Human rights 5th sem- Regional Conventions of HR; NHRC & SHRC

Generation of Human Rights, Regional Conventions of HR: European, American & African; National & State Human Rights Commission

1. HUMAN RIGHTS 5 TH SEMESTER BA.LL.B. (H ) BY- SMITA SATAPATHY

2. What is right Rights have corresponding duty What is human right What is natural right What is legal right What is fundamental right Difference between human right and fundamental right Human rights include all these rights

3. Human Rights are the basic rights relating to life, liberty, equality and dignity of the individuals which are protected by the constitution or embodied in the International Covenants and enforceable by courts in India

4. Human beings are rational beings They by virtue of their being human possess certain basic and inalienable rights which are commonly known as human rights. HR being fundamental or basic rights are often set out in the Constitution so that they are not taken away by any Act of Legislature or government.

5. Generation of Rights First generation Rights- -Negative rights i.e. Govt. required to abstain from doing those activities that would violate - Rights capable of immediate & full realization without significance costs being incurred Civil and Political Rights- civil :-those rights which are related to the protection of the right to life and personal liberty. Political- right to vote Article 3 to 21 of UDHR, ICCPR

6. Second Generation rights- Positive rights- require active intervention on part of States economic, social, cultural rights are related to the guarantee of minimum necessities of the life to human beings & absence may endanger existence of HRs Ex- Right to food, clothing, shelter, right to employment, education and social security Article 22 to 28 of UDHR, ICESCR

7. "third-generation" rights - Collective Rights- Not available to individuals alone but enjoyed by group of individuals collectively Ex- the right to a healthy environment and development, right to natural resources, cultural heritage, self- determination

8. CHARACTERISTICS Universal inalienable Interdependent indivisible irrevocable Equal non-discriminatory Both Rights and Obligations

9. WHAT ARE HUMAN RIGHTS? Rights inherent to all human beings We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.

10. civil and political rights , for example the right to life, freedom of assembly and freedom of religion economic, social and cultural rights , for example the right to employment, education and social security "third-generation" rights , for example the right to a healthy environment and development.

11. Regional Conventions on HR ‘region’ may mean an area embracing the territories of a group of States. A region may be created by grouping the States on the basis of economic, social, cultural or political factors. Purpose- security, defence , political or socio- economic functions & responsibilities UN Charter- Chapter VIII- consisting of A. 52 to 54 – devoted exclusively to regional arrangements.

12. The regional bases r likely to help the promotion of HR in more effective manner as machinery of UN over burdened. States constituting regional agencies- have less ideological differences which would make implementation of HR easier. The Vienna Conf. on HR in 1993 stated- Regional arrangements play a pivotal/ fundamental role in promoting & protecting HR

13. GA at its 49 th Session by adopting resolution 49/189 reaffirmed the same point as Vienna. 4 Regional Agencies established are:- 1- European Convention on HR 2- American Convention on HR 3- African Charter on HR 4- People’s Rights & Arab Charter on HR

14. Structure of ECHR European Convention for the Protection of HR & Fundamental Freedoms (ECHR) adopted on Nov. 4, 1950 Came into force on Sept. 3, 1953- Total 59 Articles & There are 16 Protocols adopted by European Convention Art. 1- obligation to respect HR Section I- Rights & Freedoms- A. 2 to A. 18 Section II- European Court of HR- A. 19 to A. 51 Section III- Misc. Provisions- A. 52- A.59

15. Rights & freedoms under Euro Conv. Articles of ECHR provides Civil & political Rights European Social Charter- signed at Turin on Oct. 18, 1961, came into force on Feb. 26, 1965 Implementation machinery- Earlier- European Commission of HR set up in 1954 The European Court of HR set up in 1958 & Committee of Ministers of the Council of Europe Later- by Protocol No.11 came into force on Nov.1, 1998 replaced Commission & Court with a New Permanent Court on HR

16. European Commission of HRs Section III provided provisions for Commission Comm. Consists of members equal to no. of High Contracting parties Members elected for a period of 6 yrs by Committee of Ministers Function:- To receive complaints from any High Contracting Party through Secretary- General of Council of Europe- as to breaches of provisions Can receive petitions from any person or ngo or group if victim of any Party

17. 2 steps of functioning- by Sub-Commission 1 st - investigation of the application for ascertaining the facts 2 nd - securing a friendly settlement of the matter on the basis of respect for HR If friendly settlement is effective Sub-Comm. Submit a report to Committee of Ministers, State Concerned & Sec-Gen of Council of Europe If Solution is Not reached, Comite . Drew a report on the Facts & stated its opinion as to whether there is a breach of obligation under the Convention.

