HUMAN RIGHTS LAW

 UNIT 1

 WHAT IS HUMAN RIGHTS

Every Single Human Being Is Entitled To Enjoy His Or Her Human Rights Without
Discrmination As To Race, Colour, Sex, Language, Religion, Political Or Other Opinion,
National Or Social Origin, Property, Birth Or Other Status.

RIGHT TO
FAIR TRIAL
CLASSIC
RIGHT TO
PRIVACY
RIGHTS
RIGHT TO
SOCIAL
SECURITY
SOCIAL
RIGHT TO
EDUCATION

 Human Rights are Inalienable Fundamental Rights to which a person is Inherently Entitled
simply because she or he is a human being.
 The term ‘Human Rights’ is used to denote a broad spectrum of rights ranging from the Classic
Rights to Social Rights.

 CHARACTERISTIC OF HR

 INALIENABLE
 They are the rights which cannot be taken away, except by due process of law.
 Humans possess these rights as a matter of natural right which has to be respected at all times
 The very fact they are born as human give them the right to possess human rights to live a
dignified life

 EGALITARIAN
 Status of Equality has to be maintained at all times
 Allen Buchana states human rights exhibits a robust commitment to affirming and
protecting the equal basic moral status of all individuals thereby ensuring that human
rights is guaranteed to one an all
 Indivisible and Interdependent
 Priniciple of indivisibility recognizes that no human right is inherently inferior to any other
rights. There is no option of Right to choose.
 The international community must treat human rights globally in a fair and equal manner, on
the same footing, and with the same emphasis.
 Human rights are interdependent: all economic and social rights are part of a
complementary framework.

 Indivisibility is linked to the concept of interdependence – meaning that each right forming
part of human rights is only fully enjoyed when the other rights are also being enjoyed.
 Every right forming part of human rights is equally important, deserves equal protection and
promotion and can only be truly enjoyed if all other rights are concurrently implemented.
 Example
 Indivisibility and Interdependency of all rights have finally been codified by way of the
recently adopted Optional Protocol to the ICESCR.
 States parties to the Optional Protocol will recognise the competence of the Committee on
Economic, Social and Cultural Rights to receive, Act and consider individual and collective
complaints alleging violations of economic, social and cultural rights set forth in the ICESCR.
 Universal
 Human rights are closely tied to claims of universality.

 Universal human rights, properly understood, leave considerable space for national, regional,
cultural particularity and other forms of diversity and relativity. Example Cultural
Relativism

 Cultural Relativism
 Human rights represent values that attach to culture of a particular community.
 Example: Article 18 of the Universal Declaration reads, in its entirety, “Everyone has the
right to freedom of thought, conscience and religion; this right includes freedom to change
his religion or belief….
 There are communities that deny the right to change their religion

 Universalism refers to the notion that human rights are universal and should apply to every
human being.
 Cultural Relativists object, and argue that human rights are culturally dependent, and that
no moral principles can be made to apply to all cultures.
 In Sierra Leone, the government has tried to create a balance by issuing a judicial order with
regard to dress code of women.
 In china, in spite of inhumane treatment which one has to endure in order to achieve
‘PERFECT, DAINTY FEET’, footbinding is voluntarily followed by women

 The Nats Purwa, a small village in Uttar Pradesh have prostitution, a trade which is passed
from generation to generation and some still carry on this tradition. Similar is the case of Bedia
community, in M.P., where culturally women earn living through prostitution and the entire
house is run by women only

 (Art. 26 of ICCPR, as well as several specific conventions) prescribes not only the
“negative” obligation by the states not to discriminate their own legislations, but
even their “positive” obligation to actively fight against any discrimination that may take place
in the society among private actors.

 Conceptual Universality
 Human rights are ordinarily understood to be the rights that one has simply because one is
human.
 Human rights are also inalienable rights, because being or not being human usually is seen as
an inalterable fact of nature, not something that is either earned or can be lost.
 Human rights are thus “universal” rights in the sense that they are held “universally” by all
human beings.
 Conceptual universality is in effect just another way of saying that human rights are, by
definition, equal and inalienable.

 Conceptual universality, however, establishes only that if there are any such rights, they are
held equally/universally by all. It does not show that there are any such rights
 Whereas Substantive Universality is a list of human rights enshrined in a legal document like
UDHR OR Covenants
 IMPORTANCE OF HUMAN RIGHTS
 Human rights are important in the relationships that exist between individuals and the
government that has power over them. The government exercises power over its people.
However, human rights mean that this power is limited. States have to look after the
basic needs of the people and protect some of their freedoms. Some of the most important
features of human rights are the following:
 They are for everyone.
 They are internationally guaranteed.
 They are protected by law.
 They focus on the dignity of the human being.
 They protect individuals and groups.
 They cannot be taken away
 CLASSIFICATION OF HUMAN RIGHTS
 HUMAN RIGHTS OF FIRST GENERATION
 It was until the middle of the 20th century that these rights came into picture.
 Civil rights included
• The right to life.
• the Right to privacy
• Prohibition of torture and inhuman or degrading punishments;
• Prohibition of slavery and forced labor.
• Freedom and security of a person - the Right to a fair trial.
• The right to property of the person or of a legal person.
• Freedom of mind, of thought and religion.
• Freedom of expression and information.
• Freedom to free elections.

 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.
 In the modern age, these rights are found in the laws of most countries, as well as in
international documents. Among them we mention:
• The Universal Declaration of Human Rights U.N. –
• The International Convenant on Civil and Political Rights
 HUMAN RIGHTS OF SECOND GENERATION
 Many felt that first-generation rights were too narrow to define the scope of free and equal
citizenship.
 It was contended that an additional set of claims such as rights to food, shelter, medical care,
housing and employment could only lead to the realization of such citizenship.
 These rights belong to the second generation of economic ‘welfare rights’ which ensured that
the first generation rights could be made effective in protecting the vital interests of citizens
and were not simply paper guarantees.

 These rights come from positive law, as well as from international law (International
Covenant on Economic, social and cultural)
 The second generation of rights, against the first generation of rights requires institutional
support from the state, where as 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 social security. It is estimated that if the
first generation rights form "free status”, social economic rights are related to the “social
status” of the individual.
 HUMAN RIGHTS OF THIRD GENERATION
 In this category we identify the third generation rights as solidarity rights, as they cannot be
exerted by an individual, but only collectively, like:
• the right to self determination
• the right to peace
• the right to development
• Right to environmental law
• the right of minorities

 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.
 PHILOSOPHICAL AND HISTORICAL FOUNDATION OF HUMAN RIGHTS
RELIGION
 Human rights traditionally as such is not found in religious text. Nonetheless, the human
rights theory stem from many religious book like Bhagvad Gita, Holy Quran and even
in the Old Testament.
 Under this source, it was believed by the religious heads that the human are images of
God and hence certain basic rights should be accorded to them.

 From a religious point of view, human rights were more akin on duties rather than on rights.
 The religious philosophers strongly believed that interpretation of religious doctrine supports
that the fundamental principles of justice and equality can only be achieved if men are
guaranteed certain basic rights which takes a form of duty to be adhered at all times.
 B. NATURAL LAW

 GROTIUS (Father of International Law) and JOHN LOCKE were chief exponent of this
theory.
 According to this theory, natural law is the dictate of right reason
 In this theory, man and women were in a state of freedom and equality where no was subject
to the will of the authority. However, to end the inconvenience they have mutually entered
into a social contract to form a community and set a body politic

 Natural law theory marks an important contribution to human rights where in it identifies
certain rights which need to be asserted in order to secure human freedom and equality.
 They consider these rights to be inalienable which has to be guaranteed by the higher
authorities as these rights are devolved by divine.
C. POSITIVISM

 According to Positivism theory, states that all rights, whether human or not, stems from what
state and its official have prescribed.
 The source of human rights, in this theory, encourages the belief that human rights are the
moral foundations of society which has to be obeyed , no matter how immoral it is.
 They emphasize on the fact that there is a superior which commands obedience from its
people, and if the superiors declares certain rights to be human rights, even if it is unjust,
has to be adhered at all times.

D. MARXISM

 Karl Marx regarded law of nature approach to human rights as idealistic under marxism
 Marx believed in capitalist society which was divided into two halves. One is
Proletariat(have not class) and other is bourgeoisie (have class).
 It is the ‘have class’ that owns the resources in the society and controls the ‘have not’
class.

 Therefore, in such situations, individual needs cannot be fulfilled and human rights will be
altered in such a way the people in authority will dictate what is human rights or not.
E. SOCIOLOGICAL APPROACH
 Roscoe Pound was the chief exponent
 He understood the scope of human rights from the prism of social process
 According to his theory of social engineering, in a political organized society, human
relations have to be guaranteed by certain basic, human rights so as to secure interest of all
with the least sacrifice of individual interest. Harmony of human rights should be attained in
a society where individual interest and societal interest is balanced

F. RIGHTS BASED ON JUSTICE

 According to John Rawl’s theory of justice every person in society should have an access to
two types of human rights
• Basic Liberties
• Distributive Justice
BASIC LIBERTIES are those which are also known as civil and political rights which have
to be ensured by the STATE to be guaranteed to its citizen at all time. However these
rights, although having characteristic of human rights, comes with certain restrictions

 Distributive Justice
These are social and economic rights for the people to access which a state ensures by having
adequate resources.
Unless these rights are not provided to the people as human rights, the society will be devoid of
attaining an egalitarian status
G. RIGHTS BASED ON DIGNITY
 According to this theory of human rights a comprehensive system of human rights are based
on the protection of human dignity.
 McDougal, Lasswell and Chen the exponent of this theory believed that human rights
foundation is dignity which can only be attained if the rights these eight values. The values
are Respect, Power, Enlightenment, Skill, Integrity, well Being, Affection and Health

H. RIGHTS BASED ON REACTION TO INJUSTICE

 EDMUND CAHN was the chief exponent of this theory.
 According to this theory human rights are evolved on the basis of human responses that
are evoked due to injustice .
 The identification of justice has to stem from the revolutions that society responds to the
abuses that are prevalent in the society.
 HUMAN RIGHTS IN INDIA

 The concept of human rights is not alien to the Indian political thinkers and philosophers.
They have expressed concern about securing human rights and fundamental freedoms for all
human beings everywhere since the very early times of Vedic age. The philosophy of human
rights had already occupied a place of prime importance in ancient Indian Brahmanical
society. In ancient India, law, which was structured on the philosophy of dharma, did not have
much scope for religious discrimination. We learn from the Mahabharata that dharma was
 ordained for the advancement of all creatures as well as for restraining creatures from injuring
one another.
 In the Bhagavad Gita righteousness has been described as the essence of dharma. The
Upanishads speak of dharma as the foundation of the whole universe, through it on derives
away evil.
 The Vedas and Smritis have spoken highly of equality of brotherhood e.g.
vasudeivakutumbakam (the whole world as one family). All the four Vedas insist equality and
respect for human dignity.
 In the whole eighteen Puranas, Vyasa has said two things: doing good to another is right,
causing injury to another is wrong. Whether it is Mahabharata or Arthashastra or Manu
Dharmashastra or Narada, there is great emphasis on the institution of kingship and Rajdharma
inorder to escape from political disorder, social chaos and injustice. Kings were required to
take a pledge never to be arbitrary and always to act according to “whatever law there is and
whatever is dictated by ethics and not opposed to politics”

 The teachings of Buddha, Ashoka worked extensively for the protection of human rights. His
chief concern was the happiness of his subjects. Ashoka had been successful in the
establishment of a welfare state and basic freedoms were available to people. King used to
dispense justice to the people.
 The study of Mudra Rakshas shows that dispensation of justice was considered as one of the
important duties of the rulers.
 The cult of Sufism prevalent in Medieval India spread the message of secularism by the
symbiotic synthesis of the core values of different religions to bind the pluralist society. Saints
and holy persons propagated the message of the Sufi saints to emphasize that the difference
between human beings is man-made, all being born equal

 In the medieval era During Muslim era, the Muslim rulers in India were fundamentalist and
despotic who forced upon the Hindus their own laws, customs and religious practices. Hindus
were not treated in law on par with the Muslims – the latter being the conquerors and the
former being the Kafirs-the non-believers of Islam.
 Muslim rule in India was not was not founded on the basic principles of human dignity,
equality and justice, and was essentially autocratic, theocratic and irresponsible, devoid of the
idea of rule of law, morality, justice, tolerance and social harmony.
 Some of the Mughal rulers, especially Akbar the great brought about a basic change in the
style of Moghul administration. He adopted a policy of tolerance and non-discrimination
towards Hindus and saw that no injustice is committed in his realm.
 His policy of tolerance and non-discrimination towards Hindus was followed by his son
Jahangir too. During the reign of Aurangzeb, the concept justice was made less intricate and
more expeditious than in the former reigns.
 Corruption in Judiciary was made a crime for the first time. If delay in Justice resulted in loss
to a party, the aggrieved party could be compensated by the judge himself
 The cult of Sufism prevalent in Medieval India spread the message of secularism by the
symbiotic synthesis of the core values of different religions to bind the pluralist society. Saints
and holy persons propagated the message of the Sufi saints to emphasise that the difference
between human beings is man-made, all being born equal

 Raja Ram Mohan Roy (1772-1823), one of the greatest rationalist and creative thinkers of his
age led India in the earliest period for her transformation from feudalism to modernity. His
rational mind made him a poignant critique of those religious rituals of Hinduism like, Sati
and Child marriage, which patronised and promoted societal violence against women in the
name of religion. His opposition of polygamy and his advocacy for equal rights of women
including the right of widows to marry and right of women to property also came from his
firm belief in the supremacy of reason.Ram Mohan can reasonably regarded as the founding
father of human rights movement in modern India.
 Concerted efforts made by the Indian National Congress which demanded basic human rights
in the Constitution of India Bill, 1895. The rights like freedom of expression, right to property,
equality before law and inviolability of one’s own home, figured in this Bill. Congress as early
as in 1918 on Bombay session demanded declaration of rights of people of India and again
demand of these basic rights were reiterated in Nehru Committee Report in 1928. The
Congress in the resolutions of 1917 and 1919 asserted demand of civil rights and equal status
with the English men. In 1922, Congress aimed at achieving swaraj to shape dignity of the
country. The Sapru Report (1945) incorporating the proposals of fundamental rights did not
find favour. Simultaneously, the freedom struggle had reached its climax and demand for
independence gained momentum. And finally India got independence on 15th August, 1947
and the Constituent Assembly pledged to draw Constitution for the country which was enacted
and adopted by the people of India on 26th January, 1950.The human rights content of the
Indian Constitution is a complex amalgam of civil and political rights along with economic,
social, religious and minority rights.

 The Preamble, Fundamental Rights, Directive Principles of State Policy, newly added
Fundamental Duties, reservation for scheduled castes and tribes, special provisions for Anglo-
Indians and other backward classes are important constitutional provisions from the human
rights point of view. The study of human rights with reference to Indian Constitution reveals
that the Constitution enshrines almost all the human rights provided in the various
international conventions, covenants and treaties, such as Universal Declaration of Human
Rights, 1948, the International Covenant on Economic, Social and Cultural Rights, 1966 etc.
Apart from the various constitutional provisions, various statutes have also been enacted by
the Indian legislature with a view to protect and promote human rights. Some of the important
legislations enacted by the union are, Protection of Human Rights Act, 1993; National
 Commission for Minorities Act,1992; National Commission for Women Act, 1990; Protection
of Civil Rights Act, 1995; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989; Immoral Traffic (Prevention) Act, 1987; Bonded Labour System (Abolition) Act,
1976; Juvenile Justice (Care and Protection of Children) Act, 2000; Child Labour (Prohibition
and Regulation) Act, 1986 etc. India has also adopted a number of legislative measures for the
social security of the labour, which have been greatly influenced by ILO’s standards.
 Judiciary in India plays a crucial role in enforcing these rights. By Articles 32 and 226, the
Courts have greatly extended the ambit of judicial review and devised new methods and
strategies by opening the doors of Justice to the poor and downtrodden through Public Interest
Litigation (PIL). It can fairly be said that judiciary in India through the innovation of Public
Interest Litigation or Social Interest Litigation has broadened the concept of social justice and
has gone much ahead in structuring, expanding, protecting and promoting human rights

 HUMAN RIGHTS LAW

 UNIT II
 FOUNDATION OF HUMAN RIGHTS LAW
 The ancient age expanded approximately from 500 years before A.D. to in 4th Century.
Slavery was viewed as a legal custom in the social system during that time. During this period
a slave was considered an ‘animal tool’s or ‘living possession’ and was deprived of minimum
basic needs. The slaves had no political or economic freedom; they were used as an instrument
of production without enjoyment of any kind of rights.
 The ancient age can be stigmatized as the ‘blooming stage; of concern and thoughts related
to Human Rights
 The earliest legal code known as (c. 2350 BC) Urukagina of Lagash, addressed the concept
of rights. The oldest legal codex extant today is the Neo-Sumerian Code of Ur- Nammu
(2050 BC). Several other sets of laws were also issued in Mesopotamia, including the Code
of Hammurabi (1780 BC), one of the most famous examples of this type of document.

