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REMEDIES AND JUSTICE Safeguards: Social, Cultural, Economic and Environmental HUMAN RIGHTS.

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Presentation on theme: "REMEDIES AND JUSTICE Safeguards: Social, Cultural, Economic and Environmental HUMAN RIGHTS."— Presentation transcript:

1 REMEDIES AND JUSTICE Safeguards: Social, Cultural, Economic and Environmental HUMAN RIGHTS

2 Source of Human Rights in India  (d) “human rights” means the 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.  (f) “International Covenants” means the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural rights adopted by the General Assembly of the United Nations on the 16 th December, 1966 [and such other Covenant or Convention adopted by the General Assembly of the United Nations as the Central Government may, by notification, specify”]1

3 Why Remedy?  Address Intentioned Impacts and Hold Violators Accountable  Mitigate Impacts which are Unintended  Eg: Forcible Detention of People by State or Non- State Actors; Undertrials who have have been detained beyond the penal period under an act;  Pollution causing health risk leading to ESCR Violations

4 What is Remedy? A remedy involves two elements 1. a victim’s access to the appropriate authorities to have his/her claim fairly heard and decided; and 2. the redress or relief that he/she can receive.

5 Custodial Violence: 4 die each day! ’. From 2001 to 2010, the NHRC reported a total of 14,231 cases of deaths in police and prison custody (i.e. 1,504 and 12,727 respectively), which represents an average of 4.3 deaths every day..  Custodial torture and violence remain an entrenched and routine law- enforcement strategy and investigating practice across India. A study conducted in 47 districts for more than two years concluded that an average 1.8 million people are victims of police torture and violence in India every year. Police practices include assault, physical abuse, custodial rape, threats, psychological humiliation, as well as deprivation of food, water, sleep and medical attention. Most torture cases go unreported because victims fear reprisals. They are also not confident that the judicial system can or will punish ‘men in uniform’. From 2001 to 2010, the NHRC reported a total of 14,231 cases of deaths in police and prison custody (i.e. 1,504 and 12,727 respectively), which represents an average of 4.3 deaths every day. Many of these deaths are a result of torture. These figures represent only a fraction of the actual number of deaths in custody as they reflect only the cases registered before the NHRC.

6 Industrial Pollution Causing Diseases  In February 2010, the NHRC Eastern Region’s Special Rapporteur commenced an investigation into complaints of pollution and its impact on the health of the affected communities in Bandhaguda, Rengopalli and Lanjigarh and the surrounding villages. In August 2010, after finding instances of air and water pollution, as well as some evidence that respiratory conditions, conjunctivitis, and skin disorders are on the rise, he recommended that the Orissa authorities establish an expert committee to systematically monitor and evaluate the impact of pollution on the health of the local communities. He also recommended permanent relocation of these and other villages which are in close proximity to the refinery and have borne the brunt of its pollution.

7 International Law and National Frameworks  1.1 Sources of International Law 1.2 The Role of Custom 1.3 The Role of Treaties 1.4 International Law in National and State Law 1.5 Locating Human Rights Law in Municipal and Panchayat Law 1.6 Two Basic Concepts about Constitutions 1.9 The Supremacy of the Constitution 1.10 Judicial review of LegislationSources of International LawThe Role of CustomThe Role of TreatiesInternational Law in National and State LawLocating Human Rights Law in Municipal and Panchayat LawTwo Basic Concepts about ConstitutionsThe Supremacy of the ConstitutionJudicial review of Legislation

8 Constitution: Justice is Primary The Preamble WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and to secure to all its citizens:-  JUSTICE, social, economic and political;  LIBERTY of thought, expression, belief, faith and worship;  EQUALITY of status and of opportunity; and to promote among them all  FRATERNITY assuring the dignity of the individual and the unity and integrity of the nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

9 Sources for International Law  Article 38 of the Statute of the International Court of Justice sets out the following sources of international law: a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations; d) judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for determination of rules of law.

