SOME ASPECTS OF INDIA'S LEGAL REGIME FOR THE …

353

SOME ASPECTS OF INDIA'S LEGAL REGIME FOR

THE PROMOTION AND PROTECTION OF

HUMAN RIGHTS

68)Ajay Pandey*

< 목 차>

1. Provisions of Human Rights in the Constitution of India

2. Features that strengthen human rights in India

3. International Human Rights Instruments and India

4. Institutions

5. Conclusion

The Constitution of India guarantees human rights by way of its provisions on

Fundamental Rights and the Directive Principles of State Policy. The Preamble to the

Constitution of India, spelling the larger purpose and the philosophy of the

Constitution, proclaims that to ensure justice, liberty and dignity to all citizens of

India is the primary objective of the Constitution.

The Preamble to the Constitution of India reads: WE, THE PEOPLE OF INDIA,

having solemnly resolved to constitute India into a sovereign socialist secular

democratic republic and to secureto all its citizens: JUSTICE, social economic and

political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of

status and of opportunity; and to promote among them all FRATERNITY assuring the

* Lawyer and a human rights practitioner, obtained his basic law degree from the University of Lucknow,Lucknow, India, an M.Phil. (Master of Philosophy) in International Law from the Centre for Studies inInternational Law, School of International Studies, Jawaharlal Nehru University, New Delhi, INDIA, andan LL.M. (Master of Laws) in Clinical Legal Education from the Vanderbilt University, Nashville, USAas a Fulbright Scholar, is currently serving the Institute of Rural Research and Development(www.smsfoundation.org), Gurgaon, Haryana, INDIA, as Director, Policy, Governance and Advocacy. Theauthor may be contacted through [email protected] and [email protected]

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dignity of the individual and the unity and integrity of the Nation; IN OUR

CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY

ADOPT ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Provisions of some of the most important international human rights treaties, which

India is a party to, further strengthen India’s Constitutional provisions of human rights.

India has ratified several international human rights treaties including the International

Covenant on Civil and Political Rights (ICCPR), and International Covenant on

Economic, Social and Cultural Rights (ICESCR). India is also bound by the provisions

of the UDHR as customary principles of international law and the Charter of the

United Nations to protect and promote human rights.

In addition, the Supreme Court of India has broadened and consolidated the scope

of India’s human rights regime through many of its landmark judgements. Human

rights concerns form the bedrock of justice delivery system in India. On the

relationship of international human rights treaties and the domestic law, the Supreme

Court of India has held that "[i]t is now an accepted rule of judicial construction that

regard must be had to international conventions and norms for construing domestic

law when there is no inconsistency between them and there is a void in the domestic

law." Vishaka and others v. State of Rajasthan and others, All India Reporter

(hereinafter referred to as AIR)1997, SC 3011, at 3015. The Court also clarified that

"[a]ny international convention not inconsistent with fundamental rights and in

harmony with its spirit must be read into these provisions to enlarge the meaning and

content thereof, to promote the objective of the constitutional guarantee." Id., at 3014.

Thus, the courts in India are "under an obligation to give due regard to international

conventions and norms for construing domestic laws, more so, when there is no

inconsistency between them and there is a void in domestic law." Apparel Export

Promotion Council v. A.K. Chopra, AIR 1999, SC 625, at 634. Also, India’s

Protection of Human Rights Act, 1993, covers international covenants in its definition

of human rights.The Protection of Human Rights Act, 1993, Act No. 10 of 1994,

Section 2 (1) (d). According to this provision, "human rightsmeans the right relating

to life, liberty, equality and dignity of the individual guaranteed by the Constitution or

embodied in the International Covenants and enforceable by courts in India."

SOME ASPECTS OF INDIA'S LEGAL REGIME FOR THE PROMOTION AND PROTECTION OF HUMAN RIGHTS 355

India has several forums to give effect to the provisions of human rights. They

include the Supreme Court of India, High Courts, the National Human Rights

Commission,the National Commission for Women and the National Commission for

the Protection of Child Rights. Thus, India has a very strong platform to fulfill the

objectives of international human rights regime. This paper discusses some of these

aspects of India’s regime of human rights. It is divided into five sections. The first

section discusses some human rights provisions as enshrined in the Constitution of

India and some landmark judgments of the Supreme Court of India pertaining to

them; the second section traces some basic features which strengthen India’s human

rights regime; the third section discusses some international human rights treaties, India

is a party to; the fourth section carries a discussion on some of India’s prominent

institutions constituted to protect and promote human rights and the fifth section draws

the conclusion.