 Some historians suggest that the Empire of ancient Iran established unprecedented principles
of human rights in the 6th century BC under Cyrus the Great. After his conquest of Babylon
in 539 BC, the king issued the Cyrus cylinder, discovered in 1879 and seen by some today
as the first human rights document.
 He freed the slaves, declared that all people had the right to choose their own religion,
and established racial equality. These and other decrees were recorded on a baked-clay
cylinder in the Arabic and Hebrew language with cuneiform script.
 Known today as the Cyrus Cylinder, this ancient record has now been recognized as the
world’s first charter of human rights. It is translated into all six official languages of the United
Nations and its provisions parallel the first four Articles of the Universal Declaration of
Human Rights.
 From Babylon, the idea of human rights spread quickly to India, Greece, and eventually Rome.
 There the concept of “natural law” arose, in observation of the fact that people tended to follow
certain unwritten laws in the course of life, and Roman law was based on rational ideas derived
from the nature of things.
 Documents asserting individual rights, such as the Magna Carta (1215), the Petition of
Right (1628), the US Constitution (1787), the French Declaration of the Rights of Man
and of the Citizen (1789), and the US Bill of Rights (1791) are the written precursors to
many of today’s human rights documents.

 The Magna Carta, or “Great Charter,” was arguably the most significant early influence on
the extensive historical process that led to the rule of constitutional law today in the English-
speaking world.
 In 1215, after King John of England violated several ancient laws and customs by which
England had been governed, his subjects forced him to sign the Magna Carta, which
enumerates what later came to be thought of as human rights.
 Among them was the right of the church to be free from governmental interference, the
rights of all free citizens to own and inherit property and to be protected from excessive
taxes. It established the right of widows who owned property to choose not to remarry,
and established principles of due process and equality before the law. It also contained
provisions forbidding bribery and official misconduct.
 Widely viewed as one of the most important legal documents in the development of modern
democracy, the Magna Carta was a crucial turning point in the struggle to establish
freedom.

 Petition of Right (1628)

 The next recorded milestone in the development of human rights was the Petition of Right,
produced in 1628 by the English Parliament and sent to Charles I as a statement of civil
liberties.
 Refusal by Parliament to finance the king’s unpopular foreign policy had caused his
government to exact forced loans and to quarter troops in subjects’ houses as an economic
measure.
 Arbitrary arrest and imprisonment for opposing these policies had produced in Parliament
a violent hostility to Charles and to George Villiers, the Duke of Buckingham.
 The Petition of Right, initiated by Sir Edward Coke, was based upon earlier statutes and
charters and asserted four principles:
 (1) No taxes may be levied without the consent of Parliament, (2) No subject may be
imprisoned without cause shown (reaffirmation of the right of habeas corpus), (3) No
 soldiers may be quartered upon the citizenry, and (4) Martial law may not be used in
time of peace.
 United States Declaration of Independence (1776)
 On July 4, 1776, the United States Congress approved the Declaration of Independence. Its
primary author, Thomas Jefferson, wrote the Declaration as a formal explanation of why
Congress had voted on July 2 to declare independence from Great Britain, announcing that
the thirteen American Colonies were no longer a part of the British Empire.
 Congress issued the Declaration of Independence in several forms. It was initially published
as a printed broadsheet that was widely distributed and read to the public.
 Philosophically, the Declaration stressed two themes: individual rights and the right of
revolution.
 Constitution of the United States of America (1787) and Bill of Rights (1791)
 Written during the summer of 1787 in Philadelphia, the Constitution of the United States of
America is the fundamental law of the US federal system of government and the landmark
document of the Western world. It is the oldest written national constitution in use and defines
the principal organs of government and their jurisdictions and the basic rights of citizens.
 The first ten amendments to the Constitution—the Bill of Rights—came into effect on
December 15, 1791, limiting the powers of the federal government of the United States
and protecting the rights of all citizens, residents and visitors in American territory.
 The Bill of Rights protects freedom of speech, freedom of religion, the right to keep and bear
arms, the freedom of assembly, and the freedom to petition. It also prohibits unreasonable
search and seizure, cruel and unusual punishment, and compelled self-incrimination.
Among the legal protections it affords, the Bill of Rights prohibits Congress from making
any law respecting the establishment of religion and prohibits the federal government
from depriving any person of life, liberty, or property without due process of law. In
federal criminal cases, it requires indictment by a grand jury for any capital offense, or
infamous crime, guarantees a speedy public trial with an impartial jury in the district in
which the crime occurred, and prohibits double jeopardy.

 FRENCH Declaration of the Rights of Man and of the Citizen (1789)

 In 1789 the people of France brought about the abolishment of the absolute monarchy
and set the stage for the establishment of the first French Republic. Declaration of the
Rights of Man and the Citizen was adopted by the National Constituent Assembly as the first
step toward writing a constitution for the Republic of France.
 The Declaration proclaims that all citizens are to be guaranteed the rights of “liberty,
property, security, and resistance to oppression.”
 It argues that the need for law derives from the fact that “...the exercise of the natural rights
of each man has only those borders which assure other members of the society the enjoyment
of these same rights.”
 Thus, the Declaration sees law as an “expression of the general will,“ intended to promote
this equality of rights and to forbid “only actions harmful to the society.”

 The First Geneva Convention (1864)

 In 1864, sixteen European countries and several American states attended a conference in
Geneva, at the invitation of the Swiss Federal Council, on the initiative of the Geneva
Committee. The diplomatic conference was held to adopt a convention for the treatment of
wounded soldiers in combat.
 The main principles laid down in the Convention and maintained by the later Geneva
Conventions provided for the obligation to extend care without discrimination to wounded
and sick military personnel and respect for and marking of medical personnel transports and
equipment with the distinctive sign of the red cross on a white background.

 The United Nations (1945)

 World War II had raged from 1939 to 1945, and as the end drew near, cities throughout Europe
and Asia lay in smoldering ruins. Millions of people were dead, millions more were homeless
or starving. Russian forces were closing in on the remnants of German resistance in Germany’s
bombed-out capital of Berlin. In the Pacific, US Marines were still battling entrenched
Japanese forces on such islands as Okinawa.
 In April 1945, delegates from fifty countries met in San Francisco full of optimism and hope.
The goal of the United Nations Conference on International Organization was to fashion an
international body to promote peace and prevent future wars. The ideals of the organization
were stated in the preamble to its proposed charter: “We the peoples of the United Nations are
determined to save succeeding generations from the scourge of war, which twice in our
lifetime has brought untold sorrow to mankind.”
 The Charter of the new United Nations organization went into effect on October 24, 1945, a
date that is celebrated each year as United Nations Day.

 UNIT- III

HUMAN RIGHTS UNDER UN CHARTER

 The Charter of the United Nations in its Preamble reaffirms "faith in fundamental human
rights, in the dignity and worth of the human person, in the equal rights of men and women
and of nations large and small“.
 The United Nations will go down in history as the first international organization to concern
itself in serious way with the rights of all human beings", adding that "it is the principal
agency for focusing world attention on the gravest violations of such rights."
 On the one hand Members pledge themselves to take joint and separate action in co-
operation with the Organization to promote universal respect for, and observance of,
human rights and fundamental freedoms for all without distinction as to race, sex, language,
or religion.
 On the other hand, the Organization is not authorized 'to intervene in matters essentially
within the domestic jurisdiction of any state...' This provision is too often used to override any
specific human rights obligations a state may have accepted.( In name of CULTURE)

 Hans Kelsen expressed the view that the language used by the Charter in this respect does
not allow the interpretation that the Members are under legal obligations regarding the
rights and freedoms of their subjects.
 George Schwarzenberger held that in the Charter, a clear distinction is drawn between the
promotion and encouragement of respect for human rights, and the actual protection of
these rights. The one is entrusted to the United Nations. The other remains in the prerogative
of each Member State.

 Hersch Lauterpacht, who wrote that the Charter of the Organization actually imposes on the
Member States the legal duty to respect and observe fundamental human rights and
freedoms.
 Articles 1(3), 55(c) and 76(c) set out the United Nations' purposes or objectives in relation to
human rights.

 According to Article 1(3), one of the purposes of the United Nations

is to achieve international co-operation...in promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as to race, sex, language,
or religion.
 Article 1 of the Charter "are binding on the Organization, its organs and its agencies,
indicating the direction STATE should conduct their activities.

 Article 1(3) may be compared with a similar provision in Article 55:

With a view to the creation of conditions of stability and well-being which are necessary for
peaceful and friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, the United Nations shall promote:
(a).....
(b).....
4 (c) universal respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion.
 Under Article 55(c), the United Nations is obliged to promotion among nations through
promotion of human rights within state, under Article 1(3), the Organization is obliged to
promote and encourage by achieving international co-operation.
 In fact the two articles are more similar in meaning than they may appear. On a superficial
reading, the obligation imposed on the United Nations by Article 1(3) relates to the
achievement of international co-operation for the purpose of promoting respect for
human rights, whereas the obligation imposed by 55(c) relates directly to the promotion
of this end itself.

 The interesting difference between the two articles is that Article 55, unlike the other one,
contains a statement which connects
 (A) the promotion of respect for human rights, with
 (B) the creation of conditions of stability and well-being, and that with
 (C) the establishment of peaceful and friendly relations among nations

 Example: The statement reflects the theory, which many people in the United States and other
Western countries accepted during and after the Second World War, that violations of human
rights (such as those that had been practiced by the Nazis and their partners) lead to misery
and instability, which in turn may endanger the peace of the world.

 These two articles may now be compared with Article 76, which states
the basic objectives of the trusteeship system, in accordance with the Purposes of the United
Nations laid down in Article 1.
These objectives include:
(a) to further international peace and security;
(b).....
(c) to encourage respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language, or religion...
(d).....

 Objective (c) concerns the encouragement of a certain end which is identical with the end
referred to in Article 1(3), and also is essentially identical with that in Article 55(c).
 By Article 76(c) the United Nations, under whose authority the trusteeship system functions,
is obliged to encourage the realization of this end.
 The practical effect of 76(c) is simply to emphasize that the general obligation which the
Organization assumes under the two other human rights provisions, applies in relation to trust
territories too.
 Respect for human rights is (at least according to the theory implicit in Article 55) conducive
to international peace, which is the first objective of the trusteeship system, as indeed of the
United Nations itself.
 A general kind of understanding of the matter may be achieved by considering certain
provisions in Article 2 of the Charter.
 The article begins with the words: "The Organization and its Members, in pursuit of the
Purposes stated in Article 1, shall act by the following Principles" - and proceeds to specify
seven principles.
 In the present connection, the most significant of the principles are the following:
(1) All Members, to ensure to all of them the rights and benefits resulting from membership, shall
fulfill in good faith the obligations assumed by them by the present Charter.
(2) All Members shall give the United Nations every assistance in any action it takes under the
present Charter...
(3) Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state...

 The underlying idea is that the United Nations' purposes, or rather the requirement and duty
of the Organization to pursue them, imply for all the Members certain relevant obligations.
Obligations in the form of giving assistance to whatever the Organization does in pursuit of
its purposes.
 THE FULFILLMENT OF HUMAN RIGHTS OBLIGATIONS BY THE UNITED NATIONS
AND ITS MEMBERS
 The United Nations organs which are most closely associated with the promotion of respect
for human rights are the General Assembly and the Economic and Social Council
(ECOSOC).
 The powers which these organs have in this connection are mentioned explicitly in three
articles. According to Article 13(1)(b):
The General Assembly shall initiate studies and make recommendations for the purpose
of...assisting in the realization of human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion.

 Article 62(2) provides that the Economic and Social Council ...
may make recommendations for the purpose of promoting respect for, and observance of,
human rights and fundamental freedoms for all.
 Article 68 states that:
The Economic and Social Council shall set up commissions in economic and social fields and
for the promotion of human rights..

 Besides these articles, there is also Article 10 which empowers the General Assembly to
"discuss any questions or any matters within the scope of the present Charter" - and
these must be taken to include questions and matters relating to human rights.
 Further, according to Article 62(3) and (4), ECOSOC may prepare draft conventions for
submission to the General Assembly and call international conferences on matters falling
within its competence - which cover human rights issues.

INTERNATIONAL BILLS OF HUMAN RIGHTS

UNIVERSAL DECLARATION OF HUMAN RIGHTS

 HISTORY
 The UDHR was adopted by the newly established United Nations on 10 December 1948, in
response to the “barbarous acts which outraged the conscience of mankind” during the Second
World War. Its adoption recognised human rights to be the foundation for freedom, justice and
peace.
 Work on the UDHR began in 1946, with a drafting committee composed of representatives of
a wide variety of countries, including the USA and China.
 The drafting committee was later enlarged to include representatives of Australia, Chile,
France, the Soviet Union and the United Kingdom, allowing the document to benefit from
contributions of states from all regions, and their diverse religious, political and cultural
contexts.
 The UDHR was then discussed by all members of the UN Commission on Human Rights
and finally adopted by the General Assembly in 1948.

 The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United
Nations General Assembly on December 10, 1948 at the Palais de Chaillot, Paris. The
Declaration arose directly from the experience of the Second World War and represents the
first global expression of what many believe are the rights to which all human beings are
inherently entitled.
 The UDHR urges member nations to promote several human, civil, economic, and social
rights, asserting these rights are part of the “foundation of freedom, justice and peace in
the world.” It aims to recognize, “the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice and peace in
the world.” The full text is published by the United Nations on its website.
 The UDHR was framed by members of the Human Rights Commission, with Eleanor
Roosevelt as Chair, who began to discuss an International Bill of Rights in 1947. The
members of the Commission did not immediately agree on the form of such a bill of rights
and whether or how it should be enforced.

 CREATION OF UDHR
 The Universal Declaration of Human Rights, which was adopted by the UN General
Assembly on 10 December 1948, was the result of the experience of the Second World War.
 With the end of that war, and the creation of the United Nations, the international community
vowed to never again allow atrocities like those of that conflict to happen again.
 World leaders decided to complement the UN Charter with a road map to guarantee the rights
of every individual everywhere.
 The document they considered, and which would later become the Universal Declaration of
Human Rights, was taken up at the first session of the General Assembly in 1946.
 CONCERNS ABOUT DRAFTING OF UDHR
 During World War II, the Allies adopted the Four Freedoms—freedom of speech,
freedom of religion, freedom from fear, and freedom from want—as their basic aims.
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.”
 When the atrocities committed by Nazi Germany became apparent after the war, the consensus
within the world community was that the United Nations Charter did not sufficiently define
the rights to which it referred. A universal declaration that specified the rights of individuals
was necessary to give effect to the Charter’s provisions on human rights

 While not a treaty itself, the Declaration was explicitly adopted to define the meaning of the
words “fundamental freedoms” and “human rights” appearing in the United Nations
Charter, which is binding on all member states.
 For this reason, the Universal Declaration of Human Rights is a fundamental constitutive
document of the United Nations. In addition, many international lawyers believe that the
Declaration forms part of customary international law and is a powerful tool in applying
diplomatic and moral pressure to governments that violate any of its articles.

