Written by Anjasi Shah* & Ankitashri Tripathi**

* 2nd Year B.Com LLB Student, Institute Of Law, Nirma University

** 2nd Year B.Com LLB Student, Institute Of Law, Nirma University




For too long, the 1951 Geneva Convention relating to the Status of Refugees [1] has been treated as a piece of international legislation that could only be interpreted according to its own internal logic and objectives in isolation from international human rights law.[2] This article will show how it is no longer possible to interpret or apply the Refugee Convention without drawing on the text and jurisprudence of other human rights treaties. Conversely, it is not possible to monitor the implementation of other human rights treaties, where refugees are concerned, without drawing on the text of the Refugee Convention and related interpretive conclusions of the UNHCR Executive Committee (EXCOM Conclusions), agreed to by States and introduced below.

The 1969 Vienna Convention on the Law of Treaties makes clear that interpretation is to be based on the ordinary meaning of the text in the context of the whole treaty including its purpose and in the juridical context of subsequent agreements by States Parties. Subsequent agreement includes texts of human rights treaties and related jurisprudence. Consequently, the International Court of Justice, which can interpret the Refugee Convention,[3] and the Inter-American Court of Human Rights which can interpret human rights treaties in the Americas,[4] have pointed out in case-laws[5] that a treaty is to be interpreted in its current juridical context. Other human rights treaties are part of that juridical context. In exploring the Refugee Convention, this article will draw both on its text and own context and on the relevant provisions of subsequent human rights treaties and related international jurisprudence.

A relationship has been established between the non-refoulement clause of the Refugee Convention (Article 33) and human rights treaty provisions protecting everyone from torture. The relationship with the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (CAT) has been formally acknowledged in a Conclusion adopted by all Member States of the UN High Commissioner for Refugees (UNHCR) Program.[6] Some human rights treaties have extended non-refoulement to everyone and not only those qualifying as ‘refugees’. Human rights treaty bodies have applied rights to protection from torture and to protection of family life to protect noncitizens other than those formally recognised as refugees from expulsion.

The relationship between the right to seek and obtain asylum and the application of the Refugee Convention has been confirmed in two cases decided by the Inter-American Commission on Human Rights which applies Charter rights of the Organization of American States (OAS) from the American Declaration on Rights and Duties of Man (hereafter: American Declaration) and applies the American Convention on Human Rights (ACHR), namely in Joseph v. Canada’[7]and Haitian Interdiction v. US.’[8] Taken as a whole, the provisions of the Refugee Convention cover the content of ‘asylum’ as expressed recently in UN documents including an EXCOM Conclusion. The content of asylum includes rights relating to entry into a State, a limited right to remain there, protection from expulsion or refoulement and certain rights while remaining. The article explores this relationship.



The word ‘refugee’, ‘asylum’ and ‘migrant’ originated from the same concept and often it used to mean the same thing but as time passed the concept changed from its origin. These 3 concepts have different and separate obligations and have separate consequences in international humanitarian law.

Today the migrants are those who “Something’s or someone’s movement from one place to another, as in data from one format, platform, or system, to another, or from one country to another, or of a substance from one medium.”[9]


The meaning of asylum and refugee had the common basis of migrant. The concept of a migrant narrowed down to asylum and refugee. The refugee can be defined as “ Individuals who leave their native country for social, political or religious reasons, or who are forced to leave as a result of any type of disaster, including war, political upheaval, and famine”[10]

International protection of refugees involves not only one country but many. It can be only successful if countries work together for the protection of refugees in the international sense. It is to be pointed out that the word ‘protection’ has never be defined as such but it is assumed to mean it as protection of legal nature. Refugees are those who seek protection from their own country wherein they have no formal legal relations with the state and that is one of the reason to state that they are termed as ‘stateless’. There is political refuge which is dealt on political basis.[11]

UNHCR is one of the oldest establishments that started recognizing the individual rights particularly that of refugees. The main purpose that UNHCR was established was to provide refuge to the displaced persons. The concept of displaced persons has changed. The word ‘refugee’, ‘immigrant’ and ‘asylum’ has evolved. The word ‘refugee’, ‘asylum’ and ‘migrant’ originated from the same concept and often it used to mean the same thing but as time passed the concept changed from its origin. These 3 concepts have different and separate obligations and have separate consequences in international humanitarian law.

The protection of refugees is the ultimate goal of the UNHCR. The protection of Refugees includes checkups on the people who have fled their countries and has sought refuge in another country. The refugees flee their home due to some conflict, violence and various other reasons and there needs to be body that will ensure that they are protected and their dignity is kept intact.[12]

The most important thing that we need to look into detail is the public perception of refugees. The principle of neighborhood is the utmost principle that depicts the mindset of a set of people. Public perception is the most vicious thing. Public Perception makes us conscious of who we are. Public perception and refugees goes contrary in this world of education. Public perception is something which not one person cannot avoid. This is correct. Relation with refugees has never been worse. Refugees are considered as one of the groups which the citizen of a particular nation loves to hate.

Public perception is the most dangerous thing if we need to maintain peace between the mankind. This period of violence has lead to hardening public perception for refugees due to highly prevalent terrorism. The hardening public perception is politicized by political leaders and plays with the feelings of the people. This is another human right violation but through public perception. The worst and vicious thing that a mankind can do is to leave the other rotting to burn as they think that it does not directly affect them.

The world has progressed a long way from what it used to be. the world has progressed from stone age to the advanced world. Today, the world represents belief, respect for brotherhood, peace, dignity and a symbol of peace for fellow human being to live with each other in peace and that same goes for the countries where they co-exists with each other. The world has perceived the need to set up human rights in ensure the privileges of each individual on the planer. it wound up noticeably important to build up human rights keeping in mind the end goal to control the brutality and to set up the world peace.

Taking a glance at the present world, the world is not what it appears. There is no peace as depicted. The human rights charter for the protection of mankind has failed completely looking at the current plight of the refugees. There is savagery of the refugees which is covered by the mist. the created nations covers and disregards the cloak of viciousness. it is to be noted that after the vicious war between the nations, the general people looked for shelter and refuge from the countries that developed leaving their countries to fend. Refugees looked up to those nations that changed and looked for asylum but the circumstance is distinctive. the basic fundamental rights as human.



The meaning of asylum seeker is in connection with international law. The asylum in another country is more or less depended on the international obligations where the claim has to be taken into consideration.[13]

The recent incidents taking into the factor the refugees especially Middle Eastern where President Donald Trump made such a decision that it violated the basic human rights of millions at the same time. If we analyse the recent decision made by him, we first need to understand the conflict between the citizens and the refugees. Before the elections, president trump was widely criticized for his derogatory remarks on women yet he was elected as the president. The main thing that we have to understand here is that he appealed to the citizens of the United States (whites per say) on the basis of jobs as he said in his presidential speech. The white supremacy has come into the light during the recent 2016 presidential elections in United States.

What exactly is white supremacy and how we can relate with the human rights violation of refugees.  White supremacy is an ideology where the white people believe that they are superior to other race and that they deserve everything and not the others. Citizens of United States, Canada and many other countries especially white people think that their jobs are being taken away by the refugees. They think that they get every benefit on fake social security number but there needs to be a fact check here that those refugees are the victims of rape, violence, racism. Those refugees don’t come to the countries to claim the benefits but to seek protection from the country that they have left and the truth is that they are unaware about the benefits and this is the first thing that the citizens are not aware of. Another thing that needs to be clarified is that those people live in poverty.


Increasing number of refugees has created an outcry in the United States for various reasons particularly terrorist attacks. Terrorist attacks have become a great concern for countries and slowly the countries are trying to close their country’s boundaries. There are politically motivated refugee bans where the country does not understand its impact. If the countries think that if we close the boundaries, there will be no terror and that is where the ideology of the country is making a grave mistake. You will stop the terror from outside but what about the terrorism that you are creating within the countries.

To explain in detail, the executive order by President Donald Trump to ban immigrants from 7 muslim countries. This decision is highly politically motivated. The countries that were banned are Iran, Iraq, Syria, Yemen, Somalia, Sudan, and Libya[14]. The question here stands is that why these 7 countries are banned since there are no terrorist activities since 9/11 from these 7 banned countries? The trump administration states and implies former president Obama signed law which states people from this countries can’t travel without valid US visa.[15]

This was political move in the sense that it did not ban countries like Pakistan and Saudi Arabia. These are the countries where terrorists have established their base. This it suggests that United States has political interest and not the interest of protection from “terrorism” as clearly mentioned defending his executive order and in his presidential election speech.


4.9 million Refugees are in dire need of assistance which they are not getting because of the above executive order of the president trump.  Half of those are children.[16] The doors for them are shut right now from countries citing front reason as terrorism for shutting the boundaries. From human rights perspective, aren’t those countries shutting down boundaries and pretending that everything is normal are less than those who they want to ban “terrorists”.


The world as we see is not the world we know. In the 20th century with the pacing and ever changing world, the mankind fears its own brotherhood which is a particularly low for a highly developed world of machines and technology.

Today, the world is facing one of the most debated topics ‘refugee crises’. The world is debating on labelling every “refugee”, “immigrant” and “asylum seekers” as a terrorist. The world has become an illusion where for a moment has forgotten that we are the same person but of different colour, caste, race and religion.

The United States has come into the light for its selfish view on ‘refugee & immigrant’. But it is to be pointed as to clear the minds that United States always had a narrow view on refugee and asylum seekers. It is just that the real picture of United States has come into light. One can say that the ‘the superpower nation of immigrants is once again a nation of white supremacy’

One cannot always put all of the blame on the United States, European nations also comes into the picture with similar narrow view of the principle of neighbourhood. The thing that we have to understand here is that one cannot always put blame on a state but its own people. The values and the thinking has carved path to such a narrow thinking that it is actually harmful for the mankind to be a world again.

The Convention defines a refugee as a person outside their country ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’.[17]

What exactly is white supremacy and how we can relate with the human rights violation of refugees. White supremacy is an ideology where a race of white people believes that they are superior to other race and that they are better and has superiority complex over other gender, race and caste. The article explains the view of various jurists/authors in the article cited.[18]

Taking United states into account, it also being a superpower country is setting an example for other nations in terms of international law. United states as a humane nation is just set on paper and not otherwise. International Human Rights law is an important framework but that framework is not applicable in United States without any principle and law established like many other countries. The countries are not bound by the international human rights framework but it is up to the country to establish those principles. it is to be pointed out that although United States recognizes not all but some principles of civil and political rights but it completely fails in recognizing social and cultural rights especially the country made of diverse people.

Indeed, the Supreme Court’s most recent refugee decision in INS v. Aguirre-Aguirre’[19]contains the first reference by the Court to the jurisprudence of another state party to the Convention and Protocol as support for its reasoning.[20]In contrast, the top courts in other leading common law countries, including those of Australia, Canada,’ and the United Kingdom,’ 9 routinely draw on the thinking of judges in other countries before determining refugee status and adjudicating the content of refugee rights. A commitment to treat similarly situated asylum seekers comparably in each state party makes ethical good sense and provides decision-makers with a practical means of profiting from a broader range of experience. By refusing to look to case law from outside its own borders, the American refugee jurisprudence is strikingly anomalous.[21]




Both as a whole and as in its individual provisions, the Refugee Convention falls under current international human rights doctrine on non-discrimination because it is about differentiating among non-citizens. It grants some rights to refugees by comparison with citizens or other non-citizens and it grants some rights as a special measure for refugees. The whole instrument can be viewed as a special measure for persons who qualify under a definition of ‘refugee’. Yet other human rights treaties recognise many of the same rights Convention, in favour of refugees and asylum seekers. This article examines the implementation measures in the Refugee Convention and explores the implications for implementation of the relationships with other human rights treaties. Clearly, the protection of rights of asylum seekers and others in expulsion has been implemented by a number of UN and regional human rights treaty bodies. Non discrimination relating to rights in other treaties can be the subject of complaints to a treaty body. The article suggests a way of reinforcing the reporting mechanism of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR) to take into account the special situation of refugees and their protection under the Refugee Convention.

The aspects of the Refugee Convention which relate to the right to seek and obtain asylum in the OAS and the Organization of African Unity (OAU) human rights systems can be developed by each of the relevant treaty bodies in reports and in individual complaint cases. The article finds furthermore residual matters which require further initiatives to fully implement the Refugee Convention in its current context, notably guidance on the application of the definition of ‘refugee’. The article finally considers ways of resolving these, including a possible ‘Protocol’.

The situation in receiving states would be made more serious, since only a minority of the world’s people live in societies that respect human rights or that can meet the material needs of their members. Weiner puts it this way-[22]

There are, however, several legitimate objections to broadening the definition of refugees. If acts of discrimination short of persecution are the basis for claiming asylum, a large part of the world’s population could do so. Asylum on the basis of discrimination could plausibly be claimed, for example, by over 100 million Indian Muslims whose mosque at Ajodhya was destroyed and who were fearful after many Muslims in Bombay and elsewhere were killed by Hindus. Millions of women around the world could similarly point to discriminatory restrictions imposed by their state or society as justification for seeking asylum. Moreover, a country that does not want its minorities could engage in systematic discrimination and impel countries that embrace a liberal conception of refugees to admit all whose human rights have been violated. The more liberal democratic states and international agencies become in granting asylum to persecuted minorities, the greater the inducement for a nationalist regime to engage in some form of ‘ethnic cleansing’.

For instance, the Universal Declaration of Human Rights of 1948 (Universal Declaration) and the International Covenant on Civil and Political Rights[23]gives direction as to when persecution is involved and works accordingly. A person who fears arbitrary detention contrary to article 9 of the Universal Declaration may be persecuted. The same applies to a person who fears punishment contrary to the right to freedom of opinion or expression, as prescribed in article 1 9 of the Universal Declaration. Universal Declaration enables to understand ‘persecution’ through article 1 to 9.


Every human right violation in the respective country cannot be considered a refugee. To be granted a status of refugee, he/she must fulfil certain prerequisites. One of the prerequisite is that the brutality/violence should be at degree of extremity. If this condition is fulfilled, it will be classified as persecution. It is also to be pointed out that in order to determine illegal detention/ arbitrary detention, the detainment should be of extreme nature than only can it be classified for persecution. The above stated is an instance to determine persecution. Furthermore, the human rights violation must be motivated by one or more of the five causes of persecution mentioned in the 1951 Convention: race, religion, nationality, membership of a particular social group or political opinion.[24]The question of gender would be subsumed under the rubric of ‘social group’. A 1996 case in the United States illustrates this well. A nineteen-year old woman from Togo fled her country to the United States and asked for refuge on the basis that she was being forced to undergo female genital mutilation. The United States Immigration Board of Appeals agreed with her that female genital mutilation constituted gender discrimination and persecution. Thus, she was granted asylum in the United States.[25]

A distinction can be made between an illegal immigrant and a refugee based on the causes prompting a person to leave his or her country and to settle in another. Toolo and Bethlehem put it this way-[26]

It is possible to argue that there is a difference between refugees (my emphasis) who have been driven from their own countries in large numbers as a result of a national crisis and illegal immigrants (my emphasis) who make a primarily individual decision to come to South Africa. While such an individual decision may reflect the conditions faced by people in the home country, this would be different from the crisis-driven nature of refugees. Refugees are only in a position to return to home when the crisis in their own country has been resolved, whereas illegal immigrants would not be dependent on a political or military solution.

Weiner[27] notes in this regard that there are more similarities than differences between the two

Conventions. It is to be noted that both the definitions view refugees as individuals who lack the protection of their own government due to extreme brutality or it may be so that the government itself may be exploiting their own citizens in such a manner that they have to seek refuge from other countries. In the same vein, Nobel argues strongly for the retention of the 1951 Convention, noting that any confusion relating to the status of refugees is harmful to the cause of their protection.[28]

Building on this theme, Martin notes that refugee status is a scarce resource.[29]. The status of being a refuge is an appendage , it is not something which can be obtained as per disposition. Although it is a privilege it is only given to certain set of individuals. The status of being a refuge enables particular set of individuals to seek assurance and protection from the violence that they have desolated. The status of a refuge is not for all individual but for that one individual who is in dire need. It is only the choice of the state that can determine the fate of the individuals by granting them assurance and refuge from the brutality of the past.

There are at least three reasons to recognize that refugees-that is, persons who in fact meet the definition of a “refugee” stipulated in Article l(A)(2) of the Refugee Convention-are entitled to claim the benefit of the rights articulated in Articles 2 through 34 of the Convention. First, the intention of the treaty to establish a legal obligation to afford rights to refugees is clear from the literal text and structure of the Convention itself. The goal of the Convention was “… to revise and consolidate previous international agreements relating to the status of refugees and to extend the scope and protection accorded by such instruments by means of a new agreement.”, [30]State parties “have agreed ‘[31]to a non-deposable definition of a “refugee,”,[32] and to apply the provisions of this Convention to refugees without discrimination.. ,,[33]The duties owed to refugees by state parties are all stated in mandatory(“shall”) language. On the plain meaning of the text, refugees are the holders of rights exercisable in relation to state parties to the treaty.[34]

The obligatory nature of refugee rights is clear not only from the plain meaning of the Convention’s textual structure and the strictly limited right to suspend respect for refugee rights under Article 9, but more generally from the way in which the Refugee Convention defines the acquisition of refugee rights. Specifically, refugees acquire rights as a function of their level of attachment to a particular state party. They are entitled to an expanding array of rights as their relationship with the asylum state deepens over the course of a four-part assimilation path. At the lowest level of attachment, some refugees are subject to a state’s authority simply because they are physically present within territory under its jurisdiction. A greater attachment is manifest when the refugee is deemed to be lawfully present within the state. A still more significant attachment is inherent when the refugee is lawfully staying in the country. Finally, a small number of rights are reserved for refugees who can demonstrate durable residence in the asylum state. The Convention requires that a more fulsome range of needs and aspirations be met as the refugee’s relationship to the asylum state is solidified..


