NIRMA UNIVERSITY INSTITUTE OF MANAGEMENT AHMEDABAD

MBA (FB&E) 2011-2013

HUMAN RIGHTS IN INDIA

Submitted by Bhumika Patidar(1142208) Hinal Thakkar(114220) Nimita Sanghvi (114235) Twisha Patel (114257)

Under the guidance of Prof. Bindi Mehta

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HUMAN RIGHTS IN INDIA

INTRODUCTION & CONTEXT
Human rights are commonly understood as "inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being."Human rights are thus conceived as universal (applicable everywhere) and egalitarian (the same for everyone). These rights may exist as natural rights or as legal rights, in both national and international law. The doctrine of human rights in international practice, within international law, global and regional institutions, in the policies of states and in the activities of non-governmental organizations, has been a cornerstone of public policy around the world. In The idea of human rights it says: "if the public discourse of peacetime global society can be said to have a common moral language, it is that of human rights." Despite this, the strong claims made by the doctrine of human rights continue to provoke considerable skepticism and debates about the content, nature and justifications of human rights to this day. Indeed, the question of what is meant by a "right" is itself controversial and the subject of continued philosophical debate. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Definition and Meaning

The following definition expresses clearly the meaning of human rights: A human right is a universal moral right, something which all men, everywhere, at all times ought to have, something of which no one may be deprived without a grave affront to justice, something which is owing to every human simply because he is human. An alternative explanation was provided by the philosopher Kant. He said that human beings have an intrinsic value absent in inanimate objects. To violate a human right would therefore be a failure to recognize the worth of human life.

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Different counties ensure these rights in different way. In India they are contained in the Constitution as fundamental rights, i.e. they are guaranteed statutorily. In the UK they are available through precedence, various elements having been laid down by the courts through case law. In addition, international law and conventions also provide certain safeguards.

Classification
Human rights have been divided into three categories:

i) ii) iii)

First generation rights which include civil and political rights. Second generation rights such as economic, social and cultural rights. Third generation rights such as the right of self-determination and the right to participate in the benefits from mankinds common heritage.

Human rights may be either positive or negative. An example of the former is the right to a fair trial and an example of the latter is the right not to be tortured.

Origin of Human Rights

The concept of human rights can be found as far back in time as the age of the Greek philosophers Socrates, Plato and Aristotle. Their writings on the idea of natural law contain many of the same principles that are associated with human rights.

The Magna Carta (1215) is considered a milestone in the history of human rights and several great thinkers such as Grotius, Hobbes, Locke, Rousseau and Kant talk about the concept.

Some religious texts also are said to reflect the principles of human rights. The Rig Veda promotes conduct that is based on equality. Even certain Bible passages have similar content. For instance, in the Old Testament, when the midwives of Pharoah disobey his order to kill all male

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babies, they do so on the basis of higher and more fundamental laws that they felt bound to follow. The American and French declarations of independence in the 18th century were important in promoting human rights that were universal, individual and rational. In the 19th century, the abolition of slavery and increased debate over freedom from government intervention also furthered these principles. With the dwindling of colonialism development in the third world received more focus and adult suffrage, liberty, equality and justice came to be emphasized.

Basic Requirements for Human Rights

Any society that is to protect human rights must have the following characteristics: i) ii) A de jure or free state in which the right to self-determination and rule of law exist. A legal system for the protection of human rights.

Effective organized (existing within the framework of the state) or unorganized guarantees

Approaches to Human Rights

The Natural Law Approach

This theory focuses on a natural law that is higher than positive law (law created by man) and to which the latter must conform. Natural law is based on equality. However since it employs means such as the revelation of divine will, transcendental cognition and participation in natural reason, none of its claims an be conclusively confirmed or rejected.

The Historical Approach

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This approach views human rights as a function of culture and environment and inculcates space and time factors as well. However, it has three distinct drawbacks. Firstly, it sometimes does not consider the individual as an entity outside of the community. Secondly, it gives more importance to language, religion etc. than the actual views of people. Thirdly, by focusing on the differences between societies, it undermines the universality of human rights.

The Positivist Approach

This approach sees law as enacted by an authoritative sovereign and deriving sanction from coercion. The main disadvantage here is laws would not stem from the will of the people but from that of the sovereign. Obedience would be more easily obtained if sanction came not from force but from laws being based in the values of society.

