Human Right Manu

7/28/2019 Human Right Manu

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CONTENTS

1. INTRODUCTION

2. ICCPR

3. OPTIONAL PROTOCAL

4. ICCPR AND OPTIONAL PROTOCAL

5. HUMAN RIGHTS UNDER FIRST OPTIONAL PROTOCAL

6. HUMAN RIGHTS UNDER INDIAN CONSTITUTION

7. CONCLUSION


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INTRODUCTION

Man has the right to live. He has the right to bodily integrate and to the

means necessary for proper development of life, particularly food, clothing,

shelter, medical care, rest and finally necessary social services. Hence human

rights are undeniable and inherent rights of every individual. The concept of

human rights has its origin in humanism which recognizes the value and

dignity of man and makes him the measure of all things or somehow takes

human nature, its limits, or its interests as its theme.

There are lot of international documents relating with human rights. Eg.

UDHR, ICCPR, Optional Protocols etc,. The main object of all these

documents is to protect human rights. So for achieving this purpose there are

some complaints alleging mechanism like Human Right Committee which is

established under First Optional Protocol of ICCPR.

For understanding the First Optional Protocol of ICCPR, we have some

idea about the historical background of the First Optional Protocol, how it

relates with ICCPR and the obligations of State Parties under the Optional

Protocol to the International Covenant on Civil and Political Rights. When we

come to the implementation and enforcement part of the Optional Protocol of

ICCPR, we can see that there is a complaint alleged mechanism i.e., Human

Rights Committee.

The First Optional Protocol of ICCPR is procedural and provides a

mechanism for the Human Rights Committee to receive and consider

individual complaints alleging a violation of the Covenant. As its name makes

clear, the Protocol is not compulsory, but once a State party to the Covenant

also becomes a party to the Protocol, any person subject to the jurisdiction of

the State party may lodge a written complaint with the Human Rights

Committee (subject to any permissible reservations). Although the Optional


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Protocol is organically related to the Covenant, it is not automatically in force

for all States parties to the Covenant.

In Indian scenario, the effect of First Optional Protocol is not

identifiable even though we are party to the First Optional Protocol of ICCPR.

But we have The Constitution of India is distinctive for its commitment to

provide full political, economic, social, and cultural rights to all its citizens

irrespective of caste, creed, religion or race. The significance of Indias

constitution is also immense for its mixed policy adoption on liberal and

socialistic norms of governance. According to Constitution of India, we can

get remedy under Article.32 and Article.226, for the violation of fundamental

rights. The sole object of the Article 32 and Article 226 of the Constitution of

India is the enforcement of the fundamental rights guaranteed under Part III of

the Constitution of India.


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ICCPR

Meaning

The International Covenant on Civil and Political Rights covers a broad

range of civil and political rights ranging from the right to life to the right to a

fair trial and the right to non-discrimination. Individual rights that may be

invoked before the Committee are set out in articles 6 to 27 inclusive,

comprising Part III of the Covenant. The complaint mechanism for alleged

violations of those articles is contained in the First Optional Protocol to the

Covenant, a separate treaty open to States parties to the Covenant. States that

have become a party to the Optional Protocol recognize the competence of the

Human Rights Committee - a panel of 18 independent experts who meet three

times a year to receive complaints from persons within their jurisdiction

alleging violations of their rights under the Covenant.

Implementation

Article 28 of the Covenant provides for the establishment of a Human Rights

Committee consisting of eighteen independent experts, nominated and elected

by States Parties to the Covenant, who serve in their personal capacities, which

means that they are not acting on behalf of their State. The Human Rights

Committee monitors the implementation of the Covenant in a number of ways.

The Committee examines periodic reports from States Parties to the Covenant

on their compliance (Article 40). Such a report must be submitted by each

State within one year of becoming party to the Covenant, and thereafterwhenever the Committee so determines. The reports are examined in public


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and in the presence of the representative of the State concerned, who may be

questioned. On completion of each State report, the Committee issues

concluding observations which reflect the main points of discussion, as well as

suggestions and recommendations to the Government concerned on ways in

which the Covenant could be better implemented. The Committee can consider

complaints of one State against another, provided that both have made a

special declaration recognizing this role of the Committee under Article 41. To

date, no such complaints have been received. The Human Rights Committee

also interprets the content and meaning of specific articles of the Covenant in

its General Comments. These establish the jurisprudence of the Covenant

and thus guide the States Parties in their adherence to their obligations under

the Covenant and in the preparation of State reports. The Committee reports

annually on its work to the United Nations General Assembly through the

Economic and Social Council (ECOSOC).