1. Provisions of Human Rights in the Constitution of India

The part guaranteeing Fundamental Rights, Part III of the Constitution of India. in

the Indian Constitution, is the fountain of human rights in India. The constitutional

provisions on the Directive Principles of State Policy compliment the fundamental

rights and further broaden India’s human rights regime. Above all, the Preamble to

the Constitution constantly guides and nurtures this regime. Thus, together these three

parts ensure a comprehensive coverage of human rights in India.For the text and

commentaries of various provisions of the Preamble, Fundamental Rights and Directive

Principles of State Policy of the Indian Constitution, see Shukla, V.N., Constitution of

India, Eastern Book Company, Lucknow, (2001); Baxi, P.M., The Constitution of

India, Universal, Delhi, (2007). The text of the Constitution of India may be also be

accessed through http://indiacode.nic.in/coiweb/welcome.html. The provisions of

fundamental rights in the Constitution of India include the right to equality; The

Constitution of India, Articles 14-18. the right to life and personal liberty;Id., Article

21. the right to freedom; Id. Articles 19-22. the right against exploitation;Id. Articles

23-24. the right to freedom of religion; Id. Articles 25-28. cultural and educational

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rights of minority; Id. Articles 29-30. and the right to constitutional remedies against

the violation of any of the fundamental rights. Id., Article 32.

The provisions of the Directive Principles of State Policy (DPSP) are generally

non-justiciable.In this regard, Article 37 of the Constitution of India provides: "The

provisions contained in this Part shall not be enforceable by any court, but the

principles therein laid down are nevertheless fundamental in the governance of the

country and it shall be the duty of the State to apply these principles in making

laws." However, this aspect, as stated in the Constitution itself, has been diluted over

the years through judicial pronouncements and practice of fundamental rights. Now,

the position that has emerged with regard to the provisions of DPSP is that they are

complimentary and supplementary to Fundamental Rights. C.B. Boarding & Lodging v.

State of Mysore, AIR 1970 SC 2042, at 2050. Linking the Directive Principlesto

human rights, the Supreme Court has observed that the Directive Principles stand

elevated to inalienable fundamental human rights and that they are justiciable by

themselves. Air India Statutory Corporation v. United Labour Union, AIR 1997 SC

645.

Positive in their character, DPSP form provisions of economic and social human

rights. Some provisions of the DPSP include the provision for the State to secure a

social order for the promotion of the welfare of the people; The Constitution of India,

Article 38. provision on equal justice and free legal aid; Id. Article 39-A. provision

on right to work, to education and to public assistance in certain cases; Id. Article 41.

provision on just and humane conditions of work and maternity relief; Id. Article 42.

provision on living wage etc. for workers; Id. Article 43. provision on participation of

workers in management of industries; Id. Article 43-A. provision on early childhood

care and education for children below six years of age; Id. Article 45. The right to

free and compulsory education is a fundamental right for children between the age

group of 6-14 in India (see the Constitution of India, Article 21 A). provision for the

promotion of educational and economic interests of Scheduled Castes, Scheduled

Tribes and other weaker sections of society; Id. Article 46. provision on the duty of


the State to raise the level of nutrition and the standard of living and to improve

public health; Id. Article 47. and the provision on protection and improvement of

environment and safeguarding of forests and wildlife. Id. Article 48-A.

The Supreme Court of India, through its various judgements, has further

strengthened the Constitutional provisions on human rights. In holding that the right to

life guaranteed in the Constitution of India means the right to a dignified life See

Francis Coralie Mullin v. Union Territory of Delhi, (1981) 1 Supreme Court Cases

(hereinafter referred to as SCC) 608: AIR 1981 SC 746; and Bandhua Mukti Morcha

v. Union of India, (1984) 3 SCC 161: AIR 1984 S.C. 802., the Court hasincluded

almost every human right within the scope of the right to life. Some examples are:

the right to speedy trial; Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360:

1992(5) SCC 326; Saraswati Seshgiri v. State of Kerala, AIR 1982 SC 1165: 1982(2)

SCC 310. the right to free legal aid to the poor; M. H. Hoskot v. State of

Maharashtra, (1978) 3 SCC 544: AIR 1978 S.C. 1548; Hussainara Khatoon v. State of

Bihar, (1980) 1 SCC 98: AIR 1979 SC 1369. the right to privacy in telephonic

conversation; People’s Union for Civil Liberties v. Union of India & Anr. (1997) 1

SCC 301: AIR 1997 SC 568. the right not to be subject of domiciliary visits by the

police without authority of law; Kharak Singh v. State of Uttar Pradesh & Others,

AIR 1963 SC 1295; Govind v. State of Madhya Pradesh & Another, AIR 1875 SC

1378 : 1975(2) SCC 148; State of Maharashtra & Another V. Madukar Narayan

Mandikar, AIR 1991 SC 207 : 1991(1) SCC 57.the right to know or the right to

information State of UP v. Raj Narain, AIR 1975 SC 865 or (1975) 4 SCC 428 S.P.

Gupta and Others V. Union of India and Others, AIR 1982, SC 149 or 1981 (Supp)

SCC 87 R R. P. Ltd v. Proprietors, Indian Express Newspapers, Bombay, (P) Ltd.,

(1988) 4 SCC 592, 613 or AIR 1989 SC 190; Association for Democratic Reforms v.

Union of India, AIR 2001, Del 126. the rights of prisoners; State of Maharashtra v.

