The long catalogue of human rights violations in India provokes questions. What is the law relating to human rights in India? Who are transgressors of human rights? Who has the duty to protect human rights? The state or society? Can the state redress the cruelties of society? Are human rights claimed only against the State? Or also against civil society? The provisions of the Constitution provide a starting point.

I The Constitutional Framework

(a) Fundamental Rights and Directive Principles

India's Constitution is a first generation post-World War II constitution which contains both political texts (which mobilises its working) and justice texts (which promote and defend human rights and social justice). Superimposed on a parliamentary democracy in a federal structure, is a chapter on Fundamental Rights (Part III of the Constitution, Articles 12-36) which can be enforced by the Supreme Court and state high courts.

India had 350 million people in 1950. It now has more than a billion. The higher judiciary - consisting at any point in time of some 500 judges - cannot, by itself, induce human rights accountability. But its decisions have had some ripple effect.

The Constitution also contains a chapter on Directive Principles which declares socio-economic principles. Though not enforceable in a court of law, these are nevertheless fundamental to Indian governance. (Part IV of the Constitution Art. 37-51) At first, these Directive Principles were treated as no more than a "veritable dustbin of sentiment"; but after 1970, and especially after the Emergency (1975-77) they have been used to give socio-economic content to fundamental rights.

(b) Equality

The fundamental right to equality (Art.1.4-18) includes the right not to be discriminated against or treated arbitrarily and contains provisions for affirmative action for untouchables and tribals, called Scheduled Castes and Scheduled Tribes (SC and ST), other backward classes (OBC), women and children. The equality provisions have been interpreted so as to permit the state to 'classify' persons, actions and things and treat them differently on the basis that unequals cannot be treated equally. This can lead to inegalitarian results. The equality article (Art. 14) has also been used to check arbitrary decisions by the state - but not always with rigour. But it is the extension of the affirmative action provision to new OBC beneficiaries in 1990 which led to the downfall of the VP Singh government even though the Supreme Court in its Mandal decision (1992) permitted this extension within broad limits. Affirmative action has had electoral consequences and creates a politician-beneficiary nexus which has radically altered Indian politics.

Until the last decade of the 20th century, the cause of women and children was not reflected in court interpretations of the equality or affirmative actions provisions. In the Technical Education case (1993), the Supreme Court guaranteed education to all children above 14 years of age. But despite legislation, children continue to work in units producing carpets, bangles, fireworks, in hazardous industries and mines. NGO campaigns and government reports have not made a dent.

Court decisions in the nineties granted better maintenance, inheritance and adoption rights for women. In the Visaka decision (1997), the Supreme Court has not only read the provisions of CEDAW (Convention for the Elimination of Discrimination against Women), to which India is a signatory, into the equality clause, thereby giving an international perspective to Indian perceptions of gender justice, but also judicially legislated a law on sexual harassment. Yet after the Muslim women's maintenance statute of 1986, there is a fear that for electoral reasons, women from different religions will be treated differently by various legislations to dilute protection for women as a whole.

Despite all this, the plight of women remains precarious. Rapes, dowry deaths, harassment and unequal treatment stalk through the everyday lives of women. The statutory National Commission for Women strives to give support to women's struggles for human rights and dignity, but its work is too thinly spread. Women continue to be victims of society and social change. They have been given special representation in local government (panchayats and municipalities) by Constitutional amendments (Articles 243D (2)(3)(4)(5)). However, despite an all party consensus, the further political empowerment of women by special representation of women to the extent of one-third of the seats in Parliament and State Assemblies has run into a cul de sac with some political parties demanding that this empowerment go to the poor and disadvantaged rather than the rich.

The real problems of women to confront discrimination, harassment, remove gender unjust laws and secure social and political empowerment are firmly rooted in contemporary struggles which require media analysis and support.