Positivists also see only nations and not individuals as subject to international law, a view that would render ineffective a number of instruments available today.

The Marxist Approach This view comes from the writings of Karl Marx in the context of the 19th century industrial revolution. It posits that in capitalist societies, human rights do not exist. They only come into being in a classless society where there is public ownership of the means of production.

This approach too suffers from defects one of which is that it views the development of human rights in a communist society as inevitable and not problematic.

The Social Science Approach

This approach locates human rights in the context of larger social processes, dwelling on the communitys role in shaping principles. It uses scientific and empirical methods, models and techniques to estimate the degree of success/failure of human rights. It fails however, to provide a clear link between social processes and the law. Page | 5

Specific Human Rights

Economic, Social and Cultural Rights

These second generation rights prevent the oppression and further the interests of economically, socially and culturally disadvantaged groups. Womens Rights Womens rights include affording them resources and opportunities that they have previously been denied. One of the most important rights in this area is the right against sexual harassment which has been given greater importance due to the soaring rates of crimes against women.

Child Rights

These include the right to education and freedom from child labour among others. Several of these rights are laid down in the UN Declaration of the Rights of the Child which aim to provide a child an environment in which he/she can develop properly.

Environmental Rights

Environmental rights have to do with slowing down the depletion of natural resources that cannot be renewed. Sustainable development is one of the main issues and has been debated at the World Summits. Nuclear proliferation is also addressed. Challenges to Human Rights in Todays World

The impact of several changes in the world today on human rights has been both negative and positive. In particular, the risks posed by advancements in science and technology may severely hinder the implementation of human rights if not handled carefully. Page | 6

In the field of biotechnology and medicine especially there is strong need for human rights to be absorbed into ethical codes and for all professionals to ensure that basic human dignity is protected under all circumstances.

For instance, with the possibility of transplanting organs from both the living and dead, a number of issues arise such as consent to donation, the definition of death to prevent premature harvesting, an equal chance at transplantation etc.

Genetic engineering also brings with it the dangers of gene mutation and all the problems associated with cloning. In order to deal with these issues, the Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application and Medicine puts the welfare of the human being above society or science.

Human Rights Instruments

UN Charter

The UN charter has been signed by 150 countries today. Though its obligatory status was in question, it is now the accepted view that Article 56 makes it necessary for all signatories to respect and promote human right.

Universal Declaration of Human Rights Perhaps the most important document pertaining to human rights, it was adopted on 10th December, 1948 and the day is celebrated as Human Rights Day every Year. The Declaration specifies a common standard of achievement for all nations of the world and a number of UN bodies are responsible for implementing its contents.

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UN High Commission on Human Rights

This body created by the Economic and Social Council in 1947 makes recommendations on conventions, declarations and other issues like the status of women

UN High Commissioner for Human Rights The High Commissioners duties include investigating human rights violations, helping governments arrange mechanisms to protect human rights and submitting periodic reviews to the High Commission on Human Rights. A number of international conventions such as the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, safeguard human rights.

Conventions like the European Convention on Human Rights, the American Convention on Human Rights and the African Charter on Humans and Peoples Rights exist at the regional level.

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LITERATURE SURVEY
This note provides a brief overview of the current status of literature written in English on Freedom of Information (FoI) in India which is available for free in the public domain, primarily online. It is hoped that this note will allow those interested in the issue to get a sense of the nature of the current debate in the country as represented by the highlighted papers, as well as an indication of the possible gaps which might benefit from further research and scholarship.

Compared to other countries in the region, a rich, varied and fairly voluminous amount of literature on FoI on India is available in the public domain. This could be attributed to the fact that the FoI regime in India is perhaps the most mature and evolved amongst the countries of the region due to a complex set of reasons, details of which is outside the purview of this note. Although the current FoI regime acquired a legal framework only in 2005 with the enactment of the Right to Information (RTI) Act, the extent of interest and usage of the Act far belies the fact that it has been in operation for less than five years.

Several papers provide rich and nuanced historical narratives of the social and political processes which led to the enactment of the RTI Act in India in 2005 (Goetz and Jenkins, 1999; Mander and Joshi, 1999; Roy and Dey, 2004; Baviskar, 2006; Singh 2007). While these papers in the main come from academic as well as activist perspectives, government perspectives on FoI in the country are also found in good measure which provide important documentation on this issue both before the enactment of the RTI Act in 2005 as well as after (DRPSCPPGLJ, Rajya Sabha, Parliament of India 2005; SARC, 2006; CIC, 2008).