Prabhakar Pandurang Sanzgiri, AIR 1966 S.C. 424; Sunil Batra v. Delhi

Administration (1978) 4 SCC 494: AIR 1978 S.C. 1675; Harbans Singh v. State of

U.P., 1991 Supp (2) SCC 507: AIR 1991 S.C. 531; State of AP v. Challa Ram

Krishna Reddy, (2000) 5 SCC 712: AIR 2000 S.C. 2083. the right to compensation in

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case of violation of a fundamental right and in particular of article 21; Rudul Sah v.

State of Bihar, (1983) 4 SCC 141; Bhim Singh v. State of J&K, (1985) 4 SCC 677;

M.C. Mehta v. Union of India, (1987) 1 SCC 395; Murarilal Jhunjhunwala v. State of

Bihar, 1991 Supp (2) SCC 647: AIR 1991SC 515; Smt. Nilabati Behera v. State of

Orissa & Others, (1993) 2 SCC 746: AIR 1993 SC 1960; Hussain v. State of Kerala,

(2000) 8 SCC 139. the right to a healthy environment, which includes several other

rights such as protection of wildlife, forests, lakes, protection from noise, air and

water pollution and maintenance of ecological balance; T. Damodhar Rao v. S.O.,

Municipal Corpn., Hyderabad, AIR 1987 AP 171; Chhetriya Pardushan Mukti

Sangharsh Samiti v. State of U.P., (1990) 4 SCC 449, 452: AIR 1990 S.C. 2060;

Virender Gaur v. State of Haryana, (1995) 2 SCC 574; Vellore Citizens Welfare

Forum v. Union of India, (1996)5 SCC 647; A.P. Pollution Board Control Board v.

M.V. Nayudu, AIR 1999 S.C. 812; Narmada Bachao Andolan v. Union of India ,

(2000) 10 SCC 664. the right to bare necessities of life, including adequate nutrition,

clothing and shelter; Francis Coralie v. Union Territory of Delhi, supra note 28. the

right to education; Mohini Jain v. State of Karnataka, AIR 1992, S.C. 7673;

Unnikrishanan v. State of A.P., 1993 SCC 645. the right to livelihood; Narendra

Kumar v. State of Haryana, (1994) 4 SCC 460. and the right to safe drinking water.

Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664; A.P. Pollution

Control Board II v. M. V. Nayudu, (2001) 2 SCC 62.In addition, the Supreme Court

has also held that the fundamental rights safeguarded under articles 14 and 21 are

available also to non-citizens. National Human Rights Commission v. State of

Arunachal Pradesh, (1996) 1 SCC 742: AIR 1996 S.C. 1234.

2. Features that strengthen human rights in India

There are at least five most important features that strengthen human rights in India

and place them on a very high pedestal. They are: (1) the fundamental right to live

with human dignity and no denial of the right to life and personal liberty except in

accordance with a just and fair procedure established by law; (2) the right to equality

before law (3) the theory of basic structure of the Constitution (4) the power of


judicial review; and (5) the right to information.

2.1 The Right to Life

The provision on the fundamental right to life and personal liberty, as provided for

in the Constitution of India, reads–"no person shall be deprived of his life or

personal liberty except according to procedure established by law." The Constitution of

India, Article 21. However, through various judicial pronouncements, this provision has

acquiredthe status of the single provision embracing almost all human rights in its

fold. In defining the meaning of the right to life, the Supreme Court, in one its

landmark judgements held:

… the right to life includes the right to live with human dignityand all that goes

along with it, namely, the bare necessities of life such as adequate nutrition, clothing

and shelter over the head and facilities for reading, writing and expressing oneself in

diverse forms, freely moving about and mixing and commingling with fellow human

beings. Francis Coralie v. Union Territory of Delhi, supra note 28.

In the matter of the other aspect of Article 21, "…except according to procedure

established by the law", the Supreme Court has clarified that the procedure established

by law means a just and fair procedure. Maneka Gandhi v. Union of India, AIR 1978

SC 597. Thus, the Court has added the requirement of due process of law for

denying to any person the right to a dignified life and personal liberty. Showing a

greater sense of respect for the right to life, the Supreme Court has gone as far as

holding that smokers of tobacco in public places violate the right to life of the

non-smokers without any procedure of the law. Murli S. Deora v. Union of India,

AIR 2002 SC 40.

2.2 The Right to Equality before law

Emanating from the Preamble to the Constitution of India, the concept of equality

finds concrete provisions in Articles 14, 15, 16, 17 and 18 of the Constitution. For

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the text of these Articles, see the Constitution of India, Supra note 7. Foremost of

these is the provision on the right to equality before law, which states, "The State

shall not deny to any person equality before the law or the equal protection of laws

within the territory of India." Constitution of India, Article 14. The concept of

equality in India does not involve only political and social equality. It also relates to

economic equality. Some provisions of the Directive Principles of State Policy are

especially relevant in this regard. Accordingly, the State is required to direct its policy

towards securing "that the operation of the economic system does not result in the

concentration of wealth and means of production to the common detriment." Id.,

Article 39 (c). Another provision requires the State to "strive to minimize the

inequalities in income, and endeavour to eliminate inequalities in status, facilitiesand

opportunities, not only amongst individuals but also amongst groups of people residing

in different areas or engaged in different vocations." Id., Article 38 (2).

