By Nishant Mittal, Pushpit Bansal
Editor’s Note: “Human rights”- are two simple words but when put together, they constitute the very foundation of our existence. India- being a diverse country with its multicultural, multiethnic, and multi religious population- the protection of human right is the sine qua non for peaceful existence. However the legislature have tried to define human rights as, “the right relating to life, liberty, equality & dignity of the individual guaranteed by the constitution or embodied in the international reforms and enforceable by courts in India” under the Human Rights Act, 1993.
The role of judiciary cannot be neglected as our Indian judiciary explored the new instruments for the protection of human rights i.e. PIL, judicial activism, writ petitions, speedy trials, expansion of Article 21 and still more and more instruments are invented for the promotion of human rights like media because campaigning is always regarded as the first step to a noble cause and aims at building awareness among the masses. In a great country India, the largest democracy of the world, campaign is the authentic way to social change.
The mass media can be an instrument for educators, educational institutions & government and non- government organization for the emancipation of human rights. These above mentioned devices have become an integral part in the promotion of human rights in India. Although even after the implementation of so many efforts, the Indian judiciary still lacks somewhere. There exist loopholes till date such as: inadequate resources, overcrowded courts fiscal deficiency, delay in judgments, inadequate legal aid, expansive legal services etc. but National human right commission helps judiciary to overcome this problem by exercising their power as given under HRA, 1993.
Human Rights are those rights of individuals who have been considered to be the basis for their full physical, mental and spiritual development. These rights are derived from the dignity and worth inherent in humans. Human beings are rational beings. They by virtue of their being human have certain basic rights which are commonly known as Human rights. These are the rights which all men everywhere at all times ought to have, something of which no one may be deprived without a grave affront to justice.
Human Rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. The principle of universality of human rights is the cornerstone of international human rights law. This principle, as first emphasized in the UDHR in 1948 has been reiterated in numerous international human rights conventions, declarations, and resolutions.
Indian Judiciary over a period of six decades has acquired a well-entrenched system to protect and assert the Human Rights of women with suitable corrections whenever and wherever required. Furthermore, the establishment of NHRC by Human Rights Act, 1993, was a landmark development done in the field of human rights, although all the organs of the country are working for the protection and promotion of Human right the question arises that does all the law are properly implemented? Does judiciary is delivering justice to the needy one?
Are people in 21st century aware of their human rights? Are only judiciary and legislature responsible for the protection of Human Rights? This paper will analyze all the questions and solution for the same.
TYPES OF MECHANISM
1. INDIAN JUDICIARY
It is a hallmark of democracy that the judicial organs need to be independent. The judiciary is an important and vital organ to promote not only the principles of democracy, natural justice and the rule of law, but also ensure that human rights are protected in the true spirit and philosophy with which they are advocated. The judiciary, undoubtedly, has played a vital role in the protection of human rights over the decades.
Some of the unpleasant violations of human rights like Sati, child marriage, honor killings, slavery, child labor etc. have been abolished wholly owing to widespread awareness and strict implementation measures taken by the judiciary. The Apex Court has many times declared that it has a special responsibility, to enlarge the range and meaning of the fundamental rights and to advance the human rights jurisprudence.
The writ jurisdiction under Article 32 and 226 are those constitutional remedies in which person can directly approach the apex court or high court if his/her fundamental rights or any other question of law violated. Many cases are determined by the courts by the way of writs which result in the protection of human rights.
The major contribution of the judiciary in the protection and promotion of human rights in India can be traced as follows:
I. The substantive expansion of Article 21:-
Indian Constitution is one of the largest legal documents in the world to have provisions for human rights. The fundamental rights are the modern name for what has been traditionally known as natural rights and natural rights are also said to be as human rights. The expansion of Article 21 was the turning point for Indian judiciary in the field of Human Rights protection. The expansion of Article 21 can be traced as:-
1. The interpretation of “Right to life and personal liberty”, means that a person’s reputation also gets shelter under Article 21 as it is compared to be the integral part of human life.
2. It also includes the tradition, culture, and heritage of a person concerned.
3. It also includes right to food, clothing, decent environment and reasonable accommodation to live which includes growing in all aspects i.e. physical, mental, and intellectual.
