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IMPACT AND IMPLEMENTATION OF INTERNATIONAL HUMAN RIGHTS NORMS IN INDIA

IMPACT AND IMPLEMENTATION OF INTERNATIONAL HUMAN RIGHTS NORMS IN INDIA. Dr.T.S.N.Sastry Prof & Head Department of Law University of Pune. Introduction.

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IMPACT AND IMPLEMENTATION OF INTERNATIONAL HUMAN RIGHTS NORMS IN INDIA

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  1. IMPACT AND IMPLEMENTATION OF INTERNATIONAL HUMAN RIGHTS NORMS IN INDIA Dr.T.S.N.Sastry Prof & Head Department of Law University of Pune

  2. Introduction • Human rights represent a powerful discourse that seeks to overcome divisiveness and sectarianism and to unite people of different cultural and religious traditions in a single movement. • The idea of human rights conveys a number of aspects, such as globalization, Universalisation of cultures, social action, economy, mass media, good governance, corruption free administration, and cultural perspectives. • Human Rights really means establishing a socio-economic institution which protects functional differences against its self destructive tendencies thus guaranteeing a decent life and equality of access to all state and social institutions. • These being the main aspects of human rights, which are similar to the cultural perspective of India, the Constituent Assembly considered the issues of UDHR and adopted them as Fundamental Rights and Directive Principles of State Policy even before they were bifurcated by the United Nations in 1966 as Covenant on Civil and Political Rights and Economic, Social and Cultural Rights.

  3. Important Characteristics of HR • Universal; • focus on the inherent Dignity and equal worth of all human beings; • are equal, indivisible and interdependent; • cannot not be waived or taken away except by law; • impose obligations of actions and omission, particularly on states and other actors; • Internationally guaranteed; legally protected; • Available to groups of persons and to states too in some cases • Obligations • Respect means not to interfere with their enjoyment • To protect means to take steps to ensure that the third parties do not interfere with their enjoyment • To fulfill means take steps progressively to realize the right in question.

  4. HR Instruments to which India is a party • Convention on the Prevention and punishment to the Crime of Genocide, 1948 • International Convention on the Elimination of all forms of Racial Discrimination, 1965 • Covenant on Economic, Social and Cultural Rights, 1966 • Covenant on Civil and Political Rights, 1966 • Convention on the Elimination of All Forms of Discrimination Against Women 1979 • Convention on the Rights of Children 1989 • Convention on the Rights of Persons with Disabilities 2006 and a number of other conventions on women and Labour and other aspects.

  5. Instruments to which India is not a party • Convention on the Status of Refugees 1951 and its optional Protocol 1967 • Rome Statute of ICC 1998 • Convention on the Prohibition of Anti-personnel Mines and their Destruction 1997 • Convention on the protection of the Rights of all Migrant Workers and Member of their Families 1990 • ILO Covenant on the Elimination of Worst Forms of Child Labour No 182 • ILO Covenant on Social Security 1950 • Optional Protocol II of ICCPR dealing with death penalty • Optional Protocol to CEDAW 1999 • No individual Mechanism to report violations of Human Rights to International Agencies.

  6. Salient Human Rights in India • Constitution of India : Equality before laws (14) ; Abolition of un-touch ability (17); Fundamental Freedoms (19); Protection against Conviction/enhanced Punishment under ex post facto Law(20(1); protection against double jeopardy (20(2); protection against self-incrimination(20(3); Life and Liberty(21); Right against arbitrary or illegal Arrest (22); abolition of bonded Labour (23 (1); Right to remedies for enforcement of Human Rights (32 &226); Promotion of interests of Weaker Sections (46); Free legal Aid to the Poor (39 (A); right to Education (21 (A) • Criminal Procedure Code: Right Against Arbitrary or Illegal Arrest (S 57,41,151,46,49 ); Right to be released on Bail (50); Right against arbitrary or unreasonable searches and seizure (47,51,100); Protection against cruel or inhuman treatment during investigation(54,162,164, & 176); Detainees should have the right to a medical examination (53 & 54) Women and children should not be taken to police stations for purposes of investigation (160); Protection against double jeopardy (300) ; (Protection against Self-incrimination (161)