2.3 Theory of the Basic Structure of the Constitution

The Supreme Court of India propounded the theory of the basic structure of the

Constitution. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461. Thus, some

aspects of the Constitution form the basic structure of the Constitution and hence they

cannot be amended by the legislature. According to the Court, "the doctrine of basic

structure contemplates that there are certain parts or aspects of the Constitution

including Article 15, Article 21, read with Articles 14 and 19 which constitute the

core values which if allowed to be abrogated would change completely the nature of

the Constitution." I.R. Coelho v. State of Tamil Nadu, (2007) SCC 1. Some of the

basic features of the Constitution include the objectives specified in the Preamble to

the Constitution, freedom and dignity of the individual, the principle of equal justice,

effective access to justice, the concept of social and economic justice, and judicial

review. See Basu, DD, Introduction to the Constitution of India, Nagpur, (2003), p.

160. Thus, these provisions, remaining immune from amendment, provide support to

the regime of human rights as they carry some of the most important and basic

elements of human rights. It is indeed a matter of great strength for the regime of

human rights in India that the basic elements of human rights in the Constitution have


assumed such an important status so as to become immune from amendment by the

Parliament.

2.4 Judicial Review

The power of judicial review together with the theory of basic structure of the

Constitution is the greatest functional guarantee for the protection of fundamental

rights in India. Underscoring the importance of judicial review, the Supreme Court has

at times held that judicial review in the light of fundamental rights is a part of the

basic structure of the Constitution. Kihota v. Zachilhu, AIR 1993 SC 412. The

following observations of the Supreme Court of India succinctly explain various

aspects of judicial review and courts’role in protecting fundamental rights:

The role of the judiciary is to protect fundamental rights. Judiciary is the best

institution to protect fundamental rights, given its independent nature and also because

it involves interpretation based on the assessment of values besides textual

interpretation. It enables application of the principles of justice and law. Realising that

it is necessary to secure the enforcement of the fundamental rights, power for such

enforcement has been vested by the Constitution in the Supreme Court and the High

Courts. After enunciation of the basic structure doctrine, full judicial review is an

integral part of the constitutional scheme. The jurisdiction so conferred on the High

Courts and the Supreme Court is a part of inviolable basic structure of the

Constitution of India. It gives practical content to the objectives of the Constitution

embodied in Part III and other parts of the Constitution. I.R. Coelho v. State of Tamil

Nadu, supra note 51.

2.5 The Right to Information

Citizens’ right to information has been recognized in India as a natural corollary to

the right to freedom of speech and expression. State of UP v. Raj Narain S.P. Gupta

and Ors. V. Union of India and Ors. R R. P. Ltd v. Proprietors, Indian Express

Newspapers, Bombay, (P) Ltd. Association for Democratic Reforms v. Union of India,

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supra note 33.However, it became an instrument accessible to the common man only

after the enactment of the Right to Information Act, 2005 (the Act).The Right to

Information Act, 2005 (Act no. 22 of 2005). The larger objective of the Act is to

promote transparency and accountability in the working of public authorities. Id., see

the Preamble. The Act, recognizing the right to information of all citizens, Id., Section

3. provides for a mechanism to ensure that the provisions of the Act are carried

effectively. Id., the Preamble. Accordingly, public authorities are required to

disseminate information to the public about themselves and their functions. Id., Section

4. They are also required to give the information to the particular information seeker

under the Act within a specified time period of thirty days and within forty eight

hours where such information relates to life and liberty. Id., see Section 7 (1). Failure

to comply with these and other provisions of the Act will attract penalties on the

concerned public information officers.Id., Section 20. Thus, the promise of the Act has

paved the way for peoples’ effective participation in the affairs of the country. The

right to information, therefore, is a promising tool in peoples’ hands which they can

use to protect their rights with greater participation and effectiveness.

3. International Human Rights Instruments and India

India has ratified a number of important international human rights treaties to

further enrich its human rights regime. Some of the most important international

human rights treaties, which India has ratified, are: the International Covenant on Civil

and Political Rights (ICCPR) International Covenant on Civiland Political Rights, GA

res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966); 999

UNTS 171, entered into force March 23, 1976.International Covenant on Economic

Social and Cultural Rights (ICESCR) International Covenant on Economic, Social and

Cultural Rights, G.A. Res. 2200A (XXI), 21 U.N.GAOR Supp. (No.16) at 49, U.N.

Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976. the Convention

on the Rights of the Child (CRC) Convention on the Rights of the Child,G.A. res.

44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989),

1577 U.N.T.S. 3, entered into force Sept. 2, 1990. and the Convention on the


Elimination of all forms of Discrimination against Women (CEDAW).Convention on

the Elimination of All Forms of Discrimination against Women, G.A. res. 34/180, 34

U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, 1249 U.N.T.S. 513, entered

into forceSept. 3, 1981. Several judicial pronouncements by India’s apex court in

relation to these treaties havebroadened the scope and content of India’s human rights

regime.