The SC and ST are historically victims of discrimination, harassment, atrocities and neglect. The Constitution has created special representation for them in Parliament, the State Assemblies and panchayats and 'preferential admissions' to the civil services and educational programmes. Over the past 50 years, the special representation of SC and ST in the legislature has been extended every 10 years. But 'preferential admissions' to state appointments and educational opportunities which have also been extended to other Backward Classes (OBC - other than the SC & ST) have been bitterly contested through elaborate litigation, usually all the way up to the Supreme Court.

Since many SC, ST and OBC communities are resourceless and without opportunities, there are special social and economic programmes for their uplift which are often hijacked by corruption and enfeebled by lack of direction and bureaucratic entropy. Tribal lands are specially protected by the Fifth Schedule of the Constitution. But there are plans afoot in Andhra and elsewhere to open mineral and resource-rich tribal areas for non-tribal commercial exploitation.

The nodal institution to oversee the welfare and protection of the SC and ST was the National Commissioner of the SC and ST, which was created by the Constitution in 1950. But in 1990, the Commissioner of SC & ST was replaced by a National Commission SC and ST (Art. 341-2). The last SC and ST Commissioner petitioned the Supreme Court in 1990 that his reports were being ignored and nothing was being done. This petition awaits hearing.

Atrocities against SC and ST and predatory trends in respect of resources and opportunities due to them continue. This is less true of the Other Backward Classes who have also demanded and obtained preferential treatment and programmatic help. OBC demands are firmly rooted in a new politics which has fundamentally altered at least North Indian, if not national politics.

To abolish titles (Art. 18) and create socio-economic programmes is not enough to meet the equality dispensation of the Constitution. In the debates in the Constituent Assembly, B. R. Ambedkar, who piloted the Constitution and was himself an untouchable, warned that if political and civil equality was not matched by social and economic equality, the entire edifice on which the Constitution was built was in danger of collapsing. This warning goes to the root of the constitutional guarantee of equality in a country where almost one-third of the people live below the poverty line.

(c) Freedom and Liberties

While the Constitution guarantees everyone the right not to be deprived of their life and liberty, except by procedure established by law (Art.21), only citizens have the right to the now six enumerated freedoms (Art.19(1)(a) to (g)):

• Freedom of speech and expression
  
• The right to assembly
  
• Freedom of association
  
• The right to move freely
  
• The right to reside in any part of India
  
• The right to pursue the profession, occupation, trade or business of one's choice

These rights are subject to reasonable restrictions imposed by law in the public interest. The seventh freedom - to own, hold and dispose property ceased to be a fundamental right in 1979 and became a lesser protected right (Art.300A).

From 1950 to about 1979, the chapter on Fundamental Rights was dominated by land reform and right to property questions. The courts took a very restricted view of the meaning of 'life' and 'liberty' and refused to give an expanded meaning to the term 'procedure established by law', by which freedoms and liberties could be restrained. Consequently, any enacted law - even an unfair one - could infringe the life and liberty of a person.

After the Emergency, the Supreme Court included a vast array of matters within the meaning of the guaranteed freedom of 'life' and 'liberty'. Life and liberty did not just mean animal existence or freedom from detention, but all the things that constitute the good life, including the right to environment, health and primary education, good governance according to law, a decent livelihood, freedom from bonded or child labour, decent prison conditions and wages to prisoners and detenus for their work. The courts were flooded with many public interest petitions concerning corruption, forestry, wildlife, the environment, vehicular pollution, and the preservation of monuments like the Taj Mahal. All these were treated as part of the right to 'life' and 'liberty'.

Reversing the earlier view, the courts have now laid down that the procedures by which restraints are imposed on freedoms and liberties have to be reasonable, just and fair. These interpretations have given a new lease of life to India's Bill of Rights and accorded a new legitimacy to the Supreme Court, whose reputation had fallen into disrepute after the disastrous decision in the Emergency in the Preventive Detention case (1976) in which the Court refused to interfere with even politically motivated and malafide detentions.