4. The scope is expanded when the Supreme Court extended the limit of Article 21 by saying that “to all those limit and faculties by which life is enjoyed”.
5. Right to speech and expression is a fundamental right which cannot be separated from prisoners even by law.
6. Right to move is also an important human right as it is deeply connected for a living. Due to the outstanding work of the Indian judiciary right to move comes under the concept of life. So to travel is also a matter of fact of life.
7. To get justice is a basic human right for each and every citizen, so to promote the Human Rights the procedure should be, right just and fair, and not arbitatory, fanciful and oppressive. In order to achieve it the concept of natural justice is promoted.
Thus, the successful approach of Indian judiciary helped for the protection of human rights which cannot be neglected. The concept of Article 21 in the context of human right can be further seen in the following:
1. Quality of life.
2. Right to livelihood.
3. Slum dwellers.
4. Right to medical care.
5. The health of labor.
6. Care Homes.
7. Right to Shelter.
8. Sexual harassment.
9. Right to privacy.
10. Right to reputation.
11. Environment protection.
12. Right to health.
II. PUBLIC INTEREST LITIGATION
Public interest litigation is a procedural innovation of Indian judiciary which in the recent years has become a popular weapon of Indian judiciary for enforcement of human rights. In the Indian society, it is noticed that most of the violation of human rights is caused to people who are poor ignorant or economical disadvantageous thus, the PIL has been introduced with a view to bring to in justice within easy reach of a poor disadvantageous section of the society.
Public interest today focusses more on the Indian middle classes instead of the oppressed class. PIL sealing order for implementation of consumer protection law, removal of corrupt ministers, the concept of PIL has been promoted when the Supreme Court started accepting it on the basis of mere letters. PIL has turned to make a remarkable history for the promotion of Human Right which helped a nation-wide legal aid scheme to be established with the initiative of the Supreme Court in 1982, the Supreme Court promised to examine a range of relevant issues concerning PIL procedure.
As Justice Krishna Iyer remarks, “it is too late to burke PIL, but always welcome to re affirm and refine, eliminate the entropy and abuse of process. It is quite possible that the burden of the backlog of causes awaiting adjudication is what worries the court. But this never a reason when “we the people of India demand social justice,” reminds J. Iyer.
The judiciary should never bite more than its chew is a statement made as a caution in respect of Article 21 of the constitution. Article 21 embodies a judicially enforceable right. The another efforts for the protection of HR by the way of PIL is when the guidelines of the Supreme Court was issued in the all cases for arrest and detention by the state interrogatory agencies till legal provision are made on that behalf as preventive measures.
Thus, PIL plays an important role in ensuring the principle of rule of law by making the administration accountable to the people. PIL was an invention essentially to safeguard and protect the human rights of those people who are unable to protect themselves.
III. JUDICIAL ACTIVISM
Judicial activism believes that the judges assume our role as independent policy makers or independent trustees in behalf of societies that goes beyond the tradition role as interpreters of the constitution and the law. Judicial activism has set a right of a number of wrongs committed by the state and further gives us a contribution for the protection of human rights. The examples are as follows:-
1. Ban on Smoking in public places.
2. Protection against in Human Treatment in jail.
3. Child protection from working in hazardous factories.
4. Protection of Ecology and Environment Pollution.
5. Handicapped should be job opportunities.
6. Power to commute the death sentence into life imprisonment.
7. Guidelines against the sexual harassment in work place.
2. NATIONAL HUMAN RIGHT COMMISSION
Human Rights are the rights related to life, liberty and dignity of the individual guaranteed by the constitution or embodied in the international convenance and enforceable by the courts in India. The government of India established the NHRC in 1993 in order to give effect to the National Human Rights Act, 1993.
As per Sec. 12 of the provision of the Act, the commission is empowered to enquire either on its own or based on a petition submitted by a victim or any person on behalf of the victim on the violation of human rights. It can also participate in the proceeding of the court with prior permission of such court to defend or to plays information relating to violation of such human rights that are in the trial before such courts.
For e.g. In Chakma refugee case, on the basis of a complaint filed by NGO committee for citizenship rights of the Chakmas, about 65,000 Chakma tribals moved to the Supreme Court through a PIL under Article 32 of Indian Constitution to seek and enforce the right of them under Article 21.