18. If Question not referred to Euro Court of HR- then within 3 Months from date of transmission of Report to Committee of Ministers- 2/3 rd Majority will take a decision. If they decide, there is a breach- then Contracting Party shall b provided by a prescribed period to take measures If measures not taken within stipulated time period by that Party then Committee shall publish the report & binding on them

19. European Court of HR Came into force on Sept. 3 1958 No. of judges equal to members of Council of Europe Court consist of Chamber composed of 7 Judges- Normal place was Strasbourg for session Jurisdiction extended to all cases concerning interpretation & application of Convention Cases brought by High Contracting Party & Comisn Judgment of Court Final & binding only to parties of the case & transmitted to Commtt . For execution

20. New European Court on HR Full- Time Euro. Court of HR is composed of no. of judges equal to that of High Contracting State No. was 47 in year 2008 & still 47 in year 2019 No restriction on no. of judges of same nationality Judges who r totally Independent r elected by Parliamentary Assembly of the Council of Europe for a term of 6 years The terms of office of one-half of judges elected at the 1 st election shall expire after 3 yrs, so as to ensure judges r renewed every 3 yrs. Retirement age 70 yrs.

21. Jurisdiction of the Court 1- Inter-State Applications- a state party may refer to court if any there is any breach of provisions of Convention or Protocols by another Contracting Party Question of admissibility- decided by a chamber of 7 judges of the Court Appeal from the chamber decided by a Grand Chamber consisting of 17 judges Judges must b of high moral character, possess qualifications, impartial, not engage in other works Judge can b removed by 2/3 majority of other judges

22. 2- Individual applications Court empowered to receive applications from individuals, group or NGO for violations of HR Ques. of admissibility of cases decided by 3 judges Court may deal with the matter after all domestic remedies have been exhausted Within 6 months Court need to deal with matter Court shall follow examination, undertake investigation 1 st approach- friendly settlement- confidentially If successful, court strike the case out of list If not, court decide the case in Cha mbers Judgment Final & binding- executed by Commtt of Min.

23. The American Convention on HR The American Convention was adopted in the Inter-American Specialized Conference on HR held at San Jose, Costa Rica in November, 1969 Signed on Nov 22. 1969 Convention came into force on July 11, 1978 Preamble of the Convention stated that- Essential rights of man r not derived from one’s being a national of a state but r based upon attributes of the human personality Art. 3- A.25- civil & political

24. Inter-American Commission on HR created in 1959- composed of 7 members- high moral character & recognized competence Main function- To promote respect for & defence of HR Awareness of HR among people of America Make recommendations to the govt. for adoption of progressive measures in favor of HR in their domestic law & constitutional prov. To take appropriate measures to further observe these rights To prepare studies & reports To render advisory services To take actions on petitions To submit annual report Comm. Authorized to receive applications from all

25. Structure of ACHR Part I - State Obligations And Rights Protected Chapter I - General Obligations- A. 1 & A.2 chapter ii - civil and political rights – A.3- 25 chapter iii - economic, social, and cultural rights- A.26 chapter iv - suspension of guarantees, interpretation, and application- A. 27- 31 chapter V - personal responsibilities- A.32 Part II – M eans Of Protection- Chapter Vi - Competent Organs- A.33 chapter Vii - Inter- American commission on HR- Section 1. Organization- A.34- A.40 Section 2. Functions- A. 41- 43 Section 3. Competence- A.44- A.47 Section 4. Procedure- A.48- 51