Freedom of speech and expression (Art.19(1)(a)) has been interpreted reasonably widely, even though virtually all the colonial and post-colonial laws dealing with sedition, promoting enemity between religious and other groups, outraging religious feelings, criminal defamation, obscenity and criminal insult leading to a breach of peace, have all been held to be constitutionally valid.

In 1965, D.H. Lawrence's Lady Chatterly's Lover was declared obscene - and remains so. In 1988, Salman Rushdie's Satanic Verses was banned under the Customs Act, 1962, while the courts looked the other way. On the other hand, there were many other cases - such as those concerned with the film Bandit Queen - which escaped censorship through the intervention of the court.

While Indian courts have been vigilant, they are usually biased in favour of the administration where there is a threat of breach of peace. This may have encouraged the mob censorship which led to the destruction of M.F. Hussain's paintings in 1998; and to the non-screening of Deepa Mehta's film on women in 1999-2000. Censorship by mobs threatening violence is an increasingly sinister threat to free speech which is as, if not more, serious than state censorship.

An important aspect of free speech concerns the freedom of the press and the media. It is not enough to protect the content of free speech, but also the institutional rights of the press.

In the Price and Page Act case (1962), the Supreme Court 'invalidated' legislation which tried to straitjacket newspapers within space and price restraints and in the Newsprint cases (of 1972 and 1985), unreasonable state restraints on access to newsprint. The Press & Registration of Books Act, 1867, continues to provide a registration system for newspapers so that accountability for what is printed is traceable to the editor and proprietor of these newspapers. Both the second Press Commission (1982) and the Government in 1989 tried to intensify this regulatory framework to extend to matters of content and the internal working of the media, but with little success.

Government owned television and radio was brought into an autonomous statutory framework by the Prasar Bharati Act, 1990, but the Act was brought into effect only in 1997 after which events showed that successive governments continue to infiltrate Prasar Bharati's autonomy. The Broadcasting Bill, 1997 (yet to be enacted) and the Cable Television Networks (Regulation) Act, 1995, continue to provide a framework of control of non-government television. But, although market forces have taken over, state interference continues to be an impending threat.

Regulatory control of the media as well as content control are permitted by the Constitution in the form of reasonable restrictions in the interests of the sovereignty and integrity of India, the security of state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence (Art. 19(2)). This Constitutional catalogue of restraints has often been treated in ways that suggest that the restrictions are more fundamental than the rights. But the courts have tried to strike a balance.

Fundamental to the interpretation of the guaranteed freedoms and liberties is the concept of reasonableness. This is India's version of due process. All restraints must be authorised by enacted laws and be reasonable. This concept needs greater elucidation.

(d) Criminal due process, punishment and prisons

As long as 'due process' was restrictively interpreted to mean 'any process enacted by law', the jurisprudence of a fair trial, punitive justice and imprisonment was neglected. The expanded concept of due process developed after the Emergency led the Supreme Court to devise more complex and comprehensive doctrines of fairness in criminal procedure and punishment.

To begin with, the Constitution itself permitted preventive (or administrative) detention, but required the reasons for detention to be made known to the detenu, fixed time limits on detention and created an advisory board to review detentions (Art. 22 (4) to (7)). From 1950, a very elaborate court control was developed around these three parameters to ensure that malafide detentions were not made for too long a period of time. It was only during the Emergency that the Supreme Court abdicated its monitoring role in the Preventive Detention case (1976); and was justly criticised.

As far as the normal criminal process was concerned, the text of the Constitution said very little. The procedure itself had to be enacted by law (Article 21). Any person who is arrested has a right to know the grounds for his arrest as soon as may be and the right to consult and be defended by a lawyer and be produced before a magistrate within 24 hours (Article 22(1) and (2)). Persons cannot be convicted for an offence which did not exist when they allegedly committed the crime, punished for the same offence twice or be compelled to be a witness against themselves (Art. 20(1) to (3)). This has never meant that they cannot be fingerprinted or photographed; but in 1999, the National Human Rights Commission suggested 'guidelines' that lie detector tests cannot be inflicted on accused without their consent. All this represents the minimal criminal due process envisaged in the original Constitutional text.

