SUBJECT –CONCEPT OF HUMAN

RIGHTS (PAPER I)

TOPIC – UNITED DECLARATION

OF HUMAN RIGHTS 
SUPERVISED BY:
Dr. SATARUPA GHOSH
(ASST. PROF. OF LAW)
SUBMITTED BY
NAME: HUMAYUN KABIR
COURSE: CERTIFICATE OF
HUMAN RIGHTS
 ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my

sincerest thanks to Assistant Professor in Law, for his/her invaluable guidance,
sound advice and affectionate attitude during the course of my studies.

I have no hesitation in saying that he/she molded raw clay into whatever I am
through his/her incessant efforts and keen interest shown throughout my
academic pursuit. It is due to his/her patient guidance that I have been able to
complete the task.

I would also thank the Library for the wealth of information therein. I also
express my regards to the Library staff for cooperating and making available the
books for this project research paper.

Date HUMAYUN KABIR

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 TABLE OF CONTENT

INTRODUCTION………………………………………………….5
DEFINITION……………………………………………………….6
HISTORY OF UDHR………………………………………………6
CHARACTERISTIC AND NATURE OF HUMAN RIGHTS…..7
DEVELOPMENT OF U.D. HUMAN RIGHT……………………8
LEGAL STATUS OF HUMAN RIGHTS IN INDIA…………….9
ACTIVE ROLE OF JUDICIARY………………………………..10
ENABLING PROVISION………………………………………..12
HUMAN RIGHTS DEVELOPMENT IN INDIA…………...…..13
JUDICIAL INTERPRETATION……………………………..…14
CHILD LABOUR AND RIGHT TO EDUCATION……………15
CHILD LABOUR WELFARE AND THE LOCUS STANDI…16
JUVENILE JUSTICE…………………………………………….17
ADOPTION OF CHILDREN……………………………………18
SEXUAL EXPLOITATION OF CHILDREN…………………..19
REHABILITATION OF CHILD PROSTITUTES…………….20
UDHR AS CUSTOMARY INTERNATIONAL LAW…………21
CONCLUSION……………………………………………………23
BIBLIOGRAPHY

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 SYNOPSIS
AIMS AND OBJECTIVE-

The aim of researcher, in doing the research work is to give a broad outline of united
declaration of human rights. The project will further analyze the various aspect of “Human
rights” in contrast with the various judicial precedents which are relevant to the topic.

RESEARCH METHODOLOGY:-

As whole research work for this work is confined to the library and books and no field
work has been done hence researcher in his research work has opted the doctrinal
methodology of research. Researcher has also followed the uniform mode of citation
throughout the project work.

SOURCES OF DATA:-

For doing the research work various sources has been used. Researcher in the research
work has relied upon the sources like many books of International Law, Articles, and
Journals. The online materials have been remained as a trustworthy and helpful source for the
research.

SCOPES AND LIMITATIONS:-

Though the researcher has tried his level best to not to left any stone unturned in
doing his research work to highlight the various aspects relating to the topic, but the topic
being so vast and dynamic field of law and whose horizon and ambit cannot be confined and
narrowed down, the research work has sought with some of the unavoidable limitations.

HYPOTHESIS:-

Researcher by reading and doing preliminary research researcher is of the opinion that
Supreme Court of India is protecting Human Rights through the power conferred through
various articles in the constitution.

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 INTRODUCTION

Human Rights – Two simple words but when put together they constitute the very foundation
of our existence. Human Rights are commonly understood as “inalienable fundamental rights
to which a person is inherently entitled simply because she or he is a human being”.

There is no denying that all human beings are entitled to certain ‘basic’ and ‘natural’ rights
meant for a dignified existence as a human being. A dignified living environment with
freedom coterminous with that of others, to one and all is the central tenet of human rights.

Human rights are conceptualized to be certain rights that are inherent or occur naturally to
individuals as human beings, having existed even in the ‘state of nature’ before the
development of societies and emergence of the state. As widely recognized, the State cannot
be accepted as the fundamental source of these rights. They inhere in individuals by virtue of
their birth as a human itself. The State is accepted and understood merely as a recognizer,
guarantor and protector of these rights. The State, as its concept exists today, cannot act to the
detriment of the inherent rights of an individual, or for that matter, the collective conscience
of individuals as a community or a society.