Christina Bowell in an article has explained ‘liberal universalist model’ where she has gone on to explain the model based on individual rights based on refugees. She has explained the individual rights and its progress in the context of refugees. The author has connected the individualism with the refugees. The refugees has been termed as liberal in the sense that protection of the refugees from any threat to ‘life and liberty’ The universal in the sense of the individual that protection from any threats to life and liberty is applicable to every refugee and is not for exceptions.[35] The above concept has also been stated by John Rawls in his book theory of justice.

The drafters of the Convention explicitly considered how best to align the refugee rights regime with this transition from an essentially managed system of refugee migration, to a mixed system in which at least some refugees would move independently:


The initial reception countries were obliged to give shelter to refugees who had not, in fact, been properly admitted but who had, so to speak, imposed themselves upon the’ hospitality of those countries. As the definition of refugee made no distinction between those who had been properly admitted and the others, however, the question arose whether the initial reception countries would be required under the convention to grant the same protection to refugees who had entered the country legally and those who had done so without prior authorization.[36]



Searching at the angle, it is solely based on the state to permit refugees to enter into a country. It’s far as much as the nation to just accept them or not. It has also been discovered via diverse reviews that the residents are unaware about the actual records and are fed false news in regards to employment, tax cash and various others. it is also to be pointed out that maximum of the citizens is factually unaware about the refugee’s program. This leads to unsympathetic nature towards the refugees which is itself dangerous. The public perception is risky sooner or later as it’s also one of the causes that may lead to harsher policy in opposition to the refugees. The plight of refugees has been politicized. The refugees had been termed as ‘terrorist entering’.

The current scenario is far dangerous than pre-war. The numbers are in millions of refugees who has fled their own country, fleeing from their own country and are victims of violence of extremity at the hands of either government or a war torn state or captured by militants. The current situation is dangerous for the refugees as the countries have started framing harsher policies which are against the very nature of refugee protection.

The situation has changed and so has the view on protection. Governments, particularly of those countries which are developed are treating those as an illegal and not as refugee which has deep impact on the purpose of refugee protection. The countries presently are focusing more on ‘protection from refugees’ rather than ‘protecting the refugees’. The changing view on refugee is that now they are considered as part of asylum seekers or migrant per say. The countries have made their foreign policy stricter which means that the policies are against them.

Today, Public Perception plays an utmost important role in Human rights. The world has lost the meaning of ‘principle of neighbourhood’. There are various incidents reported in newspaper that disgusts human kind at its core. The show of showing sympathy is temporary or at times it is not even real. The public has disgustingly become selfish. Public has stereotyped past co-incidences. This is hampering the humanity and has made the world enter at its worst phase of mankind destroying the other. To explain past coincidences, it is not meant as all but taking out and reporting which throws bad light on refugees. It is not new that public does not take any time to stereotype any incident and are factually unaware about the incidents or they only know what is only being reported to them. Taking an instance, the terrorist attacks that have been reported has been assumed as attack by refugees. This perception has harmed the protection of refugees.

Politicization has resorted humanity. Politicization plays with the perception. As public perception is against the refugee protection, the politicians play the stance against refugees. This is pure inhumane. They politicize the harsh brutality on refugee which is disheartening within the perspective of humanity. The refugee crisis has been an instance of public perception from ‘humane behaviour’ to ‘hostility’ towards them. Islamophobia is another example of hostility against Muslims. We cannot blame anyone but mankind only. Changing opinion shows the humane and selfish nature of mankind. Sometimes, the state is not always to blame as they want to help but when they do they face criticism and that is fierce backlash from the public.

This is to emphasize that it is not only the state or politicization but the public perception also plays an important part in protecting refugees. After public perception, media fails to recognize difference between migrant and refugee. The media and public perception are on the same lane. What media is portraying is the basis where public is framing their stereotypes and forms their opinion on them.  Hence, it is not only the state that needs to protect the refugees but everyone from public to media otherwise there is no hope for humanity if we keep on stereotyping. Refugee needs protection and it is our duty as a mankind to protect and give refuge to those who need it.

[1] UNHCR, Collection of International Instruments Concerning Refugees, UNHCR Doc. HCR/JP/l/Eng., UNHCR, Geneva, 1988, p. 10

[2] Netherlands Quarterly of Human Rights, Vol. 17/4, 389-410, 1999. Netherlands Institute of Human Rights (SIM). Printed in the Netherlands. 38NQHR 4 / 1999

[3] Refugee Convention, Article 38:

[4] Other Treaties’ subject to the Advisory Jurisdiction of the Court (Article 64 ACHR), Secretariat of the Court, San Jos6, Costa Rica, 1982

[5] American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American    Convention on Human Rights.

[6] EXCOM Conclusion No. 79 (XLVII), 1996, General  Conclusion on International Protection.

[7] Joseph v. Canada, Report No. 27/93, Case 11.092, Decision (…) as to the admissibility, Inter-American     Commission on Human Rights, Annual Report 1993, OEA/Ser. L/VII.85 Doc.9 rev., General Secretariat of the OAS, Washington, 11 February 1994, at p. 32.

[8] Haitian Interdiction v. US, Report No. 51/96, Case No. 10.675, Decision as to the Merits, 13 March 1997, Inter-American Commission on Human Rights, Annual Report 1996, at pp. 598-602.

[9] Michael Taggart, ‘Australian “Exceptionalism” in Judicial Review’ (2008) 36 Federal Law Review 1

[10] refugees. (n.d.) West’s Encyclopaedia of American Law, edition 2. (2008). Retrieved February 26    2017

[11] The International Migration Review, Vol. 35, No. 1, Special Issue: UNHCR at 50: Past, Present and Future of Refugee Assistance (Spring, 2001), pp. 130-142

[12] Office Of The United Nations High Commissioner For Refugees, Protecting Refugees & Role Of Office Of The United Nations High Commissioner For Refugees (2014).

[13] Chen Zhen Zi & Ors v Minister for Immigration and Ethnic Affairs (1994) 121 ALR 83.

[14] The Newyork Times, RON NIXONFEB. 25, 2017

[15] PolitiFact Wisconsin , Tom Kertscher ; February 7th, 2017

[16] World Vision, March 13 2017

[17] Article iA, Convention Relating to the Status of Refugees, Geneva, 28 July I95 I.

[18] Hage, G., 2012. White nation: Fantasies of white supremacy in a multicultural society. Routledge.

[19] INS v.Aguirre-Aguirre, 119 S. Ct. 1439(1999).

[20] House of Lords decision of T v. Secretaryof State for the Home Department, 2 All E.R. 865, 882 (H.L. 1996).

[21] INS v. Elias-Zacarias, 502 U.S. 478 (1992)

[22]M Weiner The global migration crisis: Challenge to states and to human rights (1995) 189.

[23] C Humana World human rights guide (1983) 13-23.

[24]Telephonic conversation with Ms PiaPrutz Phiri, Senior Protection Officer, Southern African Office of the UNHCR, 23 April 1996.

[25] United States: Department of justice, Board of Immigration appeals decision in re FauziyaKasinga (female genital mutilation as a basis for asylum) (13 June 1996)’; reproduced in (1997) 9 African Journal of International and Comparative Law 195-216. H Solomon ‘Who is an illegal immigrant?’ (1996) 5(6) African Security Review; Melander (n 12 above) 7.

[26] H Toolo& L Bethlehem ‘Labour migration to South Africa’ paper read at the National Labour and Economic Development Institute (NALEDI) Workshop on Labour Migration to South Africa, Johannesburg, 31 August 1994 5.

[27] Weiner (n 9 above) 188-189

[28] P Nobel ‘Protection of refugees in Europe as seen in 1987’ Report No 4, Lund, Sweden: Raoul Wallenberg Institute of Human Rights and Humanitarian Law (1987) 28.

[29] Martin ‘The refugee concept: On definitions, politics and the careful use of a scarce resource’ in H Adelman (ed) Refugee Policy (1991).

[30]Convention, supra note 10, at 150 (Preamble, 3).

[31]Harding, J.2000 The Uninvited. Migrant Journeys to the Rich World. London: Profile Books. Also, “The Uninvited,” London Review of Books, 22(3) :3. February.

[32]Favez, J. C. 1999 The Red Cross and the Holocaust. Translated by J. and B. Fletcher. Cambridge: Cambridge University Press.

[33]Saeed (2010) 241 CLR 252, 267 [42], 271 [59] (French CJ, Hayne,  Crennan and Kiefel JJ); 277 [73] (Heydon J).

[34]Ian sinclair, the vienna convention on the law of tieanes 121 (1984).

[35] International Affairs (Royal Institute of International Affairs 1944- ), Vol. 76, No. 3, Europe: Where Does It Begin and End? (Jul., 2000), pp. 537

[36]INS v. Stevic, 467 U.S. 407,416 (1984).


Written by Abhilasha Khare

Research Scholar (Law), Rani Durgawati Vishwavidyala, Jabalpur



Human rights are the rights which are provided to an individual by virtue of him being a human being. These are the rights which a human being can enjoy everywhere. The point of global concern arises when we talk about safeguarding human rights in the cyberspace. When we talk about the human rights and cyberspace, we also talk on the issue of cybercrimes. Crimes which are done on the internet or by making internet a medium are known as cyber-crimes. Many a time cyber criminals perform such crimes which violate the human rights of the individuals. The solution which the legal authorities take out to combat this issue is by limiting the content which is being posted on the internet which in turn curtails the human rights of the individuals. Thus the human rights on the cyberspace are violated in both the ways, by crimes also and by application of laws also. The international organizations have now started to take this issue seriously and laws are being made on this issue. This paper focuses on the human rights violation in the cyberspace due to commission of cybercrimes and the application of laws. The paper concludes with describing the initiatives which the UNO and other like organs have taken to cater to this matter.

Keywords:- human rights, cybercrime, cyberspace, cyber security, united nation organization, international organization, law, internet.


Human Rights in cyber space is a new field of global concern. With the advent of internet and the popularity which it has gained in the recent years, it is necessary to monitor the cyber space and protect the human rights of people in it. The internet has given birth to a new category of criminals i.e., cyber criminals. The cyber criminals are intruding into the private lives of the individuals thereby infringing the human rights of the internet users. The internet is a strong medium of expression of your ideas and thus it should be without any restrictions. To control and supervise the criminal activities on the internet, the human right of expression many at times can be violated. The internet provides you a platform to exercise the right to freedom of expression and information. The United Nations Human Rights Council (HRC) has stated that the freedoms of expression and information under Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) include the freedom to receive and communicate information, ideas and opinions through the Internet[1]. Article 19(3) of the ICCPR, provides that, “The exercise of the right provided in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subjected to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order, or of public health and morals.” The UN Human Rights Council has stated that “the same rights that people have offline must also be protected online”[2]. Thus the freedom of speech and expression, privacy etc is provided in the cyber space also.

What Are Cyber Crimes, Cyberspace And Human Rights?

Cyber Crime[3]– Cyber crime is any criminal activity in which a computer or network is the source, target or tool or place of crime. According to The Cambridge English Dictionary cyber crimes are the crimes committed with the use of computers or relating to computers, especially through the internet. Crimes which involve use of information or usage of electronic means in facilitating crime are covered under the ambit of cyber crime. Cyber space crimes may be committed against persons, property, government and society at large.

Cyber Space[4] – according to Webopedia, “A metaphor for describing the non-physical terrain created by computer systems. Online systems, for example, create a cyberspace within which people can communicate with one another (via e-mail), do research, or simply window shop. Like physical space, cyberspace contains objects (files, mail messages, graphics, etc.) and different modes of transportation and delivery. Unlike real space, though, exploring cyberspace does not require any physical movement other than pressing keys on a keyboard or moving a mouse. Some programs, particularly computer games, are designed to create a special cyberspace, one that resembles physical reality in some ways but defies it in others. In its extreme form, called virtual realityusers are presented with visual, auditory, and even tactile feedback that makes cyberspace feel real. The term was coined by author William Gibson in his sci-fi novel Neuromancer (1984)”.

Human Rights[5] – The Universal Declaration of Human Rights which is the pioneering document in this field provides the definition of human rights in its first two articles as follows:-

“Article 1- All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2- Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it is independent, trust, non-self-governing or under any other limitation of sovereignty.”

Brief history of Human Rights:

Every human being by virtue of his or her humanity is entitled to certain rights which are known as human rights. Many cultural and traditional documents talk about the existence of human rights. It was World War II which brought the issue Human Rights. The Hindu Vedas, The Code of Hammurabi, The Bible, The Quran and the Analects of Confucius are the five of the oldest written sources which provide for the duties, rights and responsibilities of the people. The Magna Carta (1215), the English Bill of Rights (1689), the French Declaration on the Rights of Man and Citizen (1789), and the US Constitution and Bill of Rights (1791) are the pioneers of Human Rights documents in the present day. After the World War II the government of many countries decided on establishing the United Nations, with the primary goal of bolstering international peace and preventing conflict and later on the United Nations Charter in 1945 was made. On December 10, 1948, the Universal Declaration of Human Rights (UDHR) was adopted by the 56 members of the United Nations. International Covenant on Civil and Political Rights (ICCPR) , International Bill of Human Rights, Convention on the Elimination of All Forms of Discrimination against Women, 1979,  Convention on the Rights of the Child, 1989, The Convention on the Elimination of All Forms of Racial Discrimination, The Convention on the Prevention and Punishment of the Crime of Genocide, The Convention on the Political Rights of Women, The Slavery Convention of 1926, The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment are some of the documents on Human Rights.

List of some human rights are as follows[6]:-

  • Right to life
  • Right not to be tortured
  • Right to freedom of expression
  • Right to political participation
  • Right to education
  • Right to privacy, etc

Cyber Crimes affecting Human Rights:

  • Cyber bullying-

Discriminatory behaviour that occurs ‘off-line’ also occurs ‘online’ One of these acts is ‘cyber bullying’.  It creates an impact on a range of human rights including: the right to the highest attainable standard of physical and mental health[7], rights to work and fair working conditions[8] the right to freedom of expression and to hold opinions without interference[9], a child or young person’s right to leisure and play[10].

  • Cyber-racism-

Cyber racism can be in the form of individuals posting racist comments or participating in group pages specifically set up for a racist purpose.[11] A famous example of this was an Aboriginal memes Facebook page which had various images of indigenous people with racist captions. Facebook reported that page as ‘controversial humour’

  • Hate speech-

Article 20 of the ICCPR states “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”[12]Such speech is given with an intention to disturb, promote violence or prejudicial actions against a group of people based on their ethnicity, race, nationality or sexual orientation. Cyberspace has also been used in this way as a medium for destruction. the human rights are open to danger when terrorists collude to instigate people to commit violence towards a common good. “Al-Qaeda” moved to cyberspace, “the ultimate ungoverned territory” where schools were set up for promotion of ideological and military training and active propaganda arms.[13] It has become a subject of importance and such situations are monitored to prepare the future generations to tackle the menace of cyber-terrorists.

When we talk about human rights we also include the public privacy. Public privacy applies to the expression on the internet and its safety on the cyberspace. When any violation of Human Rights takes place in the cyber security, the Internet Service providers engaged in the publication of the content on that particular website can be held liable. The service providers which act as a mere distributor of the content shall not be held liable for any such violation of Human Rights. Moreover the service providers shall act as moral guardians so that the content which is being posted shall be monitored. But on the other side of the coin if such monitoring rights will be provided to them then they may compromise with the right to expression of the internet users. The governance in the cyber space is a difficult task as cyber space has no boundaries. Cyberspace harbours more individuals than any other country in the world, yet it is without any government, legislative bodies, law enforcement or any other sort of constitution. It is difficult to protect the rights of the individuals without the effective mechanisms in the cyberspace. The United Nations Organization, the Organization of American States, the African Union, the European Union aim to set international standards for the use of cyberspace and the Internet to be enforced by national governments, but have failed to do so. This leads to problems where cyber criminals find it easier to cross borders through the web, because it is unclear where jurisdiction lies.  If a governing regime was ever established it would most likely consist of multiple stakeholders and actors including national, and international as well as private actors, such as representatives of companies, social networks, NGO’s and individuals[14]

Human Rights Protection in Cyberspace:

Human Rights Protection in Cyberspace is urgently needed at National and International level. It is on the United Nations to have a rapid approach towards it rather than the slow one in this regard.  The United Nations provides for safeguarding the Human Rights of the people and thus, it must start thinking towards its new form in this Internet Era. The human rights in the cyberspace must be given equal importance as to that of the traditional human rights. Human Rights like Right to Speech and Expression, Right to Information, Right to Know, Privacy Rights, etc are similar in Cyberspace. In fact, violation of Human Rights in Cyberspace is much easier and more frequent as compared to the traditional ones.