The new criminal due process was devised by the Supreme Court after the Emergency following its decisions in the Sunil Batra and Charles Sobhraj cases (1978) in which the court invalidated chaining prisoners to prison walls and needless solitary confinement. In 1979-80, the Bihar Blinding case revealed that the police had wreaked personal vengeance on undertrials.

In the Undertrials cases, the Supreme Court discovered that adults had been incarcerated for terms longer than their punishment and that children grew into adulthood in jail while awaiting trial. This galvanised the court into addressing the inhumanities of inadequate criminal procedures, harsh punishments and in hospital prisons.

The first step declared a right to legal aid, and reversed the earlier interpretation that the right to a practitioner of one's choice did not impose an obligation on the state to provide such aid. Now, the state has to provide aid. Unfortunately, Constitutional dictat is belied by reality. Despite provisions in the Code of Criminal Procedure (Cr.P.C. Sec.304) and Civil Procedure Code (CPC - Order 33 r. 9A-17) and the passing of the Legal Service Authorities Act, 1987, the delivery system for legal aid is poor and ineffective.

The object of the new due process is to provide a continuous oversight by courts to ensure compliance with the prescribed rules, norms, procedures and principles from the moment of arrest, through investigation, trial, punishment and prison. Some of this due process is already contained in the Criminal Procedure Code, 1973 (Cr.P.C), which has now been contextualised, enlarged and supplemented against the human rights dispensation of the Constitution. Some new rules and principles have been laid down by the court.

Criminal due process requires that a person be arrested for good cause. Broadly, the criminal process is triggered off by two kinds of cases: public or cognisable (i.e. police) cases, which are cases which are investigated by the police after filing an FIR (first information report); and private or complaint (i.e. magistrate) cases, which are investigated under the directions of a magistrate.

The police are empowered to make an arrest in the 'police' cases. In D.K. Basu's case (1997), the Supreme Court laid down an Arrest and Detention Code requiring the police to carry identification, prepare a memo of arrest with full details attested by a third party, notify a friend or relative of the accused of the arrest, inform the arrestee of the grounds of arrest, make an entry into a police diary, record an inspection memo on search and seizure, provide for medical examination within 24 hours, transmit all arrest documents to the district magistrate, enable the accused to meet a lawyer during, but not throughout, interrogation and create an oversight by a police control room within 12 hours of arrest in each district. Failure to follow these instructions would result in departmental investigation and contempt of court proceedings.

Most custodial crimes (indignities, beatings and killings) take place during the period of undertrial custody - especially at police stations where an accused is remanded to police custody for interrogation (as opposed to jail). The Basu rules help to keep an oversight over custodial internment and create a presumption against police officers in cases where there is inadequate record keeping and evidence of custodial violence. But police cruelty often evades these guidelines - both by more subtle methods of coercion as well as the fear instilled in the accused of the consequences that would follow if they report the matter.

There is a special interrogation code for the search and interrogation of women and children.

Confessions made to a police officer are not admissible as evidence but have to be recorded before a magistrate; but evidence found as a consequence of police confession is admissible. Thus, despite the Basu code and other provisions, coercive interrogations and police brutality remain unchecked precisely because such methods yield legitimate evidence.

Theoretically, the Criminal Procedure Code requires investigations to be completed within 60 or 90 days (depending on the offence). If not, bail is granted by the courts. After 1973, a new right called 'anticipatory bail' in advance of an offence being registered, is also possible. Although the Supreme Court has laid down the broad principle of 'bail not jail', bail during investigation is not the order of the day. Accused often have to fight all the way to the Supreme Court to get bail, even when there is little chance of interference with the half completed or completed investigation. Indeed, in the Undertrials cases (1979-80), the Supreme Court found a large number of undertrials, including children, under trial for unconscionably long periods. There is no time limit for investigations, which can continue for years.