Alternatively the natural or human rights are recognized as legal rights, constitutional rights
etc. depending upon their assimilation in statutes or constitution of a nation, or, even
fundamental rights as per terminology awarded to them in the statute or the constitution.

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 DEFINITION

The Universal Declaration of Human Rights (UDHR), 1948, defines human rights as “rights
derived from the inherent dignity of the human person.” Human rights when they are
guaranteed by a written constitution are known as “Fundamental Rights” because a written
constitution is the fundamental law of the state.

Dr. Justice Durga Das Basu defines “Human rights are those minimal rights, which every
individual must have against the State, or other public authority, by virtue of his being a
‘member of human family’ irrespective of any consideration. Durga Das Basu’s definition
brings out the essence of human rights.

HISTORY OF UDHR
By 1948, the United Nations’ new Human Rights Commission had captured the world’s
attention. Under the dynamic chairmanship of Eleanor Roosevelt—President Franklin
Roosevelt’s widow, a human rights champion in her own right and the United States delegate
to the UN—the Commission set out to draft the document that became the Universal
Declaration of Human Rights. Roosevelt, credited with its inspiration, referred to the
Declaration as the international Magna Carta for all mankind. It was adopted by the United
Nations on December 10, 1948.
In its preamble and in Article 1, the Declaration unequivocally proclaims the inherent rights
of all human beings: “Disregard and contempt for human rights have resulted in barbarous
acts which have outraged the conscience of mankind, and the advent of a world in which
human beings shall enjoy freedom of speech and belief and freedom from fear and want has
been proclaimed as the highest aspiration of the common people...All human beings are born
free and equal in dignity and rights.”

The Member States of the United Nations pledged to work together to promote the thirty
Articles of human rights that, for the first time in history, had been assembled and codified

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into a single document. In consequence, many of these rights, in various forms, are today part
of the constitutional laws of democratic nations.

CHARACTERISTIC AND NATURE OF HUMAN RIGHTS

1. Human Rights are Inalienable – Human rights are conferred on an individual due to
the very nature of his existence. They are inherent in all individuals irrespective of
their caste, creed, religion, sex and nationality. Human rights are conferred to an
individual even after his death. The different rituals in different religions bear
testimony to this fact.

2. Human Rights are Essential and Necessary - In the absence of human rights, the
moral, physical, social and spiritual welfare of an individual is impossible. Human
rights are also essential as they provide suitable conditions for material and moral
upliftment of the people.

3. Human Rights are in connection with human dignity – To treat another individual
with dignity irrespective of the fact that the person is a male or female, rich or poor
etc. is concerned with human dignity. For eg. In 1993, India has enacted a law that
forbids the practice of carrying human excreta. This law is called Employment of
Manual Scavengers and Dry Latrines (Prohibition) Act.
4. Human Rights are Irrevocable: Human rights are irrevocable. They cannot be taken
away by any power or authority because these rights originate with the social nature of
man in the society of human beings and they belong to a person simply because he is a
human being. As such human rights have similarities to moral rights.

5. Human Rights are Necessary for the fulfillment of purpose of life: Human life has a
purpose. The term “human right” is applied to those conditions which are essential for
the fulfillment of this purpose. No government has the power to curtail or take away the
rights which are sacrosanct, inviolable and immutable.

6. Human Rights are Universal – Human rights are not a monopoly of any privileged class
of people. Human rights are universal in nature, without consideration and without
exception. The values such as divinity, dignity and equality which form the basis of
these rights are inherent in human nature.

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7. Human Rights are never absolute – Man is a social animal and he lives in a civic society,
which always put certain restrictions on the enjoyment of his rights and freedoms.
Human rights as such are those limited powers or claims, which are contributory to the
common good and which are recognized and guaranteed by the State, through its laws to
the individuals. As such each right has certain limitations.

8. Human Rights are Dynamic - Human rights are not static, they are dynamic. Human
rights go on expanding with socio-eco-cultural and political developments within the
State. Judges have to interpret laws in such ways as are in tune with the changed social
values. For eg. The right to be cared for in sickness has now been extended to include
free medical treatment in public hospitals under the Public Health Scheme, free medical
examinations in schools, and the provisions for especially equipped schools for the
physically handicapped.