WHAT IS AN OPTIONAL PROTOCOL?

The term protocol, in the context of international law refers to the forms

of ceremony and etiquette observed by diplomats and heads of state. A

protocol has similar legal characteristics as a treaty. However, protocol is an

agreement of a less formal nature than a treaty or convention. Generally, a

protocol amends, supplements or clarifies a multilateral treaty. A protocol maybe on any topic relevant to the original treaty and is used either to further

address something in the original or parent treaty, or to address a new concern.

A protocol is also used to add a procedure for the operation and enforcement

of the treaty. A protocol is optional because it is not automatically binding on

States that have already ratified the original treaty and in order to be binding,

the states must independently ratify a protocol. An example of a protocol is the

Optional Protocols to the Convention on the Rights of the Child concern the


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involvement of children in armed conflict and the sale of children, child

prostitution and child pornography.

Very often, human rights treaties are followed by "Optional Protocols"

which may either provide for procedures with regard to the treaty or address a

substantive area related to the treaty. Optional Protocols to human rights

treaties are treaties in their own right, and are open to signature, accession or

ratification by countries who are party to the main treaty. The term protocol

is used for an additional legal instrument that complements and add to a treaty.

A protocol may be on any topic relevant to the original treaty and is used

either to further address something in the original treaty, address a new or

emerging concern or add a procedure for the operation and enforcement of the

treatysuch as adding an individual complaints procedure. A protocol is

optional because it is not automatically binding on States that have already

ratified the original treaty; States must independently ratify or accede to a

protocol.

A State can become party to a treaty in one of two main ways. Firstly, it

can sign the treaty, following which, according to the rules of internationallaw, the State may not act contrary to the objects and purposes of the treaty.

Signature is followed by ratification. In depositing an instrument of

ratification, a State formally indicates its intent to be bound by the treaty.

Alternatively, a State can accede to a treaty. Accession, whereby a State that

has not signed a treaty agrees to be bound by it, is equivalent to ratification.

The treaty in question typically provides a short period of time after the date of

ratification or accession before the State is actually bound by the terms of the

treaty. In the case of the Covenant, this is three months Parties to the Covenant

may also become parties to either or both of its two Optional Protocols. The

first Optional Protocol sets out a system by which the Human Rights

Committee can receive and consider complaints from individuals, who allege

that their human rights have been violated.


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THE ICCPR AND THE OPTIONAL PROTOCOL

a) Historical BackgroundAfter the horrors of World War II, a broad consensus emerged at the

worldwide level demanding that the individual human being be placed under

the protection of the international community. As particularly the atrocities

committed against specific ethnic groups had shown, national governments

could gravely fail in their duty to ensure the life and the liberty of their

citizens. Some had even become murderous institutions. However, never again

should a holocaust occur. Accordingly, since the lesson learned was that

protective mechanisms at the domestic level alone did not provide sufficiently

stable safeguards, it became almost self-evident to entrust the planned new

world organization with assuming the role of guarantor of human rights on a

universal scale. At the San Francisco Conference in 1945, some Latin

American countries requested that a full code of human rights be included in

the Charter of the United Nations itself. Since such an initiative required

careful preparation, their motions could not be successful at that stage.

Nonetheless, human rights were embraced as a matter of principle. The

Charter contains references to human rights in the Preamble, among the

purposes of the Organization and in several other provisions. Immediately

after the actual setting up of the institutional machinery provided for by the

Charter, the new Commission on Human Rights began its work for the

creation of an International Bill of Rights. In a first step, the Universal

Declaration of Human Rights was drafted, which the General Assembly

adopted on 10 December 1948.


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In order to make human rights an instrument effectively shaping the

lives of individuals and nations, more than just a political proclamation was

needed. Hence, from the very outset there was general agreement to the effect

that the substance of the Universal Declaration should be translated into the

hard legal form of an international treaty. The General Assembly reaffirmed

the necessity of complementing, as had already been done in the Universal

Declaration, traditional civil and political rights with economic, social and

cultural rights, since both classes of rights were interconnected and

interdependent. The only question was whether, following the concept of

unity of all human rights, the new conventional rights should be encompassed

in one international instrument or whether, on account of their different

specificities, they should be arranged according to those specificities. Western

nations in particular claimed that the implementation process could not be

identical, economic and social rights partaking more of the nature of goals to

be attained whereas civil and political rights had to be respected strictly and

without any reservations. It is this latter view that eventually prevailed. By

resolution 543 (VI) of 4 February 1952, the General Assembly directed the

Commission on Human Rights to prepare, instead of just one Covenant, two

draft treaties; a Covenant setting forth civil and political rights and a parallel

