous and exploitative nature of the industries like mining, stone quarrying, tanning, etc. Human
trafficking is considered to be one of the fastest growing criminal activities among various
transnational criminal organizations. It is condemned to be as a violation of human rights of the
victims by various international conventions. Apart from that, it is a subject to a directive in the
European union. The US State Department released a report and according to which there are some
countries like Belarus, Turkmenistan, Iran, Russia, etc. remain among the worst performing countries
when it comes to providing protection against the forced labour and human trafficking.
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Human trafficking can occur at national as well as international level. At the international level, its
significance has been recognized by the United Nations by implementing various protocols to prevent,
suppress, punish trafficking in persons especially in women and children which is known as Trafficking
Protocol or Palermo Protocol. It is an agreement which was exercised by the United Nations
internationally under the UN Convention against Transnational Organised Crimes (UNTOC) which was
implemented on 23 December, 2003.
In India, human trafficking is considered as a major challenging issue. Though, there are several
anti-human trafficking laws which exists in the country but it remains a quintessential problem.
Men, women, children are trafficked in the country for different purposes like commercial
demand for sex, labour trafficking, prostitution, etc. Women and girls are trafficked within their
own country in those areas where there are large of men or the sex ratio is highly biased in
favour of men. While men and boys are trafficked especially for bonded labour or labour
trafficking. All the victims including men, women, children, etc. are sexually exploited many a
times and are coerced to work as escorts, whores, prostitute, gigolos, massage experts etc.
against their will. A large part of trafficked children in the country are forced to work as child
labourers, domestic servants, factory workers, beggars, household servants, etc. while
infringing their fundamental and basic human rights. Many a times children are kidnapped
across the country and are forced to work as armed combatants by various terrorist
organisations and insurgent groups.
Sex Trafficking: Sexual trafficking include sexploitation and coercion of a migrant into a sexual act as a
precondition for them by the traffickers for allowing or arranging their migration. This type of
trafficking often uses physical or mental exploitation and coercion, abuse of power, deception and
bondage incurred through the forced debt. A lot of times, trafficked women and children are being
promised to work under service or domestic industry but instead of it, they are taken to brothels or
somewhere else where they are required to work as a sex worker. While their passports and other
identification documents are being confiscated by the traffickers. In major cases, it has been found out
that the victims of sex trafficking have been beaten or locked up by the traffickers and they were
promised their freedom only if they earn through prostitution. It was claimed by the International
Labour Organisation (ILO) that around 4.5 million people are affected through sex trafficking in
aworldwide. While most of the victims find themselves in a coercive or abusive circumstances and
from which escapement is like impossible, difficult as well as dangerous.
Labour Trafficking: They are like unfree labourers which includes all kinds of slavery like debt slavery,
serfdom, labour camps, etc. Most of the works are covered under the forced labour and the
International Labour Organization (ILO) also defines it as an involuntarily work or service which is
performed by the victims under the menace of a penalty.
Child Trafficking: Child Trafficking is a major challenge and it is still prevalent in our country. It is
defined as the recruitment, transportation, harboring, transfer or receipt of the children for the
purpose of slavery, forced labour or exploitation. Exploitation of the child can take many forms like
commercial sexual exploitation which includes forcing a child into prostitution or any other kind sexual
activity like pornography. According to an estimation released by the International Labour
Organisation (ILO), around 1.2 million children are trafficked every year. In 2012, The United Nations
Office on Drugs and Crime (UNODC), reported that the percentage of child victims had risen from 20 to
27 percent in a 3 year gap. It was also reported that every year around 3 lakh children are being taken
all over the world and sold by the traffickers as slaves.
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Organ Trade Trafficking: Trade in organs is an another kind of human trafficking and it can take place in
various forms. There are some cases in which the victims are being forced to give up their organs while
in some other cases, the victims agree to sell off their organs in exchange of money or goods but they
are not paid at all or paid very less by the traffickers. There are various cases in which the body parts of
the victims are being removed without their knowledge especially when the victim is being treated for