Further NHRC took full advantages from the provisions of the Act for the protection of HR in India, further, the efforts of NHRC can be traced by the following:-
1. Formulation of a plan to prevent trafficking in women and children.
2. Financial contribution to various other organizations working for the welfare of Human rights.
3. NHRC efforts were seen while enhancing the “Right to food” in the shelter of Article 21 of the constitution.
4. Right to health.
5. Spreading awareness among the individuals through organizing seminars & conferences.
6. Provide justice by the way of suo motu cases.
3. NON-GOVERNMENTAL ORGANIZATIONS (NGO’S)
Non-Government Organizations are legal entities, like companies and cooperatives. They are formed by like-minded individuals who come together to promote their ideas or product. The Constitution allows these collective activities under the right to associate and to follow one’s livelihood, as long as their aims and objectives are legal and non-violent. Thus, NGO is an organization that is neither a part of a government nor a part of any conventional for-profit business. NGOs fill the gap which was created due to the failure of the state to live up the expectations of people.
NGOs in a nut shell, act as critics, capacity builders, innovators, advocators and policy partners in general and in particular in promotion and realization of human rights. There is 1 NGO for every 600 people in INDIA.
“The 21st century will be an era of NGOs. “Yes, NGO play a vital role in the local, regional, national and international promotion, protection and realization of human rights. Thus functions can be traced as follows:-
1. Involving people from all sector of Society.
2. Acting as effective instruments of preventive diplomacy.
3. Lobbying for better legislative measures.
4. Monitoring implementation of various schemes.
Further NGO’s works in 3 dimensions for the protection of human rights:-
1. Educational dimension
2. Economical dimension
3. Social dimension
In India NGO’s has played a vital role in the protection of human rights for example:-
1. Child Relief and You (CRY):- It is a voluntary organization committed to the uplifment of millions of children’s who have been deprived of their childhood due to various reasons.
2. Campaign Against Child Labour (CACL):- the campaign against child labour is a joint initiative of youth for voluntary actions (YUVA), Pune and Tere des homes (Germany) India programme.
3. Organizations like Saheli and Chetna are actively involved in the protection of women’s rights. They provide free legal aid to women to fight for their rights against gender bias and discrimination.
Furthermore, role of NGO can trace in India by instating the landmark cases of the following:-
1. Abolishment of bonded labour.
2. Protection of women from sex exploitation in workplace.
3. It provides strict guidance for providing compensation for the tortuous act of government servants.
4. Strict guidance to provide compensation for the cruelty done by police in jail.
5. Landmark case for giving compensation for the illegal acts of police.
It was the continuous fight by the NGOs’, a number of new legislations are adopted and existing ones have been amended in India. For ex. Environmental Protection Act, legislations on women’s rights, gay and lesbian rights, recognition of live in relationships, right to food, and a number of other aspects came into existence.
Problems of enforcement mechanisms in India
1. Chairman consent not taken into consideration
The consent of chairman is not taken into consideration while selecting the members of the commission which may lead to appointment of under qualified or undeserving persons.
2. Delay in making amendments
The Act itself faces some weaknesses and there is a need to amend the laws in it but the commission has constrains in doing. Any ignorance or delay in amendments leads to ineffectiveness of NHRC. The Act must, therefore, be amended to make the Commission a strong, independent and vibrant institution, supporting democracy and good governance.
3. Cannot investigate forces
NHRC is not authorized to enquire in the complaints of violation of human rights by the armed forces, BSF or any other Para-legal forces. This is the another weakness of the commission as a very large number of complaints of human rights violations are directed against the members of the “armed forces”.
4. Only an investigative and recommendatory body
NHRC cannot prosecute the cases as the body can only investigate the complaints and recommend the same to the higher authorities for the justice. The chief contribution if this organization is to create awareness regarding human rights in common masses and to develop trust in system of justice and security.
5. Commission has no right to enforce its decisions
Where the enquiry conducted by the Commission discloses violation of human rights, it can only advise the government to take action against guilty persons or grant relief to the victim. If any Government refuses to accept the advice, as was done recently by the Bihar Government in a case of granting relief, there is no provision in law which empowers the Commission to force the Government to implement its advice.
6. Dependent on the government for its manpower requirements
Section 11 of the Act makes it dependent on the government for staff for the work of research, investigation, technical and administrative work. The commission is supposed to be completely independent even though the act does not say so.