Covenant providing for economic, social and cultural rights. The Commission

completed its work in 1954. Yet it took many years before eventually the

political climate was ripe for the adoption of these two ambitious texts. While

both the Western and the Socialist States were still not fully convinced of their

usefulness, it was eventually pressure brought to bear upon them from Third

World countries which prompted them to approve the outcome of the

protracted negotiating process. Accordingly, on 16 December 1966, the two

Covenants were adopted by the General Assembly by consensus, without any

abstentions. Since that time, the two comprehensive human rights instruments

of the United Nations have sailed on different courses. However, contrary to

many pessimistic expectations, they have mostly been ratified simultaneously.

The difference in the circle of States parties is low. As of June 2008, the

International Covenant on Civil and Political Rights (ICCPR) comprises 161

States parties, whereas the International Covenant on Economic, Social and

Cultural Rights (ICESCR) holds the second place with 158 ratifications. The


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Russian Federation, for instance, is a party to both Covenants, while the

United States has left aside the ICESCR, and China, on the other hand, has not

found it convenient to ratify the ICCPR. In general, however, the lacunae

include only a small part of the world population. True universality is within

reach

The First Optional Protocol of ICCPR is procedural and provides a

mechanism for the Committee to receive and consider individual complaints

alleging a violation of the Covenant, that is to say of the substantive rights

contained in Part III, if appropriate in conjunction with the provisions of Parts

I and II. As its name makes clear, the Protocol is not compulsory, but once a

State party to the Covenant also becomes a party to the Protocol, any person

subject to the jurisdiction of the State party may lodge a written complaint

with the Human Rights Committee (subject to any permissible reservations).

This is not limited to nationals, or to persons within a States territory, but

extends to all persons who are directly subject to a States exercise of power

through its authorities. Thus, for example, a national of a State party residing

abroad who was denied a passport by that State was able to bring a claim to

the Committee. The Protocol sets out in articles 1, 2, 3 and 5 a series of

admissibility requirements, explicit and implicit, which a complaint must

satisfy before its substance, or merits, can be considered. Article 4 of the

Protocol sets out basic procedural requirements for the treatment of a

complaint. Under article 6, the Committee reports annually to the General

Assembly on its activities concerning complaints, while articles 7 through 14

contain largely standard savings and technical provisions on the mechanics of

becoming a party, entry into force, notification, amendment, denunciation and

the like. Article 10, like the parent Covenant, provides that the Protocol too

extends without exception to all parts of federal States. Article 12 allows a

State party to denounce the Optional Protocol.


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HUMAN RIGHTS UNDER FIRST OPTIONAL PROTOCOL

a. ImplementationUnder the Covenant on Civil and Political Rights it is only the State who

have locus standi to file compliant or communication as the complaints are

designated. The individual has been conferred such a right under the first

Optional Protocol to the Covenant on Civil and Political Rights. An individual

may now lodge a complaint against a state violating human rights under the

Covenant. However, such a complaint can be lodged only against a State party

to the Covenant. Article 2 of the Protocol runs:

A State Party to the Covenant that becomes a party to the present

protocol recognizes the competence of the Committee to receive and considercommunications from individuals subject to the jurisdiction who claim to be

victims of a violation by that State Party of any of the rights set forth in the

covenant. No Communication shall be received by the Committee if it

concerns a State Party to the Covenant which is not a party to the present

protocol.

An individual who claims that any of his rights enunciated in the

Covenant has been violated and he had exhausted all available domestic

remedies may submit a written communication to the Human Rights

Committee for consideration. Ni anonymous communication will be

entertained. Similarly, a communication which the Committee considers as

abuse of the right of submission of such communication will not be

entertained. The same would be fate a complaint which is incompatible with

the provisions of the Covenant.


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Once a communication against a state is entertained, the Human Rights

Committee would bring it to the attention of the alleged delinquent State. Such

would submit to the Committee its explanation clarifying the matter and the

remedy, if any within six months. Thereafter the Human Rights Committee

would proceed to consider communications in the light of all written

information made available to it by both the parties. The Committee will

consider such communication only after ascertaining that the same matter has

not been examined under another procedure of international investigation or

settlement and after ascertaining that the individual complaint had exhausted

all domestic remedies available to him. The Committee will consider the entire

matter in closed door meetings and thereafter will communicate its views to

the individual complainant and the State concerned.

In its annual Report, the Human Rights Committee will include a report

of its activities under the protocol.