any other medical ailment. In this case, some people are at extreme vulnerable risk like migrant
workers, illiterate or homeless persons and they are especially targeted for the exploitation.
Forced Marriage Trafficking: The United Nations termed forced marriage as an abuse of human rights
because it is violating the freedom and autonomy of the victims. According to Universal Declaration of
Human Rights (UDHR), it is a central point of their life and dignity that every person has a right to
choose their spouse and to enter freely into a marriage.
Poverty, Globalization and Unemployment: Lack of poverty, educational and economic opportunities
may lead women to migrate voluntarily and then they may be compelled into trafficking involuntarily
for sex work. As globalization has opened up the national borders for smooth exchange of goods and
services, its economic impact has also pushed peoples especially women and children to migrate and
be vulnerable to trafficking. Gender inequality also pushes women to migrate towards informal sector
which is more hazardous for them.
Unemployment, Globalization and Internet Technology as well has facilitated a lot more towards
human trafficking. Also long waiting list for the organs in countries like US, UK has created a thriving
international black market of human trafficking. Wealthy countries are unable to meet their demand
of organs within their own borders thus it perpetuates human trafficking. Globalization has nurtured
the new technologies which may aggravate sex trafficking, while technology can also be used for
assisting law enforcement and anti-trafficking methods.
Gender Based Discrimination: It is a cultural norm which is followed in our country that sons are
considers as superior, authoritative and more useful in a family than daughters in our patriarchal
society. Thus this society leaves girls with no or very limited access to education and it leads to gender
gaps between boys and girls in both literacy rates and financial earning potentials. According to 2011
census, the literacy rate for men was around 82 percent and for women, it was around 35 percent
while men were paid 25 percent more than women. So, as a result of gender based discrimination, the
sex ratio in India is too wide.
Impact on Women and Children: Women and girls are always at the risk of unwanted pregnancies,
sexually transmitted diseases (STDs), HIV/AIDS, maternal mortality, etc. They are also affected by the
drugs and harmful medicines or other addictions which result in physical and mental deterioration.
They also have a threat of emotional well-being like deprivation from their family life, threat to their
social support systems, isolations, constant fear of arrests. Most of the times, they are scared of
humiliation and abuses which resulting in serious and emotional stress which also causes psychological
consequences. They have a threat of their physical safety by police, unscrupulous agents, custom
officials, employers, etc. They may also face the economic slavery, difficulties in social integration, etc
At present time, we need to modify already taken anti-human initiatives or we need to adopt some
methods for resolving the problem of human trafficking in our country. For instance, corruption, police
reforms or the professionalism of police officers while investigating the human trafficking in India,
reformation of criminal justice system. Various anti-trafficking awareness campaigns and fundraising
programmes must be started at the district level under the appropriate authority. Since they have a
very significant role for the anti-trafficking initiatives.
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For example, In Asia, there is an anti-trafficking initiative namely “The 24 Hour Race” and it focuses
totally on increasing the scope of anti-trafficking awareness among the high school students in Asia.
The major issue which boosts the human trafficking is the corruption within the police itself which
causes a disagreement between the officials and NGOs resulting a controversy between them.
According to UN Special Rapporteur on Violence Against Women, it is understood that the due to
police corruption, the humantrafficking issue is getting more strong and continuously, as a horrible
issue, spoken up by the various women groups and victims of human trafficking.
Accept the Human Rights Principles: The most reasonable and genuine measure to combat the human
trafficking in India is to ratify the International Human Rights Conventions or treaties which are
initiated by the United Nations or any other renowned internal organization. Here is a major problem
which we need to confront that our national laws do not operate according to the international human
right framework. In other words, to combat the human trafficking, we do not have a powerful human
rights normative framework.
Thus the anti-human trafficking is a process in which we all worried along with the infringements of
human rights violations. Thus, all are concerned about the human right violations and human
trafficking process must come together at an international level and join their hands for the active
cooperation to fight all this menace of human rights violations and human trafficking process.
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CHAPTER 09
CHALLENGES TO HUMAN RIGHTS