  7. Contd….. Indian Evidence Act Protection against cruel or inhuman treatment during investigation (24,25,&26); Right to benefit of doubt (101-104); Protection of women against certain crimes (113-A,B and 114-A). Indian Penal Code Protection against cruel or inhuman treatment during investigation (330 & 331); protection of women against certain crimes (376 & 304-B) Code of Conduct for the Police Protection of Human Rights (Caluse 1,3 &4); Code of Behaviour for Police officers (Clause 7) Over-riding clause of the Constitution Constitution clearly states that the State shall not make any law which takes away or abridges the rights conferred and that any law made in contravention of the clause, shall, to the extent of contravention, be void.

  8. Impact of Human Rights and Implementation in India :A Glance • Women: In C.B. Muthamma V Union of India (1979) the SC held discriminatory rules IN IFS for married women is unconstitutional . • Air India V Nargesh Meerza in 1981 struck down the rules which stipulated termination of service of an air hostess on her first pregnancy. • In gita Hariharan V RBI (1999) Hindu Minority and Guardianship Act 1956 the mother could act as the natural guardian of the minor during the father’s lifetime if the father was not in charge of the affairs of minor. • Visakha’s Case (1997) it framed the rules for the protection of women at Work place from Sexual Harassment. In Apparel Export Promotion Council in 1999 it held that sexual harassment constitutes a violation of fundamental rights of women • Laws specially for Women

  9. Contd…. • Sati Prevention Act 1987;Dowry Prohibition Act 1961; Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse Act, 1996; Immoral Traffic (Prevention) Act 1956; Protection of Women from Domestic Violence Act 2005; Maternity Benefit Act 1961; Employees State Insurance Act; 1948; Payment of Wages Act 1936; Equal Remuneration Act 1976; Domestic Workers Act 2006,Unorganized Workers Social Security Act 2008 etc. National Commission For Women Act 1990. Immoral Traffic and Prevention Act 1956 and Amendment 2006 • Children FR in Art 24 protects the children from employment below 14 years and 21-A guarantees education and DPSP Art 39 directs the state to make policies for the welfare of children

  10. Children • The Juvenile Justice (Care and Protection of Children) Amendment Act 2006 • The Juvenile Justice (Care and Protection of Children) Act 2000 • The Commissions for Protection of Child Rights Act, 2005 • The Commissions For Protection of Child Rights (Amendment) Act, 2006 • The Child Marriage Restraint Act, 1929 • The Prohibition of Child Marriage Act, 2006 • The infant Milk Substitutes Act, 1992 • The infant Milk Substitute Act, 2003 • The infant Milk Substitutes, Feeding Bottles and infant Foods (regulation of Production, Supply and Distribution) Act, 1992 • The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Amendment Act, 2003 • National  Guidelines on Infant and Young Child Feeding • Amendment Proposed in Immoral Traffic (Prevention) Act 1956 • Concluding Observations of the Committee on the Rights of the Child

  11. children • In sheela Barse (1986) the court held that children may not be kept in jail and if the state government has not got sufficient accommodation in its remand homes or observation homes, they may be released on bail. • In gaurav Jain in 1997, the neglected juvenile has been expanded to include prostitutes children and they need to be rescued from red-light areas and shifted to juvenile homes for a short stay to relieve them from the trauma they may have suffered and thereafter they should be rehabilitated in an appropriate manner. (JJ Act 1996) • PUCL 2001 It is important to provide food for the children by the state if the family do not have sufficient funds to provide food for them. • In sakshi in 1999 it directed to bring in stringent provisions in the IPC for sexually assault especially in cases of rape against minor girls. • In Mohini Jain (1992 and later in Unnikrishnan 1993) right to education recognised as a fundamental right under Art 21.

  12. Children • MC Mehta in 1997 child labour in hazardous industries of Tamil Nadu in particular and country in general was prohibited. • In Laxmikant Pandy’s Case 1984 and 1987 it framed the directions to prevent illegal adoption to foreign parents and expanded the provisions of the Guardains and Wards Act . • A number of schemes have been adopted by the Union and State Governments for the promotion and Welfare of children. • The Children Rights Act 2005 has established a children rights Commission in 2006 to promote the rights of children. • A number of organizations are working for children. The NHRC has also fought cases and could get a the Civil servants Act amended by the State in their employment of Children.