Information and Communication Technology (ICT) has changed the way we looked at traditional Human Rights and Civil Liberties. Earlier the Human Rights were only limited to physical and mental aspects. In the present scenario, with the introduction of Information and Communication Technology, Human Rights and Civil Liberties have taken a totally different meaning. But to our misfortune, the legislations around the world are lagging behind in protecting the Human Rights in Cyberspace.

On October 5th, 2016 the United Nations Institute for Disarmament Research (UNIDIR) held a side event on cyberspace and international peace and security. Three expert presenters viz., Mr. Karsten Geier, Camino Kavanagh, and Daniel Stauffacher discussed the important details of cyber security in the modern world and how Information and Communications Technologies (ICT) are increasingly influential on economic, scientific, social, and political developments. Privacy is a human right provided by the universal declaration of human rights which is to be secured in the cyberspace also and thus digital privacy is the need of the hour. In the event the focus was made on the human rights and cyber terrorism. [15] International cyber security concerns have pointed out the human rights concerns also which are needed to be safeguarded in the cyberspace. potential of misuse of cyberspace and the ease with which terrorist groups have been able to propagate, radicalize and recruit supporters, raise funds, and incite hatred and violence, remarks that some states have engaged in mass surveillance and censorship. Controlling the cyber sphere can undoubtedly infringe on internet users’ freedom of speech and expression. . For its part, it was held that the United Nations System is working to solve these three issues by shaping and implementing norms, confidence, and capacity building measures. An overview of the different international organizations that are working on cyber security issues, including the Global Forum on Cyber Expertise (CFCE), the Global Cyber Security Capacity Centre (GCSCC), the Organization of American States, and the African Union Commission was provided in the event. Confidence building, international assistance, and capacity building were stressed as the main issues to be discussed and decided.

The Future Trends:

The future of human rights in cyberspace depends on the evolution of the law and its interpretation. Official discussions have taken place as to the future of cyberspace on April 2008 in the Virtual Law Conference which was held in New York and which had the participants such as Microsoft, Sony and the Walt Disney Company. It witnessed the discussions on Intellectual property enforcement, legal issues in virtual currency, legal issues in virtual property, ethical concerns for attorneys and executives in virtual worlds and how to litigate a virtual lawsuit. The US Congressional Hearing on Virtual Worlds also took place and its purpose was to educate and sort out the prospects of virtual worlds. The agenda included analysing concerns related to consumer protection, intellectual property protection and child protection, amongst other things. The hearing was one of the first legislative inquiries into virtual worlds. Now it is to be seen that these gatherings have any lasting results or not.


As the world became too small, some started dreaming and writing about virtual and infinite worlds that they could navigate without being affected any longer by daily problems. Suddenly they felt that the result of putting together internet service providers (ISPs), connecting computers to the internet and browsing websites maintained by web hosting services, lead to the emergence of a new domain, global and common for everyone which transcended boundaries, but the cyberspace with its benefits has a darker side also and marks the presence of cyber-crimes which ultimately lead to the violation of human rights. The cyberspace is the space for the free expression of the ideas of the individual which should take place without any interference of governmental or private individual. Cooperation amongst authorities in every field is needed so that the human rights of the individuals are not violated.

An internationally acceptable law should be there to safeguard the human rights of the individuals in the cyberspace. If there is no “Internationally Acceptable Standard” for Protection of Human Rights in Cyberspace, Countries would enact and apply rigid laws so as to keep an eye on the criminal activities thereby infringing the right to expression of the human beings. In the recent years we can see that in the UN Human Rights Council’s 17th Session,  the UNO  considered Internet access a Human Right and disconnecting or limiting the people from expressing their views on the internet , a violation of Human Rights.

Thus to protect human rights of the individuals in the cyberspace,  international organizations must prepare effective and efficient laws which can stop the cybercrimes that affect the human dignity and honour i.e., human rights and while monitoring the happening of such cyber-crimes, the human rights of expression and such other rights should also be provided. It’s a two-pronged process for the law making authorities, first to stop such activities which violate human rights and second to ensure that checking such crimes does not lead to the violation of human rights. Therefore a unique flavor should be provided to the Internet which allows individuals to exercise a range of Human Rights, and to promote the progress of the society as a whole.



[1]  “Human Rights Committee”. General Comment no.34, note 4, para 12.

[2]   “The promotion, protection and enjoyment of human rights on the Internet”. Human Rights Council Resolution. Retrieved April 29, 2017





[7] “UDHR, art 25”. ICESCR, art 12 (1); CRC art 24.

[8] “UDHR, art 23”. ICESCR, arts 6 and 7.

[9] “UDHR, art 19”. ICESCR, art 19.

[10] “CRC, art 31”.

[11]  “Background Paper: Human Rights in Cyberspace” , Australian Human Right Commission. Retrieved April 29, 2017

[12]  “International Covenant on Civil and Political Rights”. Office of the United Nations High Commissioner for Human Rights. Retrieved 29 april 2017.


[14] Mihr, Anja (2013). “Public Privacy Human Rights in Cyberspace”.



Written by Atul Alexander

Junior Research Fellow, The Tamil Nadu Dr. Ambedkar Law University


Volume. 8 on the General history of Africa since 1935[1] edited by Ali A.Muzrui[2] is one of its kind dealing with African history post Mussolini’s invasion of Ethiopia,[3] the author hailing from Mombasa, Kenya with European education has played a massive role in the field of non-doctrinal research. The volume published courtesy the International scientific committee of United Nations Educational Scientific and Cultural Organization (hereinafter referred to as ‘UNESCO’)[4]  took four decades to be completed. The preface by director-General of UNESCO Amadou-Mahtar M’Bow[5] is a startling revelation on the underlying myth and prejudice surrounding African history. The earlier works on African societies done by the likes of Leo Forbenius,[6] Maurice Delafosse[7] lacked scientific study of the society at large. The volume underscores the rich and diverse African oral tradition trumping the European yardstick of mode of production, social relation and political institution. The Sahara was often presented as an impenetrable space preventing any intermingling of ethnic groups and peoples or any exchange of goods, beliefs, customs and ideas between the societies that had grown up on either side of the desert. Another roadblock that laid in the study of African history is the deep-rooted phenomenon of slave trade, colonization, racial stereotype, economic and psychological enslavement, which highlighted the marred history in the real sense. The first stage, from 1965 to 1969, was devoted to gathering documentation and planning the work. The collection of unpublished manuscripts in Arabic and Ajami. The second stage, which lasted from 1969 to 1971, was devoted to shaping the History and linking its different parts. The third stage has involved actual drafting and publication. This began with the appointment of the 39-member International Scientific Committee, two-thirds African and one-third non-African, which assumes intellectual responsibility for the History.


The method of study adopted by the author is inter-disciplinary understanding, the first among the study include archeology, history and cultural identity.[8] The volume according to the Editor Ali Muzrui[9] is split into cultural, economic and political domain. The economic side is more concerned with the nation-building process in search of new international economic order. The volume is titled Africa since 1935 because 1935 triggered was the exact point of time where Mussolini invaded Ethiopia. The politics of liberation is inextricably connected with the politics of Africa. Even Ngugi wa Thiong’o’s populist play Ngahiika Ndenda[10] (‘I will marry when I want to’) was arguably a play of liberation rather than development –In literature the preoccupation with Shakespeare was evident. Neyere’s translation of merchant of Venice is a case in point. The assassination and the following coup were quite palpable in the African context. Fifty percent regicide rate six out three head of the states were assassinated. President (King) Mutesa[11] in 1966.Binaisa’s[12] succession to Lule[13] in 1979 is another Ugandan coup with a civilian succeeding a civilian. In 1985 Sudan repeated this style of democratic uprising – bringing down Nimeiri’s regime[14] and compelling the military to promise a restoration of democracy within a year. The promise was kept, though civilian rule did not last. In Nigeria Jerry Rawlings[15] brief transfer of power to civilians in Ghana was quite a drastic leap in terms of democracy. In Ghana the charismatic charm of the young leader was evident in the streets of Accra .The real question that glowed in the midst of the tumultuous conscience of the people was the identity syndrome amongst the people as to who were Africans? It was the poet-diplomat of Sierra Leone, Davidson Abioseh Nicol,[16] who once wrote: You are not a country, Africa, You are a concept, Fashioned in our minds, each to each to hide our separate fears, to dream our separate dreams. More than fifty territorial entities with artificial boundaries created by Europe have in the period covered in this volume called themselves ‘nations’. Africa is a concept, pregnant with the dreams of millions of people. The two important contributions of the Europeans in the context of African history could be summarized as in naming the continents and lakes across the borders of Africa thus scientific and intellectual fostering and secondly shaping the process of racism in Africa. Particularly relevant for both the re-humanization of Europe and the re-Africanization of Africa were two global cataclysms. The volume picturises the impact of the Great Depression[17] on the front of liberation process, Was the depression a catastrophe for Western capitalism but a future blessing for the colonies? If so, what was the precise nature of that equation? In what ways was Europe subsequently made more humane? Under what circumstances did Africa become more pan-African? S o m e of these issues will be made clearer in the relevant chapters.  The volume covers the much debated Suez Crisis,[18] was it a global crisis or African conflict globalised. Moreover the volume also hinges on the Biafra war[19] which according to the author is world war in microcosm.


[1] ALI A. MAZRUI was born in Mombasa, Kenya, on February 24, 1933. He is now Albert Schweitzer Professor in the Humanities and Director of the Institute of Global Cultural Studies at Binghamton University, State University of New York. He is also Albert Luthuli Professor-at-Large at the University of Jos in Nigeria. He is Andrew D. White Professor-at-Large Emeritus and Senior Scholar in Africana Studies at Cornell University. Dr. Mazrui has also been appointed Chancellor of the Jomo Kenyatta University of Agriculture and Technology in Kenya – an appointment made by Kenya’s Head of State. Mazrui was Ibn Khaldun Professor-at-Large, Graduate School of Islamic and Social Sciences, Leesburg, Virginia (1997-2000).

[2] Italo-Ethiopian War, (1935–36), an armed conflict that resulted in Ethiopia’s subjection to Italian rule. Often seen as one of the episodes that prepared the way for World War II, the war demonstrated the ineffectiveness of the League of Nations when League decisions were not supported by the great powers.



[5] Amadou-Mahtar M’Bow, a man who was to become the sixth director general of the United Nations Education, Scientific and Cultural Organization (UNESCO), had humble beginnings. Born in Dakar, Senegal, in 1921, M’Bow grew up in a small town where he learned traditional farming and animal tending skills. M’Bow was the first Black African to head a United Nations support organization. He won unanimous reelection to a second term of seven years in September of 1980.

[6] Leo Viktor Frobenius was a German ethnologist his main idea was that cultures grow and decline, much as all organic life does, noting three phases in the life of a culture. He also recognized that African culture was as significant in human history as that of other continents, a view not commonly held in his time.

[7] Delafosse is known for his contributions to West African history and African languages. He began his study of Arabic in 1890 at the École des langues orientales with the renowned orientalist, Octave Houdas.

[8] Vol.8 General History of Africa since 1935, Pg 1, Para 1, as opined by Ali Muzrui.

[9] Supra, footnote no. 1.

[10] The Nigerian Civil War, also known as the Nigerian-Biafran War, was a three-year, bloody conflict with a death toll numbering more than one million people.  Having commenced seven years after Nigeria gained independence from Britain, the war began with the secession of the southeastern region of the nation on May 30, 1967, when it declared itself the independent Republic of Biafra.  The ensuing battles and well-publicized human suffering prompted international outrage and intervention.


[12] Ibid footnote no.11.

[13] Ibid footnote no.11.


[15] Jerry J. Rawlings was born on June 22, 1947, in Accra, Ghana. In 1979, he led coups to overthrow the military government. He became chairman of the Armed Forces Revolutionary Council that year, and executed heads of state to eradicate corruption. After 112 days of rule, Rawlings handed power to Limann. Rawlings became Ghanaian president in 1982, and was twice re-elected. He has since been an envoy to Somalia.




[19] Supra, footnote no.10.


Written by Dr. Deepti Kohli,

Associate Professor, Vivekananda Institute of Professional Studies, GGSIP University


The Special Power Act was the brain child of British India. It was enacted to discourage many of the rebellious activities of freedom fighters at the time of independence. Many of the Indian Leaders were imprisoned under the Act including Mahatama Gandhi, Pandit Jawahar Lal Nehru and leaders of National Congress for destructing police offices, railways and telegraph lines.  Even after independence, the continuity of insurgent strikes by rebellions led to the formation of Armed Forces Special Act in 1958 for Naga Hills, in 1983 for Punjab and Chandigarh and in 1990 for Jammu and Kashmir. The Act has been criticised for its arbitrary and draconian provisions. Pleas have been made to repeal this Act. In this paper an attempt is made to see whether the Act is arbitrary as alleged and whether it should be continued despite various oppositions.


Key words insurgency, special powers, disturbed area, misuse


The Quit India movement spread a wave of ending British rule in India. The wave was so strong that it immediately affected the British Government. There were hartals and demonstrations all over the country. People attacked public property such as railway stations, courts and police stations. Railway lines were damaged and telegraph lines were cut. The movement was most widespread in Uttar Pradesh, Bihar, Bengal, Bombay, Odisha and Andhra Pradesh. In order to counter this movement the then Viceroy Lord Linlithgow declared emergency all over British India and promulgated the Armed Forces (Special Powers) Ordinance, 1942[1], on 15 August 1942. The Act extended to the whole of Bangladesh.[2] The ordinance conferred special powers to the armed forces to arrest and use force (even kill) civilians on mere suspicion.[3] Armed forces were also provided with virtual immunity from legal actions. [4]


In 1947, the central government invoked four ordinances namely; the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance, the Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance, the East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance, and the United Provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance in order to deal with the internal security matters in the country.


In 1948, the Armed Forces Special Powers Act of 1948 was promulgated, which replaced all the four abovementioned ordinances. It was modelled on the Armed Forces Special Powers Ordinance of 1942. The Armed Forces (Special Powers) Act of 1948 was repealed in 1957.[5]


  1. Armed Forces Special Powers Act after Independence


Independence brought more incidents of internal disturbance in some state. It was found that violence became the way of life for some states of India. State administration became incapable to maintain its internal disturbance. Therefore Armed Forces (Special Power) Acts were promulgated by the President in order to declare an area as a ‘disturbed area’ and to exercise ‘special powers’ by the officers to control aggression of the rebellions and to maintain peace.


1.i. Armed Forces (Special Powers) Act, 1958


The first Act after independence was the Armed Forces (Special Powers) Act of 1958. In the Naga Hills of Assam and Manipur, the Naga inhabitants opposed their merger with India for the reason of their racial and socio-political difference. They even voted in favour of a referendum declaring independence in 1951. They boycotted the first general election of 1952, thereby demonstrating their non-acceptance of the Indian Constitution and started committing violent acts against the Indian state. In order to deal with the situation, the Assam government forced the Assam Maintenance of Public Order (Autonomous District) Act in the Naga Hills in 1953 and strengthen police action against the rebels. At the same time, Assam deployed the Assam Rifles in the Naga Hills and enacted the Assam Disturbed Areas Act, 1955, to provide a legal framework for the paramilitary forces as well as the armed state police to combat insurgency in the region.[6] The Act of 1955 could not stop the violence in the Naga Hills.


As a result the President of India promulgated the Armed Forces (Assam and Manipur) Special Powers Ordinance on May 22, 1958 which confers ‘special powers’ on the armed forces to function in the ‘disturbed areas’ of Assam and the Union Territory of Manipur. While introducing the Armed Forces Special Powers Bill, the then home minister, G. B. Pant, argued that the bill would enable the armed forces to function effectively in a situation marked by arson, looting and dacoity.[7] The bill received the President’s assent on September 11, 1958 and was printed in the Statute Book as The Armed Forces (Special Powers) Act, 1958.[8]


The Act empowered the Governor of the State/Union Territory to use the armed forces to aid the civilian power if he was of the opinion that the situation was disturbed enough to demand such an action.[9] The Act conferred ‘Special Powers’[10] upon any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces, the power to shoot, kill and arrest without warrant, any person he suspects; as well as enter and search without warrant or destroy any premises he believes are sheltering the rebels. This was not unfettered. It was qualified by two clauses. First, the power to open fire is given in a disturbed area where the assembly of five or more persons or the carrying of weapons is forbidden.[11] Second, if a person is seen as violating such a law.[12]



1.i.a. Comparison between the Ordinance of 1942 and Act of 1958


Under the the Armed Forces (Special Powers) Ordinance of 1942, the British Indian government placed the burden of taking crucial decisions relating to the use of force on a well trained and ‘responsible’ officer, who was not below the rank of a Captain of military, naval and air forces[13] so that the special powers were not misused. The Armed Forces Special Powers Act of 1958 however, lowered the rank of the ‘competent’ officer to that of a commissioned or non- commissioned officer like havaldar.[14] In Inderjit Barua v .State of Assam, Court held that conferment of power on non-commissioned officers like a Havaldar cannot be said to be bad and unjustified.[15]


The years 1964 to 1966 saw the liberation movement by the United National Liberation Front (UNLF) and Mizo National Front (MNF). As a result, the Assam state government declared the entire Mizo district a disturbed area and the Armed Forces (Assam and Manipur) Special Powers Act was imposed upon it in 1966. Similarly the tribal movement against Bengali migrants from Bangladesh led to the imposition of the Armed Forces (Assam and Manipur) Special Powers Act in Tripura in November 1970. The Act was amended as the Armed Forces Special Powers (Extension to Union Territory of Tripura) Act in 1970 to enable its enforcement in Tripura which was declared as ‘disturbed area’.[16] The North-Eastern Area (Reorganisation) Act of 1971[17]  provided for the creation of states of Manipur, Tripura and Meghalaya and the union territories of Mizoram and Arunachal Pradesh. In 1972, the Armed Forces (Special Powers) Act of 1958 was amended as the Armed Forces Special Powers (Amendment) Act, 1972. The amendment included Meghalaya, Nagaland and Tripura and Union Territories of Arunachal Pradesh and Mizoram. The amendment conferred the power of declaring an area to be a disturbed area concurrently upon the centre and the state under article 355 of the Constitution[18]. In 1990, following large scale violence perpetrated by the United Liberation Force of Assam (ULFA) in Assam, the entire state was declared as a disturbed area.