It should be noticed that the Protocol all along uses the expression

communication and not complaint. Though virtually communication is

nothing but a complaint. It should also be noticed that the Committee does not

render decision. Even the word recommendation has not been used. The

expression used is views.

One may say what the value of mere views is when Committee is not

competent even to make its recommendation much less to render a decision.

Its views are not binding on the state concerned. The Human Rights

Committee includes these views in its annual report. This means that the

activities of the alleged delinquent state will come before the international

community. It will certainly gather public opinion. The delinquency of the

State will come under the gaze of everybody. All states will know that the

delinquent state is not adhering to the provision of the Covenant.

The greatest relevance of this provision is that an individual can expose

the delinquent state before the international community and people. Even if no

direct benefit accrues to the individual addressing a communication to the


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human rights committee about abuse of human rights, the greatest gain is that

individual has got locus standi to come before international forum.

i) Human Rights Committee

The Human Rights Committee was established on the basis of the

Covenant and it considers periodic reports on the measures states have adopted

to give effect to the rights guaranteed by the Covenant and on the progress

made in the enjoyment of the rights. It also considers individual complaints

received on the basis of the Optional Protocol and can receive inter-state

complaints on the basis of an optional procedure based on Art. 41 of the

Covenant.

The Committee consists of 18 members who are nationals of the States

Parties. They have to be of high moral character and recognized competence

in the field of human rights. Consideration is given to the usefulness of legal

expertise. Each state party may nominate not more than two of its nationals as

candidates. The members are elected by secret ballot of all the State Parties.

Equitable geographical distribution and representation of different forms of

civilisation and of the principal legal system are taken into account. There has

been criticism of the lack of African and Asian experts, in particular in relation

to the number of Eastern and Western Europeans, but this shortcoming reflects

the small number of African and Asian parties to the Covenant.

The functions of the Committee and its implication its powers, are

contained in Article 40 of the Covenant. Paragraph 2 of the Article states,

impart, that all reports shall be submitted to the Secretary-General of the

United Nations, who shall transmit them to the Committee for consideration.

Paragraph 4 of Article 40 amplifies this provision as follows:

The Committee shall study the reports submitted by the states parties to

the present Covenant. It shall transmit its reports, and such general comments

as it may consider appropriate, to the State Parties. The Committee may also


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transmit to the Economic Council these comments along with the copies of the

reports it has received from State Parties to the present Covenant.

ii) Inter-state ComplaintsThis procedure is optional and only applies to states which have

expressly accepted it. It includes three stages: bilateral negotiations between

the states concerned, the good offices of the Human Rights Committee and

reports by the Committee to the states concerned. It also insides the possibility

of appointing an adhoc Conciliation Commission, if the matter is not settled to

the satisfaction of both parties.This possibility can be used, if a State Party

finds that another state party has not fulfilled its obligations under the

Covenant. The exhaustion of domestic remedies is required, if it would not

unreasonably prolong the procedure.

The committee provides its good offices for a friendly settlement of the

dispute. It can ask for all information from the parties. The parties have the

right to submit their observations orally or in a written form. The Committee

prepares a report which will be transmitted to the States Parties concerned. If

friendly settlement is achieved, the report contains the facts and the solution

achieved. If friendly settlement is not possible, it only contains the facts. IN

other words the Committee cannot express its opinion on whether there has

been a violation or not. The report has to be submitted within 12 months.

There is also the possibility of appointing an ad hoc Conciliation

Commission with the prior consent of the State Parties involved, if the matter

is not resolved to the satisfaction of both State Parties. The Commission will

consist of five persons serving in their personal capacity. The members cannot

party to the Covenant, or of a State which has not made a declaration under

Art.41. The parties have to inform the Committee within three months whether

they accept the contents of the report on conciliation. If no settlement is

reached, there are no other means available.


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There was no doubt that the Committee of the Commissions draft was a

specialized body: a quasi-judicial organ setup for the very specific purpose of

receiving complaints alleging non-observance of the Covenant..and that to

transmit reports to the Committee might be to invite it to pass judgment

without being seized of a complaint by a state party...prejudice its autonomy

and independence

Inter-state complaints have not occurred in practice, although the

procedure came into force in 1979. Because both states involved must have

made the declaration, it does not seem very probable in the opinion of some

authors that the procedure will be used in the immediate future.

Assessment of I nter-State Complain ts

A State party may submit a communication to the Committee alleging

that another State party is not fulfilling its obligations under the Covenant.