However, in 1992, the Supreme Court created a right to speedy trial. This has been elaborated in Speedy Trial cases (1998-9) in which the court has laid down that bail should be granted to undertrials in most cases, and that the prosecution case must close within three years of the commencement of the trial in all cases except a few special categories. While these judgements are still being reviewed and refined, these rights are an important aspect of due process of human rights. Even today, over 70 per cent of the persons in India's overcrowded prisons are undertrials and not convicted prisoners.

The Constitution does not directly prohibit cruel and unusual punishments. But several judicial decisions have tried to discipline the power to punish within a human rights framework. Although prisoners can be sentenced to rigorous imprisonment with hard labour as opposed to simple labour, rigorous imprisonment no longer consists of back-bending cruelty. In the Prison Wages case (1998), the Supreme Court insisted that prisoners from whom labour was exacted had to be given minimum wages.

Prisoners have to be treated with human dignity, cannot be handcuffed or put in solitary confinement and are entitled to hygienic conditions of prison life and medical aid and care. Despite efforts made by officers like Kiran Bedi (who won a Magsaysay Award for her efforts), Indian prisons fall below human standards, are over-crowded, are generally inhumane in attention to food, clothing and care, cruel in their practices and dehumanising. While prisoners are entitled to remissions, the minimum stay for a person in life imprisonment has been fixed to at least 14 years (section 433 A of the Cr. P.C.).

Indian courts have agonised over the death penalty. The Supreme Court has clearly laid down that provisions of the Penal Code and other laws that authorise mandatory death sentences are unconstitutional. Although death by hanging has not been declared a 'cruel and unusual' punishment, public hangings have been declared unconstitutional.

The real controversy has been over the abolition of the death penalty. Amidst dissent, in 1983, the Supreme Court made it clear that capital punishment is constitutionally valid, but to be imposed only in the 'rarest of rare' cases. However, the 'rarest of rare' formula defies both arguments of principle and consistent sentencing practice. Sometimes courts reflect on the viciousness of the murder, and sometimes on the rehabilitability of the accused or his or her personal circumstances. Successive governments claim that public opinion is against abolition of the death penalty despite campaigns calling for it to be banned. The President and the government have been given an independent power to pardon an accused or convicted person, which is subject to a limited judicial review by the High Courts and Supreme Court.

India continues to strive towards an effective and humane due process but falls short of it in practice.

(e) Freedom from exploitation

India's Constitution makers specifically prohibited traffic in human beings and begar (unpaid work) and other forms of forced labour other than non-discriminatory compulsory service for public purposes (Art.23). No child below the age of 14 can be employed in any factory, mine or hazardous employment (Art. 24).

For many years, these provisions were ignored. In the Asiad case (1982), the Supreme Court asked for a strict compliance with these provisions. In the Bonded Labour cases (1984), directions were issued to ensure that people do not work in bondage. However, almost two decades later, most of the directions given by the Supreme Court have not been fully complied with. Bonded labour continues to persist as a new form of slavery which is being fought by NG0s with the help of statutory provisions and the Supreme Court's prescriptions.

Apart from bonded labour, the Supreme Court in 1990 included devadasis (temple prostitutes) within the meaning of forced labour; and, in the same year, ruled that both prostitutes and children of prostitutes are entitled to rehabilitative care, welfare and support.

Child labour has become an issue. Even though the Supreme Court has declared that every child is entitled to education to, at least, the age of 14, child labour is rampant - especially in the carpets, fireworks and glass industries. Children are exploited indiscriminately.

The persistence of child labour has led many Western nations to campaign for a rejection of exported goods made by children. This has been fought by all the countries of the sub-continent. It is argued that the immediate abolition of child labour (which is statutorily and constitutionally prohibited) will render many families without a livelihood.

There is an intermediate plan that the engagement of children should be coupled with vocational training. However, there is a fear that such intermediate solutions will camouflage rather than resolve the problems.

The government, the National Human Rights Commission (NHRC) and non-governmental organisations (NG0s) are trying to devise solutions.