1.ii. The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983


It was a short lived Act in the state of Punjab. Its imposition was surrounded by the issues over religion, demands for larger share of water for irrigation and the return of Chandigarh to Punjab. The struggle for hegemony amongst various Sikh factions led the state forcing the Punjab and Chandigarh governments to declare the state and union territory as a ‘disturbed area’ in 1983. Under the Act special provisions were made whereby any vehicle can be stopped, searched and seized forcibly if it is suspected of carrying proclaimed offenders or ammunition.[19] Secondly, the special power was conferred on a soldier who had the power to break open any locks “if the key thereof were withheld”.[20] It was finally withdrawn from the state after 14 years in 1997, when the peace and security was maintained in the state.


1.iii. The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990


In 1990, the central government enacted the Armed Forces (Jammu and Kashmir) Special Powers Act. The armed forces would be used to aid the civil administration in the disturbed area to prevent terrorist acts directed towards striking terror in the people as well as any activity that endangered the territorial integrity of the country or sought the secession of a part of the territory of India or insulted national symbols such as the Constitution, the national anthem or flag.[21] The Act was enforced in six districts i.e., Anantnag, Baramulla, Badgam, Kupwara, Pulwama and Srinagar as well as in areas within 20 kms of the line of control in Poonch and Rajouri districts.[22] In 2001, six more districts namely, Jammu, Kathu, Udhampur, Poonch, Rajouri and Doda were brought under the purview of the Act.


  1. Provisions of the Armed Forces (Special Powers) Act

We have seen the imposition of Armed Forces (Special Power) Act in Assam and Nagaland, Punjab and Chandigarh, and Jammu and Kashmir. Now we will see the provisions of these Acts which have been criticised as been draconian or against human rights.


2.i. Disturbed Areas

  1. Disturbed Areas – Disturbed Areas has been defined under all the Acts as an area which is for the time being declared by notification to be a disturbed area.
  2. Power to declare disturbed area- rests with the Governor of the State or the administrator of that Union Territory or the Central Government.
  3. Exercise of power- if in the opinion of the Governor of the State or the administrator of that Union Territory or the Central Government, any part of such State of Union territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, then the area will be declared as ‘disturbed area’.


2.ii. Special powers

  1. Power to fire- In a “disturbed area”, any Officer not below the rank of Sub-Inspector or Head Constable in case of the Armed Branch of the Police may, if he is of opinion that it is necessary so to do for the maintenance of public order and after giving due warning, as he may consider necessary may fire upon, or otherwise use force, or may cause death, of  any person who is indulged in any act which may result in serious breach of public order or is acting in contravention of any law or order for the time being in force, or prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire arms, ammunition or explosive substances.
  2. Powers to destroy- arms dump, fortified positions of shelter from which aimed attacks are made or are likely to be made or are attempted to be made or any structure used as a training camp for armed volunteers or utilised as a hideout by armed gangs or absconders wanted for any offence.
  3. Power to arrest- without a warrant anyone who has committed cognizable offences or is reasonably suspected of having done so and may use force if needed for the arrest.
  1. Power to enter and search- any premise in order to make such arrests, or to recover any person wrongfully restrained or any arms, ammunition or explosive substances and seize it.
  2. Stop and search any vehicle or vessel reasonably suspected to be carrying such person or weapons.
  3. Power to put in custody- any person arrested and taken into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.


2.iii. Protection of armed forces against prosecution

  1. The Act provides legal immunity to military personnel for their actions. Their prosecution cannot be initiated without the prior permission of the central government. As the provision states – ‘No suit, prosecution, or other legal proceedings shall be instituted except with the previous sanction of the State Government against any person in respect of anything done or purporting to be done in exercise of the powers conferred by Sections 4-and5 of the Act’.


  1. The validity of provisions under the Armed Forces (Special Powers) Act and the controversy

The Armed Forces (Special Powers) Act has often been called as an Act of ‘Right to Kill’. It has been alleged of giving draconian powers to military personnel. That the Act is a tool in the hands of security forces to perpetrate human rights violations; that the central government has retained the Act for decades without any valid justification; and that all cases against military personnel for grave offences reported by state governments to the Ministry of Defence, have failed to initiate prosecution. Further, there exists a lack of clarity amongst the general public at large regarding the authority of the state government to revoke The Armed Forces (Special Powers) Act from the state or a part thereof.[23]


The validity of The Armed Forces (Special Powers) Act was challenged before the Supreme Court in the case of the Naga Peoples Movement of Human Rights v. Union of India.[24] The five judge bench concluded that the Act cannot be regarded as a colourable legislation or a fraud on the Constitution and the powers conferred under Sections 4 and 5 of the Act are not arbitrary and unreasonable and therefore not in violation of the provisions of the Constitution.


Section 6 of The Armed Forces (Special Powers) Act is also criticized under the wake of section 45 and section 197(2) of CrPC. A perusal of Section 45 shows that it provides limited protection against arrest, whereas the one under Section 6 of The Armed Forces (Special Powers) Act it is much wider. Section 197(2) of CrPC only restricts the taking of cognizance by a court. On the other hand, protection under Section 6 of The Armed Forces (Special Powers) Act is wider and extends over institution of any prosecution, suit or other legal proceedings. Thus, the criticism appears to be misplaced. Further, if the umbrella of section 6 was to be withdrawn, then adequate protection to the armed forces, which is called out to bring normalcy in a state witnessing dangerous situation, would stand diluted and making them vulnerable to legal and criminal harassment.


  1. Human Rights and existence of The Armed Forces (Special Powers) Act


There has been instance of misuse of the provisions under the Act. Many human right activists and organisations too have been demanding its removal from north-east as well as Kashmir. Be it the ending Irom Sharmila’s hunger strike in Manipur or the protesters out on candle marches against the Act in capital or anywhere else, Armed Forces (Special Powers) Act has been under severe criticism from all quarters of the society for being a draconian law widely misused  by the armed forces.[25]


In a landmark decision, Extra Judl.Exec.Victim Families v. Union Of India & Anr,[26] the Supreme Court said that all the encounters carried out by armed forces including police under AFSPA too should be subjected to inquiry.


Paragraph. 163. The law is therefore very clear that if an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the Cr.P.C. To contend that this would have a deleterious and demoralizing impact on the security forces is certainly one way of looking at it, but from the point of view of a citizen, living under the shadow of a gun that can be wielded with impunity, outright acceptance of the proposition advanced is equally unsettling and demoralizing, particularly in a constitutional democracy like ours.


The decision came after hundreds of Manipur families filled a plea that over the years more 1500 cases of fake encounters have taken place. Many human right activists and organisations too have been demanding its removal from north-east as well as Kashmir.


  1. Conclusion

The Armed Forces (Special Powers) Act is applied to an area only when the ordinary laws of the land are found to be inadequate to deal with the extraordinary situation carried out by insurgents with the intention of spreading terror. It becomes a necessity in the terror-stricken area, when the police force is found inadequate and powerless of dealing with the terrorists and, the induction of the army becomes essential to combat the terrorists and maintain the territorial integrity of the country. The army has been accused of causing custodial deaths and torture. However, it must be understood that extracting information from arrested terrorists often requires the use of third-degree methods. There have also been incidents of misuse of ‘special powers’ by the army, and for that the courts have always stood up to guard the rights of the innocent victims. But at the same time it must not be forgotten that terrorism would never have been rooted out in Punjab or Mizoram without the AFSPA and without the tough measures that were taken by the security forces operating under the protection of the Act. If Manipur is still a part of India, it is because the army has been successful in preventing the terrorists there from taking over the state and proclaiming it to be a sovereign country. Therefore despite the arguments against the AFSPA, the basic objective of the Act should be given predominance for its continuity.





[1]  Ordinance No. XLI Of 1942

[2]  Armed Forces (Special Powers) Ordinance, 1942, 1(2).

[3]  Id., 2(1)

[4] Id., 4. See also Nursyahbani Katjasungkana and Saskia E. Wieringa, ed.  The future of Asian Feminisms: Confronting Fundamentalism, Conflicts and Neo Liberalism, 276 (Cambridge Scholars Publishing, 2012)

[5] Pushpita Das, The History Of Armed Forces Special Powers Act, in  Vivek Chadha ed.,  Armed Forces Special Power Act The Debate, 11-12 (S Kumar for Lancers Books 2013)

[6] Dinesh Kotwal, The Naga Insurgency: the Past and the Future, 751, Vol 24 (4) (Strategic Analysis, July 2000)

[7] Home Minister G B pant, The AFSPA: Lawless law Enforcement According to the Law?, 3 (Asian Centre for Human Rights, 2005, New Delhi)

[8] Act 28 of 1958

[9] Id. Sec. 3

[10] Id. Sec. 4

[11] Id. Sec. 4(a)

[12] Ibid

[13] Armed Forces (Special Powers) Ordinance of 1942, 2(1)

[14] Id., Sec. 4

[15] AIR 1983 Del 514

[16] Supra note 5 p-17

[17] The North-Eastern Areas (Reorganisation) Act, 1971, Act No. 81 of 1971, 30th December, 1971,

[18] Art. 355 of the Constitution stipulates that the central government: “protect every state against internal disturbance, it is considered desirable that the Central government should also have power to declare areas as ‘disturbed’, to enable its armed forces to exercise the special powers.

[19] The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983 (34 of 1983), 8 December 1983, Section 4 (e).

[20] Id., Section 5

[21] The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, Section 3 (a) & (b),

[22] The Jammu and Kashmir Government Gazette, Vol 103, Srinagar, July 6, 1990, Civil Secretariat Home Department, Government of Jammu and Kashmir.

[23] Nilendra Kumar, To A Humane Face To AFSPA, 58 in Vivek Chadha ed.,  Armed Forces Special Power Act The Debate, (S Kumar for Lancers Books 2013)

[24] AIR 1998 SC 431

[25] AFSPA – Necessity Or A Misused Power? Everything You Need To Know About The Controversial Act, visited on 28th April 2017

[26] Writ Petition (Criminal) No.129 of 2012, decided on 13th July 2016


Written by Kritanjali Sarda

3rd Year B.A.LL.B Student, School of Law, Christ University



According to the World Health Organization (WHO), child maltreatment includes– physical abuse, sexual abuse, neglect and negligent treatment, emotional abuse; and exploitation.

WHO defines Child sexual abuse as “Child sexual abuse is the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give informed consent to, or for which the child is not developmentally prepared and cannot give consent, or that violates the laws or social taboos of society. Child sexual abuse is evidenced by this activity between a child and an adult or another child who by age or development is in a relationship of responsibility, trust or power, the activity being intended to gratify or satisfy the needs of the other person. This may include but is not limited to:

-The inducement or coercion of a child to engage in any unlawful sexual activity;

– The exploitative use of a child in prostitution or other unlawful sexual practices;

– The exploitative use of children in pornographic performance and materials”.[1]

India is home to 430 million children, roughly one in five of all children (individuals

Below the age of 18years) in the world.

The WHO estimates that 150 million girls and 73 million boys under 18 have experienced forced sexual intercourse or other forms of sexual violence involving physical contact.


Immediate physical and behavioral signs which depict that the child is being sexually abused

  • Bed wetting
  • Continuous loose motions
  • Anxiety, depression or withdrawal
  • Hysterical reactions (begin playing telling games with its toys)
  • Avoiding certain adults
  • Nightmares and inability to eat certain foods that resemble the male organ or semen
  • Recurrent abdominal pain
  • Sexual exploration and the child becoming focussed on its own genitals
  • Masturbation
  • Irritation in the throat, anal or genital area

When a child is sexually abused, there is violation of its physical, mental and emotional well being. The child almost immediately goes into the “survivors’ cycle[2], that is:

  • 1st the sexual abuses causes confusion. What is he or she doing to me? Is it normal and okay? How do I stop it? I cannot save myself.
  • This lead to self-estrangement. The child feels that he or she is always wrong and that no cares about it. Feelings of self denial creep in.
  • This leads to the wrong set of survival skills. The child feels that he or she has to hide inside themselves so that people do not see who he or she really is.
  • Now the child feels trapped. The child feels that it is responsible for what has happened to it because the child did not stop it or tell it to anyone. The child blames itself for the abuse.
  • All of this leads to a negative sense of self. The child feels that ‘If people really get to know me then they would dislike me and be disgusted by me. I deserve what has happened to me. I am a bad person, everyone else is better than me.’

This cycle continues and eventually leads to the long term effects of child sexual abuse. These effects can be seen in children who are sexually abused and adults who are survivors of child sexual abuse. The long term effects of child sexual abuse are:

  • Posttraumatic stress disorder (PTSD) – It is a mental and psychological disorder that occurs due to traumatic experiences undergone by an individual such as sexual abuse. It is characterised by frequent re-experience of the traumatic event through nightmares, persistent symptoms of sleep disorder, poor concentration, anxiety, fear or avoidance of current events.
  • Cognitive distortions- Child sexual abuse often leads to the child over estimating the amount of danger or adversity in the world and under estimating their self efficiency and self worth.[3] This leads to overreaction of real, potential or imagined threats. The child may make assumptions of his or her inherent weakness and at the same time attributes the cause of good events to external factors.
  • Depression and anxiety- Sexual abuse survivors may also suffer from phobias, panic attacks and obsessive compulsive disorders.
  • Sexual dysfunction- Child sexual abuse leads to confusion about sexual identity, aversion to sexual contact, confusion of sex with love, promiscuity and difficulty in arousal and orgasm.
  • Physical problems- headaches, stomach ache, asthma, chronic pelvic pain and bladder infection.
  • Anger- Child sexual abuse often leads to uncontrollable anger, irritability and difficulties associated with expression of anger. Such feelings can become internalized as self hatred and depression, or be externalized and result in the perpetration of abuse against others. This often leads to social isolation and unpopularity.
  • Dissociative phenomena- “(1) the experience of self or the environment as suddenly strange or unreal; (2) daydreaming or zoning out; (3) alterations in bodily perception;(4) emotional numbing; (5) out-of-body experiences; (6) amnesia for painful abuse-related memories; and (7) multiple personality disorder.” [4]Such symptoms are apt to be prevalent among child and adult survivors because they reduce or circumvent the emotional pain associated with abuse-related experiences or recollections, permitting superficially higher levels of psychological functioning.
  • Substance abuse and addiction- It seems likely that drug or alcohol abuse often helps the victim in blurring the vision of the abuse and helps in reducing pain.
  • Suicide- Suicide seems the way out for most child sexual abuse victims to escape from the severe psychological stress, anxiety and fear.
  • Indiscriminate sexual behaviour- It is often observed by clinicians that sexually abused children are prone to episodes of frequent short term sexual activity, often with different sexual partners. Thus survivors of sexual abuse are at a greater risk of unintended pregnancies and contracting sexually transmitted diseases. Such behaviour may lead to stigmatisation by the society and punishments under law when it leads to victimisation of other children.
  • Self mutilation- It usually involves cutting of body, burning skin with cigarettes and hitting of the head or body with or against objects.
  • Interpersonal difficulties- Child sexual abuse often leads to trust issues of the child and anger or fear of people in power. It has been observed that sexually abused children often isolate themselves from the society and are more aggressive. They have fewer friends due to the trust issues and also have less satisfaction in their relationships.
  • Other long term effects include eating and sleeping disorders, vulnerability to subsequent victimisation and becoming a sexual abuser too.