10 Constitution: Fundamental Rights The seven fundamental rights recognised by the Indian Constitution  1. Right to equality: Which includes equality before law, prohibition of discrimination on grounds of religion, race, caste, gender or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles. 2. Right to freedom: Which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases.

11 …Constitution: Fundamental Rights The seven fundamental rights recognised by the Indian Constitution  3. Right against exploitation: Which prohibits all forms of forced labour, child labour and traffic of human beings; 4. Right to freedom of religion: Which includes freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes. 5. Cultural and Educational rights: Preserve the right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.

12 …Constitution: Fundamental Rights The seven fundamental rights recognised by the Indian Constitution  6. Right to constitutional remedies: Which is present for enforcement of Fundamental Rights. 7. Right to life: Which gives the right to live with human dignity. This includes rights such as right to education, health, shelter and basic amnesties that the state shall provide.

13 Constitution: Directive Principles 39. Certain principles of policy to be followed by the State  The State shall, in particular, direct its policy towards securing  (a) that the citizens, men and women equally, have the right to an adequate means to livelihood; (a)  (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (b)  (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; (c)  (d) that there is equal pay for equal work for both men and women; (d)  (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; (e)  (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment (f)

14 Constitution: Directive Principles Law Commission’s view on the Directive Principles of State Policy  They reflect the consensus on the intrinsic necessity of these means and envisage State action which would facilitate the transfer and distribution of power -- leading to transmission of power to the citizens and this is loosely called “empowerment” of the people. Democracy will become real when in practice there is sharing of power and responsibility by all sections of the people and it becomes illusory when it is about pursuit of power by the dominant sections alone.  The Directive Principles cannot be confined to mere rhetoric or to ad hoc policies of electoral appeasement or handouts.

15 International Covenant on Economic, Social and Cultural Rights, 1966 The Directive Principles are indeed the precursor to ICESCR Articles of the ConstitutionArticles of ICESCR  Article 39Articles 3, 6 (1) and 7  Article 41Article 6 and 7  Article 42Articles 7 and 10.2  Article 43Articles 11 (1), 11(2) and 15  Article 45Articles 13 (1), (2)(a), (3) and (4) and 14  Article 47Articles 12(1), (2), (a) to (d)  Article 51Articles 1.3 and 2 (1)

16 National Human Rights Commission 12. Functions of the Commission The Commission shall perform all or any of the following functions, namely:-  (a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf [or on a direction or order of any court]1, into complaint of (i) violation of human rights or abetment thereof; or (ii) negligence in the prevention of such violation,by a public servant;  (b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;  (c) visit, notwithstanding anything contained in any other law for the time being in force, any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates thereof and make recommendations thereon to the Government;  (d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;

17 National Human Rights Commission 12. Functions of the Commission The Commission shall perform all or any of the following functions, namely:-  (e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;  (f) study treaties and other international instruments on human rights and make recommendations for their effective implementation;  (g) undertake and promote research in the field of human rights;  (h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the  protection of these rights through publications, the media, seminars and other available means;  (i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights;  (j) such other functions as it may consider necessary for the protection of human rights.

18 National Human Rights Commission National Human Rights Commission (Procedure) Regulation  8. Procedure for dealing with complaints: (1) All complaints in whatever form received by the Commission shall be registered and assigned a number and placed for admission before a Bench of two Members constituted for the purpose not later than two weeks of receipt thereof. Ordinarily complaints of the following nature are not entertainable by the Commission. (a) in regard to events which happened more than one year before the making of the complaints; (b) with regard to matters which are sub-judice; (c) which are vague, anonymous or pseudonymous; (d) which are of frivolous nature. or (e) those which are outside the purview of the Commission. (2) No fee is chargeable on complaints.