9. Rights as limits to state power - Human rights imply that every individual has legitimate
claims upon his or her society for certain freedom and benefits. So human rights limit the
state’s power. These may be in the form of negative restrictions, on the powers of the
State, from violating the inalienable freedoms of the individuals,

DEVELOPMENT OF U.D. HUMAN RIGHT

The UN Charter, 1945

The United Nations Charter was drafted, approved and unanimously adopted by all the
delegates of the 51 states, who attended the United Nations Conference at San Francisco The
UN Charter contains provisions for the promotion and protection of human rights. The
importance of the Charter lies in the fact that it is the first official document in which the use
of ‘human rights’ is, for the first time traceable and which also recognized the respect for
fundamental freedom.

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The Universal Declaration of Human Rights, 1948

The Universal Declaration of Human Rights was adopted by the General Assembly of the
United Nations on 10th December, 1948. The Declaration consists of thirty Articles and
covers civil, political, economic, social and cultural rights for all men, women and children.
The declaration however is not a legally binding document. It is an ideal for all mankind.

International Covenants on Human Rights

The Universal Declaration of Human Rights, 1948 was not a legally binding document. It
lacked enforcements. This deficiency was sought to be removed by the U.N. General
Assembly by adopting in December, 1966, the two Covenants, viz,

1. International Covenant on Civil and Political Rights and

2. International Covenant on Economic, Social and Cultural Rights.

The two International Covenants, together with the Universal Declaration and the Optional
Protocols, comprise the International Bill of Human Rights. The International Bill of Human
Rights represents a milestone in the history of human rights. It is a modern Magna Carta of
human rights.

LEGAL STATUS OF HUMAN RIGHTS IN INDIA

India has had a history of its own, in-so-far human rights of its inhabitants are concerned.
Ruled by despotic rulers/kings and emperors, its public, probably was never aware of the
concept of human rights. While European and other western countries got a taste of real time
concept of human rights with the advent of Magna Carta era, the concept of human rights
remained alien, or at the most, so intermittent that the people of India would have never
bothered to think of their existence with certain rights by the virtue of their being born as
humans. The intermittent periods were those isolated period of history when some benevolent
individual had the reigns in their hand as the ruler/kings and emperors. The colonial rule in
India gave much impetus to recognition of certain rights. The struggle for independence was

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marked with uprisings for individual and societal rights. There was mass awakening and
recognition of rights that were inherent to human existence. The end of World War II was a
turning point in the history of struggle for human rights worldwide and the world community
rose to the occasion by endeavouring hard for recognition of human rights that would have
universal application.

By virtue of being one of the signatories to the United Nation Declaration of Human Rights
on December 10, 1948, India became one pioneering countries of the world to have made a
commitment to respect and protect the human rights declared and accepted by the United
Nations Organizations. Induced by its people's struggle for freedom, India very promptly
incorporated some of the widely accepted human rights as fundamental rights in the Indian
Constitution.

The Constitution of India epitomizes the testament of the people of India to protect and
promote the fundamental freedoms and rights of all human beings. The Constitution of India
provides elaborate provisions for all classes of human rights. Part- III relating to the
Fundamental Rights deals with the civil and political rights which and are justifiable in
nature; meaning thereby, that they are enforceable through a Court of Law. The economic,
social and cultural rights are contained in Part IV of the Constitution which lays down
Directive Principles of State Policy. The later are non-enforceable in a court of law, but, are
fundamental to governance of country.

However, the country has witnessed enforcement of these rights by the deliberations of
Hon’ble Supreme Court of India.

ACTIVE ROLE OF JUDICIARY

Of course, all legal rights are human rights but it is unfortunate that all human rights have not
become legal rights as on date. This is because the law follows the action, as a consequence,
it is not possible to codify all probable laws in anticipation for protection of human rights,

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and this is when the due procedure of law or the principle of natural justice plays an active
role in protecting the rights of the people when there is no legislation available.

As I have mentioned earlier, the magnificence of human rights is that it is all pervading, the
trick lies in the successful execution of the same. Fundamentally, the basic motive of all the
three wings of the democratic government, namely, the executive, the legislative, and the
Judiciary revolves around the protection of human rights. They strive together and separately
to uphold the human rights of the people in the country.