The RTI Act of 2005 incorporates the setting up of an appellate mechanism for the realisation of the right through the setting up of Information Commissions at both the state and central levels, the efficacy of which has also been a subject for exploration in several papers (CHRI, 2006; CIC, 2008). Although the RTI Act was enacted only in 2005, we already see the publication of some study reports which attempt to analyse different aspects of usage and implementation of the Act

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across the country (PWC, 2009; RaaG and NCPRI 2009; CHRI, 2009). Papers have also attempted to assess the Act as a stock-taking exercise so that limitations, successes and challenges can be identified, with a particular reference to the learnings which can be taken from the Indian experience for the world at large (Roberts, 2010).

In addition, a plethora of booklets and handbooks aimed at raising awareness exist in a variety of Indian languages. Documentation of case studies of experiences in the usage of the RTI also abound (CGG, 2009). However, many of these have not been included in this literature review and annotated bibliography by name due to the demands of brevity, but can be accessed through the Other Resources section of this paper. It may be noted that the media has played a critical role in raising awareness about the RTI Act in India and interested individuals may find using the media search links provided in the Select Media Resources section very rewarding. Given the diversity and richness of ideas which have informed the public debate on the issue, it is somewhat disappointing to see that only limited academic work focused on FoI in India has been carried out (Goetz and Jenkins, 1999; Singh, 2007; Roberts, 2010). A greater number of research scholars may need to focus their work on conducting theoretical analyses of the implications of the RTI Act on social, political and economic processes in India. In addition, while some study reports (as mentioned above) have in part focused on the practice and implementation of the RTI Act, these have generally been at the national level, and often with an urban bias. With a country the size of India, national level analyses can at times obfuscate the tremendous regional variations which exist in the evolution of an effective FoI regime in India. Thus, regional or state level studies on usage and implementation, especially focused on rural areas, is another aspect of the issue which would benefit greatly from further research. In addition, greater research on the analysis of the performance and decisions of Information Commissions both at the central and state levels, may also identify the challenges arising in the effective implementation of appellate mechanisms. Finally, research also needs to be carried out on the larger impact of the RTI Act on public service delivery, administrative functioning and corruption.

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CASES
HUMAN RIGHTS IN PUNJAB

Mother testifies against police officer Sumedh Saini Aug 18th 2008 After 14 years, a city court in New Dehli finally recorded 86-year old Amar Kaurs testimony in the case about the disappearances of her son, son-in-law, and their driver.Charges in this case were framed on December 6th, 2006. Amar Kaur alleges that police officer Sumedh Singh Saini, then Senior Superintendent of police, and three other police officers (Sukh Mohinder Singh Sandhu, Paramjit Singh and Balbir Chand Tiwari) were responsible for the disappearances of her son, Vinod Kumar, his brother-in-law, and their driver. The men were detained for a week between February and March 1994. Their confinement continued until March 3rd, after which they disappeared and were never heard from again. Kaur alleges that the arrests and subsequent disappearances were due to a personal matter rather than anything pertaining to the law. The officers were charged with criminal conspiracy and wrongful confinement. Fourteen years later, Amar Kaur came by wheelchair to the city court totestify against Saini. She also accused Paramjit Singh of illegally detaining her and her other son-in-law. This is not the only case in which Saini is accused of human rights abuses such as illegal detention and disappearances. He was accused ofdisappearing Balwant Singh Multani, Navneet Singh and Manjit Singh in 1991. In early July, the CBI registered a case of abduction, illegal detention, and other offenses against him and three other police officers. The FIR was registered in pursuance of a Punjab and Haryana High Court order directing the CBI to probe into the elimination of proclaimed offenders in the blast case. After conducting a preliminary inquiry on the high courts directions, the premier investigating agency has stated in the FIR that Multani was illegally detained before being tortured. He was