19 National Human Rights Commission National Human Rights Commission (Procedure) Regulation (3) Every attempt should be made to disclose a complete picture of the matter leading to the complaint and the same may be made in English or Hindi to enable the Commission to take immediate action. To facilitate the filing of the complaints, the Commission shall, however, entertain complaints in any language included in Eighth Schedule of the Constitution. It shall be open to the Commission to ask further information and affidavits to be filed in support of allegations whenever considered necessary. (4) The Commission may, in its discretion, accept telegraphic complaints and complaints conveyed through FAX. (5) The Commission shall have power to dismiss a complaint in limini. (6) Upon admission of a complaint, the Chairperson/Commission shall direct whether the matter would be set down for inquiry by it or should be investigated into.

20 National Human Rights Commission National Human Rights Commission (Procedure) Regulation (7) On every complaint on which a decision is taken by the Chairperson/Commission to either hold an inquiry or investigation, the Secretariat shall call for reports/comments from the concerned Government/authority giving the latter a reasonable time therefore. (8) On receipt of the comments of the concerned authority, a detailed note on the merits of the case shall be prepared for consideration of the Commission. (9) The directions and recommendations of the Commission shall be communicated to the concerned Government/authority and the petitioner as provided for in sections 18 and 19 of the Act. (10) The Commission may, in its discretion, afford a personal hearing to the petitioner or any other person on his behalf and such other person or persons as in the opinion of the Commission should be heard for appropriate disposal of the matter before it and, where necessary, call for records and examine witnesses in connection with it. The Commission shall afford a reasonable hearing, including opportunity of cross-examining witnesses, if any, in support of the complaint and leading of evidence in support of his stand, to a person whose conduct is enquired into by it or where in its opinion the reputation of such person is likely to be prejudicially affected.

21 National Human Rights Commission National Human Rights Commission (Procedure) Regulation (11) Where investigation is undertaken by the team of the Commission or by any other person under its discretion, the report shall be submitted within a week of its completion or such further time as the Commission may allow. The Commission may, in its completion or such further time as the Commission may allow. The Commission may, in its discretion, direct further investigation in a given cases if it is of opinion that investigation has not been proper or the matter requires further investigation for ascertaining the truth or enabling it to property dispose of the matter. On receipt of the report, the Commission on its own motion, or if moved in the matter, may direct inquiry to be carried by it and receive evidence in course of such inquiry. (12) The Commission or any of its Members when requested by the Chairperson may undertake visits for an on-the-spot study and where such study is undertaken by one or more members, a report thereon shall be furnished to the Commission as early as possible..

22 Huge Backlogs in NHRC Disposal

23 WOMEN-SPECIFIC LEGISLATIONS  The Immoral Traffic (Prevention) Act, 1956 The Immoral Traffic (Prevention) Act, 1956  The Dowry Prohibition Act, 1961 (28 of 1961) (Amended in 1986) The Dowry Prohibition Act, 1961 (28 of 1961) (Amended in 1986)  The Indecent Representation of Women (Prohibition) Act, 1986 The Indecent Representation of Women (Prohibition) Act, 1986  The Commission of Sati (Prevention) Act, 1987 (3 of 1988) The Commission of Sati (Prevention) Act, 1987 (3 of 1988)  Protection of Women from Domestic Violence Act, 2005 Protection of Women from Domestic Violence Act, 2005  The Sexual Harassment of Women at Workplace (PREVENTION, PROHIBITION and REDRESSAL) Act, 2013 The Sexual Harassment of Women at Workplace (PREVENTION, PROHIBITION and REDRESSAL) Act, 2013

24 NCW: The Process The process is complicated and time consuming Eg: Women Mushroom Growers in Kalsi

25 How to direct complaints to the treaty bodies? Exhaust Domestic Procedures before reaching to International Remedies  For complaints to the Human Rights Committee, the Committee against Torture, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Committee on the Rights of Persons with Disabilities, and the Committee on Enforced Disappearance direct your correspondence and inquiries to:  Mail  Petitions and Inquiries Section Office of the High Commissioner for Human Rights United Nations Office at Geneva 1211 Geneva 10, SwitzerlandFax  + 41 22 917 90 22 (particularly for urgent matters)  Email  petitions[at]ohchr.org petitions[at]ohchr.org