26. Chapter Viii - Inter- American Court Of Human Rights Section 1. Organization- A.52- A.60 Section 2. Jurisdiction and Functions- A.61- 65 Section 3. Procedure- A.66- A.69 Chapter IX - Common Provisions- A.70- A.73 Part III - General And Transitory Provisions Chapter X - Signature, Ratification, Reservations, Amendments, Protocols, And Denunciation- A. 74- A.78 Chapter XI - Transitory Provisions Section 1. Inter-American Commission on Human Rights- A.79- A.80 Section 2. Inter-American Court of Human Rights- A.81- A.82

27. Procedure for admitting any such complaint by the commission have requirements as per A.46 Petition lodged within a period of 6 months from the date on which the party alleging violation of rights Petition is required to contain the name, nationality, profession, domicile & signature of person or persons or LR of the entity lodging the petition Petition if offensive, anonymous, or incompatible won’t be admissible by the Commission Procedure for handling the petition is similar to that of European Comm.

28. When petition admissible, Comm. Requests to govt. to furnish info. About the alleged Violations Info. Required to be submitted within stipulated period, Comm. Decide the case Friendly settlement not reached, Comm. Draws up a report setting forth ‘facts’ & stating ‘conclusions’ Report transmitted to the states- period of 3 months- comm. Authorized to make pertinent recommendations After expiry of the prescribed period- comm. Decides what to take measures

29. Inter- American Court of HR Court consists of 7 judges- Nationals of the member States of Organization No 2 judges may b of same nationals- Judges r elected for a term of 6 years, but re-elected only one. 5 judges out of 7 judges constitute the Quorum for the Court Comm. Required to appear in all cases before Court St. parties & Comm. Have a right to submit a case to the Court. St. Party has to declare that it recognizes as binding, ipso facto, jurisdiction of the Court Judgment of Court final & binding

30. Difference ECHR & ACHR 1- AC stated individual’s duties as well as individual’s rights, but EC only rights- no duties 2- EC has a mandatory Inter- State Complaint system such a system optional in AC but Inter- American Comm. Consider it 3- EC provides for an optional individual petition procedure, AC has a mandatory ind . Pet. Proc. 4- European Court’s advisory jurisdiction is more constricted. Inter- American Court advisory jurisdiction is extensive- A.64

31. African Charter on Human & People’s Rights Creation of regional agency to protect HR was first proposed at the African Conference on the ‘Rule of Law’ at Lagos (Nigeria) in 1961 Conference sponsored by ICJ under Intl. comm. Of Justice adopted a resolution- Law of Lagos- discussed to study the possibility of adopting the African Convention on HR. African Charter known as Banjul Charter, was adopted on June 27, 1981 & entered into force on October 21, 1986.

32. Charter- ratified or acceded to by 53 States Members of the Organization of African Utility (OAU The Constitutive Act of the African Union (AU) replaced OAU on July 9, 2002 AU officially launched at the Durban Summit held in 2002 In 1998, a Protocol to African Charter adopted by African Court was established The Court came into force on January 24, 2004 African Charter gives emphasis on ‘people’s rights’- stipulates rights as well as duties of individuals

33. Structure Total 63 Articles & 4 Chapters & 2 Parts Part I lays down the Rights & Duties Chapter I. Human and Peoples' Rights – Article 1- 26 Chapter II. deals with the Duties of the individuals- Art. 27 to 29. Part II. Measures of Safeguard Chapter I. Establishment and Organization of the African Commission on Human and Peoples' Rights- Art. 30 to 44

34. Chapter II. Mandate of the Commission – Art. 45 Chapter III. Procedure of the Commission- Art.46 Communication from States – Art. 47 to 54 Other Communications – Art. 55 to 59 Chapter IV. Applicable Principles- Art. 60 to 63

35. Article 45: The functions of the Commission shall be: 1. To promote Human and People’s Rights and in particular: a) to collect documents, undertake studies and researches on African problems in the field of human and peoples' rights, organize seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples' rights, and should the case arise, give its views or make recommendations to Governments. b) to formulate and lay down, principles and rules aimed at solving legal problems relating to human and peoples' rights and fundamental freedoms upon which African Governments may base their legislations. c) co-operate with other African and international institutions concerned with the promotion and protection of human and peoples' rights. 2. Ensure the protection of human and peoples' rights under conditions laid down by the present Charter. 3. Interpret all the provisions of the present Charter at the request of a State party, an institution of the OAU or an African Organization recognized by the OAU. 4. Perform any other tasks which may be entrusted to it by the Assembly of Heads of State and Government.