The ICCPR contains civil and political rights, including the right to life, ICCPR,

supra note 63, Article 6. the right to freedom from torture, inhuman or degrading

treatment or punishment Id., Article 7. the right to freedom from slavery and servitude

Id., Article 8. the right to liberty and security of person Id.,Article 9,10 & 11. the

right to freedom of movement or to choose one’s residence Id.,Article 12. the right to

fair and equal access to justice Id.,Articles 14, 15 & 16. the right to privacy Id.,

Article 17. the right to freedom of thought, conscience and religion Id., Article 18.

the right to freedom of speech and expression Id., Article 19. and the rights to

peaceful assemblyId., Article 21. and to form associations. Id., Article 22. Most of

these rights are synonymous with fundamental rights guaranteed in the Indian

Constitution. The ICCPR, however, creates additional obligation and fills the gaps to

further strengthen the fundamental rights.

The ICESCR, embodying economic, social and cultural rights, has proisions, inter

alia, on the right to work ICESCR, supra note 64, Article 6. and to just, fair,

healthy, and favourable conditions of work; Id., Article 7. the right to form trade

unions; Id., Article 8. the right to social security; Id., Article 9. the right to adequate

standard of living, including adequate food, housing, and clothing; Id.,Article 11. the

right to highest attainable standard of physical and mental health; Id., Article 12. and

the right to education. Id., Article 13.

The CEDAW carries provisions to eliminate all kinds of discrimination against

women. In addition, it paves the way for positive discrimination in favor of women to

achieve their de facto equality. CEDAW, supra note 66, Article 4. The CRC, while

providing for all civil, political, social, economic and cultural rights to the child,

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obligates the states parties to ensure her best interests in all their decisions concerning

her. CRC, supra note 65, Article 3. States have also to be mindful of the fact that

the child, by reason of her physical and mental immaturity, needs special safeguards

and care. Id., the Preamble. Some other important provisions of the CRC include the

rights of the child to freedom against any form of exploitation, violence, torture or

cruel, inhuman or degrading treatment or punishment; Id., Article 36 & 37 (1).

freedom of thought, expression and conscience; Id., Article 14 (1). and freedom from

arbitrary or unlawful interference with privacy. Id., Article 16 (1).

Above all, Equality is an overriding principle of the international human rights

regime. Thus, the ICCPR provides that "[s]tates Parties to the present Covenant

undertake to ensure the equal right of men and women to the enjoyment of all

economic, social and cultural rights set forth in the present Covenant." ICCPR, supra

note 63, Article 3. States parties are also mandated to create conditions "whereby

everyone may enjoy his civil and political rights, as well as his economic, social and

cultural rights." Id., the Preamble. This is a mandate to, inter alia, create a culture of

human rights.

Generally, on the relationship of international law to domestic law, the Constitution

requires the State to make efforts at fosteringrespect for international law and treaty

obligations in the dealings of organized peoples with one another. The Constitution of

India, Article 51. On the relationship of international human rights treaties and the

domestic law, the Supreme Court has held that "[i]t is now an accepted rule of

judicial construction that regard must be had to international conventions and norms

for construing domestic law when there is no inconsistency between them and there is

a void in the domestic law." Vishaka and others v. State of Rajasthan and others,

supra note 2. The Court also clarified that "[a]ny international convention not

inconsistent with fundamental rights and in harmony with its spirit must be read into

these provisions to enlarge the meaning and content thereof, to promote the objective

of the constitutional guarantee." Id., at 3014.Thus, the courts in India are "under an

obligation to give due regard to international conventions and norms for construing


domestic laws, more so, when there is no inconsistency between them and there is a

void in domestic law." Apparel Export Promotion Council v. A.K. Chopra, Supra note

4, Id. Also, The Protection of Human Rights Act, 1993, covers international covenants

in its definition of human rights. The Protection of Human Rights Act, 1993, supra

note 5, Id.

4. Institutions

SomeIndia has many other institutions concerning human rights, for instance,

juvenile courts, labour courts, Scheduled Castes and Scheduled Tribe Commissions and

Minority Commissions. of the most important institutions and organizations to protect

and promote human rights in India, include the Supreme Court and High Courts;

institutions created by the Protection of Human Rights Act, 1993 (the PHR Act) the

National Commission for Women; mechanism created by the Legal Services

Authorities Act, 1987; and the national Commission for Protection of the Rights of

the Child (NCPCR).

4.1 The Supreme Court and High Courts

The Constitution of India guarantees the right to move the Supreme Court for the

enforcement of any of the fundamental rights. The Constitution of India, Article 32

(1). This provision itself is a fundamental right. The Supreme Court has the power to

issue directions or orders or writs to enforce any of the fundamental rights. Id.,

Article 32 (2). These writs include writ in the nature of habeas corpus, mandamus,

prohibition, quo warranto and certiorari. Thus, the Supreme Court is the foremost

important institution to protect human rights in India. Similarly, the High Courts have

the power to issue orders or writs for the enforcement of fundamental rights. Id.,

Article 226 (1). Through the mechanism of public interest litigation, any member of

public can approach the Supreme Court and High Courts for redressal of human rights

violations.