 As of now, The Declaration has also provided the foundation from which a wealth of other
legally binding human rights treaties have been developed, and has become a clear
benchmark for the universal human rights standards that must be promoted and protected in
all countries.
 The UDHR was the first document in history to explicitly define what individual rights are
and how they must be protected. The Preamble of the document outlines the rights of all
human beings
 UNIVERSAL DECLARATION OF HUMAN RIGHTS
 IN 1948, the UN Commission adopted a draft Declaration, which in turn was adopted by
general assembly that year as Universal Declaration Of Human Rights (UDHR).
 UDHR covered economic, social civil an political rights.
 UDHR could be akin to International customary law, which had to be adhered by all the
member states at all cost.

 The international community was expected to frame International Bill Of Human Rights.
 However, due to paucity of time this work was given to ECOSOC , wherein the Human
Right Commission( Now, Human Right Council) was given this task.
 Since there was no consensus amongst the members as to whether the bill of Rights should be
a convention or declaration, it was eventually settled for declaration.
 Declaration content was more general and wider in content which would eventually lead to
the formation of Conventions

 UDHR Was Adopted By General Assembly On 10th December,1948 unanimously By 48

Countries While 8 Countries Abstain From Voting.
 UDHR, in spite of not being a formal, non binding document, is an instrument that
immensely influenced human rights.
 It has 30 Articles and its Preamble clearly recognizes dignity and equality as inalienable
rights to be accorded to all humans
 SIGNIFICANCE OF UDHR
 The UDHR acts as a guideline for humankind, in determining what is right, and what is
wrong. More than that, it is a picture of what the world looks like when it’s working
right. It gives humankind something to aspire to.
 The UDHR has also, indirectly helped States in drafting their constitutions and forming
their own HR policies.
 UDHR can be advocated that it promulgates general moral precepts, applicable to everyone,
thereby universalizing the notion of a fundamental baseline of human welfare. In the 1960s
and 70s for example, several organs of the UN utilized the UDHR’s provisions to condemn
racial discrimination in South Africa during the Apartheid.
 PROVISIONS OF UDHR
 Article I
All human beings are born free and equal in dignity and rights.
 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.

 Article 3
Everyone has the right to life, liberty and 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.
 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

 Article 10: Right to public hearing

 Article 11: Right to the presumption of innocence
 Article 12: Right to privacy
 Article 13: Right to freedom of movement
 Article 14: Right to asylum
 Article 15: Right to a nationality
 Article 16: Right to marriage and family
 Article 17: Right to own property
 Article 18: Right to freedom of thought and religion
 Article 19: Right to freedom of opinion and expression
 Article 20: Right to freedom of assembly and association
 Article 21: Right to take part in government

 Article 22: Right to social security

 Article 23: Right to work
 Article 24: Right to rest
 Article 25: Right to an adequate standard of living
 Article 26: Right to education
 Article 27: Right to participate in cultural life
 Article 28: Right to a social and international order
 Article 29: Duties and limitations
 Article 30: Salvatory clause

 The first 21 Articles relates to Civil and Political Rights, next six articles (22-27) deals with
economic, social and cultural rights and last three (28-30) have a general bearing over the
declaration where in certain limitations are imposed.
 INDIAN CONSTITUTION AND UDHR

RIGHTS UDHR INDIAN

CONSTITUTION

EQUALITY AND BROTHERHOOD ART 1 PREAMBLE

NO DISCRIMINATION ON BASIS OF ART 2 ART 15 & 16

RACE , RELIGION, SEX ETC

RIGHT TO LIFE AND LIBERTY ART 3 ART 21

FREEDOM FROM SLAVERY ART 4 ART 17

FREEDOM FROM TORTURE, ART 5 ART 21

CRUEL INHUMANE
TREATMENT

RIGHT TO REMEDY TO PROTECT ART 8 ART 32

FUNDAMENTAL RIGHTS

RIGHTS UDHR INDIAN

CONSTITUTION

FREEDOM FROM ARBITRARY Art 9 Art 22

ARREST

RIGHT TO PRIVACY Art 12 Art 19 & art 21

 RIGHT TO MOVEMENT AND Art 13 Art 19(1) (d)
RESIDENCE

RIGHT TO FREEDOM OF Art 18 Art 25

RELIGION

RIGHT TO EDUCATION Art 26 Art 21A

RIGHT TO FREEDOM OF ART 19 ART 19(1)(A)

OPINION

 In Vienna Declaration and Programme of Action, 1993 of World Conferences on Human

rights, 171 countries reaffirmed the provision of UDHR to further strengthen human
rights principles.
CRITICISM:
 there are some states in general which conclude that as a matter of fact some and not all
provisions of the Universal Declaration on Human Rights have passed into customary
international law. Still, in such cases the precise number of such legally obligatory provision
under Universal Declaration on Human Rights has not yet been identified.
 The Charter and Declaration made a promotion of human rights without full appreciation
of extent of penetration of Statehood that was involved.
 Right to Property and right to participate was understood from a western perspective and not
from developing states perspective

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS.

(Adopted by the General Assembly of the United Nations on 19 December 1966 , enforced on
1976)

 Civil and political rights are often referred as first generation of human rights.
 Political Rights refers to those rights where people are given freedom to actively participate
in political decision making process and Civil Rights are those freedom which has to be
protected from undue interference by State.
 ICCPR has 53 Articles and two optional Protocol.
 Total 174 countries parties to ICCPR.
 The International Bill of Human Rights consists of
• the Universal Declaration of Human Rights,
 • the International Covenant on Economic, Social, and Cultural Rights, and
• the International Covenant on Civil and Political Rights and its two Optional Protocols.

 Article 1
Self-determination – including political status and economic and cultural development.

 Article 2
Ensure rights without discrimination.

 Article 3
Ensure equal enjoyment of treaty rights between men and women.

 Article 4
Derogation of rights to be limited to specific circumstances, certain rights may not be derogated
from and derogation must be consistent with certain rules.

 Article 5
Covenant may not be interpreted in a way that destroys rights ensured in the covenant.
 Article 6
The right to life, which shall be protected in law.
 Article 7
The right to be free from inhuman or degrading treatment or punishment.
 Article 8
The freedom from slavery and servitude.

 Article 9
The right to liberty and freedom from arbitrary arrest or detention.
 Article 10
People deprived of their liberty shall be treated with humanity.
 Article 12
The right to liberty and freedom of movement
 Article 14
The right to equality before the law; the right to be presumed innocent until proven guilty and to
have a fair and public hearing.
 Article 15
No one can be held for an offence that was not a crime at the time it was committed.
 Article 16
The right to be recognised as a person before the law.
 Article 17
The right privacy and its protection by the law.
 Article 18
The freedom of thought, conscience and religion.
 Article 19
The freedom of opinion and expression

 Article 20
Prohibition on propaganda advocating war or national, racial or religious hatred.

 Article 21
The right to peaceful assembly.

 Article 22
The right to freedom of association and to join a trade union.

 Article 23
The right to marry and found a family and equal rights between men and women within the
marriage at its dissolution.

 Article 24
The rights for children (status as minors, nationality, registration and name.
 Article 25
The right to participate in public affairs, to vote and to be elected and access to public service.
 Article 26
Everyone is equal before the law and has a right to legal protection “of the law” without
discrimination.

 Article 27
The right, for members of religious, ethnic or linguistic minorities, to enjoy their culture, practice
their religion and use their language.
 Article 28
There shall be established a Human Rights Committee (hereafter referred to in the present
Covenant as the Committee). It shall consist of eighteen members and shall carry out the
functions hereinafter provided.

 ARTICLE 6
 The Right to Life is the Supreme Right from which no derogation is permitted, even in time
of public emergency or at time of War.
 Earlier it was General Comment 6 on Article 6 clearly states that States have the Supreme
Duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss
of life for the safeguarding right to life. Now it is general comment 36.
 Deprivation of life involves a deliberate or otherwise foreseeable and preventable life-
terminating harm or injury, caused by an act or omission which no state can afford to
do

 The protection against arbitrary deprivation of life which is explicitly required by the third
sentence of Article 6 (1) is of paramount importance.
 The States parties should take measures not only to prevent and punish deprivation of life
by criminal acts, but also to prevent arbitrary killing by their own security forces.
(ISHRAT JAHAN CASE, SOHARBBUDIN CASE; BATLA HOUSE ENCOUNTER)
 Therefore, the law must strictly control and limit the circumstances in which a person may
be deprived of his life by such authorities.
 Article 6 recognizes and protects the right to life of all human beings. It is the supreme right
from which no derogation is permitted even in situations of armed conflict and other
public emergencies. The right to life has crucial importance both for individuals and for
society as a whole. It is most precious for its own sake as a right that inheres in every human
being, but it also constitutes a fundamental right, whose effective protection is the
prerequisite for the enjoyment of all other human rights and whose content can be
informed and infused by other human rights.

 Paragraph 1 of article 6 of the Covenant provides that no one shall be arbitrarily deprived
of his life and that the right shall be protected by law. It lays the foundation for the obligation
of States parties to respect and to ensure the right to life, to give effect to it through legislative
and other measures, and to provide effective remedies and reparation to all victims of
violations of the right to life.
 Paragraphs 2, 4, 5, and 6 of article 6 of the Covenant set out specific safeguards for ensuring
that in countries that have not yet abolished the death penalty, it shall be applied only in the
most exceptional cases, for the most serious crimes and under the strictest limits.
 The duty to protect life also implies that States parties should take appropriate measures
to address the general conditions in society that may give rise to direct threats to life or
prevent individuals from enjoying their right to life with dignity.
 These general conditions may include high levels of criminal and gun violence, pervasive
traffic and industrial accidents, degradation of the environment, deprivation of indigenous
peoples’ land, territories and resources, the prevalence of life-threatening diseases, such
as AIDS, tuberculosis and malaria, extensive substance abuse, widespread hunger and
malnutrition and extreme poverty and homelessness.
 The measures called for to address adequate conditions for protecting the right to life include,
where necessary, measures designed to ensure access without delay by individuals to essential
goods and services such as food, water, shelter, health care.

 States parties are thus under a due diligence obligation to to take adequate preventive
measures in order to protect individuals against reasonably foreseen threats of being murdered
or killed by criminals and organized crime or militia groups, including armed or terrorist
groups.
 McCann and Others v United Kingdom (21 ECHR 97 GC)
 Intelligence suggested a team, involved in terrorist activities, were planning a bombing
in Gibraltar. During surveillance, the team crossed the border from Spain with no resistance
from the authorities and subsequently parked a car in a crowded place.
 Due to their past activities, intelligence suggested the car was rigged with explosives with the
suspects holding the remote detonator. The military forces, in accordance with their training,
shot and killed the suspects which at the time was justified by the teams to be in response to
the suspects reaching for what they believed were the detonators.

 At the time of the shootings the suspects had neither a detonator nor any explosives. A car was
however found registered under one of the suspects names and it appeared that the suspects
had parked their car to save a space for the actual car containing the explosives.
 The court held that military forces would be liable under Article 2 of ECHR which is
similar on lines of Article 6 of ICCPR. Even when dealing with dangerous terrorist,
operations must be organized in such a manner that lethal force should be used only in extreme
cases. If the directions is not followed then compensation would be paid by forces also.

 Another example could be Of State Sponsored Disappearance. In early 1990’s in Algeria ,

it is alleged that there were around 7000 forced disappearance by a radical group sponsored
by State. Military Security agency, routinely denied detainees access to lawyers and did not
inform families promptly about detainees' whereabouts and legal status.
 It was only after UN intervention that the Algerian authorities had to establish an
independent commission on "disappearances" that empowered to compel both the
testimony of state agents and the disclosure of documents.

 Article 6 recognizes and protects the right to life of all human beings. It is the supreme right
from which no derogation is permitted even in situations of armed conflict and other
public emergencies.
 The right to life has crucial importance both for individuals and for society as a whole.
 It is most precious for its own sake as a right that is inherent in every human being, but it also
constitutes a fundamental right, whose effective protection is the prerequisite for the
enjoyment of all other human rights and whose content can be informed and infused by other
human rights.

 Under no circumstances should families of victims of enforced disappearance be obliged to

declare them dead in order to be eligible for reparation.(Prutina v. Bosnia and Herzegovina)
 States parties must provide safe access to abortion to protect the life and health of pregnant
women, and in situations in which carrying a pregnancy to term would cause the woman
substantial pain or suffering, most notably where the pregnancy is the result of rape or incest
or when the foetus suffers from fatal impairment.
 Loss of life occurring in custody, in unnatural circumstances, creates a presumption of
arbitrary deprivation of life by State authorities, which can only be rebutted on the basis of
a proper investigation that establishes the State’s compliance with its obligations under
article 6

 Similarly in India, since the beginning of Insurgency, several persons have become victims of
enforced disappearance making their wife to earn the title of half widow in Kashmir Valley.
Though the numbers have significantly dropped, as India being a signatory to ICCPR, yet
several cases still remains unsolved.
 Right to life can also be viewed in perspective of clear trend in abolition of death squad in
Yugoslavia, Peru etc; no death penalty to pregnant women or minors; reduce infant
mortality; increase life expectancy; right to abortion; elimination of malnutrion etc.
 Article 7 & Article 10
 Deals with the barbaric violation of the right to physical and mental integrity.
 Examples of torture can be hooding detainees; depriving them of sleep, food and water;
making them stand on their toes for a long period of time, electroshock, extended hanging.
 This principle also covers Non Refoulment principle. No State shall expel or return a
refugee in any manner whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of torture
 In ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09, The facts of the
case concerned an Afghan asylum seeker who fled Kabul in 2008, entered the European Union
through Greece and travelled on to Belgium where he applied for asylum.
 According to the Dublin rules, Greece was held to be the responsible Member State for the
examination of his asylum application. Therefore the Belgian authorities transferred him there
in June 2009 where he faced detention in insalubrious conditions before living on the streets
without any material support.
 At issue in the judgment was the risk of violating the right to life, prohibition of inhuman
or degrading treatment or punishment and the right to an effective remedy.

 The Court held that the Belgian authorities knew or ought to have known that the applicant
had no guarantee that the Greek authorities would seriously examine his asylum
application. The Belgian authorities had the means of preventing his transfer to Greece.
 The Court recapitulated the general principles concerning detention that requires the State to
ensure that detention conditions are compatible with respect for human dignity, that the
manner & method of the execution of the measure do not subject the detainees to torture.
 Where relevant, the investigation should include an autopsy of the victim’s body, whenever
possible, in the presence of a representative of the victim’s relatives.(Kawas-Fernández v.
Honduras)

 Article 7 ICCPR reads: “No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment. In particular, no one shall be subjected without his
free consent to medical or scientific experimentation.”
 Article 10(1) ICCPR states: “All persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human person.”
 While it forbids them in absolute terms, Article 7 does not contain a definition of the
prohibited acts. In its General Comment on Article 7, the HRC stated that it did not
consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions
between torture and the other forms of ill.
 The HRC has indicated that the assessment of whether particular treatment constitutes
a violation of Article 7 “depends on all circumstances of the case, such as the duration
and manner of the treatment, its physical or mental effects as well as the sex, age and
state of health of the victim.”
 The second sentence of Article 7 ensures that the prohibition is understood to include any
medical or scientific experimentation conducted without the free consent of the subject.
 Article 10 complements, for those who have been deprived of their liberty, the
prohibition of torture and ill-treatment. Not only may detainees not be subjected to
treatment contrary to Article 7, but they also have a positive right to be treated with
respect.
 This provision means that detainees may not be “subjected to any hardship or constraint other
than that resulting from the deprivation of liberty; respect for the dignity of such persons must
be guaranteed under the same conditions as for that of free persons.”
 It therefore covers forms of treatment which would not be sufficiently severe to qualify as
cruel, inhuman or degrading under Article 7.