India's population of over one billion contains almost 350 million estimated to live below the poverty line. Accordingly, any employment is a necessity. But human rights require a firm plimsoll line to be drawn, below which exploitative practices will not be tolerated. Even if statutory rules have drawn this line firmly, India continues to tolerate excessive levels of exploitative practices.

(f) Religious and cultural freedoms

Following the partition of India, the Constitution resolved that India would be a 'secular' State in which there would be religious freedom to all. Accordingly, the Indian State has no official faith and cannot raise taxes for religious purposes. Helpful support can be extended by the state to all faiths and groups and their institutions on a non-discriminatory basis (Art. 25 to 28).

Religious freedom includes the right to

freedom of conscience and the right freely to profess, practise and propagate religion as well as to manage all affairs (including property rights) connected with religion and establish, maintain and administer religious institutions.

However, these broad rights are subject to three kinds of limitations.

The first limitation is regulatory control by the State, of the economic, financial, political and other secular activity of a faith. The separation of 'religious' from 'non-religious' activity is not easy. In the Srirur Math case (1954), the Supreme Court devised that the 'essential' practices of a faith were the core of a faith and could not be infringed. But this 'essential practices' test has often been carelessly used by for reformist purposes. Thus, many religious endowments - including the Kashinath Temple in Banaras, the Vaishno Devi temple in Kashmir, Lord Jaganatha's temple in Orissa and Tirupati in Andhra Pradesh - have all been placed under strict statutory regimes. This has been described as being akin to nationalising religion and needs greater scrutiny.

The second limitation protects the State from infringing religious freedoms in the interests of public order, morality or health. Thus, Muslim graves have been shifted under threat of disorder. However, the approach of the court on public order questions has tended to uphold the status quo. A typical example is the case of the Babri Masjid (1992-4) where a makeshift Hindu temple continues to stand on the remains of a Muslim mosque demolished in 1992 by miscreants on the unsubstantiated ground that the mosque itself had been erected on the site of an earlier temple.

The third restraint on religious freedom is frankly reformist. Untouchability has been abolished by the Constitution (Art. 17) with follow up legislation to ensure its eradication. The Constitution specifically provides for opening Hindu temples to all classes and sections of Hindus (within which the Constitution includes Sikhs, Jains and Buddhists for this purpose). However, while ensuring temple entry, the courts have not granted participatory rights to untouchables in the inner shrines and critical prayers of temples.

Both regulatory control and reformism have led to increasing control over religious institutions and practices. A serious bone of contention is the personal laws of various communities which have not yet been reformed and which are generally gender unjust. In an important decision of 1997, the Supreme Court made it clear that it will not strike down uncodified personal laws which militate against equality. The alternative is to enact a uniform civil code (which is a Directive Principle (Art.44)) or codify as much of the personal laws of each religion as is possible. Much of Hindu law has been codified. Crucial aspects relating to the joint family remain untouched. Christian law was codified during British rule in 1869 and needs review. There is a lot of reformist pressure to codify Muslim law. But it is generally agreed that these issues need to be resolved with a fair degree of consensus instead of being imposed from above.
The Constitutional guarantee of preserving a minority community's language, culture and educational institutions (Art. 29 and 30) has been the subject of innumerable Supreme Court decisions. Educational institutions require State funding and recognition to be viable. But minority institutions do not want to lose their cultural character as a price for recognition or funding. Over the years, educational institutions (especially those associated with the Christian Church, which have provided elite education for India's middle class) have been forced to accept more and more uniformity under pressure of regulatory control. That has included the adoption of uniform state prescribed curricula, restraints on the appointment of and disciplinary control over staff and in respect of the right to admit students of their choice. In the St. Stephens case (1992) the Court generally approved regulatory control, but left the minority institution free to admit at least 50 per cent students of their choice. These issues have acquired increasing importance because of the Unnikrishnan - (Technical Education) case (1993) which has nationalised control over admissions to institutions providing technical education.

