Protection and Enforcements of Human Rights Notes | LL.M. Semester 2 | Mumbai University | munotes

Contents

Module I

1. What This Paper Is About, and the Two Papers That Fix It 1
2. What a Human Right Is, and Where the Idea Comes From 5
3. Human Rights and Fundamental Rights: the Distinction 10
4. The Pre-Constitutional Demand for a Bill of Rights 15
5. The Constituent Assembly, and the Choice of a Justiciable Part III 20
6. Why the Social and Economic Rights Went into Part IV 25
7. Part III: the Architecture, and Article 12 30
8. Rights of Persons and Rights of Citizens 35
9. Article 14: Equality Before the Law 39
10. Classification, and Arbitrariness as the Antithesis of Equality 43
11. Articles 15 and 16: Discrimination and Public Employment 47
12. Articles 17 and 18: Untouchability and Titles 52
13. Article 19: the Six Freedoms and Their Restrictions 56
14. Article 20: Protection in Respect of Conviction 61
15. Article 21: Life and Personal Liberty 65
16. How Article 21 Was Enlarged 70
17. Chandrima Das, and a Foreigner's Article 21 75
18. Article 21A: Education as a Fundamental Right 80
19. Article 22: Arrest, Detention and the Preventive Detention Exception 85
20. Articles 23 and 24: Forced Labour and Child Labour 90
21. Articles 25 to 28: Freedom of Religion 95
22. Articles 29 and 30: Minorities 100
23. Articles 31 to 35: What Was Removed, and What Remains 105
24. Article 32: the Remedy That Is Itself a Right 110
25. The Universal Declaration as the Model Code 115
26. Which Declaration Article Answers Which Fundamental Right 120
27. The Declaration's Economic, Social and Cultural Rights 125
28. Part IV: the Directive Principles 131
29. The Contribution of the Directive Principles to Human Rights 136
30. The Directives Added Later 141
31. The Interrelationship of Fundamental Rights and Directive Principles 146
32. Article 51A: the Fundamental Duties 150
33. The Amendments That Changed Part III 155
34. Indian Societal Responses to the Ideology of Human Rights 159
35. What Part III Does Not Contain 164
36. Module I Assessed: How Far the Constitution Carries Human Rights 169

Module II

1. What Judicial Activism Is 173
2. Judicial Activism and Judicial Overreach 177
3. The Conditions That Produced It in India 181
4. Public Interest Litigation: What It Is 185
5. The Relaxation of Locus Standi 189
6. Justice Bhagwati's Formulation, Which MU Quotes Twice 193
7. The Epistolary Jurisdiction 198
8. Procedural Innovation: the Commission, the Amicus and the Mandamus 202
9. The Continuing Mandamus 206
10. Due Process Read into a Constitution That Refused It 210
11. The Right to Live with Human Dignity 214
12. The Rights Read into Article 21 219
13. The Right to a Speedy Trial 223
14. Free Legal Aid, and Article 39A 227
15. The Rights of Prisoners 232
16. Custodial Violence, and the Guidelines on Arrest 237
17. Compensation in Public Law 242
18. The Right to Livelihood 247
19. Shelter, Health and Food 252
20. Education: From a Directive to Article 21A 257
21. The Supreme Court and Environmental Jurisprudence 262
22. Polluter Pays, Precaution, and Absolute Liability 267
23. Guidelines That Stand Until Parliament Legislates 272
24. Guidelines Drawn from a Convention India Had Ratified 277
25. The Right to Privacy 282
26. The Criticisms of Judicial Activism 286
27. The Answers to Those Criticisms 290
28. The Limits: What a Court Cannot Do However Activist 295
29. Module II Assessed: What Judicial Activism Achieved 299