The Judiciary with no doubt has played a vital role in protection of Human rights over the
decades. Some of the most unpleasant violation of human rights like Sati, Child Marriage,
Honor Killings, Slavery, Child labour etc., have been abolished wholly owing to widespread
awareness and strict implementation measures taken by the Judiciary.

The status of human rights is fairly high under the Constitution of India which makes
provision for fundamental rights and empowers Supreme Court of India and High Courts to
enforce these rights. Equally important is the fact that India is a signatory to international
conventions on economic, social, cultural, civil and political rights, with certain conditions.
These rights are partly contained in Part III of the Constitution of India including the right to
equality in Article 14, right to freedom of speech and expression in Article 19(1)(a), the right
to protection of life and personal liberty in Article 21 and the right to religious freedom in
Article 25 etc.

In Part IV of the Constitution, the Directive Principles of State Policy i.e. the duties of the
State or the socio-economic rights, have been envisaged which are non justiciable in any
court of law but complementary to the fundamental rights in Part III. It directs the State to
apply policies and principles in the governance of the country so as to enhance the prospects
of social and economic justice. For instance, Article 43 directs the State to secure for workers
a living wage, decent standard of life and social and cultural opportunities. On a different
note, the society should be changed in a positive way by the State, enlighten and place every
human being in a society where their individual rights can be protected as well as upheld.

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The Indian judiciary with its widest interpretation in observance of Human Rights has
contributed to the progress of the nation and to the goal of creating India as a vibrant State.
The definition of Human Rights can be found under Section 2(d) of the Protection of Human
Rights Act, 1993 as, “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 the Court of India.” So it is evident that Courts have a major role to play in enforcing the
rights.

ENABLING PROVISION

The right to enforce the Human Rights provided in the Constitution of India is protected
through enabling provisions. Article 226 of the Constitution empowers High Courts to issue
directions, orders or writs in the nature of Habeas Corpus, Quo Warranto, Mandamus,
Certiorari, Prohibition for the enforcement of fundamental rights as well as any other legal
rights. Article 32, itself a Fundamental Right, invests the Supreme Court with the power of
judicial review for the enforcement of fundamental rights with the power to issue directions,
orders and writs as well.

It is worth mentioning that Dr. Ambedkar who in course of his speech referred to draft
Article 25 corresponding to the present Article 32, in the Constituent Assembly, said, “if I
was asked to name any particular article in the Constitution as the most important-an article
without which this Constitution would be nullity – I would not refer to any other article
except this one. It is the very soul of the Constitution and very heart of it and I am glad that
the House, has realized the importance”. During the debates in the Constituent Assembly
Alladi Krishnaswami Aiyar also remarked, “The future evolution of the Indian Constitution
will thus depend to a large extent upon the work of the Supreme Court and the direction
given to it by the Court, while its function may be one of interpreting the Constitution….it
cannot in the discharge of its duties afford to

ignore the social, economic and political tendencies of the time which furnish the necessary
background”. And these predictions have come true. Any aggrieved person could have direct
access to superior Courts for obtaining quick relief against the state for violation of any

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fundamental right. In addition to the above provisions, Article 142 enables the Supreme
Court to make such orders as are necessary to do complete justice in the cause; Article 141
provides that the law declared by the Supreme Court shall be binding on all; and Article 144
obliges all authorities to act in the aid of the Supreme Court.

HUMAN RIGHTS DEVELOPMENT IN INDIA

 1829 - The practice of sati was formally abolished by Governor General

William Bentick.

 1929 - Child Marriage Restraint Act, prohibiting marriage of minors under 14

years of age is passed.

 1955 - Reform of family law concerning Hindus gives more rights to Hindu
women.

 1973 - Supreme Court of India rules in Kesavananda Bharati case that the
basic structure of the Constitution (including many fundamental rights) is unalterable
by a constitutional amendment.

 1978 - SC rules in Menaka Gandhi v. Union of India that the right to life under
Article 21 of the Constitution cannot be suspended even in an emergency.

 3
1985-6 - The Shah Bano case , where the Supreme Court recognized the
Muslim woman's right to maintenance upon divorce, sparks protests from Muslim
clergy. To

nullify the decision of the Supreme Court, the Rajiv Gandhi government enacted The
Muslim Women (Protection of Rights on Divorce) Act 1986

 1989 - Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act ,

1989 is passed.