 From the jurisprudence of the HRC, it seems that the Committee tends to apply Article 10(1)
to general conditions of detention, reserving Article 7 for situations where an individual
is subjected to specific attacks on his or her personal integrity.
 In Kennedy v Trinidad and Tobago, for example, the Committee considered that beatings
to which the author was subjected while in police custody amounted to a violation of
Article 7, whereas the general conditions under which he was held, which included
overcrowding while on remand and solitary confinement while on death row, violated
Article 10(1).

 IN Mukong v Cameroon, the fact that the author was “singled out for exceptionally harsh
and degrading treatment,” including being “detained incommunicado,… threatened with
torture and death and intimidated, deprived of food, and kept locked in his cell for several
days on end without the possibility of recreation” led the Committee to find a violation of
Article 7.
 It may be argued that a violation of Article 7 in respect of a person deprived of liberty
automatically entails a violation of Article 10(1). In Linton v Jamaica, for example, the
Committee considered that “The physical abuse inflicted on the author…, the mock execution
set up by prison warders and the denial of adequate medical care after the injuries sustained
in the aborted escape attempt… constitute cruel and inhuman treatment within the meaning of
article 7 and, therefore, also entail a violation of article 10, paragraph 1, of the Covenant.”29

 While general trends may be detected from the jurisprudence, there remains considerable
overlap in the Committee’s application of Articles 7 and 10(1).
 In some cases, general conditions of detention have been so severe that they have reached the
threshold of severity for a violation of Article 7, and in others, breaches of Article 10(1) have
been found in cases of specific attacks.
 Article 9
 Article 9 as such do not prohibit deprivation of personal liberty, but only establish certain
procedural guarantees and minimum standards against arbitrary arrest and deprivation.
 It also does not deal with the term liberty in narrow sense, but it has to be interpreted in both
in relation to general sense as well as in particular.

 Narrow sense connotes when liberty is interpreted only in sense of freedom of bodily
movement (eg. Freedom from forceful detention). This can be traced in Indian
Constitution under Article 19.
 However, when we interpret Article 9 in broad terms then it will cover arbitrary deprivation
not only under Article 19 and Article 21(i.e particular in nature which follows Rule of
Law.)
 General comment 35 and General Comment no. 8 deals with Article 9.

 Liberty of person concerns freedom from confinement of the body, not a general freedom of
action. Article 9 guarantees those rights to everyone.
 “Everyone” includes, among others, girls and boys, soldiers, persons with disabilities, LGBT,
aliens, refugees and asylum seekers, stateless persons, migrant workers, persons convicted of
crime, and persons who have engaged in terrorist activity.

 Article 9 requires that in criminal cases any person arrested or detained has to be brought
“promptly” before a judge or other officer authorized by law to exercise judicial power.
 While the exact meaning of “promptly” may vary depending on objective circumstances,
delays should not exceed a few days from the time of arrest.
 In the view of the Committee, 48 hours is ordinarily sufficient to transport the individual
and to prepare for the judicial hearing; any delay longer than 48 hours must remain
absolutely exceptional and be justified under the circumstances. Longer detention in the
custody of law enforcement officials without judicial control unnecessarily increases the risk
of ill treatment.

 Article 9 also deals with the total length of detention pending trial. Pre-trial detention
should be an exception and as short as possible.
 For example, In india, In the case Katar Singh v. State of Punjab it was declared that right
to speedy trial is an essential part of fundamental right to life and liberty. In the case Abdul
Rahman Antulay v. R.S. Nayak, the bench declared certain aspects and guidelines regarding
the speedy trial and quashing of cases should depend upon nature of the case.
 Article 9 also deals with preventive detention if used, for reasons of public security, it must
be not be arbitrary, and must be based on grounds and procedures established by law.
 Criminal charges brought in such cases, Article 14 must also be granted.
 ARTICLE 10

 It establishes an obligation to ensure humane prison conditions by means of positive action,

regardless of economic difficulties.
 In Parkanyi v. Hungary, In 1980, the complainant was a director of the company. He alleged
that due to connivance of local authorities he was arrested and false evidence was produced
before the court. He claims to be the victim of violations by Hungary of Articles 9, 10 and 11
of the International Covenant on Civil and Political Rights.

 The author contends that his arrest and detention of the police of was arbitrary,and conditions
of his pre-trial detention were deplorable.
 In this context, he notes that detainees in the police lock-up, including himself, were dressed
in rags, and that he was not able to retrieve his own clothes for an entire week. Only five
minutes were allowed for basic hygiene in the morning, and a shower could be taken only
once a week; similarly, a mere five minutes of recreation per day were allowed, which
consisted of a walk in an open place about 20 square metres in size, against the walls of which
warders frequently urinated. Meals were wholly inadequate and it exposed him to continued
mental stress.
 The Human Right Committee passed the judgment in favour of complainant as it was a gross
violation of Article 10.

 ARTICLE 14
 In determination of any criminal charge, there is an obligation to free and fair trial by a
competent, independent tribunals.
 According Human Right Committee, The fair trial principle means
• Equality of arms
• Respect for principle of adversary proceedings
• Preclusion of ex officio reformation in pejus
• Expeditious procedure

 The right to adversarial proceedings “means in principle the opportunity for the parties to a
criminal or civil trial to have knowledge of and comment on ALL EVIDENCE ADDUCED
or OBSERVATIONS FILED.
 The most important element of the prohibition of ex officio reformation in pejus that it is a
legal guarantee for the defence to be able to file an appeal without the risk that a judgment
might be altered.
 Equality arms length means both the parties should be given an opportunity to present their
cases.
 Cagas v. Philippines
 On 23 June 1992, the police of Philippines, found the bodies of six women in the house of Dr.
Dolores Arevalo, one of the victims. Their hands had been bound and their heads smashed.
 The investigation revealed that murder could have been done by Mr. Cagas and two of his
employees. According to the investigation, Mr. Cagas was a supplier of medicines in a
hospital where Dr. Arevalo was appointed Chief of Hospital sometime before the incident. It
was also reported that Dr. Arevalo refused to purchase medical supplies from Mr. Cagas.

 The issues raised under articles 9 and 14 of the Covenant contended that his arrest was
arbitrary, he was subject to inhumane treatment and he was not given a chance to prove his
innocence.
 In the present case, the State party is of the opinion that although bail was denied, they cannot
deny the right to be presumed innocent. The principle of such a detention does not detract
from the essence of due process of law.

 However, the state has no right to violate the right to freedom of movement arbitrarily.
Unreasonable restrictions by political parties should not be allowed.
 For example, right to have passport.
 Article 17 (right to privacy)
• Forced medical treatment (N.D. Tiwari case where the a person was forced to undergo
paternity test )
• Brainwashing with psychoactive drugs
• Gender appearance
• Protection of one’s identity (Lawrence v Texas where in it was held that right to protect
sexual identity of the person s the fundamental aspect of privacy)

 ICCPR also guarantees Political rights such as right to vote under Article 25 . This includes
states refraining from interfering with free and fair elections, illegally distributing freebies
to the potential voters, observance of secret ballot.
 Article 26 states that All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
 In Zwaan–de Vries v The Netherlands, the complainant was employed for 2 years from 1977
to 1979. thereafter, due to unemployment she was granted certain benefit under
Unemployment Benefit Act. However, after marriage this benefit was withheld on the ground
that married unemployed women are disentitle to claim any benefit. This rule was not
applicable on married men. Decide?

 It was held that Article 26 when invoked obligates the state government to take progressive
steps to eliminate any discriminatory practices. In this case, even though the committee was
of opinion that the practice was discriminatory which did not allow married women to entail
unemployment benefits, yet since the state has taken positive steps to eliminate that
discriminatory practice, so appropriate remedy should be given

 The First Optional Protocol to the International Covenant on Civil and Political Rights
establishes an individual complaints mechanism for the ICCPR Parties agree to recognise the
competence of the UN Human Rights Committee to consider complaints from individuals
who claim their rights under the Covenant have been violated.
 Complainants must have exhausted all domestic remedies, and anonymous complaints are
not permitted. The Committee must bring complaints to the attention of the relevant party,
which must respond within six months.
 First Optional Protocol has 14 articles

 The Second Optional Protocol to the International Covenant on Civil and Political
Rights, aiming at the abolition of the death penalty is a side agreement to the International
Covenant on Civil and Political Rights. It was created on 15 December 1989 and entered into
force on 11 July 1991. As of September 2016, the Optional Protocol has 83 states parties
 The Optional Protocol commits its members to the abolition of the death penalty within their
borders, though it allows parties to make a reservation allowing execution "in time of war
pursuant to a conviction for a most serious crime committed during wartime".
 Second Optional Protocol has 11 Articles

 DIFFERENCE BETWEEN ICCPR AND UDHR

 International Covenant on Economic, Social and Cultural Rights
 Adopted by the General Assembly resolution on16 December 1966; entry into force 3 January
1976.
 ICESCR has 31 Articles and establishes an obligation for the State party to respect, protect
and fulfill the rights and standards contained within.
 Article 1 Right to self determination to pursue their economic, social and cultural
development.
 Article 2.1 Commitment of State parties to achieve progressively the full realisation of rights
enshrined in the Covenant
 Article 2.2 Non-discrimination
 Article 2 binds States parties to guarantee that all rights within the ICESCR will be exercised
without discrimination of any kind as to race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
 This list is not exhaustive. This provision of the ICESCR has been interpreted to require States
parties to prohibit private persons and bodies from practising discrimination in any field of
public life.

 Article 3 Right of men and women to the equal enjoyment of ESCR rights
 Article 4 Limitations in enjoyment of rights only for promoting the general welfare of a
democratic society
 Article 5 Non-derogation from the rights enshrined in the Covenant; no person, group or
government has the right to destroy any of these rights

 Article 6 Right to work

 Article 7 Right to just and favourable conditions at work
 Article 8 Right to form and join trade unions without restriction
 Article 9 Right to social security
 Article 10 Rights of the family and its members, including special protection for mothers,
children and young persons
 Article 11 Right to an adequate standard of living including basic income, food, housing,
water, sanitation and clothing and the continuous improvement of living conditions
 Article 12 Right to health
 Articles 13-14 Right to education
 Article 15 Right to take part in cultural life and enjoy the benefits of scientific progress
 Articles16-31 Refer to state obligations and implementation of the rights enshrined in the
Covenant
 Enforcement Mechanisms
 Special Procedures: The Human Rights Council appoints Special Rapporteurs, or
independent experts, to address specific country situations on Economic and Social Rights.
 Civil Society Monitors Non-Governmental Organizations (NGOs) and other civil society
groups are often effective actors in holding states accountable for human rights obligations.
They put political pressure on States by making them aware that their actions are being
watched.
 Committee on Economic, Social and Cultural Rights (CESCR) is the body of independent
experts that monitors implementation of ICESCR by States parties

 Enforcement Mechanisms
 Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights (OP-ICESCR)
 The OP-ICESCR allows the CESCR to receive and consider communications from
individuals or groups who are victims of violations of any ESC rights of the ICESCR under
the jurisdiction of a State party to the Covenant.
 The Committee will only consider a communication after all available domestic remedies have
been exhausted.
 DIFFERENCE BETWEEN ICCPR AND ICESCR

ICCPR ICESCR

Negative obligation: These rights largely impose Positive obligation: These rights impose
obligations of non-interference on state parties obligations on State Parties to take
by checking the use and abuse of power by the positive steps and to fulfilL rights.
state.

Considered that no resources are required by the Considered to be resource heavy and require
state to ensure the full realisation of these rights high levels of investments by the state to
ensure full enjoyment of these set of
rights.

Mostly, CP rights are mentioned in the fundamental Mostly, ESC rights come under Directive
rights of the constitution. Principle of the constitution. States
consider ESC rights as aspirations which
affects in its fulfilment of state
obligations.

Freedom from fear State should refrain from Enjoyment of ESC rights enhances the quality
interfering with individual freedoms. Eg: of life. Eg: Freedom from hunger,
Freedom of peaceful assembly, Freedom of Freedom from illiteracy, etc.
expression

 Brown v. Board of Education of Topeka, 118 concerns the application of the equal
protection clause to the right to education. In that case, the US Supreme Court decided that
 the existence of schools segregated according to racial criteria amounted to a breach of the
equal protection clause, and ordered that the school system be overhauled in accordance with
the ruling

 Forcibly evicting people from their homes (the right to adequate housing)
 Contaminating water, for example, with waste from State-owned facilities (the right to health)
 Failure to ensure a minimum wage sufficient for a decent living (rights at work)
 Failure to prevent starvation in all areas and communities in the country (the right to food)
 Denying access to information and services related to sexual and reproductive health (the
right to health)
 Systematically segregating children with disabilities from mainstream schools (the rights to
non-discrimination and education)

 Failure to prevent employers from discriminating in recruitment based on sex, disability, race,
political opinion, social origin, HIV status, etc. (the rights to non-discrimination and work)
 Failure to prohibit public and private entities from destroying or contaminating food and its
source, such as arable land and water (the right to food)
 Failure to provide for a reasonable limitation of working hours in the public and private sector
(rights at work)
 Banning the use of minority or indigenous languages (the right to participate in cultural life)


Vera Rojas and Others vs. Chile

 The Plaintiff in this case is Martina Vera Rojas and her parents. Martina has Leigh Syndrome,
a neurological and muscular condition that requires extensive care and treatment. Martina’s
parents took out a health insurance policy with a private insurance company called Isapre
MasVida that included special coverage for catastrophic illnesses and at-home treatment. In
2010, Martina was told that at-home treatment would no longer be included for chronic
illnesses pursuant to a new regulation (Circular IF/No. 7), at the time, from the
Superintendence of Health.
 The family filed an appeal for protection before the Court of Appeals of Arica, but when the
Court found in their favor, Isapre appealed and the Supreme Court revoked the decision. The
family then filed a request for precautionary measures before the Inter-American Commission
and a complaint with the Superintendence of Health. The Arbitrator Judge ruled in favor of
the reinstatement of at-home treatment for Martina. Isapre’s appeal was rejected, as was their
appeal to the Superintendence of Health. Though Isapre reestablished the at-home care and
paid for expenses incurred during the time of loss of coverage, Martina’s parents continued to
file claims pertaining to the uncertainty of medical care coverage and future services.
 The Court analyzed the responsibility of the State related to the duty of prevention. The Court
reasoned that, since health is a public good whose protection is the responsibility of the State,
it has the obligation to prevent third parties from unduly interfering with individuals’
enjoyment of the right to health. States have a duty to regulate and supervise all health care
provided to people to protect life and personal integrity, regardless of whether the entity
providing such services is public or private.


Centre for Child Law and Others v. Minister of Basic Education and Others 2840/2017

 In 2016, the Minister of Basic Education in South Africa issued a circular announcing that
children unable to produce birth certificates would be barred from attending public school.
The circular sought to exclude thousands of children from school and had indeed begun to
have the effect that some children were removed from school or were denied access on
application to enter. As a result, 37 children, who were only some of the applicants involved
in this matter, brought an application against the Minister of Basic Education. They stated that
their constitutional right to a basic education was violated by the circular, as well as the
national Admission Policy for Ordinary Public Schools and the Immigration Act 13 of 2002.
 Accordingly, they sought declaratory relief pronouncing the Admission Policy and
Immigration Act invalid. Ultimately, the court held that the highlighted provisions in the
Admission Policy and Immigration Act 13 of 2002 were unconstitutional and ordered the
respondents to accept alternative proof of identity when learners cannot provide birth
certificates or proof of study permits. The court reasoned that denying undocumented children
access to education was inconsistent with the Constitution, which provides rights to equality,
dignity, and basic education, and further declares children’s best interests to be of paramount
importance. Additionally, the court determined that the Immigration Act applies only to adults
seeking higher education, and therefore does not interfere with children’s right to basic
education

 Cultural rights in the ICESCR are the rights of everyone to take part in cultural life, to enjoy
the benefits of scientific progress, to benefit from the protection of the moral and material
interests resulting from any scientific, literary or artistic production of which he is the author.
 This omission of any specific provision for minorities in the norm provided a foothold for
positions viewing Article 15 (1)(a) of the ICESCR as of only general relevance for the
members of minority groups within the frame of broader human rights theory and practice,
with no more concrete correlation with the complexities of minority issues.
 Thus, interest in matters concerning the protection of minorities in the framework of
international human rights treaties focused almost exclusively on Article 27 of the ICCPR,
which refers explicitly, though in a negative construction, to the right of members of minorities
 not to be denied the right to enjoy their own culture, religion and language “in community
with other members of their group.