36. Background of Human Rights Commission The setting up of a national institution is one of the most effective means to perform the various functions relating to the implementation of HR Idea of the creation of an impartial institution of HR in the States was initiated by the UNESCO in 1946 The Secretariat in the Memorandum ‘Supervision & Enforcement of HR’ in 1947 suggestd for such body In 1966, the GA adopted resolution for considering creation of national commission on HR to perform function of ICCPR & ICESCR

37. Resolution invited ECOSOC to ask Commission on HR. The Comm. In 1970 considered to examine questions &agreed to the establishment of National Commission on HR 1 st International workshop on National Institutions for the Promotion & Protection of HR held in Paris in Oct, 1993 The World Conference on HR in 1993 realized the importance of such an institution or Commission Various workshop happened & at 10 th Workshop of Regional Cooperation for Promotion & Protection of HR held at Lebanon in 2002

38. Human Rights Commission in India India shown interest in establishing & strengthening a national institution for the promotion & protection of HR before the Third Committee of GA It introduced a draft resolution wherein it emphasized the importance of integrity & independence of such national institutions. It also requested the Secretary- General of the UN to submit a report to GA in 2 years regarding various kinds of national institutions & their contributions towards implementing HR instrument In1990s, India felt a need of establishing Commission due to clash in Punjab, J & K, Andhra & North-East

39. Protection of Human Rights Act The HR Commission Bill was introduced in the Lok Sabha on May 14, 1992 The bill was referred to the standing committee of the Parliament on Home Affairs Due to the urgency of the Comm. In view of the pressure from the foreign countries & from domestic front, President of India on Sept. 27, 1993 promulgated an ordinance for the creation of National Commission on HR (NCHR) and Commissions at State level.

40. The National Human Rights Commission was established on October 12, 1993. Every year October 12 is observed as Foundation Day The HR Comm. Bill became an Act after it received the assent of the President on January 8, 1994 which is known as the Protection of Human Rights Act. Purpose – Preamble of the Act- to provide for the constitution of NHRC, SHRC in States & Human Rights Courts for better protection of HR & for matters connected or incidental therewith.

41. NHRC Chapter II to IV of the Act deals with NHRC Creation of a NHRC for creating awareness among people for protection of HRs In S. 2 (d) of Protection of HR Act, 1993- HR defined NHRC- Constitution- S.3 8 members Headed by a chair person- former CJ of SC Other members- sitting or retired judge of SC/ retired CJ of HC 2 prominent persons- having practical experience chairperson of Nat. Comm. For Minorities

42. No Commission for SCs & STs Scheduled Tribes & women Chairperson- appointed by President on recommendation of 6 member Committee Term- 5 years or until 70 Removal- S. 5- proved misbehavior & incapacity He is adjudged an insolvent Engaged in other employment Unfit to continue due to infirmity of mind/body Convicted of offence of moral turpitude S- 11:

43. Functions of the Commission – S.12 Inquire suo moto or a petition into violation of HRs Intervene in any proceeding of violation of HR- with Court’s approval Visit jail or other institution- where person detained- for purposes of treatment Shall review safeguards under Constitution & recommend effective implementation Study the treaties & other international instruments Promote research in field of HRs Spread human rights literacy Encourage efforts of NGOs

44. Submit- annual report to Central Govt. & State Govt. & proposed recommendations of the Comm. Comm. Shall perform functions pursuant to the directions issued by SC in exercise of the jurisdiction under A. 32 of the Indian Constitution The SC in Paramjit Kaur v. State of Punjab (AIR 1999 SC 340) stated that ‘the Commission would function pursuant to the directions issued by this Court & not under the Act under which it is constituted. In deciding the matter referred by SC, NHRC is given a free hand & is not circumscribed by any conditions. So, the jurisdiction exercised by NHRC in these matters is of a special nature not covered by enactment or law, and thus acts sui generis