This reflects the dual understanding of a human rights treaty as not simply a

contract between a State party and persons subject to its jurisdiction, but also a

multilateral treaty in the traditional sense that all States parties to a treaty have

an interest in the compliance of other States parties with their obligations. In

this fashion, it can be legally said that human rights violations in a State party

are of direct concern to all other States parties. Such a complaint, which is

provided for in article 41 of the Covenant, may, however, only be made in

respect of two States parties that have declared that they recognize the

competence of the Committee to receive and consider such inter-State

complaints. As of publication, some 48 States had made such a declaration. To

date, however, no inter-State complaint has been submitted to the Committee.

Nevertheless, it is instructive to outline the way in which this procedure would

operate. The first step would be for the State lodging the complaint to bring the

matter to the attention of the State that is alleged not to be fulfilling its

obligations. Within three months, the latter should reply, in the form of a

written explanation or clarification. If, within six months, the matter is not

settled to the satisfaction of both parties, either may refer it to the Committee,

which may deal with it once satisfied that, within a reasonable period of time,


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all domestic remedies have been tried, without success. The Committee may

then take the matter up and propose its good offices in the search for a friendly

solution. If there is still no agreement, the Committee may appoint a five-

person conciliation commission, with the agreement of the States parties

directly concerned, but not including their nationals among its members, with

instructions to complete its business and submit a report to the Chairperson of

the Committee and, through that person, to the parties in dispute, within 12

months.

iii) Individual complaintsReceivabil ity of Complaints:

The following grounds of admissibility are set in the Optional Protocol

(Article 5) or in the provisional rules of procedure of the Committee.

A communication must not be anonymous. It has to be submitted by an individual or individuals subject to the jurisdiction

of a state is party to the Protocol.

There has to be proof that the individual is a victim of a violation by that stateparty of one of the rights set forth, in the Covenant. The Communication must

be submitted by the victim or by his appointed representative. It can be

submitted on behalf of an individual if he appears to be unable to submit it

himself.

Abuse of the right of submission constitutes a ground of admissibility The communication must be compatible with the provisions of the Covenant. The communication must not be under examination by another procedure of

international investigation or settlement.

Exhaustion of domestic remedies is required, unless this would unreasonablyprolong the procedure.

Regarding Article 5(2a) it may be added that the Committee may

proceed, when the competing procedure is completed. However, several

countries have made reservations to bar consideration of any communications


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that are being or have been considered in another forum in order to prevent an

appeal to the Committee. The Committee has determined that the 1503

procedure cannot be considered as the same matter as an individual

complaint under the Optional Protocol.

There is also another exception to the requirement under Article 7 of the

Optional Protocol. It is not valid, if there are no effective domestic remedies.

The violations must naturally also have occurred after the entry into force of

the Covenant, that is, 1976. But in practice, reference to violations before that

date may be taken into consideration if the violations have continued or have

had effects after ratification and entry into force.

Working methods and Practices:

In 1977 the Committee decided to establish a working group to consider

the communications in the light of all written information submitted to it by

the individual and by the State Party concerned and to make recommendations

to the Committee regarding admissibility.

In contrast to the 1503 procedure the principle of equality of arms is

typical of this procedure. Both parties may be requested to furnish relevant

information and may be afforded an opportunity to comment on the

information received from the other party. After the decision on admissibility

the decision and the text of relevant documents are communicated to the State

Party. The author is also informed of the decision. Under Article 4, paragraph

1, the State Party has to submit to the Committee written explanations and

statements clarifying the matter and the remedy within six months. These are

forwarded by the Committee to the complainant, who may submit any

additional written information. Under Article 5, (1), the final views of the

Committee are forwarded to the State Party and to the individual.

Substantial issues that have been examined by the Committee are the

right to life, the right not to be subjected to torture or to cruel, inhuman or


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degrading treatment, the right to be treated humanely during imprisonment, the

right of access to counsel and to fair trial without undue delay, the right to

freedom of expression, the right to engage in political activity, the right not to

be subjected to discrimination on the grounds of sex and the rights of

minorities. The Human Rights Committee, during its three sessions

endeavouring to enhance the follow-up to its recommendations announced

some 60 significant decisions in individual cases.

Sanctions and Follow-up:

The Committee is not a UN body in the formal sense. There are no

formal provisions for oversight or implementation of the Committees

decisions by other bodies. The Committees annual reports are submitted to

the UN General Assembly and are made available for sale. The views of the

Committee are issue in press release for general distribution. Publicity can be

considered as a Sanction in the absence of judicial sanctions.

The Committee is not a court and has no power to enforce it decisions.The publishing of its finding is presumably the result of its hoping to

encourage the government concerned to rectify the situation of the individual

victim. The government can also see the advantages of modifying its

behaviour in order to avoid future embarrassment. This is reflected in many of

the Government Communications addressed to the author.