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later shown to have escaped from police custody. Balwant Singh Bhullar was also tortured, but to the extent that he lost his mental balance, the FIR asserted. The Punjab & Haryana High Court gave the CBI four months to complete its investigation. In mid-July, however, the Supreme Court stayed the CBI investigation. According to the Tribune, the CBIs application contained two main points: (1) criminals would use the high courts order for a CBI inquiry to help themselves, and (2) the police would not conduct a fair investigation against Saini. Regarding (1), the government has routinely used this rhetoric to protest orders. The Ensaaf/HRW joint report, Protecting the Killers: A Policy of Impunity in Punjab, India, states: In requesting the Supreme Court to rule in their favor [in the Punjab mass cremations case], the Punjab police have attempted to gain sympathy by referencing the barrage of writ petitions they are facing: It is respectfully submitted that a large number of writ petitions are being filed on bogus charges. Human rights activists are coaxing people and even threatening them to file writ petitions by incorporating concocted facts. Thus the police is unable to rivet its attention against the terrorists in full measure. KPS Gill, director general of police in Punjab at the height of the abuses, has led the campaign against police accountability. His writings and speeches have consistently referred to human rights activists as terrorists or agents of Pakistans ISI. He has further equated terrorism with the filing of writ petitions. In 1997, after SSP Sandhus suicide, Gill wrote a letter to Prime Minister IK Gujral, in which he described the legal cases proceeding against SSP Sandhu and other policemen as an unprecedented and unprincipled inquisition, a sustained and vicious campaign of calumny, of institutional hostility and State indifference, and public interest litigation as the most convenient strategy for vendetta. Regarding (2), although Sainis attorneys argued that the police are biased against Saini, the Punjab police have repeatedly demonstrated their pro-police bias in court cases against police officers. Page | 12

Despite these accusations, Saini has been promoted many times and has risen from his position in 1994 (Senior Superintendent of Police) to his position now (Director [Vigilance] in Punjab). As for Amar Kaur, justice has to wait yet another day. Further testimony was scheduled to continue on August 14th.

Torture main reason of death in police custody: Study April 5, 2007 |

In March, the Institute of Correctional Administration (ICA), based in Chandigarh, released a report regarding the prevalence of torture among Punjab Police entitled Custodial Deaths and Human Rights Commission an analysis of its role and prevention. The reports author Dr.Upneet lalli, Deputy Director of the ICA, interviewed 150 police officials for the study. Half of the respondents admit that torture is used in interrogations due to social and political pressures. While torture is cited as the leading cause of death in police custody, only 27% of respondents say their colleagues feel bad about its use. The report attributes this attitude to the lack of accountability and almost total immunity often enjoyed by police. The report also notes a widespread ignorance of the guidelines issued by the National Human Rights Commission on custody-related issues and the relevant Articles of the Indian constitution condemning torture. The report further remarks: There seems to be no clear cut message from the top about intolerance to torture.

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CONCLUSIONS
Human rights are fundamental to the stability and development of countries all around the world. Great emphasis has been placed on international conventions and their implementation in order to ensure adherence to a universal standard of acceptability.

With the advent of globalization and the introduction of new technology, these principles gain importance not only in protecting human beings from the ill-effects of change but also in ensuring that all are allowed a share of the benefits.

However the efficacy of the mechanisms in place today has been questioned in the light of blatant human rights violations and disregard for basic human dignity in nearly all countries in one or more forms.

In many cases, those who are to blame cannot be brought to book because of political considerations, power equations etc. When such violations are allowed to go unchecked, they often increase in frequency and intensity usually because perpetrators feel that they enjoy immunity from punishment.

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BIBLIOGRAPHY & REFERENCES

1) Joshi, Harsh and Abha.(1999,Januaray). The Movement for Right to Information in India: Peoples Power for the Control of Corruption.Paper presented at the Conference on PanCommonwealth Advocacy.New Delhi. 2) Sharma, Prashant(April 27-29, 2010) Towards More Open and Transparent Governance in South Asia hosted by the Indian Institute of Public Administration and supported by The World Bank in New Delhi, India

3) Jenkins, Anne-Marie and Rob(1999) Right to Information Movement in India . Third World Quarterly, Vol 20, No 3, pp 603-622.

4) Human Rights and the Environment, edited by Dinah L. Shelton. Edward Elgar Publishing Company, 2011. Two volumes; volume 1 777 pages, volume 2 563 pages. $618.00, hardcover edition.

5) Papers presented at the National Seminar on "Human Rights in India: Issues and Perspectives," organized by the Department of Political Science, Jamia Millia Islamia, 78 December, 1998.

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