 1992 - A constitutional amendment establishes Local Self-Government

( Panchayati Raj ) as a third tier of governance at the village level, with one third of
the seats reserved for women. Reservations were provided for scheduled castes and
tribes as well.

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  1993 - National Human Rights Commission is established under the Protection
of Human Rights Act.

 2001 - Supreme Court passes extensive orders to implement the right to food.

JUDICIAL INTERPRETATION

The role of the India Judiciary and the scope of judicial interpretation have expanded
remarkably in recent times, partly because of the tremendous growth of statutory intervention
in the present era. The judiciary plays an important role in the protection of fundamental
rights of the citizen and non-citizens alike. The twin safeguards of equality before law and
equal protection of laws are acknowledge as two of the most important pillars of human
rights of the universe of freedom that is where ever freedom to assert human rights is
recognized, whether under an unwritten or a written constitution. India is the largest
democracy in the world, a sovereign, socialist, secular democratic and republic with a
comprehensive charter of rights written into its constitution. The Indian Constitution lays
down base on which its foreign policy should be constructed and its international obligations
respected. These bases are articulated principally in Article 51, which occurs in Part IV of the
Indian Constitution.

The true nature and scope of the function of the court has since long been a matter of debate
almost in all the countries regulated by written Constitution. Austinian Jurisprudence gives a
very narrow view of the judicial function. Austin defined law as a command of the political
sovereign and his sovereignty was indivisible and absolute, only the legislature could make
law. The function of the court was merely to declare the pre-existing law or to interpret the
statutory law. But on the other hand, the realist movement in the United State the latest
branch of sociological Jurisprudence which concentrates on decisions of law courts. Regards
and contend that law is what court says. For them, judges are the law makers. The entire
common law is the creation of the English courts but is posited on the myth that judge merely
found law. Even with such self-negating perception of their own role, the English judges not
only made law but also changed it to suit entirely new conditions created by the industrial
revolution.In this modern era Judicial Activism emerged as tool for protecting Rights of the

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Children including protection from sexual exploitation, child trafficking, child abuse etc.
some case dealt by the Indian judiciary for the protection of child rights are as follows

CHILD LABOUR AND RIGHT TO EDUCATION

Education is critical for economic and social development. It is crucial for building human
capabilities and for opening opportunities. The importance of education was fully recognised
by classical economist and social scientist such as Adam Smith, John Stuart Mill, Schultz,
Becker and Amartya sen. Alfered Marshall in the Principles of Economics observed as
follows:

“The wisdom of expending public and private funds on education in not to be measured by its
direct fruits alone. It will be profitable as a mere investment, to give the masses of the people

much greater opportunities, than they can generally avail themselves of. For by this means
many, who would have died unknown, are able to get the start needed for bringing out their
latent abilities. The most valuable of all capital is invested in human beings.”

The abolition of child labour must be preceded by the introduction of compulsory education
since compulsory education and child labour laws are interlinked. Article 24 of the
Constitution bars employment of child below the age of 14 years. Article 45 is supplementary
to Article 24 for if the child is not to be employed below the age of 14 years he must be kept
occupied in some educational institution.The Court in series of cases has unequivocally
declared that right to receive education by the child workers is an integral part of right of
personal liberty embodied in Article 21 of the Constitution. In M.C. Mehta v. State of Tamil
Nadu The Supreme Court directed that children should not be employed in hazardous jobs in
factories for manufacture of match boxes and fireworks, and positive steps should be taken
for the welfare of such children as well as for improving the quality of their life.

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In Goodricke Group Ltd v Center of West Bengalthe Court held that it would be for the
Centre and State/Union Territories to raise necessary resources to achieve the goal of
providing free education. Recently Article 21-A has been inserted in the India Act, 2002
which provides that the state shall provide free and compulsory education to all children of
the age of six to furteen years in such manner as the state may, by law, determine. In Unni
Krishnan J.P. v State of Andhra Pradesh Justice Mohan observed “in educational institutions
which are seed-beds of culture, where children in whose hands quiver the destinies of the
future, are trained. From their ranks will come out when they grow up statesmen and soldiers,
patriots and philosophers, who will determine the progress of the land.