Prevention is better than cure and this prevention of child sexual abuse is the responsibility of each and every parent, school and the society as a whole. A few measures which the parents should take to prevent child sexual abuse[5] are:

  • Teach your child to speak up and ask adults several questions if it is not comfortable with what is being done to it or around it.
  • Establish a comfortable and friendly atmosphere at home so that the child does not hesitate to confront the parents if he or she is scared or uncomfortable with anything. This is very essential as the child’s silence is what the abuser has been trading on.
  • Explain child sexual abuse to your child in simple terms and ensure that the child has an understanding of its own body.
  • Teach the child the difference between a good touch and a bad touch.
  • Let the child know that it is not the child’s fault if someone does a ‘bad touch’ and that they should be free to confront the parents about the same.
  • Do not force your children to hug or kiss others as this becomes a critical pattern for abuse later.
  • Be familiar with your child’s friends and daily routine.
  • Ensure that the child informs the parents each time it has go out as to where it is going, with whom and for how long.
  • Be alert to the behavioural changes in the child.
  • Observe an adult is who is paying an unusual amount of attention to your child.
  • Ask the child to not go near strangers even if they offer them gifts or chocolates.
  • Observe your child if it is suddenly being over affectionate to an adult.
  • Give your child emergency phone numbers where he or she can call if they sense danger.
  • Request and ensure that your child’s school runs non graded sex education courses which include child sexual abuse for children in junior classes and information about AIDS and nurturing respectful relationships in senior classes. Also ensure that your child’s school has child counsellors.

There have been cases of children sexually abusing other children. For example-

  • In Chandigarh, a 14 year old boy bit his cousin sister’s nipples so hard in a ‘mummy-daddy-get-married’ game, that she needed extensive medical attention
  • On 12 February, 2000, 3 pre-teen boys raped a 7 year old girl in Calcutta. They lured the girl to a secluded place through her 9 year old male neighbour, tempted her with chocolate and then gang raped her.

Dr. Shekhar Sheshadri, the 1st doctor in the country to specifically study child sexual abuse and a psychiatrist for both children who have been sexually abused and adults who have been sexually abused in their childhood, working at National Institute Of Mental Health and Neuro Science says that the increasing cases of child sexual abuse among children tend to be for 3 reasons-substance abuse which reduces restraint, if they children have themselves been sexually abused by their elders or when they model themselves on adults.[6]

This is a doctrinal research, the main purpose of which is to bring to light the statistics, laws and legislations prevalent in India and international agreements with regard to Child Sexual Abuse, particularly the Protection Of Children from Sexual Offences Act,2012.



One in three rape victims is a child. More than 7,200 children, including infants are raped every year. In 2007, the Ministry of Women and Child Development of the government of India published its 1st ever survey on the issue of child sexual abuse in India titled “Study on Child Abuse: India 2007”.

For the purpose of this study, sexual abuse is defined as severe forms of sexual abuse and other forms of sexual abuse.

Severe forms of sexual abuse include:

  1. a) Assault, including rape and sodomy
  2. b) Touching or Fondling a child
  3. c) Exhibitionism- Forcing a child to exhibit his/her private body parts
  4. d) Photographing a child in nude

Other forms of sexual abuse include:

  1. a) Forcible kissing
  2. b) Sexual advances towards a child during travel
  3. c) Sexual advances towards a child during marriage situations
  4. d) Exhibitionism- exhibiting before a child
  5. e) Exposing a child to pornographic materials


The questionnaire was administered to 12,447 children belonging to the five different categories of children in family environment, children in schools, children in institutions, children at work and street children in 13 different states. The major findings of this survey were:

  • Out of the total child respondents, 53.22% reported having faced one or more forms of sexual abuse. Among them 52.94% were boys and 47.06% girls.
  • The age wise distribution of children reporting sexual abuse in one or more forms showed that though the abuse started at the age of 5 years, it gained momentum 10 years onward, peaking at 12 to 15 years and then starting to decline. This means that children in the teenage years are most vulnerable.
  • The significant finding was that contrary to the general perception, the overall percentage of boys was much higher than that of girls.
  • In fact 9 out of 13 States reported higher percentage of sexual abuse among boys as compared to girls, with states like Delhi reporting a figure of 65.64%.
  • Out of the total child respondents, 20.90% were subjected to severe forms of sexual abuse. Out of these 57.30% were boys and 42.70% were girls.
  • 76% children were subjected to other forms of sexual abuse. Out of these 53.07% were boys and 46.93% were girls.
  • Assam reported the highest incidence of sexual abuse among both boys and girls. 62.55% boys and 51.19% girls from Assam reported facing one or more forms of sexual abuse, which was highest amongst all the 13 sample states. This was followed by Delhi with 54.66% boys and 22.54% girls and Bihar with 35.89% boys and 30.40% girls reporting high incidence of sexual abuse. The Goa figures of 2.55% boys and 2.17% girls do not seem to be in line with the general perception.
  • Across the country, every second child was being subjected to other forms of sexual abuse and every fifth child was facing severe forms of sexual abuse.
  • Children on streets, children at work and children in institutional care reported the highest incidents of sexual abuse.
  • 77% children did not report the matter to anyone.
  • 50% abuses are persons known to the child or in a position of trust and responsibility.


A study on Child Sexual Abuse carried out by Save the Children and Tulir in 2006 looked at the prevalence of child sexual abuse among school going children in Chennai. The major findings of this study include:

  1. Out of the total of 2211 respondents, 42% children faced at least one form of sexual abuse or the other.
  2. Among respondents, 48% of boys and 39% of the girls faced sexual abuse.
  3. The prevalence of sexual abuse in upper and middle class was found to be proportionately higher than in lower or in lower middle class.
  4. Sexual abuse was found to be prevalent in both joint and nuclear families.
  5. Majority of the abusers were people known to the child and strangers were a minority.
  6. Sexual harassment in public places and exhibitionism was higher by strangers.
  7. Sexual abuse of children was very often a pre-planned insidious abuse of a relationship by an abuser over the child.

In 1998 the Indian NGO Recovery and Healing from Incest (RAHI) conducted India’s first study of child sexual abuse. It surveyed 600 English-speaking middle and upper-class women, 76 percent of whom said they had been abused in childhood or adolescence, 40 percent by at least one family member.

Contrary to common perceptions of child sexual abuse, the statistics reveal that a higher percentage of boys are subjected to sexual abuse and that most children are abused  by their parents, relatives, people they know or people who are in a position of trust and authority over them; that is the cases of incest are high. Incest leads to a greater mental trauma to the child.



The fear of social stigma, lack of faith in government institutions and cultural norms discourage children and their parents from reporting cases of sexual abuse against relatives or people in position of trust and authority. The victims are also hesitant to make a complaint because of the intimidating way in which they are questioned by the police officials which often leads to re-victimisation and also the insensitive way they are treated by doctors who examine them for evidence of rape. The judicial proceedings in India are a lengthy process and are a tiring ordeal. This requires repeated testimony by the already traumatised victims and their parents and thus many complainants often withdraw their complaint.


The rights guaranteed to children under the Constitution of India as fundamental rights and as Directive Principles of State Policy (DPSP) are-

  • Article 21A-Right to free and compulsory elementary education for all children in the 6-14 year age group
  • Article 23-Prohibition of traffic in human beings and forced labour
  • Article 24-Right to be protected from any hazardous employment till the age of 14 years
  • Article 39 (DPSP)- (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; (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

The atrocious gang rape of a student in New Delhi on 16th December, 2012 followed by massive public protests lead to the appointment of Justice Verma Committee to make recommendations in criminal law so as to provide stringent laws to deal with cases of sexual assault against women. The committee expressed particular concern over the plight of children in residential care institutions. This was subsequently followed by the passing of the Criminal Law Amendment Act, 2013 which made amendments to the provisions of rape in IPC.

Before the enactment of the POCSO Act, the following provisions of the Indian Penal Code (IPC) could be invoked in cases of child sexual abuse:

  • 293-Sale, hire, distribution or circulation of obscene objects of literature to people below 20 years of age. Punishment- jail up to 3 years or fine up to Rs2000 or both. Jail up to 7 years or fine up to Rs5000 on subsequent conviction.
  • 323- Voluntarily causing hurt. Up to 1 years imprisonment
  • 324- Voluntarily causing hurt by dangerous weapons or means. Any substance which is dangerous to the human body to inhale, swallow or receive into the blood by any means. Imprisonment for up to 3 years or fine or both.
  • 325- Causing grievous hurt. Up to 7 years.
  • 354- Assault or criminal force to women with intent to outrage her modesty. Punished with impris­onment of either description for a term which may extend to two years, or with fine, or with both.

The following provisions to section 354 of IPC were added by the Criminal Law Amendment Act, 2013.

354A- Sexual harassment and punishment for sexual harassment

354B- Assault or use of criminal force to women with intent to disrobe

354C- Voyeurism

Section 375 and 376 were also amended by the Criminal Law Amendment Act, 2013.

  • 375- A man is said to commit rape if he penetrates, inserts, manipulates with the penis, any body part, or any object into the vagina, mouth, urethra or anus of a woman and applies his mouth to the vagina, mouth , urethra or anus of a woman under the following circumstances- 1. Against her will. 2. without her consent. 3. with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. 4.With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. 6. With or without her consent, when she is under eighteen years of age (Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.] 7. When she is unable to communicate consent.
  • 376 (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.

376 (2)- Special circumstances

376A- Injury which causes the death or persistent vegetative state

376B- By husband upon his wife during separation

376C- By a person in authority

376D- Gang rape

376E- Repeat offenders

  • 377- Unnatural offences.— Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
  • 326- Causing grievous hurt by dangerous weapons. Up to imprisonment for life.
  • 326A and 326B (Added by the Criminal Law Amendment Act, 2013)- Voluntarily causing grievous hurt by use of acid or disfiguring any part of the body.
  • 452- House-trespass after preparation for hurt, assault or wrong­ful restraint. Punishment up to 7 years.
  • 458- Lurking house-trespass or house-breaking by night after preparation for hurt, assault, or wrongful restraint. Punishment up to 14 years.
  • 503- Criminal intimidation
  • 506- Punishment for criminal intimidation.—Whoever commits, the offence of criminal intimidation shall be punished with imprison­ment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprison­ment of either description for a term which may extend to seven years, or with fine, or with both.
  • 509- Word, gesture or act intended to insult the modesty of a woman or exhibiting any object that intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. (Amended in 2013 as “term which may extend to 3 years, and also with fine”)
  • 511- Attempt to rape. Half the punishment awarded for rape.

International conventions and agreements which can be invoked to deal with cases of child sexual abuse and to which India is a signatory, are:

·         Universal Declaration of Human Rights- was adopted by the United Nations General Assembly on 10th December,1948. The following articles of UDHR promote the rights of children-

Article 1-All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 3 -Everyone has the right to life, liberty and security of person.

Article 5 -No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 22 -Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

  • Convention on the Rights of the Child- This convention provides for the basic rights of survival, development, protection and participation rights to children. The specific articles invoked in cases of child sexual abuse are:

Article 6- Right to life, survival and development; Article 4 – Governments have a responsibility to take all available measures (assessing social, legal, health and educational systems) to make sure children’s rights are respected, protected and fulfilled. This may involve changing existing laws or creating new ones; Article 16- Right to privacy; Article 34-Governments should protect children from all forms of sexual exploitation and abuse; Article 19- Protection of children from all forms of violence.

  • International Covenant on Civil and Political Rights- Article 6 states that every human being has an inherent right to life which should be protected by law. Article 17 – no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks on his honour and reputation. Article 24 – Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
  • Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
  • International covenant on economic, social and cultural rights
  • Convention for the suppression of traffic in persons and of the exploitation of prostitution of others


The Integrated Child Protection Scheme (ICPS) is a comprehensive scheme introduced in 2009-10 by the Government of India to bring several existing child protection programmes under one umbrella. It is based on the cardinal principles of “protection of child rights” and the “best interest of the child”.[8] Under this scheme funds are available for setting up and maintenance of Child Welfare Committee (CWC) (the committee has the same powers as a Metropolitan Magistrate) and Juvenile Justice Board (JJB). However, the officials in these committees are not well trained to monitor the conditions of the residential care facilities and orphanages. Child budget has decreased from Rs 81,075.26 crore in 2014-15 to Rs 57,918.51 crore in 2015-16. It has seen a “sharp decline” from 4.52 per cent in 2014-15 to 3.26 per cent in 2015-16.[9] Thus the officials of the ICPS are over worked and lack resources for the effective implementation of the scheme. Childline 1098 is a toll free number to help children in distress and it is run by the Ministry of Women and Child Development and the Childline India Foundation.[10] As a result of new funding that this project receives from the ICPS, the helpline operates in more than 200 cities and districts across India.


JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) Act, 2000- The Act provides for the establishment of Child Welfare Committees and special juvenile police units. It also establishes rules for monitoring children’s residential care facilities.


CHILD WELFARE COMMITTEES (CWC)- The Juvenile Justice (Care and Protection of Children) Act, 2000 provides for the establishment of CWC in every district in India. CWC are quasi judicial bodies which overlook the government’s welfare and police officers and inspect children’s residential care facilities.[11] However, CWC officials are appointed by state government which often leads to lack of transparency in the work carried by it. While 83% members have training in child rights, only 44% have received training in Juvenile Justice System and child protection.[12]


There was a need for the enactment of a separate legislation to protect children from sexual offences because before POCSO most of the sexual offences were covered under Indian Penal Code, 1860. But IPC does not provide for all types of sexual offences against children and it is a general legislation which does not distinguish between adult and child victims. The provisions of IPC also do not treat child sexual abuse as a gender neutral crime and only men were regarded as the perpetrators. There were also no specific provisions for non penetrative sexual assault which could only be dealt with under Section 354 of the IPC. Hence Protection of Children From Sexual Offences Act (POCSO) was passed by the Parliament of India in 2012 to deal with the heinous crimes of sexual exploitation and sexual abuse of children. Section 2(d) of the Act defines “child” as ‘any person below the age of 18 years’. According to this Act Child Sexual Abuse includes a variety of sexual offences such as:-

  • Penetrative sexual assault (Section 3) – A person is said to commit penetrative sexual assault if he penetrates his penis to any extent into the urethra, anus, vagina or mouth of the child or makes the child to do so with him or any other person. It also includes penetration by any object or part of the body (not being the penis). Provision is also provided for sodomy.
  • Aggravated penetrative sexual assault (Section 5)- Whoever being a police officer, member of the armed or security forces, public servant, staff and management of a remand home, etc. (a person in a position of trust or authority) Commits penetrative sexual assault on a child, is said to commit aggravated penetrative sexual assault.
  • Sexual assault (Section 7)- “Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”
  • Aggravated sexual assault (Section 9)- This section includes commission of sexual assault by police officers, members of armed or security forces, (person in a position of trust and authority) etc. It provides provision for incest, taking advantage of a child’s physical or mental disability, inflicting the child with HIV or any other life threatening disease, causing mental illness or physically incapacitating the child to perform regular tasks, temporarily or permanently.
  • Sexual harassment (Section 11)- It involves uttering a word or sound, or making any gesture with sexual intent. It also includes exhibiting any part of the body to the child or making the child exhibit any part of his body with sexual intent. The offence of enticing a child for pornographic purposes or showing such media to the child.
  • Use of child for pornographic purposes (Section 13)- It includes representing the sexual organs of a child or using the child for real or simulated sexual acts and indecent or obscene representation of the child.

Thus the Act recognises cases of non penetrative sexual assault and also is gender neutral, that is, both male, female and children themselves can be the perpetrators.

The POCSO Act also provides that no reports in any media shall disclose the identity of the child until the special courts permits the disclosure if it is in the best interests of the child. The media cannot make any comments on the child which is not authentic and which may lead to lowering the reputation or invading the privacy of the child. This provision helps in ensuring that the media does not unnecessarily harass and re-victimise the child.

Section 24 of the Act provides for requisites in recording the statement of the child. The child’s statement shall be recorded in its residence or any place where the child is comfortable, as far as practicable by a woman police officer who is not in uniform and it should be ensured that the child does not come in contact with the accused in any way. This is an effective measure to help children as well as parents to come forward in reporting cases of child sexual abuse. The medical examination of the child shall be conducted by a woman doctor, in the presence of the parent or any other person on whom the child has trust and confidence.

For the purposes of providing a speedy trial, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act. Section 33 of the Act provides the powers and procedures of the Special Court. The special court shall not permit character assassination of the child, it may permit frequent intervals as per the child’s convenience and also allow a family member or a person in whom the child has trust or confidence to be present during the course of the trial. The court shall also not call the child repeatedly to testify in the court. These provisions help in ensuring a child friendly atmosphere and also help in reducing the traumatic experience of the child during the course of the trial.

Section 35 of the Act provides that “(1)The evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court.

(2) The Special Court shall complete the trial, as far as possible, within a period of one year

from the date of taking cognizance of the offence.” This helps in speedy trial and disposal of cases and encourages reporting of cases of child sexual abuse as previously many cases went unreported due to the lengthy and cumbersome judicial process. In many cases, the abused child would be a married adult by the time the case came up before the court for trial.

The main drawback of the POCSO Act is that it criminalises consensual sexual activities between teenage adolescents below 18 years of age from the previous age of 16 years. Section 20 of the Act says that all persons should mandatorily report a case of child sexual abuse if they are aware of it, notwithstanding which they will be sentenced to imprisonment for 6 months or fine or both. It is difficult to know how it is possible to actually implement his provision. Section 29 of the Act says that in certain offences under the Act (Section 3,5, 7 and 9), there will be presumption of guilt on part of the accused unless the contrary is proved in the court. This principle goes against the principle of ‘presumption of innocence’ in the Indian legal system. The Act also does not provide explicit provisions for medical examination of the victim and proper care, protection and rehabilitation the abused child.