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4.2 Institutions Established by the PHR Act

The Protection of Human Rights Act of 1993 establishes a three tier mechanism for

the protection and promotion of human rights in India. See PHR Act, supra note 5,

the Preamble. This mechanism consists of the National Human Rights Commission

(NHRC); The NHRC works at the national level and has to have its headquarters at

New Delhi. See Id., section 3 (5). State Human Rights Commissions (SHRC); SHRCs

functions at state levels. The PHR Act does not make it mandatory for states to

establish SHRCs. See id., section 21 (1). So far, India’s 17 States, Andhra Pradesh,

Assam, Chhattisgarh, Gujarat, Himachal Pradesh, Jammu and Kashmir, Kerala,

Karnataka, Madhya Pradesh, Maharashtra, Manipur, Orissa, Punjab, Rajasthan, Tamil

Nadu, Uttar Pradesh, and West Bengal have established SHRCs. See, http://nhrc.nic.in/

(accessed on 7 September, 2008). and the District Human Rights Courts (DHRC). As

in the case of SHRCs, it is not mandatory for states to establish DHRCs. See PHR

Act, supra note 5, Section 30. According to the last information available, only 10

States have established DHRC. They are: Assam, Andhra Pradesh, Sikkim, Tamil

Nadu, Uttar Pradesh, Meghalaya, Himachal Pradesh, Goa, Madhya Pradesh and

Tripura. See, National Human Rights Commission, Annual Report, 2001-2002, at 16.

The Act requires NHRC, inter alia, to inquire into complaints of violation of

human rights or its abetment or negligence in the prevention of such violation. The

PHR Act, supra note 5, section 12 (a). Complainant can either be a victim or any

person on her behalf. Id. The work of NHRC includes: to encourage the efforts of

NGOs and institutions working in the field of human rights; Id., Section 12 (i). to

spread human rights literacy among various sections of society; Id., Section 12 (h). to

undertake and promote research in the field of human rights; Id., Section 12 (g). to

study treaties and other international human rights instruments and make

recommendations for their effective implementation; Id., Section 12 (f). to review

human rights protection measures and recommend ways for their effective

implementation; Id., Section 12 (d). to review factors that inhibit the enjoyment of

human rights and recommend remedial measures; Id., Section 12 (e). and to carry out

other such functions as it considers necessary for the promotion of human rights. Id.,


Section 12 (j).

The PHR Act is silent asregards functions of SHRCs, excepting the provision that

SHRCs may inquire into violation of human rights pertaining only to items listed in

Lists II and III of the Seventh Schedule of the Constitution of IndiaThe Seventh

Schedule of the Constitution of India has three lists, List I, II, and III. List I, the

Union List, has items over which only the Centre has jurisdiction; List II, the State

List, lists items over which only states have jurisdiction; and List III, the Concurrent

List, has items over which both the Centre as well as states have jurisdiction. and

that too if any other commission is not already inquiring such matters. The PHR Act,

supra note 5, section 21 (5). Similarly, the PHR Act does not define functions of

DHRCs. According to the Act, a state government may specify in each district a

court of sessions to act as human rights court for the speedy trial of offences arising

outof violation of human rights. Id., Section 30.

4.3 Legal Services Authorities

The Legal Services Authorities Act, 1987The Legal Services Authorities Act, 1987

(Act No. 39 of 1987). establishes legal services authorities toprovide free and

competent legal services to the weaker sections of society and to ensure that

opportunities for securing justice are not denied to any citizen by reason of economic

or other disabilities. Id., the Preamble.

Thus, the Act establishes the National Legal Services Authority; Id., Section 3. a

State Legal Services Authority in every state; Id., Section 6. a District Legal Services

Authority in every district; Id., Section 9. and Taluk Legal Services Committees for

each of the Taluk or Mandal or for group of Taluk or Mandals. Id., Section 11

A. A sub-division of a district, consisting of many villages is called Taluk or Mandal.

Functions of these bodies include organizing legal literacy camps and helping

universities and voluntary organizations in ensuring access to justice to the poor. More

importantly, the National Authority has the mandate to develop clinical legal education

and to help law colleges and universities in this regard. Id., Section 4 (k).

靈山法律論叢 제5권 제1호 (2008. 9)368

4.4 The National Commission for Women

The National Commission for Women Act The National Commission for Women

Act, 1990 (No. 20 of 1990). establishes the National Commission for Women (NCW)

to work for the protection and promotion of women’s human rights. Thus, the

functions of the NCW include, inter alia, reviewing the existing legal provisions

affecting women and suggesting necessary amendments in them; Id., Section 10 (1)

(d). looking into complaints relating to deprivation of women’s rights,

non-implementation of laws to protect women’s interests, and non-compliance with

policy decisions to ensure women’s welfare; Id.,Section 10 (1) (f). calling for special

studies or investigations to ascertain situations of atrocities and discrimination against

women and the ways to remove them; Id., Section 10 (1) (g). getting inspected places

where women are kept as prisoners or otherwise and approaching the concerned

authorities for necessary remedial measures; Id., Section 10 (1) (k). and funding

litigation on women’s interests. id.,Section 10 (1) (l).