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Scheme of the Implementation Machinery of the International Covenant

on Civil and Political Rights

Establishment of the facts

Good officers (Article 41 para 1,e,f,g) (Article 4, Otional Protocol)

HUMAN RIGHTS COMMITTEE

Receiveability(Article 41, para 1c)Receiveability (Article 2,3,5 of Optional

Protocol)

International Covenant on Civil and Political Rights

Communication State v. State Article 41

Optuional Jurisdiction

Communication: Individual v. State;

Optional Protocol Article 1

Report Article 41.

para, 1h

Article 42

Ad hoc Conciliation

Commission:

Report

Formulation of

views Article 5, para

4 Optional Protocol

State concerned

Individual


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(b) Enforcement

Individuals who claim that any of their rights under the International

Covenant on Civil And Political Rights have been violated by a State party,

and who have exhausted all available domestic remedies, may submit written

communications to the Human Rights Committee for consideration under the

Optional Protocol. No communication can be considered unless it concerns a

State party to the Covenant that has recognized the competence of the

Committee by becoming a party to the Optional Protocol. Of the 160 States

that have ratified, acceded to or succeeded to the Covenant, 109 have accepted

the Committees competence to deal with individual complaints by becoming

parties to the Optional Protocol.

Consideration of communications under the Optional Protocol is

confidential and takes place in closed meetings (Article 5, paragraph 3, of the

Optional Protocol). Under rule 102 of the Committees rules of procedure, all

working documents issued for the Committee are confidential unless the

Committee decides otherwise. However, the author of a communication and

the State party concerned may make public any submissions or information

bearing on the proceedings, unless the Committee has requested the parties to

respect confidentiality. The Committees final decisions (Views, decisions

declaring a communication inadmissible, decisions to discontinue the

consideration of a communication) are made public; the names of the authors

are disclosed unless the Committee decides otherwise.

Communications addressed to the Human Rights Committee are

processed by the Petitions Team of the Office of the United Nations High

Commissioner for Human Rights (OHCHR).


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The mandate of the Human Rights Committee:

The Human Rights Committee can investigate allegations of violations

of the human rights set out in the ICCPR which are brought to its attention by

the victims of violations or their representatives.

The rights set out in the ICCPR include the following:

the right to life the right to freedom from torture the right to liberty and security the right to a fair trial the right to freedom of association and assembly the right to freedom of expression the right to an effective remedy the right to privacy the right to freedom from discrimination.

These rights are described in articles 2 to 27 of the ICCPR. An article is

a paragraph in which a specific right and the manner in which the state must

protect that right are described. If a persons human rights set out in the

ICCPR is violated, he can submit a complaint to the Human Rights

Committee.

The Human Rights Committee may decide to investigate that particular

complaint, and, if it thinks that in this case the state concerned may be in

violation of the ICCPR, it can take action. However, it is important to note that

it can take from to 2 to 4 years for the Committee to investigate a case and take

a decision. The exception to this lengthy time period is that the Committee can

request a state to take interim measures.
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The range of actions that the Commi ttee can take is descri bed below:1

1. Request interim measuresWhen the Committee receives a complaint that a violation of the ICCPR

is about to take place it can request the state concerned to take interim

measures to prevent the violation taking place. Interim measures mean the

Committee asks the state to take temporary action to prevent a violation before

formal investigations into the complaint have been completed.

2 Declare that the state has violated the ICCPR

When the Committees investigations into a complaint are completed the

Committee can take a decision (called its views) on the case. In itsviews,

which are made public, the Committee can declare that the state concerned has

violated the ICCPR. Such a declaration can be politically very embarrassing

for a state.

3 Call upon a state to end a violation of the ICCPR

In its views the Committee can also call upon the state to take

immediate action to end a violation of the ICCPR. For instance, the Committee

can call upon a state to release a victim from detention, to commute a death

sentence imposed after an unfair trial, or to compensate a victim. Although the

state concerned is not legally bound to comply with the Committees views,

the Committee can ask to be informed of the action a state has taken to end or

remedy a violation. The Committee usually asks the state to provide this

information within 90-180 days from the date on which it adopted its views.

Although the Committee cannot force a state to right a wrong, its

decisions can carry political and moral force and many states do comply with


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its decisions. In addition, decisions of the Committee often attract attention

from the international media. This can put pressure on a state to comply with a

decision of the Committee.