According to Section 44 of POCSO, the National Commission for the Protection of Child Rights (NCPCR) which has been established under the Commission for Protection Of Child Rights Act, 2005 is responsible for monitoring the implementation of the provisions of POCSO. The Commission’s mandate is “to ensure that all Laws, Policies, Programmes and Administrative Mechanisms are in consonance with the Child Rights perspective as is enshrined in the Constitution of India and also the UN Convention on the Rights of the Child.”[13] The NCPCR also proposes new laws, analyses existing laws and can also initiate investigations in suspected cases where children’s rights are involved.[14] It is a quasi judicial body and can follow up cases referred by individuals who feel that their complaints are not being properly addressed by the police and government officials.


The POCSO is a comprehensive Act and is a progressive step taken by the parliament of India to deal with Child sexual Abuse in India. However, certain flaws in the Act need amendment and it is essential to ensure the proper implementation of this Act. For this purpose, the NCPCR which is entrusted with its implementation should be provided with more resources and manpower to carry on its functions effectively. It is also necessary to ensure that its officials and the officials of the CWC are trained in child protection laws and are backed by effective investigation units. Police and the doctors examining the victim must also be trained in sensitisation programmes to deal with the abused child so that the child is not re victimised by the hostile attitude of doctors and police officials. It must be ensured that all state governments and union territories establish their own CWC in every district and state commission for protection of child rights in furtherance of the objectives of the Act. Steps should also be taken to ensure the registration of all residential child care facilities, their adherence to adequate standards and regular checks on them.

Thus India does have laws, legislations and schemes in place to deal with the human rights problem of child sexual abuse but what is necessary is to ensure the proper implementation of these laws. Regular surveys should also be conducted by the government to know the efficiency of the POCSO Act and other schemes of the government in this regard. According to the analysis of the results of this survey, necessary amendments should be made to the existing laws.

[1]WHO, “Child Sexual Abuse”. Page 75. Accessed on 19th February, 2017.

[2] Women’s Research Centre, “Recollecting Our Lives: Women’s Experience of Childhood Sexual Abuse”. Canada: Press Gang Publisher, 1993.

[3] John N. Briere and Diana M. Elliott, “Immediate and Long-Term Impacts of Child Sexual Abuse” The Future of Children, 4(2), 56. Accessed on 16th February,2017.

[4] John N. Briere and Diana M. Elliott. Page 59.

[5] Pinki Virani, “Bitter Chocolate: Child Sexual Abuse in India”. New Delhi: Penguin Books, 2000. Page 160.

[6] Pinki Virani. Page 27.

[7] Ministry Of Women and Child Development, “Study of Child Abuse- India 2007”. Chapter 6- Sexual Abuse Page 73-102. Accessed on 19th February, 2017.

[8] Ministry Of Women and Child Development, Government of India, “Integrated Child Protection Scheme”, 2009. Accessed on 19th February,  2017.

[9] “Government cuts spending on education, health of children: NGO”, IBN Live. 2nd March, 2015. Accessed on 20th February, 2017.

[10] Accessed on 20th February, 2016

[11] Human Rights Watch, “Breaking the Silence- Child Sexual Abuse in India”, 2013. Accessed on 18th February, 2017.

[12] Childline India Foundation, “Everywhere Child Project”. 2011 Accessed on 21st February, 2017.

[13] Government Of India, National Commission For Protection Of Child Rights,2007. Accessed on 21st February, 2017.

[14] Human Rights Watch. Page 68.


Written by Dr. N.B. Chandrakala

HOD, Dept. of Law, S.P.M.V.V


The voice of media to propagate the laws in general and women is a minute welcome step. The Legal Maxim “Ignorantia juris non excusat” means Ignorance of Law is not an excuse. Media helps as a tool to create legal awareness to the public in general. A media democracy focuses on information technologies to both empower individual citizens and promote democratic ideals through the spread of information. In India the role of non-profit Media Access project is a public interest law firm that advocates media democracy by protecting freedom of expression as enshrined in Article 19 (1)(a) of the constitution of India and promoting universal and equitable access to media outlets and Tele Communication Services, and encouraging vibrant public discourse on critical issues of women in our society like child marriages, Domestic violence, Sexual harassment of women at work place and crime against women i.e. Acid attacks.

At present Scenario the media plays a pivotal role to educate public on various legal topics in general like Insurance, Taxation, Corporate and consumer Laws and to enlighten about the legal Maxim “Ubi jus Ibi Remedium” which denotes where there is a right there is a remedy. A Media democracy advocates for using the mass media to promote democratic ideals. The Fifth estate in modern times Social Media is to awakening the public to understand the Laws of the land to be governed to them. However, the media does play negative role as well. It should be used as a tool to educate people in a right way. Media, too is subject to Transparency and accountability for its proper junction in democratic systems. Media has become noteworthy, in creating Legal Awareness to World(LAW).

[1]The primary function of communication is to inform, instruct, entertain and influence people to make them function smoothly and efficiently, communication has a secondary function too to perform; through debate and discussions. It fosters consensus, creativity and understanding among people, groups and societies so that they live in peace and harmony. “ Mass Media” is a term used to denote a section of the media specifically designed to spread a very large audience such as population of a nation/ State, Mass media may be divided broadly into two namely, print media and electronic media. Print media consists of books, magazines and newspapers. Electronic media are radio, television, cable TV, Cinema etc.

Radio broadcasting form a very large segment of the mass media. Nations radio net work has been incepted in the 1920s in India, the network has expanded a great deal and it offers a daily service for many hours transmitting news, comments and special programs for children, women, youth1 etc.

MEDIA: Crime Against women:

Today the issue of rape and acid attacks is gained gigantic proportions. Almost every day somewhere or the other a woman is being raped. Unfortunate woman is resorting to suicide as she is not in a position to speak out to others and lead a life of respect and dignity in society. In our country statistics are not satisfactory. There are thousands of cases which do not see the light of day or which go unreported. It has become a common occurrence, the life and honor of women of all victims wherever there is any agitation. It is mainly the poor women who are subjected to these atrocities.

Today, the people’s consciousness has been aroused and a hue and cry is raised at such injustice. In a peculiar psychopathological state of mind men, rape women. It is woman of the poorer classes who wear coarse clothes who happens to be the victims. Taking advantage of woman’s weakness the culprit remains unpunished.

Section 375 defines the offence of  rape . The revised section 375 has widened the definition of rape [2] . It, unlike its earlier version, not confined ‘rape’ merely to penile-vaginal penetration (in the circumstances specified there under ), but is also extended to (i ) penile-urethra, penile-oral, or penile-anal penetration; (ii)object- vaginal  , object  -urethra , or object-anal insertion ; (iii) insertion of a part of body, other than the penis, in the vagina, the urethral or anus of a women; (iv) manipulation of any part of body of a women for causing vaginal, urethral or anal penetration , and (v) application by a man of his mouth to the vagina, urethra or anus of a women or making her to do so with him or any other person.

nevertheless , the offence of ‘rape’ retains, in essence, the idea of coercive non-consensual (as well as consensual in certain situation)’ sexual intercourse’, 14in an extended form, between a man and a women in a set of specified circumstances.

Section 376A. punishment for causing death or resulting in persistent vegetative  state  of victim.

Section 3765A is inserted in the IPC by the criminal law ( Amendment ) act 2013. It criminalise the act of inflicting injury on a woman while raping her that results in her death or causes persistence vegetative state and provides for rigorous  imprisonment for a term not less than 20 yrs. Which may extent to imprisonment for reminder of his natural life . in this sense, sec 376A constitutes one of the aggregative forms of rape.

Section 376E. Punishment for repeat offenders.

SECTON 376E , which is inserted in IPC by the criminal law(Amendment) Act 2013 provides severe punishment for the repeat offenders. A person, who is previously convicted of committing rape of inflicting, in the course of committing  rape, injury that caused her death or resulted in persistence vegetative state  of his victim or was guilty of gang rape , if subsequently found guilty of committing the same offence, will be punished with imprisonment for life ,which means imprisonment for the remainder of his natural life, or with death.

Section 376C .Sexual intercourse by  person in authority.

For seeking conviction under  S 376C,it must  be proved that:

(i)the accused is a person belonging to any of the four categories mentioned in clauses  (a)to (d) thereof, namely, a person: (a)in a position of authority or in a fiduciary relationship, (b)a public sevant,92 (c)superintendent of jail or remand home or a women’s or children ’s institution, (d)a member of the management or staff of a hospital;

(ii)he must take advantage of his official position;

(iii)he must induce or seduce a woman;

(iv)such woman must be in his custody 93  or under his charge or present in the premises; and

(v)he must have sexual intercourse with her which does not amount to rape.

Such a sexual intercourse must take place within the precincts of the place where the woman was in his custody.94


In Delhi Domestic Working Women’s Forum v Union of India[3], the supreme court, highlighting ordeals of victims of rape and defects in the present criminal law system visa-vis victims of rape, outlined a set of broad parameters to assist them . They are

(1)The complainants of sexual assault cases should be provided with Legal  representation. It  is important to have someone who is well-acquainted with the criminal justice system. It is important to secure continuity of assistance by ensuring that the same person  who looked after the complaint’s interests in the police station , represents her till the end of the case;

(2)Legal assistance will have to be provided at the police station ,since the victim of sexual assault might very well be in a distressed state upon arrival at the police station ,the guidance and support of a lawyer at this stage and whilst she is being questioned ,would be of great assistance to her;

(3)The police should be under a duty to inform the victim of her right to representation, before any questions were asked of her , and that the police report should state that the victim was so informed;

(4)A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable;

(5)The advocate shall be appointed by the court ,upon application by the police at the earlier convenient movement ,but in order to ensure that victims were questioned without undue delay ,advocate would be authorized to act at the police station before leave of the court was sought or obtained;

(6)In all rape trails, anonymity of the victim must be maintained ,as far as necessary;

(7)It is necessary ,having regard to the directive principles contained under art 38(1) of the Constitution of India , to set up criminal injuries compensation board. Rape victim frequently incur substantial financial loss. Some ,for example , are too traumatized to continue in employment;

(8)Compensation for victim shall be awarded by the court on conviction of the offender and by the criminal injuries compensation board , whether or not a conviction has taken place . The board will take into account the pain, suffering and shock, as well as loss of earning due to pregnancy and the expenses of childbirth, if this occurred as a result of the rape.

The Code of Criminal Procedure (Amendment)act ,2008 (Act 5 to 2009) has added s 357A, dealing with ‘victim compensation scheme’, in the CrPC. All state Governments, in co-ordination with the Central Government, are required to prepare a scheme for victim compensation.

There is also a provision for relief after inquiry by the State or District Legal Service Authority in those cases where no trail takes place because the offender cannot be traced or identified, but the victim is identified.


First and foremost, the victim of rape must be given shelter and help. She has to enabled to get over the shock and regain a balanced state of mind. Then she has to be medically examined and her statement recorded. If investigation into the crime is then conducted and case filed against the accused, there will be chances of the accused being proved guilty. Awakening in women’s orgnisations, self confidence in women, necessary courage and presence of mind in women for self defence are absolutely necessary. Young women must learn the martial arts like karate. There should be rape victim’s aid centres to give them succor, support and shelter at all times. Sympathy towards such victims is need of hour.



According to the National Crime Records Bureau, 222 cases of acid attacks were reported in 2015. The number of acid attacks have been on the rise.

By virtue of Criminal law (Amendment Act), 2013, Sections 326A and 326B were inserted in the Indian Penal Code providing for punishment to anyone who causes permanent or partial damage or deformity to, or burns or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt or who throws or attempts to throw acid on any person or attempts to administer acid to any person. For Private Circulation : Eduational Purpose Only • “Acid” was defined to include any substance which has acidic or corrosive character or burning nature that is capable of causing bodily injury leading to scars or disfigurement or temporary or permanent disability. • In Laxmi v. Union of lndia, W.P. (Crl.) No.l29/2006, the Hon’ble Supreme Court of India directed that over the counter sale of acid would be completely prohibited unless the seller maintained a log/ register recording the sale of acid which would contain the details of the person(s) to whom acid(s) is/ are sold and the quantity sold. • Regarding proper treatment, after care and rehabilitation of the victims of acid attack, a direction was issued by the order dated 10.4.2015 to the State Governments/ Union Territories to take up the matter with all the private hospitals to the effect that private hospitals should not refuse treatment to victims of acid attsck and that full treatment should be provided to such victims including medicines, food, bedding and reconstructive surgeries. It was also observed that action may be taken against hospital/ clinic for refusal to treat victims of acid attacks and other crimes in contravention of the provisions of Section 357C of the Code of Criminal Procedure, 1973.

OBJECTIVES OF THE SCHEME : To strengthen legal aid and representation at the national, state, district and taluka levels for victims of acid attacks • To enable the victims of acid attacks to get access to medical facilities and rehabilitative services; • The ultimate objective of the Scheme is to ensure that the victims of acid attacks are appropriately rehabilitated in the society and live a life of dignity.

DISCRIMINATION IN IMPLEMENTING LABOUR LAWS: Women in contemporary India are strong, determined and despite great difficulties get out to work. At work place, women are discriminated against in reality. In factories and offices in private sector they are either paid lower wages or employed on low paid jobs. Many factories were still reluctant to give maternity benefits to their women workers. There was also a reluctance to give equal pay to women. Some employees employ unmarried girls on the condition that they leave their jobs as soon as they marry. This is decidedly, unfair, discriminatory and just.


On January first, 2017 the A.P. Government launched NTR Health Scheme for unorganized workers. A worker who contributes Rs.100/- per month or Rs. 1200/- per year can claim medical treatment for various diseases as specified in the schemes in various corporate hospitals as notified.

The Central Govt. Scheme.

The Prime Minister Janadhan Yojana scheme aimed to protect the health and interest of the unorganized worker. A worker who had bank account with ‘O’ balance or Rs,200s on the death of worker Rs.2,00,000/- or on permanent disablement of Rs.50,000/-.

The A.P.Government introduced Chandranna Bheema Scheme to provide Insurance for Death and Disablement of Unorganized workers.


Protective rules for working women in world wide :


NATION Period of maternity leave Father salary Payment authority
India 26 weeks NO Upto two children full salary Establishment
America 12 weeks No No salary
Norway 40 weeks 10 40 weeks 100% 50-80% Govt. social Insurance
Sweedon 480 days Wife + Husband 390 days  80% extra 90 39 weeks 90% 92% reimbursement organization
Australia 52 weeks 14 days 18 weeks national minimum wage  Govt. pays to private employees
China 14 weeks No Full salary Payment by organisation


Conclusion: The Media Plays a pivotal role in sensitizing the public about the stringent laws for the protection of women. A Media democracy advocates for using the mass media to promote democratic ideals. The Fifth estate in modern times Social Media is to awakening the public to understand the Laws of the land to be governed to them. The Media awakens the mass in general, regarding various state schemes to protect weaker sections in the community.


[1]  Media Law Dr. S.R.Meneni 2nd edition Asia Law House, Hyderabad

[2]  Criinal law P.A.S.Pillai,Dr.K.Vibhuti,Lexixs Nexis Haryana 12th edition P 713-P 730

[3] 1995(1)SC 14

AIR 1995 SC 392

AIR 1996 SC(2)284


[5] Sakshi Daily News 11.3.2017



Written by Pavithra Jaidev

4th Year B.B.A., LL.B Student, Jindal Global Law School of O.P Jindal Global University



Different sovereign states are subject to different legal obligations, and these legal obligations in the form of provisions, are contained in various treaties[1]. In this paper, the author in particular, is concerned about certain provisions of one such treaty – the International Covenant on Civil and Political Rights (ICCPR), whose Art. 4 governs state obligations, during a state of emergency.

ICCPR is a multilateral treaty, which protects people’s civil and political rights. It is popularly known as the primus inter pares (most significant) of the universal international human rights treaties[2]. Many of the rights contained in ICCPR are subject to either limitations or derogations. Limitations are based on the idea that, when state parties respond to a situation of emergency, they must try to limit the scope of enforcement of specific rights instead of directly trying to derogate from them, because derogations are complete or partial elimination of international obligations on the part of state parties[3]. But that being said, ICCPR does allow states, to derogate from some of its obligations when there is a threat to the life of the nation, by undertaking certain measures, which are not inconsistent with their other obligations contained in international law at large and which do not involve discrimination solely on the basis of colour, race, sex, language, religion or social origin[4]. That being established, the subject of our study in this paper is the derogations undertaken by the Syrian Arab Republic AKA Syria, which is one of the countries having the longest continuous state of emergency.