CHILD LABOUR WELFARE AND THE LOCUS STANDI

The liberalization of the concept of locus standi, to make access to the court easy, is an
example of the changing attitude of the Indian Courts. It is generally seen that the working
children by and large come from the families, which are below the poverty line, and there are
no means to ventilate their grievance that their fundamental rights are being breached with
impunity. Keeping in view the pitiable conditions of the child workers, the apex court has
shown its sensitivity towards the poor people by relaxing the concept of locus standi.

One important case in which Supreme Court entertained a letter, sent by post as public
interest litigation was the Peoples Union for Democratic Rights v. Union of India Also
known as the Asiad Workers case. The Supreme Court held that though the Employment of
Children Act, 1938 did not include the construction work on projects because the
construction industry was not a process specified in the Schedule to the Act, yet, such
construction was a hazardous occupation and under Art.24 children under 14 could not be
employed in a hazardous occupation. The right of a child against exploitation under Art.24
was enforceable even in the absence of implementing legislation, and in a public interest
proceeding

They have no faith in the existing social and economic system”. A high water mark in the
application of the Article 24 of the Constitution was reached in the decision of the Court in
Salal Hydro Project v. Jammu and Kashmir wherein the Court reiterated the above stand.
The Court maintained that child labour is an economic problem. Poor parents seek to
argument their meager income through employment of their children. So, a total prohibition

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of child labour in any form may not be socially feasible in the prevailing socio-economic
environment. Article 24 therefore,

JUVENILE JUSTICE

The Juvenile Justice (Care and Protection) Act, 2000 is enacted as human rights legislation
and it is now in force in all State uniformly, repealing the entire Children’s Act enacted by
states individually. This legislation deals with the two types of juveniles. “Juvenile in conflict
with law” as defined under Section 2(1) and child in need of care and protection as defined
under Section 2 (d). A juvenile or a child as defined under Section 2 (k) is a person who has
not attained the age of 18 years. The penitentiary system shall comprise treatment of
prisoners, the essential aim of which shall be their reformation and social rehabilitation.
Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to
their age and legal status.

In Sheela Barse v. Union of India Ms.Sheela Barse, a dedicated social worker took up the
case of helpless children below age of 16 illegally detained in jails. She petitioned for the
release of such young children from jails, production of information as to the existence of
juvenile courts, homes and schools and for a direction that the District judges should visit
jails or sub-jails within their jurisdiction to ensure children are properly looked after when in
custody. The Court observed that children in jail are entitled to special treatment. Children
are national assets and they should be treated with special care. The Court urged the setting
up of remand and juvenile homes for children in jails.In Sheela Barse v Secretary Children
Aid Society the Supreme Court came forward to protect the rights of the children in the
observation homes.

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 ADOPTION OF CHILDREN

Adoption concerns two of our basic human concerns identity and family. A child’s rights to
an identity and family are now universally recognized. They are enshrined in the United
Nation Convention on the Rights of the Child, 1989.

The Activist Supreme Court of India in Lakshmikant Pandey v Union of India 1. This writ
petition has been initiated on the basis of a letter addressed by one Laxmi Kant Pandey, an
advocate practising in this Court, complaining of mal-practices indulged in by social
organisations and voluntary agencies engaged in the work of offering Indian children in
adoption to foreign parents. The letter referred to a press report based on "empirical
investigation carried out by the staff of a reputed foreign magazine" called "The Mail" and
alleged that not only Indian children of tender age are under the guise of adoption "exposed
to the long horrendous journey to distant foreign countries at great risk to their lives but in
cases where they survive and where these children are not placed in the Shelter and Relief
Homes, they in course of time become beggars or prostitutes for want of proper care from
their alleged foreign foster parents." The petitioner accordingly sought relief restraining
Indian based private agencies "from carrying out further activity of routing children for
adoption abroad" and directing the Government of India, the Indian Council of Child Welfare
and the Indian Council of Social Welfare to carry out their obligations in the matter of
adoption of Indian children by foreign parents. This letter was treated as a writ petition and
by an Order dated 1st September, 1982 the Court issued notice to the Union of India the

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Indian Council of Child Welfare and the Indian Council of Social Welfare to appear in
answer to the writ petition and assist the Court in laying down principles and norms which
should be followed in determining whether a child should be allowed to be adopted by
foreign parents and if so, the procedure to be followed for that purpose, with the object of
ensuring the welfare of the child. In this case the Supreme Court held that any adoption in
violation of or non-compliance with may lead adoption to be declared invalid and expose
person concerned with to strict action including prosecution. For years, social activists have
used these directions to protect children and promote desirable adoptions. The Government of
India framed a national policy in this regard.