Civil Strife and Wars Different peoples of the world are currently victims of many conflicts and live in
war tone societies. Africa takes its fair share of these challenges. In Sudan, the people of that country
have not been able to fully enjoy the peace and stability that they expected following the signing of
the Comprehensive Peace Agreement (CPA) between the Khartoum government and the Sudan’s
People Liberation Movement/Army (SPLM/A). The mostly devastated part of the country is Darfur
region where ordinary people, the women and children, continue to suffer as victims of the carnage.
The situation in Darfur brings to fore of the debate the inextricable link between human security and
the responsibility to protect. Critical questions have to be addressed. For instance, how should and
under what circumstances should the international community intervene in a country where there is
great human suffering. Concomitant to this is how should such interventions be undertaken without
undermining individual State sovereignty.
Elsewhere in the world there are similar devastating challenges. For instance, the world recently paid
witness to a military invasion of Lebanon by the Israeli army. Without necessarily providing merits and
demerits of such an intervention one cannot ignore the plight of the people of Lebanon during and
after the attacks. Immeasurable amounts of destruction in the form of property, physical infrastructure
and general people’s livelihood. The world reacted to this challenge, but it is correct to argue that
perhaps the response, which helped secure a cease-fire, only occurred too late. Among other things,
conflict results in refugees and internally displaced persons (IDPs) who are faced with different
challenges. More often than not, the women and children are the most vulnerable in these situations.
Global War on Terror The manner in which the global war on terrorism was launched clearly thwarted
if not entirely undermined the objectives of human security. To be sure, one would not be opposed to
a decision by a State or a group of States seeking to tackle terrorism and rid the world of the problems
it presents. However, the manner in which this war has been carried out flies in the face of all the
noble goals that humanity has attempted to achieve since the turn of the 21st century. One of the best
ways of ensuring that the objectives of human security are implemented is through multilateral action
preferably under the aegis of the United Nations (UN) or any other regional structure such as the AU.
However, the war on terror has primarily been undertaken within unilateralism, that is, outside of the
collective mandate of the UN. When such unilateral action is undertaken, it would seem that States are
left on their own will to do as they please.
Furthermore, the war on terror has resulted in the violation of some of the basic human rights and
standards, such as rights to a fair trail and rights not to be arbitrary arrested nor detained. What we
have seen is the implementation of the so-called rendition policy, where terror suspects are being
moved from one country to another often below and above the limits of justice. This is one of the
things that human security sought to prevent, that is, basic violations of people’s freedoms.
HIV AIDS and other Communicable Diseases The world is still battling with dealing effectively with
diseases such as HIV and AIDS and other communicable diseases. The devastating effect of HIV and
AIDS is that it is robbing many societies of their economically active segments of the population. HIV
and AIDS create a strain on the already overstretched government resources especially in the sphere
of health.
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Furthermore, many people still suffer from preventable diseases, especially in Africa, such as malaria.
3.4 Poverty and Underdevelopment A sizable number of the world population find themselves in
situations of poverty and underdevelopment.
According to the 2006 Human Development Index issued by the United Nations Development
Programme (UNDP) about 1.2 billion people are without access to safe water; and almost 2.6 billion
are without access to sanitation. Furthermore, about 2 million children die each year due to lack of
access to safe water and sanitation.
While a huge number of people continue to live in poverty and underdevelopment, the world leaders
have failed to reach agreement of an appropriate international trade and development agreement. It
would virtually be impossible, for the countries of the South to fight poverty and improve the lives of
their people without a proper international regime on development. Therefore, Parliamentarians the
world over, must continue to criticize the collapse of the DOHA Round of international development
negotiations.
Human Rights and Good Governance Another challenge facing human security is in the area of human
rights and good governance in the world. While it can said that the latter part of the 20th century and
the beginning of the 21st century have seen improvements in the area of good governance, more work
remains to be done. For example, there is a need to strengthen the rule of law in many societies
especially those coming out of conflicts. There is also a need to ensure that the advances made in
specific countries in the area of human rights and good governance are not reversed. The Report of
the Commission on Human Security observed that the process leading to a democratic system is
fraught with risks and potential reversals as competing social, political and economic forces vie for
control and power
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The Karnataka State Human Rights Commission (“the Commission” for short), came into existence as a
statutory entity on 25/7/2007, under The Protection of Human Rights Act, 1993.
The Commission has its Head Quarters, in 5th Phase, M.S. Building, Dr. B.R. Ambedkar Veedhi,
Bengaluru. The Commission can be accessed through its phone number 080-22392226, FAX No.080-
22392206, Helpline Toll Free No.1800-425-23333, E-Mail:kshrc2007@gmail.com and website:
www.kshrc.kar.nic.in.