 This view may be enriched now, with the CESCR’s General Comment No. 21 on the right to
participate in cultural life, published on 21 December 2009 (General Comment No. 21). It
clarifies the ‘grey areas’ of Article 15 (1)(a) of the ICESCR and gives solid substance to the
right, and especially to the right of minorities and of their members to enjoy a range of cultural
rights connected with or deriving from it, establishing it as a potential pillar for the protection,
preservation and promotion of minority cultures.

 The right to take part in cultural life can be characterized as a freedom. In order for this right
to be ensured, it requires from the State party both abstention (i.e., noninterference with
the exercise of cultural practices and with access to cultural goods and services) and positive
action (ensuring preconditions for participation, facilitation and promotion of cultural life,
and access to and preservation of cultural goods).
 In the Committee’s view, culture is a broad, inclusive concept encompassing all manifestations
of human existence. The expression “cultural life” is an explicit reference to culture as a living
process, historical, dynamic and evolving, with a past, a present and a future.

 In the Committee’s view, article 15, paragraph 1 (a) of the Covenant also includes the right of
minorities and of persons belonging to minorities to take part in the cultural life of society,
and also to conserve, promote and develop their own culture. This right entails the obligation
of States parties to recognize, respect and protect minority cultures as an essential component
of the identity of the States themselves.
 Consequently the right to their cultural diversity, traditions, customs, religion, forms of
education, languages, communication media (press, radio, television, Internet) and other
manifestations of their cultural identity and membership.
 Minorities, as well as persons belonging to minorities, have the right not only to their own
identity but also to development in all areas of cultural life. Any programme intended to
promote the constructive integration of minorities and persons belonging to minorities into
the society of a State party should thus be based on inclusion, participation and non-
discrimination, with a view to preserving the distinctive character of minority culturesy,
minorities have
• UNIT-IV
• CAT & CEDAW

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment , 1984
• The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT), effective in 1987 makes it clear that torture is not justified under any
circumstances.
• States that sign up for the treaty must act to prevent and investigate torture and punish anyone
who carries it out.
• States must also ensure that any victim of torture gets adequate compensation, including
support for rehabilitation.
• India signed the Convention against Torture and Other Cruel, Inhuman and Degrading
Treatment or Punishment on October 14, 1997. A law needs to be enacted for India to be
able to ratify the Convention

• The Convention against Torture establishes a treaty monitoring body known as the Committee
against Torture (CAT), the primary function of which is to review State parties’ performance
against their commitments on the basis of submitted periodic reports. It has 33 Articles.
• Optional Protocol to the Convention against Torture (OPCAT), in 2002, establishes a
system of regular visits undertaken by independent international and national bodies to places
where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman
or degrading treatment or punishment.
• Under OPCAT, State Parties agree to establish an independent National Preventive
Mechanism (NPM) to conduct inspections of all places of detention and closed
environments.
• In addition to the NPM, State Parties also agree to international inspections of places of
detention by the United Nations Subcommittee on the Prevention of Torture (SPT).
• The SPT engages with states on a confidential basis and cannot publish reports and
recommendations unless under agreement with the State Party. Furthermore, people who
provide information to the SPT may not be subject to sanctions or reprisals for having done
so.
• The Convention also has the provision to file complaints by individuals

• The Optional Protocol to the Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment is a treaty that establishes an international inspection
system for places of detention in form of Committee for the Prevention of Torture.
• This was felt because neither CAT nor its Special Rapporteur had the power to visit countries
or inspect prisons, without the respective government's permission.
• Therefore, under this optional protocol there is a system of regular visits, reports and
recommendations to the governments as well as the publication of these reports.
• The Convention against Torture sets out a definition of torture
• The Convention against Torture obliges States to take preventive measures.
According to article 2 of the Convention, each State Party has an obligation to take all necessary
measures to prevent acts of torture. This includes legislative, administrative and judicial
measures, as well as any other measures that may be appropriate. States are also obliged to
prevent other cruel, inhuman or degrading treatment or punishment.
• There is no justification for torture - ever
Article 2.2 of the Convention states that "no exceptional circumstances whatsoever" can justify
torture. This includes war or the threat of war, political instability, combating terrorism or any
other emergency. Orders from a superior officer are also not a justification for torture.
• Non-refoulement
Article 3 of the Convention sets out the principle of non-refoulement, which requires States to
not expel, return or extradite a person to another State if there are "substantial grounds” for
believing that the person would be in danger of being subjected to torture.

• Specific crime of torture

Article 4 of the Convention requires each State Party to ensure that torture is included as a specific
crime in their national criminal law. The Committee against Torture requires that States parties
use, as a minimum, the definition of torture included in article 1 of the Convention.
• Universal jurisdiction
The Convention obliges each State Party to establish its jurisdiction over persons found in its
territory who are alleged to have committed the crime of torture, irrespective of whether the
crime was committed outside its borders and regardless of the alleged perpetrator’s nationality

• Training officials
Article 10 of the Convention requires States parties to take steps to ensure that all law
enforcement personnel receive education and information on the prohibition and prevention
of torture.
• Review of detention procedures
Under Article 11 of the Convention, States parties are required to keep under systematic review
interrogation rules, instructions, methods, and practices, as well as custody procedures. These
should comply with the
• United Nations Standard Minimum Rules for the Treatment of Prisoners and
• United Nations Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment.

• Prompt investigation
According to article 12 of the Convention, each State Party must establish prompt and impartial
investigations whenever there is reasonable ground to believe that an act of torture has been
committed in any territory under its jurisdiction.
• Right of victims to complain and obtain redress
• The Convention provides that victims of torture have the right to complain and to have their
case investigated promptly and impartially (article 13), as well as to receive redress and
adequate compensation (article 14). This also includes the right to rehabilitation that is as full
as possible.
• Article 14
• Each State Party shall ensure in its legal system that the victim of an act of torture obtains
redress and has an enforceable right to fair and adequate compensation, including the means
for as full rehabilitation as possible.

11. Inadmissible evidence

According to Article 15 of the Convention, any statements gathered as a result of torture must
be deemed inadmissible in legal proceedings. This provision is extremely important
because, by making such statements inadmissible in court proceedings, one of the primary
aims of torture becomes redundant.
• Definition Of Torture

• Forms of Torture
• White torture
• Tucker telephone
• German Chair
• Water Dungeon
• Denailing
• Tiger Bench
• EXAMPLES
• On Feb 8, 2017, S Balamurugan was found dead in police custody at the North Klang police
district headquarters. The 44-year-old suspect had been taken to the magistrate’s court the day
before for a remand order, where he was seen to be badly bruised, in a weakened state, and
unable to walk. When offered a sip of water by his lawyer, he had blood flowing out of his
mouth and nose.
• Upon seeing this, the magistrate denied the police’s application for remand and Balamurugan
was ordered to be released. The magistrate also instructed the investigating officer to take
Balamurugan to the hospital. However, instead of complying with the magistrate’s order, the
police ‘rearrested’ Balamurugan and took him back to the police station, where he later died.
• It’s a classic case of where international community was helpless, as malaysia had not ratified
the convention.

General Comment No. 4 (2017) on the implementation of article 3 of the Convention

• Any person found to be at risk of torture if deported to a given State should be allowed to
remain in the territory under the jurisdiction or control or authority of the State party
concerned so long as the risk persists.
• The person in question should not be detained without proper legal justification and
safeguards.
• Detention should always be an exceptional measure based on an individual assessment and
subject to regular review. Furthermore, the person at risk should never be deported to another
State where he/she may subsequently face deportation to a third State in which there are
substantial grounds for believing that he/she would be in danger of being subjected to torture

• As mentioned earlier, in India, no specific provision has been expressed to safeguard the
rights of individuals against torture. It is a shame on the legislature of India, that even
after 2 decades of India signing the ‘Convention against Torture’, still no specific legislation
or enactment has been enacted to ratify the convention. Nothing has been done by the
legislature till now to enact the prohibition of torture laws.
• Even when the definition of torture under the convention was broad and it included both
mental and physical suffering, the exclusion of pain or suffering arising out of lawful
sanctions created a serious loophole in the definition of torture.
• They still allow the use of torture in the signatory states till the time they are ‘lawful’ and
states have given the people using torture the authority to exercise it. This can be considered
as a serious flaw in the definition of torture and this loophole should be removed at the earliest.

• Amnesty International in its report of 2017-18, stated that the count of the death in judicial
custody for the said year accounted to 894 and deaths in police custody accounted to 74.
• According to the report, Uma Bharti accepted that she ordered the police to torture the rape
suspects when she was the chief minister of Madhya Pradesh. This can be seen as a reflection
of the loophole in the definition of “torture” under the “UN Convention against torture”
because it allows torture by state authorities when it is lawful and allowed by the state.
• In August 2017, a women prisoner at Byculla jail in Mumbai, died after she complained about
the food provided in the prisons. A team was formed including parliamentarians to visit the
Byculla prison who reported that the prisoners confessed that they were regularly beaten.
• In November 2017, The High court of Delhi set up a committee that visited Tihar jail, Delhi
and found out that 18 prisoners were beaten in prisons because they objected to their pillow
covers being taken away.

• In September 2017, The Indian government accepted the recommendations of United

nations to ratify the “UN Convention against Torture”, which India signed in 1997.
• After a month, India’s Law Commission released a report recommending that the government
ratify the Convention and enact a law to criminalize torture.
• This led to the Introduction of the Prevention of Torture Act, 2022. This bill is important
for India to ratify the convention, however, till now, India has not taken any steps to ratify the
UN Convention.
• It is worth noting that the Law Commission then remarkably points out that, “Human rights
concerns for death penalty and torture are often cited as grounds for refusing extradition
requests. Countries that have abolished death penalty often need diplomatic assurances that
rights of the person to be extradited shall not be breached.

Convention on the Elimination of All Forms of Discrimination against Women

• On 18 December 1979, the Convention on the Elimination of All Forms of Discrimination

against Women was adopted by the United Nations General Assembly. It entered into force as
an international treaty on 3 September 1981
• The principle of equality and non-discrimination are essential principles for the promotion
of women’s rights.
• The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
defines the rights of women to be free from discrimination and sets the core principles to
ensure women have equal access and equal opportunities in public and private life.
• The CEDAW Convention carries with it the obligation that are legally binding on states
while also establishing a monitoring mechanism for individual State Parties as well as the
possibility for individuals to lodge a complaint to the CEDAW Committee. Custom and
culture often override considerations of state obligations under CEDAW.
 HISTORY

• The first half of the 20th century, the world awoke to the horrors of the Second World War, in
particular experiences of the Holocaust and the gross assaults on human dignity and humanity.
• As a Result the world witnessed for the first time a Trial known as Nuremberg Trial for
protecting Human rights and dignity.
• The CEDAW Convention is built on three foundational principles: non-discrimination, state
obligation and substantive equality.
• The definition of discrimination means that all the rights as set forth in the Convention need
to be considered from a holistic point of view, i.e. it puts the onus on the State to consider
both the direct and indirect consequences of their policies and practices. One example of
this is austerity and its impact on women. Austerity has a disproportionate and negative effect
on women since women tend to work and use public services to a larger extent than men. The
need to tackle discrimination through a holistic approach and to foresee both the direct and
indirect/unintentional consequences is not news to the women’s sector and other women’s
human rights defenders

• Even during the “Age of Enlightenment”, while some rights were extended to some groups of
people, discrimination on the basis of sex, race, ethnicity, and sexuality was seen as
LEGITIMATE.
• St Thomas Aquinas who, in spite of advocating the theory of natural rights (that human
beings are created with inalienable rights), reinforced Aristotle’s misogynous perception of
women and viewed women as defective, valuable only for their reproductive role.
• Even more modern and progressive philosophers such as Rousseau rejected the equality of
the sexes.
• Rights in The French Declaration of Rights of Man and Citizen which was the inspiration
for the struggle of the liberation of people for centuries did not include women’s rights.
• At present CEDAW has 30 Articles.

• When the United Nations was founded in 1945, the cause of universal human rights was
enshrined in its charter. A year later, the body created the Commission on the Status of
Women (CSW) to address women's issues and discrimination. In 1963, the U.N. asked the
CSW to prepare a declaration that would consolidate all international standards regarding
equal rights between the sexes.
• The CSW produced a Declaration on the Elimination of Discrimination against Women,
adopted in 1967, but this agreement was only a statement of political intent rather than
a binding treaty. Five years later, in 1972, the General Assembly asked the CSW to draft a
 binding treaty. The result was the Convention on the Elimination of All Forms of
Discrimination Against Women.
• CEDAW was adopted by the General Assembly on Dec. 18, 1979. It took legal effect in 1981
after it had been ratified by 20 member states, faster than any previous convention in U.N.
history. As of February 2018, nearly all of the U.N.'s 193 member states have ratified the
agreement. Among the few that have not are Iran, Somalia, Sudan, and the United States

• Resolution 1325 (2000) is an international law unanimously adopted by the Security

Council that mandates the UN Member States to engage women in all aspects of
peacebuilding including ensuring women's participation on all levels of decision–making
on peace and security issues.
• Resolution 1820 (2008) links sexual violence as a tactic of war with the maintenance of
international peace and security. It also demands a comprehensive report from the UN
Secretary-General on implementation and strategies for improving information flow to
the Security Council; and the adoption of concrete protection and prevention measures
to end sexual violence.
• Resolutions 1325 and 1820, and CEDAW share the following agenda on women's human
rights and gender equality:
• Demand women's participation in decision-making at all levels
• Rejection of violence against women as it impedes the advancement of women and maintains
their subordinate status
• Equality of women and men under the law; protection of women and girls through the rule of
law
• Demand security forces and systems to protect women and girls from gender-based violence
• Recognition of the fact that distinct experiences and burdens of women and girls come from
systemic discrimination
• Ensure that women's experiences, needs and perspectives are incorporated into the political,
legal and social decisions that determine the achievement of just and lasting peace

• Article 1 defines discrimination against women

• Article 2 mandates that states parties ratifying the Convention declare intent to
enshrine gender equality into their domestic legislation and repeal all discriminatory
provisions in their laws
• Article 3 requires states parties to guarantee basic human rights and fundamental freedoms to
women "on a basis of equality with men" through the "political, social, economic, and
cultural fields."
• Article 4 notes that of special measures aimed at equality between men and women.
• Article 5 requires states parties to take measures to seek to eliminate prejudices and customs
based on the idea of the inferiority or the superiority of one sex or on stereotyped role
for men and women.

• Article 6 obliges states parties to "take all appropriate measures, including legislation, to
suppress all forms of trafficking in women and exploitation of prostitution of women.
• Article 7 guarantees women equality in political and public life with a focus on equality
in voting and participation in government.
• Article 8 provides that states parties will guarantee women's equal "opportunity to represent
their Government at the international level and to participate in the work of international
organizations."
• Article 9 mandates states parties to "grant women equal rights with men to acquire, change
or retain their nationality" and equal rights "with respect to the nationality of their children."
• Article 10 necessitates equal opportunity in education for female students and
encourages coeducation
• Article 11 outlines the right to work for women as equal pay for equal work, the right to social
security, paid leave and maternity leave. "Dismissal on the grounds of
maternity, pregnancy or status of marriage shall be prohibited.
• Article 12 creates the obligation of states parties to "take all appropriate measures to eliminate
discrimination against women in the field of health care services.