During the 1950’s, Egypt’s increasing influence on Syria via staunch nationalist and anti-imperialist Jamal ‘Abd al- Nasser led to its unification with Egypt to form the United Arab Republic (UAR).[5] This union was short lived, as it lasted only for a period of 3 years, after which the anti- Nasserites seized power and declared Syria’s succession from the UAR. In March of 1963, the Ba’th party in Syria via a military coup seized considerable power from the anti-Nasserites and brought into effect a state of emergency, under Legislative Decree No. 1 of 9 March 1963.[6] This legislation was governed by the core of emergency laws contained in legislative Decree No. 51 of 22 December 1962[7]. In due course of time, due to increasing pressure from fierce anti-regime protests, in April 2011, President Bashar – al – Assad’s cabinet finally ratified the draft legislation, which put an end to 48 years of state emergency in Syria contained in Legislative Decree No. 161 of 21 April 2011.

In the 48 years of its existence, Syrian emergency laws have led to gross human rights violations, the effects of which are seen even today, their Human Rights Committee has termed these laws to be one of the most repressive laws till date[8]. These laws have eroded many rights of its citizens, such as – freedom of association and assembly, freedom of expression, freedom of movement, property rights, right to a fair trial, right to protection against torture, arrests and detention and many other rights protected by the ICCPR[9]. The reason why it had indulged, and continues to indulge in such appalling human rights violations, is because one, it has not yet filed a declaration under Art. 41 as a result of which other state parties are deprived from raising concerns against Syria’s violations[10] and two, it has not yet signed the First Optional Protocol to the ICCPR which allows individuals to communicate violation of their rights to the HRC, as a result of which in the absence of an international redress mechanism, the rights of these individuals are brutally violated. In short, there is no way Syria in reality can be stopped from indulging in such large scale human rights violations.


Art. 4[11] of the ICCPR, is a key provision which allows state parties to derogate from some of its obligations, by strictly observing and applying the requirements enumerated in the covenant. It requires the state parties to observe the principles of proportionality, non-discrimination, necessity and consistency with other obligations under international law. Having said that, there are three clauses under Art. 4, of which the first one Art. 4(1) defines what could possibly constitute a state of emergency. The following are included in the definition of a state emergency: wars, an international or national armed conflict, a mass demonstration leading to instances of violence, a natural catastrophe or a major industrial accident[12]. Secondly, it states that there must be an actual and potential threat to the life of the nation, which means the physical and territorial integrity and political independence of the population and/or the nation’s economy at large[13]. Thirdly, these derogations must not discriminate and must not be a departure from its international obligations at large.

The second clause Art. 4(2) talks about non-derogable rights[14] which if derogated would constitute an illegal action on part of the state. The rights contained in this clause can be limited in scope but cannot be derogated.

Thereby bringing us to the third part, Art. 4(3) which talks about official proclamation of the emergency in good faith. In order to maintain the rule of law and to uphold the principles of legality, it is only just and fair for the state declaring a situation of emergency to officially proclaim the same in front of the entire international community[15]. The state must then after having officially proclaimed an emergency, notify to other state parties through the intermediary of the Secretary-General of the United Nations, the provisions from which it has derogated and the reasons by which it was actuated. The notification must contain sufficient information whereby other states parties are allowed to exercise their rights and discharge their obligations under the Covenant[16].

The state party must also notify the following in writing to the HRC: it must be able to prove that it was absolutely necessary for it to declare a state of emergency due to the presence of an actual and clear imminent threat and not merely because of an apprehension of a potential threat. It must, in clear and precise written terms, justify to the HRC as to why and what kind of measures it undertook in order to deal with the situation at hand, and also prove that top notch national authorities were appointed to individually assess the necessity of any derogation measure taken or proposed, to deal with the specific threats posed by the emergency, though their assessments and judgments cannot be treated as conclusive proof of an emergency at hand, hence their assessments must be corroborated with factual evidence. It must also prove in writing to the HRC that the severity, duration, and geographic scope of any derogation measure undertaken was proportional to and necessary for the exigencies of the situation at hand[17].

A state party which would fail to make an immediate notification of its derogation from the covenant in writing to the HRC would be clearly acting in breach of its obligations to other states parties[18]. Once the emergency is declared, the state party must try to terminate such derogation in the shortest period of time, in order to bring an end to the situation of public emergency, which threatens the life of the nation and establish normalcy.[19] On the date on which it terminates such derogation it must inform other state parties of the same in writing via the intermediary of the Secretary-General of the United Nations and upon termination all rights and freedoms protected by the Covenant must be restored in full.[20] A careful review of the continuing consequences of derogation measures undertaken during the state of emergency must be made immediately and steps shall be taken in order to correct injustices and to compensate those who had suffered injustice during or in consequence of the derogation measures[21].

Lastly, General Comment 29 apart from encompassing and consolidating all of the points mentioned above, further adds to it by stating, the state parties must include in their reports submitted under Art. 40[22] sufficient and precise information about their law and practice in the field of emergency powers, they must present information regarding their international obligations which are relevant for the protection of the rights in question, in particular those obligations which are applicable during a state of emergency, also there is an absolute requirement of an objective assessment of the actual situation on part of the state as well as the HRC[23].


Even though Syria proclaimed a state of emergency, it never adhered to any of the above mentioned guidelines which were to be strictly followed afterwards. Firstly, it committed innumerable violations which were clear derogations of the non-derogable provisions, thereby constituting an illegal state action. Secondly, though reports on the situation of states are to be filed by state parties every 4 years, Syria had been irregular in doing the same[24] none of its reports till date answered HRC’s queries with regard to what were the conditions for proclaiming a state of emergency, whether there had been any derogation of covenant rights and if so, which rights were derogated from and the scope of such derogation. Did the state party notify other state parties of these derogations, through the intermediary of the Secretary-General of the United Nations, in accordance with article 4 (3) of the Covenant? if so, when?  How is compliance with article 4 of the Covenant secured, when it is read in the light of the Committee’s general comment No. 29? and where are the details of the cases in which the Emergency Act has been applied?[25]. Not having answered these questions till date is a departure of the gravest kind from the guidelines prescribed by the UN and the HRC, and gross violation of its obligations under Art. 4 of the ICCPR as well as the international law. The only reason why it was able to indulge in such shameless acts for past 48 years is because there was and is no enforcement mechanism in place in the UN, hence on a concluding note the same is an immediate need of the hour.



[1] McGoldrick, D., The Interface Between Public Emergency Powers and International Law, Int J Constitutional Law (2004) 2 (2): 380-429.

[2] Id.

[3] Id.

[4] Id.

[5] Michael Macaulay, Syria: The need to Reform Monitoring of States of Emergency, December 2, 2005,  available at:

[6] Supra note 5

[7] Id.

[8] Id.

[9] Id.

[10] But that being said, till date, state parties have not indulged in such practices, as their interests might get deeply affected, but nonetheless, even if this option is not used at all, the fact that such a mechanism exists which can put a country to shame is a petrifying thought in itself, and yet Syria’s actions clearly prove it chose to ignore the same, and continue with its act of brutality against its citizens. This clearly establishes the existence of its little or no respect at all for the international obligations it prescribed to.

[11] Article 4

  1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
  2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
  3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

[12] Supra note 1

[13] United Nations, Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4, Annex (1985), available at:

[14] Non- derogable rights:

  1. 6 (right to life);
  2. 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent);
  3. 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude);
  4. 11 (prohibition of imprisonment because of inability to fulfil a contractual obligation);
  5. 15 (the principle of legality in the field of criminal law, i.e. the requirement of both criminal liability and punishment being limited to clear and precise provisions in the law that was in place and applicable at the time the act or omission took place, except in cases where a later law imposes a lighter penalty) and
  6. 16 (the recognition of everyone as a person before the law), and Art. 18 (freedom of thought, conscience and religion).

[15] Procedures for the proclamation of a state emergency must be prescribed in advance under their national law.

[16] In particular, the notification must contain the following:

  1. “the provisions of the Covenant from which it has derogated;
  2. a copy of the proclamation of emergency, together with the constitutional provisions, legislation, or decrees governing the state of emergency in order to assist the states parties to appreciate the scope of the derogation;
  3. the effective date of the imposition of the state of emergency and the period for which it has been proclaimed;
  4. an explanation of the reasons which actuated the government’s decision to derogate, including a brief description of the factual circumstances leading up to the proclamation of the state of emergency; and
  5. a brief description of the anticipated effect of the derogation measures on the rights recognized by the Covenant, including copies of decrees derogating from these rights issued prior to the notification.”

[17] Supra note 1

[18] Further it may be deprived of the defences otherwise available to it in procedures under the covenant.

[19] Supra note 1

[20] Supra note 13

[21] Supra note 13

[22] Article 40

  1. The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights: (a) Within one year of the entry into force of the present Covenant for the States Parties concerned; (b) Thereafter whenever the Committee so requests.
  2. All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit them to the Committee for consideration. Reports shall indicate the factors and difficulties, if any, affecting the implementation of the present Covenant.
  3. The Secretary-General of the United Nations may, after consultation with the Committee, transmit to the specialized agencies concerned copies of such parts of the reports as may fall within their field of competence.
  4. The Committee shall study the reports submitted by the States Parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties. The Committee may also transmit to the Economic and Social Council these comments along with the copies of the reports it has received from States Parties to the present Covenant.
  5. The States Parties to the present Covenant may submit to the Committee observations on any comments that may be made in accordance with paragraph 4 of this article.

[23] Supra note 13

[24] Till date Syria has been able to file only 4 reports for the years 1977, 2000, 2004 and 2009

[25] Pg. no. 3, Para 6, G0541291, CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT, List of issues to be taken up in connection with the consideration of the third periodic report of the SYRIAN ARAB REPUBLIC (CCPR/C/SYR/2004/3), CCPR/C/84/L/SYR 28 April 2005.


Written by Pavithra Jaidev

4th Year B.B.A., LL.B Student, Jindal Global Law School of O.P Jindal Global University



Art. 2[1] of the Universal Declaration of Human Rights (UDHR) states that, all human beings are entitled to the rights and freedoms laid down in the Declaration, and that they cannot be discriminated on the basis of their race, color, sex, language, religion, political or other opinion. Yet, day in day out millions of people across the globe are discriminated on the basis of at least one of these factors. That being said, in modern times one of the most controversial issues which is hotly discussed and debated upon, is the factor ‘Religion[2]’.

The word religion is derived from the Latin term “religare”, which means “to tie or to bind fast”. Religion therefore, binds people’s beliefs and practices with their obligation, to show reverence towards something that’s as sacred as god. That being said, religion is not always, associated with a particular system of faith and worship of a transcendent deity.[3] In fact in human rights discourse the term “religion” also includes support for the right to non-religious beliefs, such as atheism or agnosticism.[4]  In 1993 the Human Rights Committee described religion or belief as “theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief.”[5] Therefore, both religious and non-religious beliefs provide hope and comfort to billions of people across the globe, and hold great potential for peace and reconciliation.[6] However, at the same time it goes without saying that, they have also been a source of great tension and conflict. Thus, the ongoing struggle for religious freedom has over the centuries led to numerous terrifying and appalling conflicts. Therefore, the subject of our study in this paper is one such conflict, which was brought into existence due to the religious intolerance shown by the Secular state of France, by way of banning manifestation of religious symbols, thereby causing widespread anger, agony and hatred amongst the minority groups against the French Republic.


France is typically known as a secular state which does not officially recognize any one religion as the state religion. Though the French Republic does guarantee freedom of religion by virtue of certain constitutional rights which are enshrined in the 1789 Declaration of the Rights of Man and of the Citizen, at the same time it does not allow its policy based decisions to be influenced by religious sentiments[7].

France’s attitude towards religion has always been very complicated. The French government traditionally considered religion to be a private matter, as a result of which it never engaged in any serious religious discussions. But over the years, due to the increase in religious minorities[8], the French Government changed its traditional stance, and instead started actively participating in religious matters. An example of one such participation, is the banning of wearing conspicuous religious symbols, which was brought into existence under the governance of President Jacques Chirac on 2nd September 2004[9].

The French law which bans wearing of conspicuous religious symbols in French public (i.e. government-operated) primary and secondary schools, is a law which bans all Christian (veil and oversized signs of cross), Muslim (skullcap, veil such as hijab, burqa and signs such as taveez), Sikh (turban and related signs) Jewish (kippah/yarmulke/skullcap) and other religious signs. Though, it is considered to be specifically targeting Muslim girls and women who wear headscarves as an obligatory article of faith and modesty (hijab). Therefore, in short France not only wants religion to be kept out of political decisions, it also wants religion to be separated from national identity. Human rights groups such as Human Rights Watch and Amnesty International have across the world heavily criticized this discriminatory move of the French government. To add to all of this, in August 2016 almost 15 towns in France banned the wearing of “Burkini” a swimwear for Muslim women which in keeping with their faith covers their head, torso and limbs much like a wetsuit with a hood. The reasons for banning the wearing of burkini were that it violated the principles of secularism, public order and public hygiene. These bans over the years have torn the French public into groups of for and against, which may in the upcoming days even provoke violence and further divide the society.


20th century saw the codification of values relating to freedom of religion and belief in various international treaties, declarations and conventions[10].  In the year 1948, the United Nations recognized the importance of freedom of religion and incorporated the same in the UDHR by virtue of Art. 18[11]. Similarly, the International Covenant on Civil and Political Rights (ICCPR) also recognized the importance of freedom of religion and belief and therefore incorporated the same into the treaty by virtue of Art.18[12] and Art. 27[13]. In fact, ICCPR brought religion under the ambit of non- derogable rights[14] whereby though Art. 18 can be limited in scope during times of public emergency, it can never be derogated from, and in case it is derogated, it would constitute an illegal action on part of the state party which has ratified the treaty.

Thus stated, this understanding of how religion can be limited in scope, brings us to the question as to when all can it be limited? Firstly, religion can be limited in order to control specific environments such as parliaments and armies in order to prevent the obstruction of regulation of state functions. Secondly, it can be limited in order to stop its interference with public settings such as courts and police stations and lastly, it can be limited in order to stop its incidental interference with important interests such as public health, order and safety which has also been laid down in Art. 18 (3) of the ICCPR. As per France, apparently, its ban on religious manifestation and wearing of Burkini is in keeping with the third reason for limiting the scope of religious freedom. But what it failed to address is the fact that, these limitations in the form of restrictions to religious freedoms, must be nondiscriminatory in nature and proportionate to the situation at hand.

If wearing of a religious symbol or manifesting a religious belief is considered to be such a huge threat to the values of a Country, then why in the first place provide for such a freedom. Instead it should have been severely curtailed so as to make it virtually non-existent in nature. Therefore, limitations based on considerations for public order and safety are not convincing at all. Hence, in the first case, France saw the wearing of religious symbols by Muslims as a threat to public order and a link to increased risk of violence, whereby instead of trying to incorporate an understanding which would foster recognition of difference and tolerance for other religious groups amongst the majority and allow the minority groups to freely practice their religion, France in the name of islamophobia and xenophobia banned people’s religious freedom, which is absolutely a disproportionate restriction to the situation at hand. Similarly, in the second case of Sikhs and Jews, instead of assuming that people who strictly comply with their religious obligations would be disloyal towards liberal institutions and would pose to be a threat to the liberal order, what France should have done ideally is to embrace these religious beliefs, and prove to the world that France infact is the perfect culmination of culture as well as religious diversity.[15]

In the third case, France states in support of these bans that wearing of religious symbols might pressure, provoke, proselytize or propagate violence towards other students. The author here fails to understand how a kippah worn by a Jewish student might provoke or propagate violence against other students, how can an attire alone pressure students into believing that the one who is manifesting his religious belief is infact a threat to their life and well-being.[16] In the fourth case, France states that it banned wearing of veil because it wanted to protect girls and women from discrimination, because apparently coercing women and girls into wearing a veil, is a powerful symbol of their oppression and subjugation. There is no doubt about the fact that, coercing women to wear the veil is one kind of alarming gender-specific abuse, and that states have an obligation to eradicate violence and discrimination against women in public and in private by punishing those who are responsible for the same. But at the same time, state must also accept the fact that these kinds of generalizations about women’s oppression and subjugation, do a disservice to one of the basic tenets of gender equality, which is the right to self-determination and autonomy, the right to make decisions regarding one’s life without interference of any kind from the state or others.[17] Even if for a moment we consider, France was catering to the principles of substantive equality[18] one cannot understand how the state failed to recognize and acknowledge the fact that veiling can also be a matter of choice, and therefore a ban against veiling for those women who chose to do the same, might force them to choose between their ability to participate fully in society and the manifestation of their religious faith, which is in fact the absolute form of curbing of their freedom of choice, where though on paper a choice is given to you, in practice you are left with no other option but to choose what the state directs you to choose, and in case you chose to disobey, you will have to face the consequences of your choices. There are thousands of women who are forced into wearing the veil, but at the same time there are many European Muslim women who believe that wearing of a veil is an expression of their faith coupled with a desire to prove their identity. For them veiling was their own decision, an expression of their personality, citing motivations such as societal, family or religious influences which they from their childhood have witnessed and have embraced as grown up adults, and therefore have absolutely no reason to do away with. [19]

Which brings us to the fifth and final case as to whether banning of religious symbols reflects upon the social consensus of a country. The answer to this argument is that, social consensus can be arrived at only if both the majority as well as the minority groups are in agreement with the decision at hand and that the decision does not cause legitimate prejudice to one of the groups. This is because the opinions of both the groups together would form the collective consensus, but in case it is proved that one group is being caused severe disadvantage in comparison to the other, then there clearly exists no ground for proving the existence of a social consensus. Also, considering the fact that though France is a secular nation, its majority population is made up of Christians who on very rare occasions openly manifest their religious beliefs, clearly banning the wearing of religious symbols would not affect their rights as much as it would affect the rights of those living in minority. Hence, though the treatment accorded to both the groups is the same, the outcome of this treatment heavily discriminates the people living in minority.[20]


UNHRC has clarified that the concept of worship includes the displaying of symbols, and that its observance and practice can include the wearing of distinctive clothing or head coverings.[21]

The ECHR has upheld restrictions on students and teachers wearing headscarves and turbans in schools and universities. It has also upheld a newly-imposed requirement in France that a Sikh must remove his turban for his driver’s license photograph. The court in these cases has failed to provide proper justifications for these restrictions, and has failed to acknowledge the impact these restrictions have on the lives of the people affected and the discriminatory impact of bans that predominantly affect women and girls wearing headscarves. In many of these cases the court has ruled without asking the government to provide a justification for its restrictions. Few important court decisions[22] to be noted in this area are as follows:

In the case of Bikramjit Singh v. France[23] the court found that for Sikh males, wearing a keski was not simply a religious symbol, but an essential component of their identity and a mandatory religious precept and obligation. The committee agreed that a state may restrict a person’s freedom to manifest his religion, but only if it is detrimental to public order or the fundamental rights and freedoms of others. While the committee acknowledged that promoting secularism might protect overall religious freedom, it found that the state had not shown how wearing of a keski by Singh posed a threat to the rights and freedoms of other students and looking at his educational record it was also proved that Singh was not a threat to other students at school. The committee further held that Singh’s expulsion from school was a punishment which was disproportionate in nature and that the same had serious effects on his education. Therefore, the limitation imposed was not necessary.