45. Powers of the Commission: Powers relating to inquires- S.13- 1- while inquiring into complaints shall have powers of civil court Summon & enforcement regarding attendance of witness Discovery & production of document Receiving evidence on affidavit Requisitioning any public record Issue commissions

46. 2- Power to require any person to furnish informatn 3- Power to enter building/ place where Comm. Has reason to believe document relating to subject matter to be found 4- Commission can record facts & statement of accused person and forward it to the magistrate 5- Commission after completion of inquiry- recommend to appropriate govt. to take action 6- shall publish its inquiry reports S. 10 (2)- regulate its own procedure S.14- deals with investigation

47. 1- For purpose of conducting investigation- NHRC utilize the services of any officer or investigation agency of Central or State Govt. 2- Officer- shall investigate- and submit report to NHRC 3- The Commission- satisfy- about correctness of facts & circumstances, conclusions & may make such inquiry as it thinks fit S. 18- After completion of inquiry- 1- Comm. May recommend to concern Govt.- i - to make payment of compensation

48. ii- initiate proceedings for prosecution or such suitable action iii- Comm. May approach SC or HC to issue direction or orders iv- Recommendation of concerned Govt. to grant interim relief V- Copy of Inquiry report to petitioner or representative Recommend- to ratify- CAT Jail- Prison Administration Criminal Justice System

49. NHRC- Cases Paramjit Kaur v. State of Punjab N. C. Dhoundial v. Union of India & ors National Human Rights Commission v. State of Arunachal Pradesh Indian Council of Legal Aid and Advice and others Punjab Mass Cremation Order Gujarat Communal Riot Atrocities against minorities: Killing of Australian missionary and his sons: Orissa Atrocities on Dalits : Bihar Police Firing on Dalits in Tamil Nadu

50. N. C. Dhoundial v. Union of India & ors The Commission does not consider all the complaints received by it. Ordinarily, the complaints which fall under the categories listed in Reg. no. 8 Para 1 of the Regulations are not entertained by the Commission. Under d above Reg. the Comm. Does not entertain cases in regard to which happened more than 1 year before making the complaints. This ban on the powers of the Comm. Was interpreted by the Comm. Differently by invoking the principle of continuing wrong and recurring cause of action. The SC in this case, did not accept this view observing that if the above view is accepted it would make Section 36 (2) a dead letter The apex court held that it is a jurisdictional bar & there was no prov. In the Act to extend the said period of limitation. The Comm. Does not have unlimited jurisdiction nor does it exercise plenary power in derogation of the statutory limitations. The Comm. Which is the creature of a statute, is bound by its provisions. The Court further held that the discretion reserved to the Comm. Under Reg. 8 (1) (a) of the Procedural Regulations framed by the Comm. May be invoked in extraordinary circumstances.

51. National Human Rights Commission v. State of Arunachal Pradesh The Commission under Article 32 of the Indian Constitution registered a writ petition as a public interest petition before the Supreme Court of India.[21]   The Commission filed this petition mainly to enforce of fundamental rights of about 65,000 Chakma \ Hajong tribals under Article 21 of the Constitution.   In this case due to Kaptain Hydel Project,  a huge number of refugees from former East Pakistan were displaced in 1964. These displaced Chakmas took shelter in North-Eastern States of India, like, in Assam and Tripura. There were two foremost issues involved in this case, one being the conferring of citizenship and other fear of maltreatment by certain sections of the people of Arunachal Pradesh. Largely to deal with these two issues NHRC was approached by two different NGOs. In this case the Commission argued before the Court that the Commission received some complaints against All Arunachal Pradesh Students Union (AAPSU) to Chakmas and their act was appeared to be supported by the officers of Arunachal Pradesh. The State government intentionally delayed the disposal of the matter by not furnishing the required response to NHRC and infect supported the enforcement of eviction of the Chakmas from the State through its agencies. The Court after hearing the argument asked the government of Arunachal Pradesh to guarantee the life and personal liberty of each and every Chakma who are residing within the State. This decision defines that foreigners are entitled to enjoy the protection of right to life and liberty under Article 21 of the Indian Constitution. Timely intervention by the Commission has saved the life of thousands of innocent Chakma refugees from AAPSU.