26 Mining as a Major Concern Violation of Human Rights Rapid Indiscriminate Expansion Sudden end to Livelihood Options Total Destruction of Ecosystems

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28 Our Concerns Unsustainable ways of mining has led to social and ecological destruction through out the world leading to “resource curse”. And India is also witness to this situation. The problem of mining is manifold.

29  Non Renewable  Non Growable  Limited by Geology  Future Valuation  Non-perishable  Poor in Yield  Underlies Forests and Communities

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31 Development Vs. mining  Mining depleting water sources and affecting agriculture and access to drinking water  Usually poor areas, the intensity of poverty increasing: chronic poverty  Conflicts over mining rising: state vs communities, communities vs communities, corporates vs community, state vs corporates, corporates vs corporates  It breaks down social fabric

32 Ecology Vs. mining  Mining impacting the watersheds of India: the most comprehensive threat at sources  Mining eating away forests and lands belonging to the poorest  Impact on water sources no more localized: the destruction spreads over

33 Water Supply Vs. mining  Coverage for drinking water is slipping; overall quantity problem  Competitive uses bring in new dimension  And if not enough, mining strikes at the source  It impacts both quantity and quality  Mining is water intensive; current use is enough for at least for 300 million people’s annual water use

34 Governance Vs. mining  An octopus, several hands and no integration  No more a development tool; needs different model altogether  Mining violates all key constitutional safeguards and several policies of the country  Mining impacts the key governance responsibilities of local communities

35 Destruction of Natural Wealth Biodiversity

36 Major Loosers from Mining Adivasis - Women - Dalits - Workers

37 Destructive Influence on Local Cultures

38 Resource Rich Areas Most of the mineral resources are found in the scheduled areas of our country Large extent of forest resources are still available in these areas All the NTFP comes from these areas The Birth Places for many rivers are in these areas

39 Minerals and forests

40 Minerals and water

41 Scheduled Areas in India

42 Public Trust and Custodian  T HE DOCTRINE OF “ EMINENT DOMAIN ” MADE THE STATE THE SOVEREIGN STAKEHOLDER. P ERHAPS WHAT THE FOUNDING FATHERS THOUGHT THAT THE NATURAL RESOURCES WOULD BE HELD IN PUBLIC TRUST FOR THE WELFARE OF NATURAL STAKEHOLDERS.

43 THE IRONY OF STAKEHOLDERS  T HE COMMUNITIES ARE THE NATURAL STAKEHOLDERS.  B UT AS THE PROCESS OF GOVERNANCE EVOLVED IN OUR COUNTRY SEVERAL OTHERS CLAIMED AND BECAME VIRTUAL AND ACTUAL STAKEHOLDERS.  SLOWLY THEY BEGAN TO ASSUME MORE SIGNIFICANCE.

44 Case of Displaced:Worsening Scenario  Non Displacing Alternatives  Least Displacing Alternative  Land for Land and better facilities  Land for Land and Cash Compensation  Cash Compensation and Job  Cash Compensation and Rehabilitation Package  Cash Compensation  Left to the Promoter

45 Increasing conflicts..Inevitable?

46 We will watch this short film and then we will have a Quiz and Q & A E:\Falling Through The Cracks.mov

47 Quiz 1. Who are the stakeholders? 2. What are the HR violations that you can identify in the film? 3. List similar violations witnessed by you. 4. What avenues could you use to bring justice? 5. How would you address the cause for the violation?

48 Human Rights is the Business of Every Human Being If we do not take Cognisance and Act we will lead ourselves into…..6:9) Black hole of an Unjust World


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