Both fundamentalist pressure from political quarters and demand for regulatory control have resulted in a more assimilationist approach to religious, linguistic and cultural rights. This is unfortunate for a country which has the greatest social diversity in the world.

(g) Constitutional remedies and public interest law

In 1950, it was thought sufficient that the Constitution provided access to the high courts for the enforcement of Fundamental Rights and made the right to move the Supreme Court in defence of Fundamental Rights a fundamental right itself. It soon became clear, however, that getting the court to intervene to protect fundamental rights was more the preserve of the affluent and the organised than the truly oppressed and disadvantaged. This did not prevent all kinds of disputes from reaching the Supreme Court and high courts. But from 1950-78, the bulk of the courts' docket ignored the predicament of the poor. Even though the right to move the Supreme Court was itself a fundamental right, after 1961, the court retained the right to choose which cases the Supreme Court would hear itself and which would be relegated to the high courts.

After the Emergency, the Supreme Court created a new branch of public law called Public Interest Litigation (PIL). PIL is distinguished from ordinary cases by three distinct characteristics.

Firstly, in PIL cases, even a person who has only a public, but no direct interest in an issue can file a case on behalf of a disadvantaged group or the public interest.

Secondly, in investigating PIL cases, the court may use commissions, expert bodies, government agencies, private persons and NG0s to investigate facts and provide ideas and advice to fashion remedies.

Thirdly, PIL cases are not just concerned with simple orders, but broader schematic relief so that in complex cases (such as those affecting environment), the court evolves a scheme and seeks to enforce it. It is through PIL cases that 'damages' have been awarded to victims of custodial crimes; and schemes have been created for the protection of the Taj Mahal and in relation to vehicular pollution in Delhi, bonded labour, various sanctuaries and other questions of socio-economic concern and significance.

PIL is an important innovation. Many areas of governance and social life have come under the court's scrutiny. There is a danger that the courts may interfere with governance or take it over. This is why the courts have to show restraint and ensure that things get done according to law without taking over legislative and executive functions themselves.

2 Statutory Protections and Human Rights Commissions

The bulk of protection of human rights does not come from the Constitution, but from statutory provisions. It is through statutes that enforceable rights are created by law. Thus, criminal due process derives very greatly from the provisions of the Criminal Procedure Code, 1973, and the Evidence Act, 1872.

There may be a Constitutional duty to provide legal aid, but the mechanisms by which this is to be done are contained in the various statutes and rules devised by courts dealing with legal aid. The Constitution has abolished untouchability. But effective abolition depends on the Protection of Civil Rights Act, 1976, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Constitution may guarantee freedom from exploitative practices, but these are rendered effective by labour legislation. The right to environment must eventually depend on legislation on forest, wildlife and the environment. Social welfare statutes create the framework for enabling social justice. Bonded labour is dealt with by the Bonded Labour System (Abolition) Act, 1976, and contract labour by the Contract Labour (Regulation and Abolition) Act, 1970. Special provisions deal with pension rights and provident funds for workers.

Social reforms legislation covers a vast area. Thus, women's rights are protected by legislation like the Dowry Prohibition Act, 1961, Suppression of Immoral Traffic in Women Act, 1956, Commission of Sati (Prevention) Act, 1987, Medical Termination of Pregnancy Act, 1971, Child Marriage Restraint Act, 1929, and many others.

What needs emphasis is the strategic fact that although human rights stem from a Constitutional dispensation, they are secured by enacted laws, statutory machinery, the government and the people.

Courts cannot enforce fundamental rights on their own. That is why in recent years a new mechanism has been created in many parts of the world to defend rights through a Human Rights Commission.

The purpose of a Human Rights Commission is to take over human rights struggles, make awards by way of recommendations in individual complaint cases, advise government on policy and legislation and intervene to protect human rights.

The first such human rights mechanism was created by the Constitution, which provided for a Commissioner for SC and ST, whose Constitutional duty was to help SC and ST fight for their rights and keep an oversight over their predicament. In 1990, the Commissioner was replaced by a full fledged Commission of SC and ST (Article 340).