52. Indian Council of Legal Aid and Advice and others The Commission took action on a letter from Chaturanan Mishra (then Union Minister for Agriculture) on 3rd December, 1996, about the starvation deaths in Bolangir district of Orissa , due to the drought. In related matter a Writ petition was filed by the  Indian Council of Legal Aid and Advice and others  on 23 December 1996 before the Supreme Court of India under Article 32 of the Constitution. The petition claimed that deaths by starvation continued to occur in certain districts of Orissa.   The Supreme Court of India on 26th July 1997 gave judgment that because the matter is seized with the NHRC and is expected to deliver some order, the petitioner can approach to the Commission. Supporting the view that to be free from hunger is a fundamental right of the people, it acted quickly on this matter and prepared an interim measure for the period of two years and also requested the Orissa State Government to form a Committee to inspect all aspects of the Land. The Commission has endorsed the establishment of a Core Group on Right to Food that can give advice on issues referred to it and also propose appropriate programmes, which can be undertaken by the Commission.

53. Punjab Mass Cremation Order Two writ petitions   were filed before the Supreme Court of India which contains serious allegations about large-scale burials of people by the Punjab Police, allegedly killed in what were termed as “encounters”. These petitions were mainly based on a press release of 16 th  January 1995 by the Human Rights Wing of the Shiromani Akali Dal titled “Disappeared” “cremation ground”. The press release charged that the Punjab Police had cremated a large number of human bodies by arguing that they were unidentified. The Supreme Court after a close examination of the report handed it over to CBI for further inquiry. Central Bureau of Investigation (CBI), after examination of the report concludes that 585 dead bodies were fully identified, 274 partially identified and 1238 unidentified.   This report exposes deliberate violation of human rights on a large scale. On 12 December 1996 the Court requested the Commission to examine the matter in accordance with law and resolve all the issues related with the case. Though matter is still pending before the Commission for final consideration, however, the Commission granted in some cases compensation amounting of Rupees Two Lakh Fifty thousand (Rs. 2,50,000/-) to the next of kin of the 89 deceased persons.

54. Atrocities against minorities: Killing of Australian missionary and his sons: Orissa On Janurary 25, 1999, the Commission took suo-motu action against killing of Australian missionary and his sons. The Commission also expressed its deep shock and pain at the attacks on the members of the Christian community in Madhya Pradesh, Gujarat and Orissa, these incidents had been extensively reported in the Press. The Commission observed that given the persistent character of these grave occurrences, a pattern transcending any single State appeared to be emerging, threatening the pluralistic character of the country and constitutionally guaranteed human rights to the people and suggested the state/s to prevent the recurrence of such tragic events. The National Human Rights Commission has taken suo-motu action against the distressing press report ( The Times of India", New Delhi; dated 21.10.08 ) which highlights the incidents of attack on north Indian aspirants for railway jobs by the Maharashtra Navnirman Sena . It has issued notice to the Chief Secretary, Government of Maharashtra and the Director General of Police, Maharashtra for their comments within two weeks. The Commissions in its notice said that the news of the press report, if true, raise grave problem of violation of human rights of the citizens of the country. The Commission in numerous cases recommended prosecution of the public servants, who had been responsible for violation of human rights, under section 18(1) of the Act. In this case of violation of human rights in Maharashtra, the Commission may recommend under Section 18 (3) of the Act that the concerned State to grant immediate interim relief to the victim or members of the family.

55. Gujarat Communal Riot The commission took  suo motu   action on the incident of communal violence against Muslims, which took place in Gujarat in March/April 2002. The decision to take action was primarily based on the reports of print and electronic media. A team of the Commission visited Gujarat between19 to 22 March 2002 and prepared a confidential report, which is latter made to the public. Unfortunately, the State government did not bother much about this report.