• Article 13 guarantees equality to women "in economic and social life," such as the right to
bank loans, mortgages and other forms of financial credit.
• Article 14 provides protections for rural women by ensuring the right of women to participate
in development programs.
• Article 15 obliges states parties to guarantee "women equality with men before the law,"
including "a legal capacity identical to that of men. ( Example, in certain countries, married
women do not have the capacity to sue.)
• Article 16 prohibits "discrimination against women in all matters relating to marriage and
family relations."

• Article 17 states for the purpose of implementation of the present Convention, there shall be
established a Committee on the Elimination of Discrimination against Women.

• Examples & Cases

• In most part of Asia and North Africa, there is a wide gap in the mortality rate of women and
men because there is a failure to give medical care to women post birth of child.
• In Sub Sahara region, where there is acute famine and poverty, the health of women is
neglected because it is deemed that she would be the last one to claim her share of food, in
case of shortage of food.

Avellanal v. Peru
• Article 168 of the Peruvian Civil Code provided that only men were allowed to represent
matrimonial property before the Courts. Ms Avellanal, who was married, owned two
apartment buildings in Lima. The Supreme Court held that she was not entitled to sue her
tenants for overdue rent because she was married and under the Civil Code, only husbands
could represent matrimonial property.
• Ms Avellanal complained to the Human Rights Committee. In its views, the Committee found
that the application of Article 168 of the Civil Code resulted in Ms Avellanal being denied
equality before the courts and constituted discrimination on the ground of sex.
• The Committee expressed the view that Peru was under an obligation to take effective
measures to remedy the violations of the ICCPR suffered by Ms Avellanal.

• Amnesty International in its report(1992) has categorically stated that government in order
to suppress armed insurgency, against citizen, makes women uniquely vulnerable. Women are
more likely to suffer humiliation, excessive body searches and sexual assault as a result of
this.
• In Turkey, sexual abuse is used frequently by authorities to extract confession during
interrogation.
• Women, taking advantage of their vulnerability, are often abused and tortured because they
happen to be in relation to the men of less authorities. Example: Mukhtar Mai case( where
revenge in form of gangrape was inflicted on the victim because her brother had fallen
in love with a girl outside the caste)

• Salwa Judum, a peach march protest against the naxalites in Chhatisgarh was declared
illegal by Supreme Court. Under the veil of protection to Civilian, it was reported that women
and children were displaced, tortured, threatened to evict them out of their own land in the
name of protection.
• Several times, it is the legislation that is acting against the interest of Women. For example
Hudood Ordinance in Pakistan held that women convicted of extra marital offence would
be publicly whipped or stoned to death.
• In Brazil, the criminal law defines crime from the perspective of culture. The offended
party, a women, if she makes an accusation she has to come within the category of a ‘Pure and
Honest’ Women. Otherwise the case is unlikely to be investigated.
• In a report by a Special Rapportuer, it was claimed that in Vidharbha region, a large majority
of farmers committed suicide and it had a negative impact on women’s physical and mental
health.
• Gudiya case (Kargil war victim , 2003) also shows lack of empathy from the administration
when it come giving choice to women

• In matters of reproductive rights, there is always a dilemma faced by women. Due to deeply
entrenched practice of eliminating girls, as a part of gender cleansing, the mother who bears
the daughter risk either her own life or desertion at the hands of family.
• Community Courts exercise undue pressure on women to adhere to their diktats. For example,
in Gudiya case, the girl was forced to return to her first husband, when she had already
remarried, and was also carrying the child of second husband.
• In a historic and far-reaching decision, the U.S. Supreme Court officially, in 2022
reversed Roe v. Wade, declaring that the constitutional right to abortion, upheld for nearly a
half-century, no longer exists. (Planned Parenthood v Casey’)

• Gudiya Case highlighted the Public/Private Divide. General Recommendation No 19 that

talks about Violence against Women where in state parties should take appropriate steps to
eliminate violence irrespective of private or public domain.
• State should condemn violence in name of tradition and culture.
• Women should be free from violence in public sphere. For examples, there are instances
where law created perpetuates violence against women in form of male preference, early
marriage, dowry death, Female Genital Mutilation, female infanticide etc.

• In Magaya v Magaya, the deceased had died intestate. He was survived by his two wife. The
eldest girl child was by his first wife and his three sons were by his second wife. When the
eldest girl child went to court to claim ownership, it was opposed by the son of second wife.
According to African law, if an African had contracted marriage, died intestate, he would
be governed according to the customs of the tribe.

• The court gave the ruling that Zimbabwe since it has not signed CEDAW is not bound to
accept every provisions. It respects the culture of the tribe wherein the women status can
never ever be equated with the status of the head of the family i.e. Male. Hence the property
would go to son instead of eldest girl child.
• Under Private Sphere, most of the State do not interfere into the domain affairs of the family.
Privacy is often the defense undertaken by the State to consider that violence within the
four walls of the house is not the responsibility of the government.

GENDER BASED VIOLENCE

•
On 14 July 2017, the United Nations (un) Committee on the Elimination of Discrimination
against Women (cedaw Committee) adopted its General Recommendation No. 35 on gender-
based violence against women.
•
The purpose of this General Recommendation was to update the Committee’s General
Recommendation No. 19 on violence against women, which had been adopted 25 years
previously. This violence is not against men
• At the un level, the primary instrument relating to the rights of women is the un Convention
on the Elimination of All Forms of Discrimination against Women 1979 (cedaw).However,
rather surprisingly, this Convention contains no express reference to the issue of violence
against women.
• It seems nevertheless that this omission can be explained by the fact that cedaw was
formulated in 1979, at a time when there was little, if any, recognition of violence against
women as an issue falling within the ambit of international human rights law.

• The cedaw Committee adopted General Recommendation No. 19 on violence against

women in 1992. According to this document:
• The definition of discrimination includes gender-based violence, that is, violence that is
directed against a woman because she is a woman or that affects women disproportionately.
It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts,
coercion and other deprivations of liberty. Gender-based violence may breach specific
provisions of the Convention, regardless of whether those provisions expressly mention
violence

• Gender-based violence affects women throughout their life cycle and accordingly references
to women in this document include girls. This violence takes multiple forms, including acts
or omissions intended or likely to cause or result in death or physical, sexual, psychological
or economic harm or suffering to women, threats of such acts, harassment, coercion and
arbitrary deprivation of liberty.
• Gender-based violence against women is affected and often exacerbated by cultural,
economic, ideological, technological, political, religious, social and environmental factors, as
evidenced, among others, in the contexts of displacement, migration, militarisation, foreign
occupation, armed conflict, violent extremism and terrorism.
• Gender-based violence against women is also affected by political, economic and social
crises, civil unrest, humanitarian emergencies, Harmful practices and crimes against women
 human rights defenders, politicians, activists or journalists are also forms of gender-base
violence.

• Under general international law, as well as under international treaties, a private actor’s acts
or omissions may engage the international responsibility of the State in certain cases. These
include:
• a) Acts and omissions by non-state actors attributable to the States. The acts or omissions
of private actors empowered by the law of that State to exercise elements of the governmental
authority, including private bodies providing public services, such as healthcare or education,
or operating places of detention, shall be considered as acts attributable to the State itself.
• b.) Due diligence obligations for acts and omissions of non-State actors. Article 2 (e) of
the Convention explicitly provides that States parties are required to take all appropriate
measures to eliminate discrimination against women by any person, organisation or enterprise
• ANGELA GONZALEZ CARRENO V. SPAIN
• After more than 20 years of being subjected to violence by her partner, in 1999,
Ángela Gonzalez left her family home with her three-year-old daughter Andrea
after an episode of violence that took place in front of the girl. Ángela
feared that the aggressor –Mr. Rascón – would kill her and her daughter or
cause them grave harm.
• Ángela reported the violence she had been suffering, both before the police and the
courts on several occasions, and initiated divorce proceedings. During
the following four years that she lived separated from the aggressor, Ángela
fought tirelessly to protect her daughter from her daughter’s abusive father
and used all the means at her disposal to protect her daughter. She went
before the courts repeatedly to ask, amongst other things, for Rascón’s
visitation with Andrea to be supervised. Despite her efforts and belief
in the social protection services and the judiciary, the system failed her and
her daughter completely. Rascón was allowed to have unsupervised visits
with Andrea. On 24 April 2003, during one of these unsupervised visits,
Rascón murdered his six-year-old daughter and then committed suicide.

• FGM has been termed as one of the most widespread and systematic violations of the
universal human right to personal integrity, committed against millions of women and girls
worldwide, abusing their physical and psychological integrity and damaging their lives
irreversibly.
• The Human Rights Council in 2012 also adopted a resolution on accelerating efforts to
eliminate all forms of violence against women and FGM as one of the issue. The resolution
calls for the provision of visible and sustained leadership at the highest level to prevent all
 forms of violence against women. It also calls for mobilisation of support from various
sectors to enhance the campaign. Most of the member States are party to the Convention on
the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Convention
on the Rights of the Child (CRC).
• Ending harmful traditional practices against women and girls requires a comprehensive
approach which includes action both in the public and private sphere. It is the primary
duty of families to protect children from violence and to refrain from engaging in violent acts.
States have primary legal obligation to create the framework and conditions in society which
protects women and girls from violence and for the elimination of discrimination against
women and girls. The State is accountable for passing legislation and adopting policies
(including plans of action) to end harmful traditional policies, and for enforcing such
legislation and implementing policies, she further added.
• X and Y v. Georgia Communication No. 24/2009, UN Doc. CEDAW/C/61/D/24/2009
(2015)
• This case was brought by a mother (X) and daughter (Y) who complained of Georgia’s failure
to prevent, investigate and punish prolonged physical violence, and sexual and psychological
abuse, suffered at the hands of their former husband and father respectively.

The violence suffered by X began in 1987 when she was raped by her future husband at a
party. Shortly afterwards, she married him. Because of societal attitudes in Georgia which
prize the sanctity of a women’s virginity prior to marriage, she believed that no one else would
wish to marry her because she was no longer a virgin. Within the marriage, X gave birth to
five children, and gave up her job following the birth of her first child. X’s husband was
consistently violent towards the children, often shouting at them or punishing them with
physical violence for misbehaving or arguing amongst themselves. X was assaulted by her
husband whenever she intervened to protect the children and as a result of disputes over
insignificant household issues. Her husband also subjected two of their children – Y and her
brother – to sexual abuse.

• Despite reporting the incidents of physical and sexual abuse to the authorities on more than
five occasions (supported by first-hand evidence from X and Y, among others, and medical
reports confirming physical injuries sustained by X at the hands of her husband), the
complaints were never investigated and no criminal charges were brought against her husband.
Her husband was only ever asked by the police to sign unenforceable written declarations that
he would not use further violence against his family.
• The CEDAW Committee found that the Georgian State had failed to enact criminal law
provisions to effectively protect women and girls from physical and sexual abuse within the
family, provide equal protection under the law to victims of domestic violence and sexual
abuse, and protect them from domestic violence
• Karen Tayag Vertido v. the Philippines
Communication No. 18/2008, UN Doc. CEDAW/C/46/D/18/2008 (2010)
In the case of Karen Tayag Vertido v the Philippines, the applicant was raped in a hotel room
by a work contact, who she thought had a gun. He was acquitted by a judge who considered
that Karen Tayag Vertido had failed to take reasonable opportunities to escape, and therefore
must have consented to sexual contact. The applicant made a strong and detailed case outlining
the many “rape myths” that were included in this trial process,

In finding violations of articles 2(f) and 5(a), the Committee affirmed that CEDAW requires
states parties to ‘take appropriate measures to modify or abolish not only existing laws and
regulations, but also customs and practices that constitute discrimination against women’

• R.P.B. v. The Philippines Communication No. 34/2011, UN Doc. CEDAW/C/57/D/34/2011

(2014)

• case of sexual violence against a disabled woman, who was mute and had a hearing disability.
When R.P.B. was 17, she was raped by her neighbour. In the course of the investigation and
trial, R.P.B. was not given translator support to enable her to participate in the investigation,
and only limited assistance in the trial proceedings.

The trial court relied on many rape myths during the trial, “[the court]… also questioned
R.P.B.’s credibility because, in its view, she had not responded to the attack in the manner
expected (ie she had not summoned “every ounce of her strength and courage to thwart any
attempt to besmirch her honour and blemish her purity”). The court was particularly critical
of R.P.B.’s “failure to even attempt to escape … or at least to shout for help despite
opportunities to do so”, which in its view, “casts doubt on her credibility and renders her claim
of lack of voluntariness and consent difficult to believe”.

The CEDAW Committee affirmed that stereotyping affects women’s right to a fair trial and
urged the state party to ensure that all criminal proceedings involving rape and other sexual
offences are conducted free from prejudices or stereotypical notions regarding the victim’s
gender, age and disability

•
Now, 25 years after the adoption of General Recommendation No. 19, the cedaw Committee
has issued a further General Recommendation on violence against women, in the form of
General Recommendation No. 35. The cedaw Committee points out in the latter that, despite
the work of the Committee and of other bodies such as civil society groups, ‘gender-based
 violence against women…remains pervasive in all countries of the world, with high levels of
impunity.’
• The aim of the cedaw Committee in adopting General Recommendation No. 35 is to
provide states parties with ‘further guidance aimed at accelerating the elimination of
gender-based violence against women’, in the hope that this will contribute towards the
amelioration of this situation.

• While the title of General Recommendation No. 19 referred simply to ‘violence against
women’, interestingly the title of General Recommendation No. 35 instead uses the
phrase ‘gender-based violence against women’. According to the cedaw Committee, this
more specific term is used as it ‘makes explicit the gendered causes and impacts of the
violence.
• With the use of the phrase ‘gender based violence against women’, the cedaw Committee
emphasises that the issue in question is essentially violence directed at women because they
are women, thus making this type of violence different from violence more generally and
thereby justifying and indeed necessitating a gendered response

• General Recommendation No. 35 proceeds to state that:

• The Committee regards gender-based violence against women to be rooted in gender-
related factors such as the ideology of men’s entitlement and privilege over women, social
norms regarding masculinity, the need to assert male control or power, enforce gender
roles, or prevent, discourage or punish what is considered to be unacceptable female
behavior. These factors also contribute to the explicit or implicit social acceptance of
gender-based violence against women, often still considered as a private matter, and to the
widespread impunity for it

• The primary difference between General Recommendations No. 19 and No. 35 relates to the
amount of detail contained therein on the responsibilities of states parties. For example, many
acts of gender-based violence are committed by private individuals, which means that the
concept of ‘due diligence’ is of particular importance in this area. In General
Recommendation No. 19, the cedaw Committee asserted that, ‘Under general
international law and specific human rights covenants, States may also be responsible
for private acts if they fail to act with due diligence to prevent violations of rights or to
investigate and punish acts of violence, and for providing compensation.
• General Recommendation No. 35 sets out in considerably more detail what the concept
of due diligence actually entails in practice. It specifies that this obligation encompasses
actions by corporations operating extraterritorially, and that states parties must adopt
measures to prevent human rights breaches abroad by corporations over which they
may exercise influence, whether by using incentives or by regulatory means.
•
General Recommendation No. 35 also asserts that states should ensure that all legal systems
protect victims/survivors of gender-based violence against women and ensure they have
access to justice and to an effective remedy;
•
and lists in detail types of legal provisions which are discriminatory against women and should
therefore be repealed.
• In addition, states should examine gender-neutral laws and policies to ensure that they do not
create or perpetuate inequality, and amend or repeal them if they are found to do so.