4.5 The National Commission for Protection of Child Rights

The National Commission for Protection of Child Rights (NCPCR) has been set up

to protect and promote child rights in the country. The NCPCR is a statutory body,

established through the Commissions for protection of Child Rights Act, 2005 (the

Act). The Commissions for Protection of Child Rights Act, 2005 (No. 4 of 2006).

The Parliament enacted this Act to provide for the constitution of a national

commission and state commissions for protection of child rights and children’s courts

for providing speedy trial of offences against children or of violation of child rights.

Id., see the Preamble.

The enactment was necessitated, particularly, in view of India’s accession to the

Convention on the Rights of the Child and her other policy commitments towards

ensuring better protection of child rights. Id.Out of the three institutions, envisaged to

be established in accordance with the Act, the central government has constituted the

NCPCR. As for the other two institutions, state commissions and children’s courts, the

respective states may constitute them as and when they find it appropriate to do so.


Id., see Sections 17 (1) and 25. In the absence of the other sets of institutions, the

NCPCR has greater role in defending the rights of the child at the national level. The

Act defines the term "child rights" to include the rights of the child enshrined in the

United Nations Convention on the Rights of the Child (CRC). Id., see Section 2 (b).

In addition to the rights of the child enumerated in the CRC, the NCPCR will also

have to consider the Constitutional provisions relating to child rights as also provisions

envisaged in the government’s policies. This includes fundamental rights guaranteed to

the people of India and other related provisions of the directive principles of state

policy.

The NCPCR has been assignedimportant functions. It has the mandate, inter alia, to

examine and review the prevailing laws for the protection of child rights and

recommend measures for their effective implementation; Id., see Section 13 (a). to

inquire into violation of child rights and recommend initiation of proceedings in such

cases Id., see Section 13 (c). to spread child rights literacy among various sections of

society and promote awareness of the safeguards available for protection of these

rights; Id., see Section 13 (h). to inquire into complaints and take suo motu notice of

matters relating to deprivation and violation of child rights, non-implementation of

laws providing for protection and development of child rights, non-compliance of

policy decisions, guidelines or instructions for welfare of children. Id., see Section 13 (j).

5. Conclusion

India has a strong legal regime to protect and promote human rights. This paper

has discussed some aspects of this regime as they exist in theory, without attempting

to critically analyse the aspect of their effective implementation. A question that I

often face about this regime is: does it really exist? Is the concept of the right to a

dignified human existence a reality or fiction? Does the right to equality exist in

reality? Granville Austin, an eminent expert on India’s Constitution, also asks a

similar question, "[i]n practice, does Article 14 exist?" Austin, Granville, A Historian’s

Reflection on Indian Constitution, in Raj Kumar, C. and Chockalingam, K. (Eds.),

靈山法律論叢 제5권 제1호 (2008. 9)370

Human Rights, Justice, and Constitutional Empowerment, New Delhi, 2007, p.XXV.

Answer to these questions, unfortunately, is in the negative, more so, when these

questions relate to the poor and the weak. Austin draws our attention to some aspects

of the problem:

The courts cannot do what government will not do, and the contempt power is an

inadequate persuader. Government inaction when citizen oppresses citizen makes it

complicit in the denial of citizen rights as much as its actions may directly deny

rights. And so long as judicial processes continue being inordinately slow and may be

subject to corruption, the courts, themselves, provide all too little protection for

citizens’ fundamental rights. Id.

Yet another question that would trouble human rights defenders: is India’s existing

regime of human rights going to be wound up? Some of the most important aspects

of India’s human rights regime draw their strength from the socialist welfare

characteristics of the Constitution. These characteristics have constantly been under

tremendous amount ofpressure since India ushered into the era of free market

economy. Although, the theory of basic structure of the Constitution stands to guard

against any substantive attack on India’s existing regime of human rights, in practice,

the situation seems to be quite worrisome. Amidst these odds, India’s civil society

continues to struggle to protect India’s regime of human rights. Indeed, greater

vigilance and vibrance on the part of civil society only can protect and nurture India’s

regime of human rights in ensuring "all human rights to all."

Key Word：Human rights, Constitution, Instruments, NGO, NCPCR

371

｢영산법률논총｣ 원고작성/투고 세칙

제1조(목적) 본 세칙은 영산대학교 법률연구소에서 발간하는 영산법률논총 에

게재될 원고의 작성방법과 투고요령에 관한 사항을 정함을 목적으로 한다.

제2조(논문게재요청공고) 논문제출 마감일 2개월 전(논문집 발행예정일 4개월

전)까지 영산대학교 홈페이지, 학술진흥재단 영산법률논총 의 논문게재 요청

을 공고한다.

제3조(원고 작성) 1. 원고는 논문, 판례평석, 자료로 구별하여 작성한다.

2. 원고의 표지에는 ① 원고의 종류 ② 논문제목(괄호안에 영문 제목 표기) ③

성명(괄호 안에 영문 성명 표기) ④ 소속, 직책, 학위 ⑤ 주소 ⑥ 전화번호

(사무실, 자택), E-mail주소, 팩스번호를 적고, 논문 본문에는 저자의 성명을

기재하지 않는다. 각주에는 拙著, 拙稿 등의 표시를 사용하지 않고 필자의

성명을 사용한다.

