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JUDICIAL INTRPRETATION
A universal normative analysis of Laws and Practices and the trends
of their judicial-executive functionaries
Teaching Methodology
With a view to pursue doctrinaire study of domestic and Global Spectrum
of rights of Humanity in general and rights of the Indian citizens in
particular, it becomes urgent to follow a case study approach, a recourse
towards analytical method to clear the doubts relating to conceptions and
Ultra Modern tools for the Empirical Research be applied. It therefore
requires that the teaching and learning should proceed into following
dimensions ---
Doctrinal Analysis
Logical deduction and induction methods
A comparative Analytical Approach.
I. International Level---
UDHR
Contributions---
UDHR 1948
ICCPR
Convention against the Torture and other cruel , Inhuman and Degrading
treatment or Punishment
Sub-Commissions
Working Groups
Rapporteurs
UN High Commissioner for Human Rights( The High commissioner for Human
Rights( OHCHR) )
References
Historical background
Main Provisions ---
1. Preamble
2. Right to life, liberty and security
3. Equality before Law and Equal Protection of Laws
4. Right to effective Judicial Remedy
5. Right to fair public hearing by an independent Tribunal
6. Right of innocent presumption in a penal offence till guilt is
proved.
7. Right against ex post facto criminal Laws
8. Right to Privacy, Marriage and Protection of Family
9. Right of freedom of movement and residence in his State
10. Right to seek Asylum
11. Right to Nationality
12. Right to Property
13. Right to freedom of religion, conscience and opinion.
14. Right to freedom of Assembly and Association
15. Right to participate in Governance and Right of access to
Public Service
16. Right to Social Security, work , favorable working conditions
and equal pay.
17. Right to form and join trade unions, to rest, standard of living
and security in sickness or other disability.
18. Right to children- Legitimate or illegitimate- to special care
and attention
19. Right to education aimed at full development of human
personality
20. Right to participate in cultural life of human personality
21. Right to the protection of the moral and material interests
resulting from any scientific, literary or artistic production of
which one is the author or inventor
22. Duty to feel obliged to create such a condition in which all the
members of community may ensure their free and full
development.
Preamble Resolution
1. Right to life
2. Right against torture
3. Right against Slavery and Servitude
4. Right against Imprisonment in Contractual Obligations
5. Right against ex post facto criminal Laws
6. Right to recognition before Law
7. Right to freedom of thought, conscience and religion
8. Right of self determination
9. Prohibition against torture, cruel, inhuman and degrading punishment
10. Prohibition of arbitrary detention and arrest
11. Right to freedom of movement
12. Right to equality before courts of Law
13. Right to Privacy
14. Freedom of speech and expression
15. Right to peaceful assembly and association
16. Right to protect the family from society and state
17. Right of child to protection and nationality
18. Right to participate in the governance
Preamble
Main provisions ( total 31 Articles divided in 5 parts, came into force from 3rd
January 1976)
INTRODUCTION
The Indian experience in the promotion and protection of human rights at the
national level , despite numerous social and economic odds, may be of some
interest for the global policy framers ,particularly for the most poor countries
of least developed block of African and Asian Nations.
1. Human rights are evolving ideals which the human society cherishes. No
Nation can claim to have lived exactly up to these ideals.
2. Records of individual Nations differ in the level of their performance
and often the level of rights performance is related to the level of
economic development they have achieved or aspire to achieve
according to the means they have in their hands.
3. Wild allegations of rights violations must be distinguished from those
supported by credible proofs.
4. The problems of Criminal Law overlap those of human rights.
Therefore, the measures adopted to cure crimes can not be equated to
the allegations indicating towards abridgment of Human Rights Issues.
5. Situations related to Terrorism and threats to Public peace and
tranquility along with territorial integrity, actively aided by alien
groups or Nations make it difficult to judge accurately the
proportionality of adequate use of force by the State .
This Chapter is going to examine the implementation mechanism both
in substantive and procedural forms, available under Indian
Constitution keeping in mind the above highlighted considerations. For
a proper understanding of the implementation mechanisms available
under Constitution ,it is essential to cover the crucial role played by
Judiciary, executive and Legislature in general and the active
participation of special Human Rights enforcement and vigilance
Agencies.
The important points to be identified are:-
A. What are the Non- Derogable Human Rights those are covered by
Indian Constitution?
B. What specific enforcement provisions are Constitutionally installed?
C. What crucial role has been played by non classical Human Rights
Protection Agencies i.e, NHRC , SHRC ,N.G.Os and The Media-
Fourth pillar of Modern Democracy?
D. Preventive Detention
Relevancy of Grounds for preventive detention
Other Safeguards
E. Right to Compensation-
Ratification of Article 9 (5) of CP Covenant
Indias reservation as to limit the enforcement only up to the
violations falling within the ambit of Clause (3) to (7) of Article
22 of Constitution
Universal Judicial Activism applied by the Supreme Court-
Nilabeti Bahera vs Orissa
Rudal Shah vs Bihar
Sebastian M Hongray vs UOI
Merits-
Implementation
Propriety ( merits)
Indian Council for Enviro- Legal Action vs Union of India AIR 1996
MODULE IX UNIT IV
III. Definitions
Armed Forces
Commission
Human Rights
Human Rights Court
International Covenants
National Commission for Minorities
National Commission for the scheduled castes and
scheduled tribes
National Commission for Women
Prescribed
Public Servant
State Commission
IV. The National Human Rights Commission
1. Constitution of the NHRC
2. Appointments/ Resignation and Removal of the
Chairperson and the Members
3. Term of Office
4. Circumstances when member to act as
Chairperson or discharge his functions
5. Terms and Conditions of Service of Chairperson
and Members
6. Vacancies and the validity of Proceedings
7. Procedural Autonomy
MODULE X UNIT IV
MODULE XI UNIT IV
I. NATIONALITY
Importance of Nationality
Nationality and Citizenship
Acquisition of Nationality
(a) Jus Soli
(b) Jus sanguinis
(c) Other methods
Loss of Nationality
Double Nationality
Nationality in India
III. ALIENS
Meaning
Practices of the States
Expulsion and Reconstruction of Aliens
Article 13 Covenant on Civil and Political Rights, 1966
UN Declaration on Human Rights of individuals who are not
Nationals of a Country in which they live ,1985
Article 14 & 21 of Indian Constitution
Chairman Railway Board vs Chandrima Das 2000
I. INDIGENIOUS PEOPLES
III. ASYLUM
Meaning of Asylum
Circumstances making Asylum legal
Kinds of Asylum
Territorial Asylum
Extra-territorial Asylum
Referred Readings
1. K.C. Joshi : International Law and Human Rights
2. Manoj Kumar Sinha : Implementation of Basic Human
Rights
3. A. N. Sen : Human Rights
4. Dr. V. Nirmala : Law relating to Human Rights
5. Oppenheims International Law
6. H.O. Aggarwal : International Law and Human
Rights
EXERCISE-
1. Unit based Written tests
2. A project on Public Interest Litigation and its Role in the
Protection of Human Rights in environmental concerns
3. Debate Refugee should be accorded treatment not as an
Alien but as a Permanent Resident.
4. Sessional Exam
5. A poster making Competition to highlight a need to invoke
Fourth Generation Tradition of Human Rights
MODEL EXERCISE
Asylum
Refugees under International Law
Statelessness