Module III

1. What Enforcement Means 304
2. Article 32 and Article 226 Compared 308
3. The Five Writs 313
4. Habeas Corpus, and Its Place in Human Rights Enforcement 318
5. The Protection of Human Rights Act 1993: Why It Was Passed 322
6. The Section 2(1)(d) Definition, and How Much It Carries 326
7. The National Commission: Composition and Appointment 331
8. Vacancies, Procedure and Staff 336
9. Functions of the Commission: Section 12 341
10. Powers Relating to Inquiries: Sections 13 to 16 346
11. Inquiry into Complaints, and Steps After It 351
12. Why Its Recommendations Are Only Recommendations 356
13. Section 19, and the Armed Forces Limitation 361
14. Annual and Special Reports 366
15. Matters Outside Jurisdiction, and the One Year Bar 370
16. The State Human Rights Commissions 375
17. Grants, Accounts and Audit 380
18. The 2019 Amendment, and What It Changed 384
19. Human Rights Courts Under Section 30 388
20. The Implementation of the 1993 Act Assessed 393
21. The Other Statutory Commissions 398
22. The Child Rights Commissions 403
23. The State Child Rights Commissions, and the Children's Courts 409
24. Special Courts: What They Are, and Why Parliament Creates Them 415
25. The SC and ST (Prevention of Atrocities) Act: the Offences 419
26. The Act's Machinery: Special Courts and the Section 18 Bar 425
27. POCSO: Special Courts and Child Friendly Procedure 430
28. Statutory Tribunals, and Their Place in Human Rights Protection 435
29. The Role of the Civil Courts 440
30. The Role of the Criminal Courts 444
31. AFSPA: What the Act Actually Says 448
32. Section 4, and the Power to Fire Causing Death 453
33. Sections 5 and 6: Handing Over, and the Sanction Bar 458
34. The Naga People's Movement Decision, and the Safeguards 463
35. AFSPA Assessed Against the Rule of Law 468
36. The Commission's Record on Custodial Death and on AFSPA 473
37. Why Enforcement Fails in India 478
38. Module III Assessed: the Machinery and Its Gaps 483

Module IV

1. Dualism, and Why a Treaty Is Not Law in India 488
2. Article 253, and the Power to Implement a Treaty 492
3. Article 51(c), and the Duty to Foster Respect for International Law 497
4. The Rule That a Convention in Harmony Is Read Into the Rights 501
5. The Role of India in the Incorporation of International Standards 506
6. What India Has Ratified, and What It Has Not 510
7. India's Reservations and Declarations 515
8. The Charter Obligations, and the Declaration's Standing 520
9. The Civil and Political Covenant: the Rights 524
10. Article 4, Derogation, and the Test AFSPA Has to Meet 529
11. The Human Rights Committee, and India's Reporting Record 535
12. The Economic and Social Covenant, and Progressive Realisation 540
13. India's Ratification of the Convention on the Rights of the Child 547
14. The Convention's Rights, and the Four General Principles 552
15. The Committee on the Rights of the Child 557
16. The Domestic Framework the Convention Shaped 561
17. The Juvenile Justice Act, and Section 3's General Principles 565
18. The Act's Procedure, and the Child in Conflict with Law 570
19. POCSO: the Offences, and the Duty to Report 575
20. The Right to Education Act: the Right Itself 580
21. The Act's Obligations on Schools 586
22. Teachers, Curriculum and Monitoring 591
23. The Racial Discrimination Convention, and the Disagreement About Caste 596
24. The Women's Convention, and What India Reserved 601
25. The Universal Periodic Review, and What India Has Accepted 607
26. Large Scale Infrastructure and Indigenous Communities 611
27. Involuntary Displacement, and the Rights It Affects 616
28. The 2013 Act: Consent, and the Social Impact Assessment 621
29. Compensation, and the Rehabilitation and Resettlement Award 629
30. The Forest Rights Act, and a Right Recognised Rather Than Conferred 638
31. What India Has Done Well 646
32. The Gap Between Ratification and Implementation 651
33. What the Indian Human Rights System Has and Has Not Achieved 656