How the Committee investigates a complain t (the formal procedure):

Step 1 Admissibility

The first thing the Committee does when it receives a complaint is

decide whether or not it will accept the complaint. A complaint which the

Committee decides to accept is called admissible and a complaint which the

Committee decides not to accept is called inadmissible.

Step 2 Investigating a complaint

Once a complaint has been declared admissible the state concerned is

given a further 6 months to send written information to the Committee

expressing its opinion on the complaint and describing any steps it may have

taken to remedy the violation.

Any information received from the state is sent by the Committee to the

author of the complaint. The author is then given 6 weeks to reply to the

states information.

The Committee then looks at all the written information it has received

from the author of the complaint and the state and makes a decision on the

case. The Committee cannot ask the author of the complaint or representatives

of the state to appear before it to neither present their case, nor can it visit a

country or place to investigate a complaint. Its decision is based only on the

written information it has received from the author and the state concerned.

Step 3 The Committee adopts its views


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When the Committees investigations are completed the Committee can

take a decision (called views) on the case. In itsviews, which are made

public, the Committee can declare that the state concerned has violated the

ICCPR. It can take 1 to 2 years for the Committee to adopt its views on a

case.

How to submit an individual complaint:

Only a person claiming to be a victim of a violation of the ICCPR or

their representative. A representative must show that they have a close

connection with the victim, for example a close relative. The complaint must

allege a violation of one or more of the rights set out in articles 2-27 of theICCPR.

HUMAN RIGHTS UNDER INDIAN CONSTITUTION

b. ImplementationThe Constitution of India is distinctive for its commitment to provide

full political, economic, social, and cultural rights to all its citizens irrespective

of caste, creed, religion or race. The significance of Indias constitution is also

immense for its mixed policy adoption on liberal and socialistic norms of

governance. The idea of the welfare state enshrined in the spirit of the Indian

constitutions Preamble is another significant feature of Indian democracy.

Since its independence, many acts, laws, and amendments have been passed to

initiate, enhance and guarantee the peoples rights. Examples are the

Panchayati Raj system, Right to Information Act and Right to Education.

However, there are several resultant limitations concerning the level of

implementation of these rights. There continues to be violation of human

rights and non-implementation of socio-economic programs.

The Protection of Human Rights Act


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The Protection on Human Rights Act was passed in September 1993 by

the Indian Parliament. The Act was passed to provide an independent and

autonomous National Human Rights Commission, State Human Rights

Commission in States and Human Rights Courts for better protection of human

rights in India. The National Human Rights Commission is an autonomous

statutory body which main task is to protect and promote human rights in

India. The Commission is in line with the Paris Principles, a set of

international guidelines for national human rights institutions. It should act as

a national monitoring mechanism for human rights and serve the Indian public

as a means to be protected from human rights abuses. The Human Rights Act

defines human rights as rights relating to life, liberty, equality and dignity of

the individual guaranteed by the Constitution or embodied in the International

Covenants and enforceable by courts in India.

The enumerated and guaranteed fundamental rights would be no more

than paper tigers, if the right to enforce fundamental rights is not made a

fundamental right itself. It is the remedial fundamental right which gives teeth

to all fundamental rights. Article 32, which enshrines the remedial

fundamental right, has been described as the cornerstone of the democratic

edifice, as the protector and guarantor of fundamental rights, or as the qui

vive. It has been said repeatedly that it is the duty of the courts to guard the

remedial fundamental right and to protect it zealously and vigilantly. Article

32 guarantees the right to move the Supreme Court by appropriate

proceedings for the enforcement of the fundamental rights guaranteed by Part

III of the Constitution.2 Clauses (1) and (2) of Article 32 run as under:

(1)The right to move the Supreme Court by appropriate proceedings for theenforcement of the rights conferred by this part is guaranteed.

(2)The Supreme Court shall have power to issue directions or orders or writs,including writs in the nature of habeas corpus, mandamus, prohibition, and

certiorari which may be appropriate for the enforcement of any of the rights

conferred by this part.


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Article 32(4) lays down that this fundamental right cannot be suspended

except as otherwise provided by the constitution, Articles 358 and 359 provide

for the suspension of certain fundamental rights during the period of

promulgation of Emergency. Under Article 226 also the fundamental rights

can be enforced by moving the High Courts. Other rights can also be enforced

under Article 226.

c. EnforcementScope of A rticle 32 of the Constitution of India

The sole object of the Article 32 of the Constitution of India is the

enforcement of the fundamental rights guaranteed under Part III of the

Constitution of India. Whatever other remedies may be open to a person

aggrieved, he has no right to complain under Article 32 where no fundamental

right has been infringed. It follows that no question other than relating to a

fundamental right will be determined in a proceeding under the Article 32

including interlocutory reliefs. A writ under the said Article 32 would not lie

to enforce the Government policy or a Directive Principle.