• The Committee on the Elimination of Discrimination against Women (CEDAW) is the body
of independent experts that monitors implementation of the Convention on the Elimination of
All Forms of Discrimination against Women. The CEDAW Committee consists of 23
experts on women’s rights from around the world.
• The CEDAW treaty is a tool that helps women around the world to bring about change in their
daily life. In countries that have ratified the treaty, CEDAW has proved invaluable in opposing
the effects of discrimination, which include violence, poverty, and lack of legal protections,
along with the denial of inheritance, property rights, and access to credit

• States that ratify the Convention are legally obliged to:

• Eliminate all forms of discrimination against women in all areas of life;
• Ensure women’s full development and advancement in order that they can exercise and
enjoy their human rights and fundamental freedoms in the same way as men; and
• Allow the CEDAW Committee to scrutinize their efforts to implement the treaty by
reporting to the body at regular intervals.
• Countries that have become party to the treaty (States parties) must submit regular reports to
the Committee on how the rights of the Convention are being implemented. During its public
sessions, the Committee reviews each State party report and addresses its concerns and
recommendations to the State party in the form of concluding observations.
• In accordance with the Optional Protocol to the Convention, the Committee is mandated to:
• receive communications from individuals or groups of individuals submitting claims of
violations of rights protected under the Convention to the Committee and
• initiate inquiries into situations of grave or systematic violations of women’s rights. These
procedures are optional and are only available where the State concerned has accepted them.
• The Committee also holds days of general discussion and formulates general
recommendations; these are suggestions and clarifications directed to States that concern
articles or themes in the Conventions.
• The Committee meets twice a year in New York.
• Goekce v. Austria, Communication No. 5/2005 (DOMESTIC VIOLENCE CASE)
• · Nguyen v The Netherlands, Communication No. 3/2004 (ANTI ACCUMULATION IN
TERM SOF MATERNITY LEAVE NOT ALLOWED)
• · Individual communication –
• · S.F.M complaint against Spain (2018) (OBSTETRIC VIOLENCE RELATED TO
PREGNANCY CARE BY HOSPITAL)

Prof. Crenshaw’s theory on intersectional identity and violence against women.

• The term intersectionality was coined by civil rights activist and professor Kimberlé
Crenshaw and can be defined as “the interconnected nature of social categorizations such as
race, class, and gender as they apply to a given individual or group, regarded as creating
overlapping and interdependent systems of discrimination or disadvantage.”
• By adding the idea of intersectionality to feminism, the movement becomes truly inclusive,
and allows women of all races, economic standings, religions, identities and orientations for
their voices to be heard.

• Under the marriage fraud provisions of the Act, a person who immigrated to the United States
United States citizen or permanent resident had to remain "properly married for two years
before even applying for permanent resident at which time applications for the immigrant's
permanent status of both spouses was needed Predictably, under these circumstances, many
women were reluctant to leave even the most abusive of partners being deported.
• Coloured women, LGBT Community are at the greater end to face violence

• In countries throughout the world, oppression and domination has been a major feature of
history. Racist and classist institutions that have upheld oppression in societies have the
ability to fuel injustices that ignore gender-based violence and in turn stagnant development.
• An intersectional approach in promoting development could assist in confronting the unequal
power dynamics in societies, not only for women but also for those who are not able to fully
participate in the economy due to their race, class or poverty-level.
• Case studies in the United States and South Africa exemplify a culture of dominance in which
race and class oppression has created a culture of violence against women. As a result,
violence against half of the nation’s population is creating barriers for development.
Intersectionality can help us better understand and solve the various levels of inequalities that
encompasses the oppression of women and of all people
• Intersectionality is a term used to describe how different factors of discrimination can meet at
an intersection and can affect someone's life. Adding intersectionality to feminism is important
to the movement because it allows the fight for gender equality to become inclusive. Using
intersectionality allows us all to understand each other a little bit better.
• At the end of the day, we might all experience discrimination and gender inequality differently
and uniquely, but we are all united in our hope for equality
• Convention on Rights of Child (UNCRC)

• UNIT-V

• India has ratified UNCRC in 1992.

• The UN Convention consists of 54 Articles, each of which details a different type of right.
These rights are not ranked in order of importance; instead, they form one integrated set of
rights.
• A common approach is to group these articles together under the following themes and is
also enshrine in Preamble:-
• Survival rights: include the child’s right to life and the needs that are most basic to
existence, such as nutrition, shelter, an adequate living standard, and access to medical
services.
• Development rights: include the right to education, play, leisure, cultural activities, access
to information, and freedom of thought, conscience and religion.
• Protection rights: ensure children are safeguarded against all forms of abuse, neglect and
exploitation.
• Participation rights: encompass children's freedom to express opinions and to increase
opportunity to participate in the activities of society, in preparation for adulthood.

• The UN Convention includes four articles that are given special emphasis. These are also
known as ‘general principles’. These rights:-

1. that all the rights guaranteed by the UNCRC must be available to all children without
discrimination of any kind (Article 2);
2. that the best interests of the child must be a primary consideration in all actions concerning
children (Article 3);
3. that every child has the right to life, survival and development (Article 6); and
4. that the child’s view must be considered and taken into account in all matters affecting him
or her (Article 12).

• Article 1: Definition of a child Children are defined as all people under 18 years of age.
• Article 2: Non-discrimination All rights in the Convention apply to all children without
exception
• Article 3: Best interests of the child All actions concerning the child must be based on his
or her best interests.
• Article 4: Implementation of rights The State has an obligation to translate the rights of
the Convention into reality.
• Article 5: The State has a duty to respect the rights and responsibilities of parents in the
upbringing of the child in a manner appropriate to the child’s evolving capacities.
• Article 6: Survival and development The child has an inherent right to life, and the State
has an obligation to ensure to the maximum extent possible the survival and development of
the child.
• Article 7: Name and nationality The child has the right to be registered, to have a name
from birth and to be granted a nationality. In addition, the child has the right to know and be
cared for his or her parents.
• Article 8: Preservation of identity The State has an obligation to protect child’s identity

• Article 12: The child’s opinion The child has the right to express an opinion, in accordance
with his or her age and maturity.
• Article 16: Protection of privacy The child has the right to protection from interference
with privacy, family, home and correspondence, and from libel or slander.
• Article 18: Parental responsibilities The State has an obligation to recognise and promote
the principle that both parents or legal guardians have common responsibilities for the
upbringing and development of the child.
• Article 19: Protection from abuse and neglect The State has an obligation to protect
children from all forms of abuse and neglect, to provide support to those who have been
abused and to investigate instances of abuse.

• Article 20: Protection of children without families The State has an obligation to provide
special protection for children without families
• Article 21: Adoption In countries where adoption is recognised and/or allowed, it shall only
be carried out in the best interests of the child, with all necessary safeguards for the child.
• Article 22: Refugee children Special protection is to be granted to children who are refugees
or seeking refugee status.
• Article 23: Children with a disability Children with a mental or physical disability have the
right to special care and education.

• Article 32: Child labour The State has an obligation to protect children from engaging in
work that negatively impacts their health, education or development.
• Article 33: Drug abuse The child has a right to protection from illicit use of narcotic drugs.
• Article 34: Sexual exploitation The child has the right to protection from all forms of sexual
exploitation and sexual abuse, including prostitution and involvement in pornography.
• Article 40: Administration of juvenile justice Children accused of having committed an
offence have the right to benefit from all aspects of the due process of law.
• In 2000, two optional protocols were added to the UNCRC. One asks governments to
ensure children under the age of 18 are not forcibly recruited into their armed forces. The
second calls on states to prohibit child prostitution, child pornography and the sale of
children into slavery. These have now been ratified by more than 120 states.
• A third optional protocol was added in 2011. This enables children whose rights have been
violated to complain directly to the UN Committee on the Rights of the Child.
• India has ratified the first two optional protocol.

• BEST INTEREST PRINCIPLE

• Best interest principle has gained relevancy at international level. It states about a principle
that irrespective of age, children thought and opinion should be considered from their own
perspectives.
• However, the criticism of this principle is that it being euro centric, it might not be adaptable
to Asian people.
• General comment 14 enshrines Best Interest Principle as:
• Recognition of children as right holders;
• Obligation of States parties to respect their every child has a right t live with dignity;
• There is an obligation on State and court to consider the primary interest of the child while
making policies.

• General Comment 14 issued by the Committee on the Rights of the Child, refers to article
3(1), of the Convention on the Rights of the Child that asserts the right of the child to
have his or her best interests taken as a primary consideration in all actions or decisions
that concern him or her (in both the public and private spheres).
• The General Comment defines the requirements for due consideration of the child’s best
interests, in judicial and administrative decisions as well as all other actions concerning the
child, and provides a framework for assessing and determining the child’s best interests.
• This right is particularly relevant to decisions about children’s care, as the Convention
explicitly refers to the child’s best interests in article 9: separation from parents; article
10: family reunification; article 18:parental responsibilities; article 20: deprivation of family
environment and alternative care; article 21: adoption, among others.

• Best Interests’ is the most important factor that has to be given a primary concern with respect
to making decisions regarding the custody of the children. The concept of the welfare
principle is derived from the term ‘best interests’.
• The concept has been adopted by the Indian Courts from Article 3 of the UN
Convention on the Rights of the child. Article 3 states that “In all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of law,
 administrative authorities or legislative bodies, the best interests of the child shall be a
primary consideration”. It states that the best interests of the child would include his views
and aspirations, an identification that should be respected, irrespective of his caste, sex, or
religion, should be given proper care and protection, and his well-being, entitled to a healthy
environment and possesses right to education and maintenance.
• Under Section 37 of the Family Courts Act, 1984, and Section 16(3) of the Divorce Act,
1869, there are several factors to be considered while determining the ‘welfare principle’ are:
• Wishes of the child, Age of the child, Gender of the child, Any medications that the child
may require i.e., health benefits; Religious and cultural considerations, Financial and
economic stability, Reasonable love, care, and protection, Healthy environment.
• Thus it can be stated that the ‘welfare principle’ and the ‘best interests’ are closely related to
each other, and this concept has given a wider connotation to the Indian legal statutes
including the personal laws.

• FOR EXAMPLE: In Suchita Srivastava & Anr vs Chandigarh Administration The 19-
year-old mentally challenged woman who was allegedly gang-raped inside a government-
run shelter home was not allowed to abort her child. In a petition filed in the Supreme Court,
the court had ruled that despite the mother being mentally ill, yet that does not deprive the
child to live. If mother is incapable of taking care then the duty lies on the state administration
to take care.

• In Prince v Massachusetts, a member of the Jehovah’s Witnesses had her 9-year-old niece
selling newspapers in violation of state labor laws. In upholding the aunt’s conviction, the
Supreme Court observed that The right to practice religion freely does not include liberty to
expose the community or the child to communicable disease or the latter to ill health or death.
Parents cannot make martyrs of their children before they have reached the age of full and
legal discretion when they can make that choice for themselves

• In Newmark v Williams, The child, Colin Newmark, was a 3-year-old diagnosed with cancer.
The doctors prescribed chemotherapy; the parents preferred to rely on spiritual aid and
prayer. The parents, who had consented to an earlier surgery, opposed the proposed
treatments as a violation of their beliefs.
• The trial court, concluding that spiritual treatment was an inadequate alternative to
chemotherapy, ruled that the failure to provide medically approved treatments constituted
violation of Best Interest principle of the child.

• It is a well-established proposition of law that in all matters relating to children,

including access and custody, the welfare of the children should be of paramount
consideration.
• The factors relevant to determine the welfare principle of the child would include better
economic and financial conditions, protection, love and care of the children, a healthy and
safe environment, and the relationship of the child with the parents.
• It was held in the case of Mausami Moitra Ganguli v. Jayanti Ganguly, 2008, the child had
been living with the father, the mother had left him when he was 3 years old. The child was
studying in a good school and wanted to stay with the father, so the father was granted
custody of the child
• STATUTORY LAWS
• Guardians and Wards Act, 1890: This Act is a secular law regulating questions of
guardianship and custody for all children within the territory of India, irrespective of their
religion.
• (ii) Hindu Law: It is to be noted that the following two Acts discussed under “Hindu Law”
are applicable to any person who is a Hindu, Buddhist, Jaina or Sikh by religion[3].
• (a) Hindu Minority and Guardianship Act, 1956: Classical Hindu law did not contain
principles dealing with guardianship and custody of children.[4] However, in modern
statutory Hindu law, the Hindu Minority and Guardianship Act provides various provisions
concerning the matters of guardianship and custody of minor Hindu children.
• (b) Hindu Marriage Act, 1955: Section 26 of the Hindu Marriage Act authorises courts
to pass interim orders in any proceeding under the Act, with respect to custody, maintenance
and education of minor children, in consonance with their wishes. The Section also
authorises courts to revoke, suspend or vary such interim orders passed previously.
• (iii) Islamic Law: In Islamic law, the father is the natural guardian, but custody vests with
the mother until the son reaches the age of seven and the daughter reaches puberty. The
concept of Hizanat provides that, of all persons, the mother is the most suited to have the
custody of her children up to a certain age, both during the marriage and after its dissolution.
A mother cannot be deprived of this right unless she is disqualified because of apostasy or
misconduct and her custody is found to be unfavorable to the welfare of the child.

• (iv) Parsi and Christian Law: Under Section 49 of the Parsi Marriage and Divorce Act,
1936 and Section 41 of the Divorce Act, 1869, courts are authorised to issue interim orders
for custody, maintenance and education of minor children in any proceeding under these
Acts.
• (v) Marriages registered under Special Marriage Act, 1954: This Act provides for a special
form of marriage which can be taken advantage of by any person in India and by all Indian
nationals in foreign countries irrespective of the faith which either party to the marriage may
profess. Couples who register their marriage under Special Marriage Act can take resort
to Section 38 of the Act for the purposes of custody of children. Section 38 empowers the
district court to pass interim orders during pendency of proceedings and make such
provisions in the decree as it may seem to it to be just and proper with respect to the custody,
 maintenance and education of minor children, consistently with their wishes wherever
possible.

• It is not the welfare of the father, nor the welfare of the mother, that is the paramount
consideration for the court. It is the welfare of the minor and of the minor alone which is the
paramount consideration, Saraswatibai Shripad Vad v. Shripad Vasanji Vad, 1940 SCC
OnLine Bom 77.
• Better financial resources of either of the parents or their love for the child may be one of
the relevant considerations but cannot be the sole determining factor for the custody of the
child. It is here that a heavy-duty is cast on the court to exercise its judicial discretion
judiciously in the background of all the relevant facts and circumstances, bearing in mind
the welfare of the child as the paramount consideration, Mausami Moitra Ganguli v. Jayant
Ganguli, (2008) 7 SCC 673.