1. Time consuming & Expensive litigation Cost
Most of the times the individuals whose human rights were violated are not in a position to build up their case due to expensive litigation cost. In such cases the hearing took long period of time to give justice to the individual. As some of them sacrifices the cost but almost broke at that point.
2. Multiplicity of cases
In the court of law there are number of cases which need to be solved within limited time. Thus the cases got multiplied as court has to investigate each and every case before giving any judgment. As Supreme Court stated that multiplicity of cases should be avoid in cases.
3. Excessive number of laws
While fighting the case there are number of laws which can be used by the lawyers to mold the decision of the case on their side and they do so, but the Indian judiciary has so many contradicting laws that give relief on one side but took it on the other side. Thus it is very difficult for the judge to give the judgment.
4. Inadequate information about laws, the rights arising out of them and the prevailing practices
In present day also, a common man does not know about his/her rights which were given by birth, mostly poor people were not aware of their rights and by taking that advantage some people violates their rights as poor man remains unaware of the violation of his right.
1. Lack of funds
According to survey conducted in the last few years a report generated which states that 68,000 NGOs were funded by the government with Rs. 31,900 crores in 2008-2011. This strength of NGOs funded is only 33% of the total number of NGOs working in INDIA.
2. Limited capacity
NGOs recognize that many of them have limited technical and organizational capacity. Few NGOs are able or willing to pay for such capacity building. Weak capacity was identified in fundraising, governance, technical areas of development, and leadership and management.
3. Misusing of tax benefits
Indian government gives many tax benefits to the NGOs funding and their working practices, NGOs involved in relief work and in the distribution of relief supplies to the needy are 100% exempt from the Indian customs duty on import of food, medicines, clothing etc.
4. Work for profit motive and Misuse of foreign funds
In present scenario most of the NGOs were only established to make money and improve their standard of living in the society as they do not work for the welfare of the common man. Majority of these NGO groups are non-functional and 80% of these groups do not mention proper records about their functioning. About 75% of these groups do not submit their income and expenditure accounts. Many NGO’s were misusing their foreign funds in illegal activities, Union government to crack whip against 188 NGOs for misuse of foreign funds.
“Human rights” which seems to be simple words but in reality it’s hard to justify these words. In a country like India, which is the largest democracy in the world, which has a constitution full of UDHR provisions, and such a catalyst mechanism like judiciary, NHRC, SHRCS, NGO etc. somewhere fails to protect the human rights of the individuals due to above stated reasons.
But these mechanics have promoted the concept of human rights a lot by the landmark cases and from the Vedic times the concepts of human rights have improved and many new concepts came under the shelter of Human Rights.
At last, it may be observed that firstly, the main and popular instrument of Indian judiciary is discovered as writs, PIL, speedy trails, and judicial activism for the protection of human rights, Indian judiciary played a significant role in the situation where the executive and legislature have failed to address the problem of people at large.
Secondly, NHRC and SHRC worked a lot for the protection of human rights, by taking suo motu cases, by making recommendations to government for enacting laws etc. by still they are lacking behind to achieve the desire goal. And main reason behind it is huge no. of uneducated population.
Thirdly, Although NGOs have worked a lot for protection of human rights but now days NGOs have became the source of income rather than a medium of social services. And moreover there is sufficient number of NGOs in India but these NGOs are lacking behind in terms of volunteers. Therefore best mechanism for enforcement of human rights is by respecting the rights of others.
1. More powers must be granted to the NHRC including the staff selection, as NHRC lacks on the part of authoritative powers and decision making powers.
2. There must a strict regulatory board to examine and analyze all the audit reports, funding sources and work history moreover to keep an eye on the working of the NGO’s in India, to avoid the misuse of reliefs or exemptions from taxes granted by the INDIAN government for the benefit of the people.
3. The more and more human right courts should be setup in each and every district of the state as under section 30 of protection of human right Act. For providing the effective remedy in the case of violation of Human Rights.
4. NHRC and SHRC should encourage more and more research in the field of human rights by organizing seminars , internship and workshops and recommend the result to the government for enacting the laws.
5. Litigation cost and multiplicity of cases should be decrease, so that justice can be reached to each and every hand.
Formatted on February 16th, 2019.