Application under Article 32 and Article 226

Article 32 and Article 226 both deal with enforcement of right of the

citizen against the Government or Governmental Authorities. However, the

scope of Article 32 is limited to the extent of enforcement of the fundamental

rights stated in the Part III of the Constitution, whereas the scope of Article226 of the Constitution is much wider than Article 32 of the Constitution. The

High Court while exercising the Article 226 can give reliefs in case of quasi-

Judicial Tribunals and authorities or other acts by such lower authorities even

though the acts of such authorities do not infringe the fundamental rights.

The Supreme Court is competent to give relief under Article 32 against

any authority within the territory of India. The power of High Court under

Article 226 is confined to its territorial Jurisdiction, so that even where


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fundamental rights have been infringed, the High Court cannot grant reliefs

against an authority located outside its territorial jurisdiction except in certain

exceptional cases, namely where the causes of action arises, in whole or in

part, within territorial jurisdiction of that Court.

Amplitude of Su preme Court's jurisdiction under Article 32

The powers given to the Supreme Court under Article 32, for the

enforcement of fundamental rights, are not confined to issuing prerogative

writs only, and are not necessarily circumscribed by the conditions which limit

the exercise of the prerogative writs. The said Article is wide enough to

consider even claims for compensation arising from the violation of

fundamental rights. The range of judicial review recognised in the superior

judiciary of India is, perhaps, the widest and the most extensive known to the

world of law. The power extends to the examining the validity to even an

amendment to the Constitution.


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CONCLUSION

It is at the national level that the ICCPR has exerted its greatest impact.

When today anywhere in the world a national constitution is framed, the

ICCPR serves as the natural yardstick for the drafting of a section on

fundamental rights. In most countries, the ICCPR has been made part and

parcel of the national legal order although there is no general rule of

international law that would enjoin States to embrace a specific method of

implementation. Thus, the United States has made a declaration according to

which the ICCPR is not self-executing within its domestic legal system. In

some countries, administrative authorities and the courts are specifically

enjoined to follow the applicable international guarantees when interpretingthe national constitution (e.g., article 10, paragraph 2 of the Spanish

Constitution). In other countries, the ICCPR has even been given the legal

force of a provision of constitutional or quasi-constitutional rank (e.g., article

15, paragraph 4, of the Constitution of the Russian Federation). These legal

techniques are not automatically successful, since, as a rule, national judges

are not very familiar with the guarantees laid down in international human

rights instruments and are more often than not reluctant to accord them

precedence over the applicable national laws and regulations.

The Human Right Committee has also been praised for seriousness,

independence, courage and dedication. The Committee has emphasized that it

should be mindful of judicial, diplomatic, fact-finding and conciliation

elements in its functions.


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Under the Optional Protocol to the International Convention Civil and

Political Rights, a State Party to the ICCPR that becomes a Party to the

Protocol recognizes the competence of the Human Rights Committee to

receive, under certain conditions, and consider, communications from

individuals subject to its jurisdiction, who claim to be victims of a violation by

that State Party of any of the rights set forth in the Covenant.

The Human Rights Committee performs the vital function of monitoring

the enjoyment of the rights set out in the Covenant, a legally binding

international treaty. Whether in its consideration of States parties reports, its

adoption of general comments, or its examination of complaints by individuals

or States alleging violations of the Covenant, the Committee is the pre-eminent

interpreter of the meaning of the International Covenant on Civil and Political

Rights. In doing so, it seeks to give a full and generous interpretation to the

meaning of the Covenants provisions, consistent with its character as an

instrument guaranteeing fundamental rights and freedoms. The Committees

members do not simply look at the formal legal position applicable in a

particular State or case, but rather go deeper, to the practical realities on the

ground in the States with which it is concerned, and issue findings with a view

to achieving positive change. Indeed, compliance by a State with the

Committees Views is evidence of a States good faith attitude towards its

Covenant obligations. Over the years, the Committees work has resulted in

numerous changes of law, policy and practice, both at the general national

level and in the context of individual cases. In a direct sense, therefore, the

Committees discharge of the monitoring functions entrusted to it under the

Covenant has improved the lives of individuals in countries in all parts of the

world. It is in this spirit that the Committee will continue to make its work

relevant and applicable to all States parties, and to strive for the enjoyment of

all civil and political rights guaranteed by the Covenant, in full and without

discrimination, by all people.


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Human Right Manu

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