  13. Dalits • Protection of Civil Rights Act 1955, The Scheduled Castes and Tribes (Prevention of Atrocities ) Act 1989 Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition Act) 1993 are some of the Important legislations. • The National Commission for Scheduled Castes was constituted in 2003 through Eighty Ninth Amendment Under Art 338 • Scheduled Tribes: The National Commission for Scheduled Tribes (NCST) was established by amending Article 338 and inserting a new Article 338A in the Constitution through the Constitution (89th Amendment) Act, 2003. By this amendment, the erstwhile National Commission for Scheduled Castes and Scheduled Tribes was replaced by two separate Commissions namely- (i) the National Commission for Scheduled Castes (NCSC), and (ii) the National Commission for Scheduled Tribes (NCST) w.e.f. 19 February, 2004

  14. Disabled • Even before the adoption of the Disabled Convention in 2006 by UN the Government of India adopted adequate legislations. • Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 • The Act has been enacted under Article 253 of the Constitution read with item No. 13 of the Union List. It gives effect to the proclamation on the full participation and equality of the persons with disabilities in the Asian & Pacific Region and provides for their education, employment, creation of barrier free environment, social security, etc. The implementation of the Act requires a multi-sectoral collaborative approach by the appropriate governments, including various Central Ministries/Departments, States/Union Territories, local bodies.

  15. disabled • National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability Act, 1999 • The Act provides for constitution of the Board of the National Trust, Local Level Committees, Accountability and Monitoring of the Trust. It has provisions for legal guardianship of the four categories of the persons with disabilities and for creation of enabling environment for their as much independent living as possible. • Rehabilitation Council of India Act, 1992 • The Act provides for constitution of the Rehabilitation Council of India for regulating the training of rehabilitation professionals, maintenance of a Central Rehabilitation Register, recognized rehabilitation qualifications, minimum standards of educations etc.

  16. Minorities • A group of citizens of a State, constituting a numeral minority and in a non-dominant position in that state, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim is to achieve equality with the majority in fact and in law • Among a number of instruments, the ICCPR 1966 is the most directly binding instrument on the States parties which address the rights of minorities through article 27, which clearly impose an obligation on the states where in the status of minorities, is recognized by a state.

  17. Minorities • Accordingly, a state which recognizes the status of minorities is under an obligation not to deny the rights in community with other members of their groups, to enjoy their own culture, to profess and practice their own religion, or to use their own language. This means, a state which has not categorized minorities especially from that of the majority of the populace of the state, the minorities have no claim. • In response to the 1982 Declaration of the UN, the Government of India established the National Minorities Commission in 1983 through the National Commission of Minorities Act 1992.

  18. Elderly Persons • The Vienna International Plan of Action on Ageing 1982 is the first international Instrument on ageing. • In 1991 the UN adopted a plan of action for older people with a number of provisions. • In 1992 the Government adopted guidelines for the protection of Human Rights of Elderly in 1999. Adopted a Senior Citizens Act in 2007. Basing on the SC observations in PUCL Case in 2001 the government moved and passed the act basing on the NGO moments

  19. HIV/AIDS and human Rights • Human Immune deficiency Virus or Acquired Immune Deficiency Syndrome has a emerged as a major pandemic with serious ramifications. The UN Adopted a Number of declarations for their protection. • There about 3 million patients are there in India. The Government started taking care after the SC judgment in Mr X V Hospital Z in 1998 held that the hospital discloses information for a prospective partner is not wrong. It has framed a National policy to protect them under various schemes and a number of policy perspectives.

  20. Conclusion • The above is only a brief survey of the issues concerned with a small section of society of Human Rights. Whatever the Laws are adopted and judgments delivered, Until and unless the HRE is made compulsory and the value system of man and society is inculcated the realization of HR will be difficult. It needs to nurtured and adopted with different societal strata and governmental action. • Though we have the constitution and number of commissions, the Lack of commitment on the part of the society and the state to promote HRE many a times most of us are in a position to realise the rights that are enshrined in the international documents. Let’s hope a day will come the world and the nation will bloom in the flourishing HR

  21. Thank U all

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