SEXUAL EXPLOITATION OF CHILDREN

Human Rights are derived from the dignity and worth inherent in the human person. Human
right and fundamental freedom have been retreated by the Universal Declaration of Human
Rights. The human rights for women, including girl child age, therefore, inalienable, integral
and indivisible part of universal human rights. All forms of discrimination on ground of
gender are violative of fundamental freedoms and human rights. It would, therefore, be
imperative to take all steps to prohibit prostitution. Eradication of prostitution in any form is
integral to social weal and glory of womanhoods. Right of the child to development hinges
upon elimination of prostitution. Success lies upon effective measures to eradicate root and
branch of prostitution. In Bachpan Bachao Andolan v Union of India writ petition filed by
HRLN, Suprem Court on 18.04.2011 has ordered for implementation of suggestions put forth
during the hearing of this case, which will introduce significant reforms in existing child
protection regime. The petition was originally brought in 2006 on issue of abuse and
exploitation of children in circus industry. Court has ordered Central Government to bring a
notification prohibiting employment of children in circus, to conduct raids to rescue children
already working in circuses and frame proper scheme for their restoration. During the hearing
in this case, several recommendations were put forth by petitioner and respondent, aimed on
reforming existing legal and procedural mechanism on child protection. This recent order is
just one among the several orders which may be given by Hon’ble Supreme Court in due
couese of time as Hon’ble Court has made clear its intention to deal with issue of childrens

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exploitation in a long term and systematic manner. Assuring to deal with childrens
exploitation firmly, Supreme Court has observed: “We plan to deal with the problem of
childrens exploitation systematically”.

In Vishal Jeet v. Union of India Supreme Court in this case deals with some seminal
questions relating to the sexual exploitation of children. Here it has been observed that it is
highly deplorable and heart rending to note that many poverty-stricken children and girls in
the prime age of youth are taken to the ‘flesh market’ and forcibly pushed into “flesh trade”
which is being carried on in utter violation of all cannons of morality, decency and dignity of
mankind. In Gaurav Jain v. Union of India, The Supreme Court held that the children of the
prostitutes have the right to equality of opportunity, dignity, care, protection and
rehabilitation so as to be part of the mainstream of social life without any pre-stigma attached
on them. The Court directed for the constitution of a committee to formulate a scheme for the
rehabilitation of such children and child prostitutes and for its implementation and
submission of periodical report of its Registry Sakshi v Union of India In this Public Interest
Litigation matter, the Supreme Court of India asked the Law Commission to consider certain
important issues regarding sexual abuse of children submitted by the petitioner and the
.
feasibility of amendment to 375 and 376 IPC

REHABILITATION OF CHILD PROSTITUTES

The rescue and rehabilitation of the child prostitutes and children should be kept under the
Nodal Department, namely; Department of Women and Child Development under the
Ministry of Welfare and Human Resource, Government of India. It would devise suitable
schemes for proper and effective implementation. The institutional care, thus, would function
as an effective rehabilitation scheme in respect of the fallen women or the children of fallen
women even if they have crossed the age prescribed under the Juvenile Justice (Care and
Protection) Act. They should not be left to themselves, but should be rehabilitated through
self-employment scheme or such measures as are indicated by the Supreme Court in this
case. The juvenile homes should be used only of a short stay or relieve the child prostitutes
and neglected juveniles from the trauma they would have suffered. They need to be
rehabilitated in the appropriate manner. The details are required

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To be worked out by meaningful procedure and programmes. In the light of the directions
already given by this court from time to time to the central government state governments
and Union Territory Administrators, adequate steps should be taken to rescue the prostitutes,
child prostitutes and the neglected juveniles. They should take measures to provide them
adequate safety, protection and rehabilitation in the juvenile homes manned by qualified
trained social workers or homes run by NGOs with the aid and financial assistance given by
Government of India or state government concerned. A nodal committee with the public
spirited NGOs, in particular women organizations women members should be involved in the
management. Adequate encouragement may be given to them. The needed funds should be
provided and timely payments disbursed so that the scheme would be implemented
effectively and fruitfully

UDHR AS CUSTOMARY INTERNATIONAL LAW

The Universal Declaration on Human rights and principles enshrined therein has provided the
basis to several of the human rights codified post 1945. The international legal system is
hence composed of global and regional treaties which are as a matter of fact founded upon
the provisions provided under Universal Declaration on Human Rights. Therefore, it can be
safely implied that an instrument which initially was thought as being limited to providing a
“common standard of achievements for all peoples and nations” has now been a major source
of moral, political and legal influence for he international as well as national legal system.