• Before deciding the issue as to whether the custody should be given to the mother or the
father or partially to one and partially to the other, the High Court must (a) take into account
the wishes of the child concerned, and (b) assess the psychological impact, if any, on the
change in custody after obtaining the opinion of a child psychiatrist or a child welfare worker.
All this must be done in addition to ascertaining the comparative material welfare that the
child/children may enjoy with either parent, Mamta v. Ashok Jagannath Bharuka, (2005)
12 SCC 452.
International Convention on Elimination of Racial Discrimination. (ICERD)
• UNIT V

• The International Convention on the Elimination of All Forms of Racial

Discrimination (ICERD) is a United Nations convention.
• A third-generation human rights instrument, the Convention commits its members to the
elimination of racial discrimination and the promotion of understanding among all races.
• The Convention also requires its parties to criminalize hate speech and criminalize
membership in racist organizations.
• The convention was adopted and opened for signature by the United Nations General
Assembly on 21 December 1965, and entered into force on 4 January 1969. As of July 2020,
it has 182 parties.
• The Convention is monitored by the Committee on the Elimination of Racial
Discrimination (CERD).
• Article 1 of the Convention defines "racial discrimination" as
• any distinction, exclusion, restriction or preference based on race, colour, descent, or
national or ethnic origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any other field of public life.
• Article 2 of the Convention condemns racial discrimination and obliges parties to
"undertake to pursue by all appropriate means and without delay a policy of eliminating
racial discrimination in all its forms".It also obliges parties to promote understanding among
all races

• Article 3 condemns apartheid and racial segregation and obliges parties to "prevent, prohibit
and eradicate" these practices in territories under their jurisdiction. This article has since been
strengthened by the recognition of apartheid as a crime against humanity in the Rome Statute
of the International Criminal Court.
• Article 4 of the Convention condemns propaganda and organizations that attempt to justify
discrimination or are based on the idea of racial supremacism. It obliges parties, "with due
regard to the principles embodied in the Universal Declaration of Human Rights", to adopt
"immediate and positive measures" to eradicate these forms of incitement and
discrimination. Specifically, it obliges parties to criminalize hate speech, hate crimes and the
financing of racist activities

• Article 6 obliges parties to provide "effective protection and remedies" through the courts or
other institutions for any act of racial discrimination suffered due to discrimination.
• Article 7 obliges parties to adopt "immediate and effective measures", particularly in
education, to combat racial prejudice and encourage understanding and tolerance between
different racial, ethnic and national groups.
• Dispute resolution mechanism
• Articles 11 through 13 of the Convention establish a dispute resolution mechanism between
parties. A party that believes another party is not implementing the Convention may complain
to the Committee on the Elimination of Racial Discrimination.
• The Committee will pass on the complaint, and if it is not resolved between the two parties,
may establish an ad hoc Conciliation Commission to investigate and make
recommendations on the matter. This procedure has been first invoked in 2018, by Qatar
against Saudi Arabia and UAE and by Palestine against Israel.
• Article 22 further allows any dispute over the interpretation or application of the Convention
to be referred to the International Court of Justice.

• Article 14 of the Convention establishes an individual complaints mechanism similar to that

of the First Optional Protocol to the International Covenant on Civil and Political
 Rights, Optional Protocol to the Convention on the Rights of Persons with
Disabilities and Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination against Women.
• Parties may at any time recognise the competence of the Committee on the Elimination of
Racial Discrimination to consider complaints from individuals or groups who claim their
rights under the Convention have been violated.
• Such parties may establish local bodies to hear complaints before they are passed on.
• Complainants must have exhausted all domestic remedies, and anonymous complaints and
complaints that refer to events that occurred before the country concerned joined Convention
are not permitted.
• The Committee can request information from and make recommendations to a party

• In Durmic v. Serbia and Montenegro the Committee found a systemic failure by the
Serbian government to investigate and prosecute discrimination against Roma in access to
public places.
• In several cases, notably L.K. v. Netherlands and Gelle v. Denmark, the Committee has
criticized parties for their failure to adequately prosecute acts of racial discrimination or
incitement. In both cases, the Committee refused to accept "any claim that the enactment of
law making racial discrimination a criminal act in itself represents full compliance with the
obligations of States parties under the Convention"

• In The Jewish community of Oslo et al. v. Norway, the Committee found that the prohibition
of hate speech was not compatible with freedom of speech, and that the acquittal of a neo-
Nazi leader by the Supreme Court of Norway on freedom of speech grounds was a violation
of the Convention.
• In Hagan v. Australia, the Committee ruled that, while not originally intended to demean
anyone, the name of the "E. S. 'Nigger' Brown Stand" (named in honour of 1920s rugby
league player Edward Stanley Brownat a Toowoomba sports field was racially offensive and
should be removed.

• The Third World Conference Against Racism, Racial Discrimination, Xenophobia and
Related Intolerance (Durban, 2001)
• With the end of apartheid, particularly with the Third World Conference against Racial
Discrimination in Durban held in 2001, ICERD gained renewed attention. Central to the
achievements of the Durban Conference was the admission by States that racial
discrimination was a reality in all countries despite the defeat of de jure racial discrimination.
• The precedent-setting Durban Declaration and Programme of Action acknowledged the
continuing role of historical injustices in creating the contemporary realities of racial
inequalities. Attention was also given to the modern manifestations of racial injustices
 generated by the economies of globalization. Civil society groups from all regions of the
globe found their place in the United Nations’ vision of
• ending racism and becoming new constituencies for the work of CERD. Non-governmental
organizations now attend the sessions of CERD in great numbers in hopes that by applying
the provisions of ICERD and dialoging with the States parties, their lived experiences of
racial inequality will be unmasked and addressed.
• And they have found that although ICERD is over 50 years old, its text combines precision
sufficient for legal application, while it also permits interpretations that cover realities not at
the time foreseeable. In that way, it has been open to dynamic evolution, allowing it to grow
and expand as a “living convention,” applicable to modern manifestations of racial
discrimination. And so, a new generation has found it to be relevant

• On 12 December 2019, the CERD issued its decision on jurisdiction in the Inter-State
Communication submitted by the State of Palestine against Israel (the “Decision”). It is
among the three first Inter-State Communications ever before human rights treaty bodies and
therefore sets numerous precedents. Israel protested that the CERD had no jurisdiction based
on its non-recognition of the State of Palestine.
• The Decision affirming its jurisdiction rests heavily on the jus cogens and erga omnes nature
of obligations that all States have to combat racial discrimination, which are customary rules
codified in the Convention. That places it inherently among those rare treaties which seek to
promote and protect the common good.

• On 29 August 2019, the Committee on the Elimination of Racial Discrimination (CERD),

in which it reached a historic decision on jurisdiction and admissibility in inter-State
communications submitted under Article 11 of the International Convention on the
Elimination of All Forms of Racial Discrimination, Qatar v Kingdom of Saudi
Arabia and Qatar v United Arab Emirates. The Committee decided that it has jurisdiction in
the two communications and has also declared them admissible.
• The decisions on admissibility in Qatar v Kingdom of Saudi Arabia and Qatar v United
Arab Emirates raise a number of questions of importance. Firstly the issue of non-exhaustion
of domestic remedies in the specific context of inter-State communications was examined.
The United Arab Emirates argued in detail on a range of available and effective domestic
remedies which had not been accessed by Qatari nationals.
• The applicant State responded that the local remedies rule ‘does not apply to claims of the
kind before this Committee.’ Its complaint involves a ‘systematic, generalized policy
and practice that has caused, and continues to cause, widespread violations of the
Convention’, and principles of international law do not require the exhaustion of local
remedies in cases involving breaches of this nature.
• Secondly the existence of concurrent or “parallel” proceedings” before the International
Court of Justice were raised by the United Arab Emirates, which argued that the applicant
State had created a situation where two parallel proceedings bearing on the exact same
dispute between the same parties were progressing simultaneously. It felt that this was in
direct violation of the hierarchical and linear dispute resolution architecture of the
Convention and ‘may entangle the Court and Committee in conflicting interpretations of the
same provisions of the Convention’. The Committee decided to take the so-called
“alternative” rather than “cumulative” approach to interpreting Article 22 of the Convention.
It held:
• The Committee considers that the word “or” between “by negotiation” and “by the
procedures provided for in this convention” in Article 22 of the Convention clearly indicates
that the State parties may choose between the alternative proposed by that provision.
Moreover, the Committee, an expert monitoring body entitled to adopt non-binding
recommendations.

• The Committee on the Elimination of Racial Discrimination (CERD) oversees the

implementation of the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD) through its consideration of State reports, individual complaints,
inter-State complaints, and early-warning and urgent procedures, as well as its preparation
of general comments (referred to as “general recommendations” by the Committee) and
thematic discussions.
• As of October 2021, 182 States are party to the ICERD.
• LOOPHOLES
• Some countries, however, have been reluctant to undertake positive measures. The reluctance
may be a fear of potential political backlash. Positive measures to redress discrimination
must, by definition, target disadvantaged groups in society for what may appear to be
preferential favors. Disadvantaged groups usually lack a prominent political voice. A well-
considered strategy, however, should include substantial prior public education about why
such measures are fair on the basis of remediation and how equality and full inclusion
benefits the entire society.
• Population data is especially important in revealing the existence of racial inequalities that
violate ICERD. Data that is disaggregated based on identity groups within the population is
essential.
• CERD has often brought attention to the importance of data collection. Population
statistics should be disaggregated by race, color, descent and ethnic or national origin, and
sex. It should measure the socio-economic and cultural status of various groups and their
participation in the political and economic development of the country. Once implemented,
disaggregated data can be used to assess the effectiveness of a corrective measure. States,
 however, have been reluctant to collect data for the purposes of addressing racial
discrimination.
Convention on Rights of Persons with Disabilities. (CRPD)
• UNIT V

Eight guiding principles underlie the Convention and each one of its specific articles:

• Respect for inherent dignity, individual autonomy including the freedom to make one's own
choices, and independence of persons

• Non-discrimination

• Full and effective participation and inclusion in society

• Respect for difference and acceptance of persons with disabilities as part of human
diversity and humanity

• Equality of opportunity

• Accessibility

• Equality between men and women

• Respect for the evolving capacities of children with disabilities and respect for the right of
children with disabilities to preserve their identities

The Convention on the Rights of Persons with Disabilities (CRPD), adopted by the United
Nations in 2006, is a landmark international treaty designed to protect and promote the rights and
dignity of persons with disabilities. The CRPD represents a significant shift in how disabilities
are understood and addressed globally.

Rationale for the CRPD

1. Human Rights-Based Approach:

o The CRPD is grounded in a human rights-based approach, recognizing that
persons with disabilities are not merely recipients of charity but holders of rights.
It challenges the traditional medical and charity models of disability, emphasizing
equality, non-discrimination, and the inherent dignity of all individuals.
2. Global Prevalence of Disability:
o With over 1 billion people worldwide living with some form of disability, the
CRPD acknowledges the widespread impact of disability and the need for a
 universal framework to address the challenges faced by persons with disabilities
across different cultures and societies.
3. Addressing Systemic Discrimination:
o Persons with disabilities have historically faced systemic discrimination,
exclusion, and marginalization in various aspects of life, including education,
employment, healthcare, and participation in public and political life. The CRPD
seeks to combat these injustices by establishing legal obligations for states to
ensure equal rights and opportunities.
4. Promoting Inclusion and Accessibility:
o The CRPD emphasizes the importance of accessibility in all areas of life,
including the built environment, information and communication technologies,
transportation, and public services. This focus on inclusion and accessibility is
critical for enabling persons with disabilities to participate fully in society.
5. Recognition of Intersectionality:
o The CRPD recognizes that persons with disabilities often experience multiple and
intersecting forms of discrimination, including based on gender, age, ethnicity,
and socioeconomic status. The Convention advocates for a comprehensive
approach to address these intersecting vulnerabilities.

Importance of the CRPD

1. Legal Framework for Disability Rights:

o The CRPD provides a comprehensive legal framework for the protection and
promotion of the rights of persons with disabilities. It obligates state parties to
adopt national laws and policies that align with the principles of the Convention,
thereby fostering legal and social change at the national level.
2. Empowerment of Persons with Disabilities:
o By affirming the rights of persons with disabilities to make their own decisions
and participate fully in society, the CRPD empowers individuals and communities
to advocate for their rights and hold governments accountable for their
obligations.

India is a signatory to the Convention on the Rights of Persons with Disabilities (CRPD)
and has taken significant steps to align its national policies and legal frameworks with the
principles and obligations outlined in the Convention.

Optional protocol 1 deals with individual communication which India ha snot ratified.

India's Position on the CRPD

1. Ratification:
o India signed the CRPD on March 30, 2007, and ratified it on October 1, 2007. By
ratifying the Convention, India committed itself to upholding and implementing
the rights of persons with disabilities as outlined in the CRPD.
2. Legislative Reforms:
o Following the ratification of the CRPD, India enacted the Rights of Persons with
Disabilities Act (RPWD Act), 2016. This law replaced the earlier Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act
of 1995 and brought India's legal framework in closer alignment with the CRPD.
o The RPWD Act recognizes 21 categories of disabilities, expands the scope of
rights for persons with disabilities, and mandates the government to take measures
to ensure accessibility, education, employment, and social security for persons
with disabilities.
3. Constitutional and Policy Measures:
o India's Constitution guarantees fundamental rights to all citizens, including
persons with disabilities. The RPWD Act further strengthens these rights by
providing specific provisions for protecting and empowering persons with
disabilities.
o The government has also introduced various policies and schemes aimed at
promoting the inclusion and well-being of persons with disabilities, such as the
Accessible India Campaign (Sugamya Bharat Abhiyan), which focuses on
improving physical accessibility in public spaces and transportation.
4. National Institutions and Bodies:
o The National Commission for Persons with Disabilities was established to
oversee the implementation of disability rights in India. The Commission is
responsible for monitoring compliance with the RPWD Act and addressing
grievances related to the violation of disability rights.
o India also has a dedicated Ministry of Social Justice and Empowerment, which
plays a key role in formulating and implementing policies and programs for
persons with disabilities.
5. Challenges and Implementation Issues:
o Despite the legislative and policy advancements, India faces significant
challenges in fully realizing the rights of persons with disabilities. These include
gaps in the implementation of laws, inadequate accessibility in public spaces,
limited awareness and sensitization about disability rights, and the need for
greater resources and infrastructure.
o Rural areas, in particular, often face greater challenges in terms of accessibility,
availability of services, and awareness of rights.
6. Civil Society and Advocacy:
 o Civil society organizations in India play a critical role in advocating for the rights
of persons with disabilities and holding the government accountable for its
commitments under the CRPD. These organizations work on a wide range of
issues, including education, employment, healthcare, and accessibility.
7. International Engagement:
o India actively participates in international forums related to disability rights and
has contributed to global discussions on the implementation of the CRPD. The
country has also submitted periodic reports to the Committee on the Rights of
Persons with Disabilities, outlining the measures it has taken to implement the
Convention.

1. The Rights of Persons with Disabilities Act, 2016 (RPWD Act)

• Overview: This is the primary legislation governing disability rights in India. The RPWD
Act replaced the earlier Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act of 1995. It was enacted to bring India's legal
framework in line with the UN Convention on the Rights of Persons with Disabilities
(CRPD).
• Key Provisions:
o Expands the definition of disability to include 21 categories, including autism
spectrum disorder, cerebral palsy, multiple sclerosis, and thalassemia.
o Provides for 4% reservation in government jobs and 5% in higher education
institutions for persons with benchmark disabilities.
o Mandates that all public buildings, transport systems, and information and
communication services be made accessible.
o Introduces penalties for offenses against persons with disabilities, including
discrimination and harassment.
o Establishes a National Fund to provide financial assistance for the rehabilitation
of persons with disabilities.

2. The National Trust for Welfare of Persons with Autism, Cerebral Palsy,
Mental Retardation and Multiple Disabilities Act, 1999

• Overview: This Act focuses on the welfare of persons with specific disabilities,
particularly autism, cerebral palsy, mental retardation, and multiple disabilities.
• Key Provisions:
o Establishes the National Trust, a statutory body that provides support to persons
with these disabilities.
o Promotes the protection and care of persons with these disabilities, ensuring their
rights are upheld.
 o Encourages the creation of enabling environments for independent living and
community participation.

3. The Mental Healthcare Act, 2017

• Overview: This Act aims to provide mental healthcare and services for persons with
mental illness and protect, promote, and fulfill their rights.
• Key Provisions:
o Establishes the right to access mental healthcare and services provided or funded
by the government.
o Decriminalizes suicide and recognizes the right of individuals to make advance
directives regarding their treatment.
o Establishes Mental Health Review Boards to oversee the implementation of the
Act and protect the rights of persons with mental illness.
o Mandates that all healthcare facilities and services must be accessible to persons
with mental illness.

8. The Persons with Disabilities (Equal Opportunities, Protection of Rights and

Full Participation) Rules, 1996

• Overview: These rules provide detailed procedures and guidelines for the
implementation of the 1995 Act, which has since been replaced by the RPWD Act, 2016.
• Key Provisions (Historical Context):
o Defined the procedures for issuing disability certificates.
o Outlined the responsibilities of various government agencies in implementing the
Act.