Close on its heels came the National Human Rights Commission (NHRC), which was created by the Protection of Human Rights Act, 1993. A Minorities Commission has been in existence since 1993 on a statutory basis. The National Commission for Women (NCW) was brought into existence by the National Commission for Women Act, 1990. There is even a National Safai Karamchari's Commission, which deals with the predicament of street and public convenience cleaners.

Although it is good to have a statutory ally in the struggle for human rights (and the NHRC has a former Chief Justice of India as its head), these commissions are flooded with work but criticised for being ineffective because they have the power only to make recommendations and a weak investigative machinery. The commissions are conscious of their limitations - especially the NHRC in relation to the Army - and have made proposals to strengthen their powers so that they can make enforceable decisions. These new institutional mechanisms have a significant role to play in defending human rights.

Human rights cases, issues and struggles have to be fought in many legal, institutional and other arenas. This is what makes it important for ordinary people (especially the disadvantaged) and the NGO movement to evolve the skills to use the various statutory and other processes and institutions to defend human rights effectively.

3 International Conventions and Human Rights

India is signatory to a large number of international instruments concerning human rights, including

• Universal Declaration of Human Rights (1948)
  
• International Covenant on Civil and Political Rights (ICCPR 1966)
  
• International Covenant on Economic, Social and Cultural Rights (ICESCR 1966)
  
• Convention on the Rights of the Child (1989)
  
• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW - 1979)
  
• Convention on the Prevention of the Crime of Genocide (1948)
  
• International Covenant on the Elimination of all Forms of Social Discrimination (1968)
  
• International Convention on the Suppression and Punishment of the Crime of Apartheid (1973)
  
• Convention on the Political Rights of Women (1990)
  
• Convention against Torture and Other Cruel Inhumane or Degrading Treatment or Punishment (1990)
  
• Protocol of 1953 amending the Slave Convention of 1926 (1954)
  
• Various Geneva conventions on the laws of war and various conventions on labour and other matters.

Some of these conventions involve a reporting requirement to the United Nations - including CEDAW, ICCPR and ICESCR. India has been criticised for some of its reports, and is forced to take this criticism seriously because such reports are linked to trade and foreign aid. In addition to all these international instruments, various countries (such as the USA) and global organisations (such as Amnesty) also keep an oversight and report on the state of human rights in India.

Hitherto, the relationship between 'treaties' and India's legal system was governed by the incorporation principle: that a treaty was not a part of Indian law unless it was enacted as such by Parliament. This did not deter courts from interpreting the Constitution, laws and executive policies and schemes in the light of India's treaty obligations.

But recent developments in the law have overtaken the narrow confines of the incorporation approach. The statutory brief of the NHRC is to give effect to the ICCPR and the ICESCR. The real breakthrough has come from the Courts - culminating in the famous Visaka decision (1997) - which firmly established that all 'rights-enhancing' treaties (such as CEDAW) would be given effect to by courts as part of the equality and life and liberty provisions of the Constitution.

In this way, human rights related treaties have become part of Indian law. Visaka was foreshadowed by earlier decisions, but remains a landmark verdict which created a new cause of action called 'sexual harassment'. Hereafter, international treaties which protect and advance human rights will be read into the fundamental rights chapter of the Indian Constitution and be enforced as such.

Although 'governance by treaty' is increasing, the import of Visaka and similar decisions is not to automatically incorporate all treaties into Indian law, but only those treaties which are rights enhancing.

4 Reporting on Human Rights

Media reports on human rights are important to all human rights struggles. But the media does not always report comprehensively on human rights issues or follow up stories of human rights violations. Media reports on human rights are biased in favour of middle class readers and conceal urban biases. In a country like India, which has over a billion diverse people, vast levels of poverty, a never ending cycle of death, destruction, deprivation and atrocities and a 'million mutinies' everyday, the press needs to be more single-mindedly involved in human rights issues.