Objects of the Commission: The “United Nations Charter” reaffirmed faith in “fundamental human
rights, and dignity and worth of the human person" and committed all member states to promote
"universal respect for, and observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion". In pursuance of acceptance of the United Nations
Charter on Human Rights by the National Human Rights Commission, the Karnataka State Human
Rights Commission is responsible for protection and promotion of human rights, defined by the Act as
"Rights Relating to Life, liberty, Equality and Dignity of the individual guaranteed by the Constitution or
embodied in the International Covenants".

Functions of the Commission: In order to promote and create awareness about the safeguards
available for protection and help to the victims of Human Rights violations, the Commission is
performing the following functions:
• Take suo moto or on the basis of a petition of a victim or any person on his behalf, cognizance of
violation of Human rights or abetment or negligence thereof by a public servant.
• Conduct an enquiry into the facts of the matter and pass orders in accordance with the legal
provisions in such matter.
• Create awareness of human rights among students / teaching staff by conducting
workshops/seminars/ meetings/ training on Human Rights in Universities and in other educational
institutions.
• Spread literacy about Human Rights among various sections of society through workshops /
programmes / conferences and create awareness among Govt. servants undergoing training in
Government organisations, such as Administrative Training Institute, Mysore, Karnataka Police
Academy, Mysore, Abdul Nazir Sab State Institute of Rural Development etc.
• Visit jails or any other institutions under the control of the State Government, where people are
detained or lodged for the purpose of enquiry/hearing/reformation/protection, in order to study the
living conditions of the inmates and make recommendations to the Government.
• Create awareness about human rights in the society through publications.
• Encourage non-governmental organisations to promote awareness of safeguards available for
protection of Human Rights. The Commission is deemed to be a civil court while inquiring into
complaints under the Act. Every proceeding before the Commission is deemed to be a judicial
proceeding of a civil court.

The Chairperson and Members of the State Commission undertake tours throughout the State, receive
complaints and take cognizance of the cases of violation of Human Rights, conduct spot inspections
and review and create awareness among officers / officials and general public. “Helpline” system of
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the Karnataka State Human Rights Commission has been installed with Toll free No. 1800-425- 23333.
Helpline enables the public to submit their complaints telephonically and is convenient for persons
who find it difficult to commute to the Karnataka State Human Rights Commission office or correspond
by means of letter / e-mail etc. The Commission is responding to violation of Human Rights of the
people at all levels of the society. The Commission may also recommend payment of compensation to
the victims if violation of human rights is proved.
The Commission provides opportunity to law students from India and foreign countries to do
internship with the KSHRC for varying duration.

Complaint Management System: When a complainant approaches the Commission with a complaint,
he has to necessarily accompany it with a duly filled in complaint form provided by the Commission.
The complaint will be received under endorsement to the complainant. The compliant will be taken up
by the Commission for further orders, which could be for investigation of the complaint by the
Investigation Wing of the Commission or by the concerned Department. On receipt of a report in that
regard, a copy will be sent to the Complainant for his/her comments. On receipt of comments, the
Commission will pass suitable Orders. If the Commission feels that some improvement is required with
regard to any aspect of service rendered by the government, a copy of the order will be sent to the
concerned Department to look into it and to comply with the directions and recommendations made
by the Commission. If a public servant as a respondent is found and proved to be guilty of dereliction
of duty, necessary recommendations will be made against him/her, to the Government for taking
necessary action in that regard.

The Commission entertains complaints in the following categories.

1. Custodial Death in Jail
2. Custodial Death in Police Custody
3. Custodial Torture
4. Custodial Rape
5. Death in Police Encounters as reported by Police, District Magistrate or the Government or in the
media.
6. Death due to alleged fake encounters as reported by the media/public
7. Rape
8. Illegal Detention / arrest
9. Police Excesses and Negligence
10. Prison/Jail Conditions
11. Violation of the Rights of Prisoners
12. Dowry Torture / Death, Indignity to Women/Sexual Harassment at Workplace
13. Violation of the Rights of the Child
14. Violation of Legal Rights Of Mentally Retarded Children
15. Violation of Legal Rights Of Physically Challenged
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16. Complaints against all departments of State Government, local authorities, Agencies of
Government for violation of Human Rights.
17. Mysterious Death
18. Mysterious Disappearance
19. Abduction
20. Complaint regarding violation of right to education or public health
21. Electrocution
22. Pension
23. Cases of Pollution resulting into violation of human rights
24. Condition of inmates in relief camps set up during natural calamities
25. Denial of basic necessities to citizens and causing public nuisance
26. Violation of freedom of conscience and religion
27. Degradation of environment and ecology
28. Ragging in Educational Institutions
29. Negligence by Forest Department Unlawful Eviction By Public Authorities 30. False implications by
the police
31. Illegal sale of human organs
32. Terrorism
33. Naxal activities
34. Child marriage
35. Issues relating to child labour
36. Sexual harassment against women and children
37. Communal abuse.
38. Cases transferred by NHRC

The Commission, in the ordinary course, does not entertain following category of cases. Vague,
unclear, anonymous, unlawful, pseudonym complaints, or the same matter which is pending before
any other forum, or complaint made one year after the incident of violation of human rights, civil
cases, disputes regarding immovable properties and the matters relating to contracts, service matters
and industrial disputes, or the complaints not made against a public servant, or matters which are
already decided by a court or Commission, or the matters which do not come under the purview of the
Commission.