3. 공동으로 집필한 논문의 경우에는 주저자(책임 연구자)와 공동저자를 구분

하고, 주저자·공동저자의 순서로 표시한다.

4. 원고의 분량은 200자 원고지 100매 내외를 원칙으로 하며, 300매를 초과할

수 없다.

5. 주석은 각주로 처리한다.

6. 논문은 ‘한글'로 다음의 규격에 따라 작성한다.

1) 본문：왼쪽여백 0, 오른 여백 0, 들여쓰기 5, 줄간격 150, 글꼴 신명조, 글

자크기 10

2) 각주：왼쪽 여백 3, 오른 여백 0, 들여쓰기 -3, 줄간격 150, 글꼴 신명조,

글자크기 10

7. 목차는 I, 1, 1.1., 1.1.1의 순으로 표기한다.

8. 출전은 필자, 논문명, 서명, 판수, (출판사, 간행년도) 인용면수 순으로 표시

한다. [예: 김갑돌, “상법의 이념”, 상사법연구 제16권 제1호(한국상사법학

회, 1997) 1쪽]

외국 출전은 그 나라의 표준적인 표시방법에 따라 표시할 수 있다.

[예: Joe A. Kim, “-”, 27 A. A. L. Rev. 103, 107~109(1997)]

9. 국문 또는 한자로 표기되는 저서는 로, 논문은 “ ”로 표시한다.

10. 국문 또는 한자로 표시되는 저서나 논문을 인용할 때는 쪽 또는 면으로,

靈山法律論叢 제5권 제1호 (2008. 9)372

로마자로 표시되는 저서나 논문을 인용할 때는 p 또는 S로 인용면수를 표

시한다.

11. 국내판결은 선고 법원, 선고일, 판결 또는 결정, 사건번호의 순으로 표시하고

[예: 대법원 1995. 1. 1 판결 1994 가 1111] 외국의 판결은 그 나라의 표준

적인 인용방법에 따른다.

12. 외국 인명이나 지명은 우리말로 표기하고 명확히 하고자 할 때에는 ( ) 안

에 원어를 표시한다. [예: 화이트(James J. White)]

13. 공저자는 ‘/'를 사용하여 표기하고 주저자를 앞에 기재한다. [예: 김갑돌/이

을순/ 박명회]

14. 면수나 연도 등에서 '부터,' '까지'를 나타내는 부호로 ' - '이 아닌 ' ～ '

을 사용한다.

15. 영문 성명, 논문명, 판결명 등에서 첫 자 이외에는 소문자로 표기한다.

16. 일본어 논문명, 서명 등은 번역하지 않고 그대로 표기한다.

17. 기념논문집은 ×××기념논문집 또는 ○○○×××기념논문집 으로 표기한다.

18. 특별한 의미가 없는 한 각주에서 '참조' 표시를 하지 않는다.

19. 저자(필자)의 명칭은 본국에서 일상적으로 쓰는 순서대로 표기한다.

20. 참고문헌은 논문의 끝부분에 저자명, 논문제목, 또는 저서명, 학술지명, 권

호, 발표년도 등을 기재하여야 한다.

21. 참고문헌의 뒤 부분에 국문과 영문주제어(key word)를 각각 10개 이내로

기재하여야 한다.

22. 논문의 맨 끝부분(주제어 다음)에 영어, 독일어 또는 프랑스어로 작성된 논

문초록을 첨부하여야 한다.

제4조(원고 투고) 1. 원고는 제2조의 <원고 작성 요령>에 따라 작성하여 3.5인치

디스켓과 출력본 4부를 논문집 발행예정일(매년 6월말과 12월말)의 2개월전까

지 편집 담당자에게 우송한다.

영산대학교 법률연구소

주소：경상남도 양산시 주남동 산 150번지 천성학관 법률연구소

전화：055) 380 - 9393~9397

이메일：[email protected]

2. 제2조의 <원고 작성 요령>에 따라 작성되지 않은 원고는 수정을 위하여 필

자에게 반환될 수 있다.

｢영산법률논총｣ 원고작성/투고 세칙 373

3. 제출된 원고는 3인 이상의 심사위원이 심사하여 그 결과를 편집위원회에 통

보하고 편집위원회는 그 결과에 따라 논문의 수정, 보완을 요구하거나 게재

를 유보할 수 있다.

4. 1인당 논문 게재 횟수는 권단위로 1회에 한정된다. 예외적으로 2회 이상 원

고를 게재하려고 하는 경우에는 편집위원회에 사유를 소명하여 승인을 받아

야 한다.

5. 학회지에 게재된 글의 저작권은 필자에게 있으나 저작권자는 영산대학교 법

학전문대학원 법률연구소가 이를 CD-ROM TITLE이나 광디스크 등 여러 가

지 방법으로 복제하여 보관하거나 판매하는 것을 무상으로 허락한 것으로

본다.

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