At the same time it becomes pertinent to recognize the fact that several constitutions,
municipal laws, regulations that further the concept of fundamental human rights have taken
Universal Declaration as a model for the same. Such domestic provisions manifest
themselves by sometimes making direct reference to the Universal Declaration, sometimes
incorporating some its provisions in its legal system, sometimes by reflecting the substantive
articles of the declaration and also sometimes by making reference to the provisions of
universal declaration by the municipal courts while interpreting several of the provisions of
their domestic laws.

With respect to observance of state practice and opinion juris, in the field of human rights, it
has been observed that the court’s approach, “accords limited significance to state practice,
especially to inconsistent or contrary practice, and attributes central normative significance

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to resolutions both of the United Nations General Assembly and of other international
organizations …. The burden of proof to be discharged in establishing custom in the field of
human or humanitarian rights is thus less onerous than in other fields of international law.”

It was in the twentieth anniversary of the adoption of the declaration that an international
conference of non-governmental organizations proclaimed that the Universal Declaration
“constitutes an authoritative interpretation of the Charter of the highest order, and has over
the years become part of customary international law.“ Further, a similar conference was
held but this time amongst various governments in which 84 states had been represented,
herein it was observer that “the Declaration constitutes an obligation for the Members of the
international Community”. However, the precise nature of such obligation was not elaborated
in this conference.

Further, the International Law Institute had in the year 1969 adopted a declaration wherein it
was stated that there is in existence of the obligation upon states to promise to protect various
fundamental human rights which flow or derive from the acceptance of human dignity
recognized under the UN Charter and in Universal Declaration on Human Rights.

It was the year 1994 that the International Law Association subsequently observed the
Universal Declaration to be “universally regarded as an authoritative elaboration of the
human rights provisions of the United Nations Charter” and concluded that”many if not all
of the rights elaborated in the … Declaration … are widely recognized as constituting rules
of customary international law.“

However, there are some states in general which conclude that as a matter of fact some and
not all provisions of the Universal Declaration on Human Rights have passed into customary
international law. Still, in such cases the precise number of such legally obligatory provision
under Universal Declaration on Human Rights has not yet been identified.  

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 CONCLUSION

The Universal Declaration of Human Rights even though a noble attempt towards making the
world a better place for cohabitation, yet the non-biding nature of the declaration in a way
hampered its objective. Again the wide ambit provided for each of the essential rights
provided in the declaration made sure, that future international and also domestic legislation
can include virtually anything and everything under the sun within its scope of operation.

It has to be noted that in spite of all the extensive legislation envisaged with the UDHR at its
head, the change in ground zero scenario is far from what the scenario looks like on the
theoretical front. Often, instances of human rights violations are reported to be carried out by
State actors or also at frequent instances by non-state actors, who are funded by the State.
Hence, as long as we keep on propagating our personal interest at the cost of other’s interests,
the world can never be a safe place to live in and we will always have to fight for protecting
our rights.

BIBLIOGRAPHY
BOOKS
1. Kapoor, S.K, “International Law and Human Rights”, 20th edition 2016.
2. Agrawal,H.O, “International Law and Human rights”, 20th edition 2014.
3. Khanna, D.P, “Reforming human Rights”, 1st edition 2001.
4. Upadhya Archana, yasin Adil-ul-yasin, “Human Rights”, 1st edition2000.
5. Dannelly Jack, “Universal Human Rights in Theory and Practice”, 2nd edition, 2005.

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 6. Saxena Ajay, Singh Indu, “Human Rights in india and Pakisan”, 2004.

WEBSITES
 http://shodhganga.inflibnet.ac.in.
 http://nhrc.nic.in
 http://www.legalservicesindia.com.
 http://legacy.fordham.edu.

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