Whereas, in the case of SAS v. France[24] though by fifteen votes to two, the court found that the blanket ban was unnecessary for the protection of public safety, especially because less restrictive alternatives were available (e.g., requesting to show the face in particular situations). With regard to the second aim which was invoked, the court observed that the aim of “vivre ensemble” was to decide the manner in which a country organized its society whereby it fell within a wide margin of appreciation. As a result of which consequently, the court did not find a violation of the Convention. This judgment at the first instance provides a much more balanced and careful rational than what is usually put forth in cases relating to the right to manifest a religion. Though, in the end just like other cases it more or less rules upon the same rational that the ban did not violate any religious freedom. Two positive aspects of this ruling are the language used by the court while describing the issues relating to gender equality and the court’s embracement of some aspects of procedural justice.[25]


Thus stated, the implementation of this law by educational institutions has led to abuses in a number of cases which has provoked humiliation and instances of religious intolerance amongst the religious minority. Therefore, at this stage the government must closely monitor the manner in which educational institutions are implementing this law. A flexible implementation of law must be brought into place, in order to accommodate the sentiments of children and to avoid feelings of humiliation amongst those for whom the display of religious symbols constitutes an essential part of their faith. Under all circumstances, the government must uphold the principle of the best interests of the child and must guarantee the fundamental right of access to education. Moreover, the government must take proper measures in order to better inform school authorities, and more importantly the French population, about the exact nature and purpose of the law.  It should be made clear that the wearing of religious symbols is an essential part of the right to manifest one’s religion and therefore can only be limited under restrictive conditions and as has been recommended by several United Nations treaty-monitoring bodies, the French government must also immediately provide redress in any situation where people have been the victims of discrimination or other act of religious intolerance because of  manifestation of their religion via wearing of religious symbols.[26]



[1] Art. 2 UDHR – Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

[2] The anthropologist Clifford Geertz defined religion – as a system of symbols which acts to establish powerful, pervasive, and long-lasting moods and motivations in men by formulating conceptions of a general order of existence and clothing these conceptions with such an aura of factuality that the moods and motivations seem uniquely realistic. As written in – Geertz, C. (1993) Religion as a cultural system. In: The interpretation of cultures: selected essays, Geertz, Clifford, pp.87-125. Fontana Press

[3] STUDY GUIDE: Freedom of Religion or Belief, University of Minnesota Human Rights Library, available at: , University of Minnesota Human Rights Center 2016, Copyright © 2003.

[4] Id.

[5] Id.

[6] Id.

[7] The separation of religion from government power is legally referred to as the “laïcité”, which as per the French constitution formally declares France as a secular republic. The “laïcité” has been in existence since the Jules Ferry laws passed at the end of the 19th century and since the 1905 French law on the Separation of the Churches and the State.

[8] Immigrant population: Religious distribution of the immigrant population in France in 2010






% of immigrant



Islam 3,040,000 46




2,750,000 41
No religion


400,000 6.0
Buddhism 190,000


Hinduism 60,000


Judaism 10,000


Other 240,000



Total number of migrants


6,680,000 101


[9]loi no 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics” (literally “Law no. 2004-228 of March 15, 2004, concerning, as an application of the principle of the separation of church and state, the wearing of symbols or garb which show religious affiliation in public primary and secondary schools.”)

[10] Supra note 3

[11] Art. 18 UDHR – Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

[12] Art. 18 ICCPR – 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

[13] Art. 27 ICCPR – In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

[14] Art. 4(2) ICCPR – No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

[15] Danchin, P. “Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law,” Yale Journal of International Law Vol 33, No.1 (2008). pp 1-66.

[16] Id.

[17] Supra note 15

[18]It takes into account the inequalities of people based upon their social, economic and educational background and tries to eliminate discrimination aimed against disadvantaged groups by ensuring their full and equal participation in the society and helps them enjoy dignity, physical security, access to resources of the state and membership in the community –  Kapur, R.  ‘Un-Veiling Equality:  Disciplining the ‘Other’ Woman Through Human Rights Discourse’ as in Islamic Law and International Human Rights Law:  Searching for Common Ground?  Emon, A.M. Ellis, M.S. Glahn, B. (eds).  OUP, Oxford (2012).

[19] Questions and Answers on Restrictions on Religious Dress and Symbols in Europe, December 21, 2010 8:00PM EST, available at:

[20] General Comment 22 adds to all of the above by stating that in accordance with Art. 20, no manifestation of religion or belief must amount to propagation of war or advocacy of national, racial or religious hatred, which includes incitement to discrimination, hostility or violence. In fact state parties are under the obligation to enact laws which prohibit such acts – As stated by the committee in its General Comment No. 11 [ 19]. Further it states that Art. 18.3 though permits restrictions on the freedom to manifest religion or belief, the limitations prescribed by law must be such that they are necessary to protect public safety, order health, or morals or the fundamental rights and freedom of others – UN Human Rights Committee (HRC), CCPR – General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), 30 July 1993, CCPR/C/21/Rev.1/Add.4, available at: [ accessed 15 November 2016].

[21] Supra note 19

[22] In the case of Leyla Sahin v. Turkey EHCR 2005 ECHR 819 / (2007) 44 EHRR 5 the ECHR ruled that Leyla’s rights and freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms were not violated. The court observed that Turkey is a secular state which is founded upon the principles of equality without regard to distinctions based on sex and religion. In the year 1989, Turkey’s constitutional court ruled that granting legal recognition to religious symbols such as the Islamic headscarf was not in keeping with the principles of secularism, and therefore state education must be neutral. The Vice Chancellor explained that the banning of the headscarf was not intended to infringe student’s freedom of conscience or religion, but to comply with the laws and regulations in force. Hence, the ban did not prohibit Muslim students from manifesting their religion in accordance with habitual forms of Muslim observance and it was not specifically directed towards Muslim attire. Therefore, the court held that the interference here was justified in principle and proportionate to the aim pursued. Hence, Article 9 was not violated. Whereas in the case of Raihon Hudoyberganova v. Uzbekistan CCPR/C/82/D/931/2000 (5 November 2004) the UNHRC found that Hudoyberganova’s rights under Article 18 of the ICCPR had been violated because, even though “the freedom to manifest one’s religion or beliefs is not absolute and may be subject to limitations, which are prescribed by law and are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others,” Uzebekistan had not provided any justification as to why the restriction in this case was be necessary, therefore there had been a clear violation of violation of Art. 18 (2).

[23] Bikramjit Singh v. France CCPR/C/106/D/1852/2008 (4 February 2013)

[24] S.A.S v. France ECHR 2014

[25] In addition to these cases, I would also like to bring to your notice the recommendations put forth by international human rights authority and the special rapporteur:

The list of issues prepared by HRC in relation to the fifth periodic report submitted by France specifically asked the French government to explain how the ban on wearing religious symbols is considered “ostentatious”? and how the same is in keeping with the State party’s obligations under Art’s 18 and 26 of the ICCPR? It further asks what measures has it taken inorder to combat racially and religiously motivated attacks against those who belong to the religious minority? and what specific measures has the government adopted inorder to promote freedom of religion and respect for diversity? – G1414112, List of issues in relation to the fifth periodic report of France, Human Rights Committee, CCPR/C/FRA/Q/5, 18 August 2014. The French government till date has successfully failed to answer all of the questions mentioned above. As a result of which in its concluding observations the HRC has stated that these laws clearly infringe one’s freedom to express one’s religious belief and that they have a disproportionate impact on members of specific religions and on girls. It elaborates upon the effect of these laws on certain groups which struggle with the feelings of exclusion and marginalization. It further states that the state party must review Act No. 2004-228 of 15th March 2004 and Act No. 2010-1192 of 11th October 2010 in the light of its obligations under the covenant, in particular Art. 18 on freedom of conscience and religion and the principle of equality set out in Art. 26. The committee is also concerned about the resurfacing of racist and xenophobic discourse in both the public and political spheres, and is afraid that it may lead to the rise of intolerance and a feeling of rejection in some communities and might further result in upsurge in violent incidents of a racist, anti-Semitic or anti-Muslim conflicts. As a result of which it has asked the state party to regularly recall publicly any advocacy of hatred which constitutes incitement to discrimination, hostility or violence and which is prohibited by law inorder to promptly bring perpetrators to justice. – G1518265, Concluding observations on the fifth periodic report of France, Human Rights Committee, CCPR/C/FRA/Q/5, 17 August 2015. The Human Rights Watch report suggests that the HRC must call on France to repeal the bans on ostentatious religious symbols in public schools and on clothing that is intended to conceal the face in public. It further suggests that the HRC must urge France to ensure that its laws are not applied in a way that discriminate against Muslim girls and women, and that no child is prevented from attending school on the grounds that their clothes are considered to be religious symbols – INT_CCPR_CSS_FRA _20885_E, Human Rights Watch Concerns and Recommendations on France, Submitted to the UN Human Rights Committee in advance of its Review of France, June 2015

The special rapporteur Asma Jahangir on her visit to France put forth the following recommendations in her report. During her mission she observed that although the law is intended to apply equally to all persons, it has mainly affected certain religious minorities, and notably, people hailing from a Muslim background.  She states in her report that, the wide political support in favour of the law banning religious manifestation has led to sending across of a message which is meant to demoralize the religious minorities in France. She observes that, though the law is appropriate insofar as it intends to protect the autonomy of minors who may be forced into wearing a headscarf or other religious symbols. The law however denies the right of those minors who have freely chosen to wear a religious symbol to school as part of their religious belief/faith. She is of the opinion that the direct and, in particular, the indirect consequences of this law may not have been thoroughly considered.  Further she observed that the Jewish community and its members were continuous targets of a number of acts of religious intolerance. Though she also notes that the government takes all of these acts very seriously and rarely underestimates their importance. – CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTION OF RELIGIOUS INTOLERANCE – Report submitted by Asma Jahangir, Special Rapporteur on freedom of religion or belief, MISSION TO FRANCE (18 to 29 September 2005), E/CN.4/2006/5/Add.4 8 March 2006, available at:

[26] The government must ensure that the religious groups which are affected by this law must deliver a message based on tolerance, freedom of religion and on the principle, that no one can be judged for his actions other than the appropriate judicial authorities. Lastly, the government must monitor more closely preventive actions and campaigns that are conducted via private initiatives or government-sponsored organizations, in particular within the school system in order to avoid children from being affected negatively.


Written by Pooja Mishra*, Megha Pradhan** & Shashankshri Tripathi***

* 2nd Year BA LLB Student, Balaji Law College, Pune University

** 3rd Year BA LLB Student, Balaji Law College, Pune University

*** 3rd Year BA LLB Student, Balaji Law College, Pune University



The following research is based upon Prisoners Right and its analysis in present context .The content of the research paper is based upon secondary sources of data. Author has used various websites and book to work for the same.

Main objective of the research paper is-

  • To analyse the relationship between human right and prisoner right.
  • To trace the role of judiciary in order to ensure the safeguard of people behind the bar.
  • To know the judicial trend in regard to prisoners right.
  • To do a comparative study.
  • To know the evolving phrase of human right.



Imprisonment is one of the   most common method of punishment adopted by almost in all countries in order to punish for the offence. The proof for the same can be seen in ancient history [1].Historically the main objective of punishment was of two folded— deprivation of the prisoner from social life and his segregation from the society as to ensure security in society. In course of time, however, several purposes such as deterrence, incapacitation and reformations[2] came to be recognised .Even it do not possess any deterrence value, then to it give a time for a accused to sit and realise his mistake which he has done in past.[3]Revenge, maybe the most old and premier reason for discipline, came to be clarified in a extremely prominent yet sad explanation: ‘tit for tat furthermore, a tooth for a tooth’. For the man in the road it is the rough type of reprisal the general public which takes upon the wrongdoer  at the point when the establishment of detainment started the reason for existing was only requital. Detainment was taken as a type of retribution upon the guilty parties for the wrongdoings.

New theories of crime causation and new approaches to punishment emerged in the earlier part of the nineteenth century. The old free will theory[4] and hedonism[5] were submerged in the flow and the focus was shifted from the individual to the society.

It was regularly contended that the individual wrongdoers were not in charge of getting to be lawbreakers and that societal irregularity opens the way of wrongdoing. Sensible augmentation of this hypothesis makes the general public capable to care for the lawbreakers. Definitely it requires a change of disposition  a change from mistreating as of now discouraged part of lawbreakers to a clearer understanding and liberal convenience of the freaks into the general public. It was a shift from cold-bloodedness to graciousness, from “requital to kind heartedness. The global human rights developments added driving force to this improvement.


“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.”[6]There are some unalienable rights which are part of human dignity and life and that should not be taken away in any way. Jurisprudence of prisoners right is one of the evolving aspect in criminology.

” Convicts   are not wholly denuded of their fundamental rights. No iron curtain can be drawn between the prisoner and the Constitution. Prisoners are entitled to all Constitutional rights unless their liberty’ has been constitutionally curtailed. However, a prisoner’s liberty is in the very nature of things circumscribed by the very fact of his confinement. His interest in the limited liberty left to him is then all the more substantial. Conviction for a crime does not reduce the person into a non-person whose rights are subject to the whim of the prison administration, and, therefore, the imposition of any major punishment within the prison system is conditional upon the observance of procedural safeguards. By the very fact of the incarceration prisoners are not in a position to enjoy the full panoply of fundamental rights because their very rights are subject to restrictions imposed by the nature of the regime to which they have been lawfully committed”[7]


The Indian Supreme Court has been active in responding to human right violations in Indian jails and has, in the process, recognized a number of rights of prisoners by interpreting Articles 21, 19, 22, 32, 37 and 39 A of the Constitution in a positive and humane way.

Given the Supreme Court’s overarching authority, these newly recognized rights are also binding on the State under Article 141 of the Constitution of India which provides that the Law declared by the Supreme Court shall be binding on all courts within the territory of India.

HOWEVER there is no specific legal provision in the constitution of india regarding prisoners right but it is subject to judicial interpretation and various guideline issued by Supreme court. ”there are some of the unalienable rights to all citizen of India which have been enumerated in Part III of the Constitution are available to the prisoners also because a prisoner remains a “person” inside the prison”[8]. 2 The privilege to individual freedom has now been given wide interpretation by the Supreme Court. This privilege is accessible to free individuals as well as even to those behind bars. The privilege to fast trial , free legitimate guides, right against torture, right against in human, and degrading treatment go with a man into the jail moreover.[9]

One of the essential arrangements of the Constitution of India which is for the most part connected by the courts is article 147 in which the guideline of balance is typified. The principle that “like ought to be dealt with alike” and the idea of sensible arrangement as contained in article 14 has been an exceptionally valuable aide for the courts to decide the class of prisoners.[10]

These rights are inherent in Articles 21 and 22(1) of the Constitution and require be recognizing and scrupulously protecting. For effective enforcement of these fundamental rights, the court issue the following requirements:

  1. An arrested person being held in custody is entitled, if he so requests to have one friend relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where is being detained.
  2. The Police Officer shall inform the arrested person when he is brought to the police station of this right.
  3. An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.



  • In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others, [11]The Supreme Court ruled that the right to life and liberty includes the right to live with human dignity and therefore a detainee would be entitled to have interviews with family members, friends and lawyers without severe restrictions. Court stressed upon the need of permitting the prisoners to meet their friends and relatives. The court held that the prisoner or detainee could not move about freely by going outside the jail and could not socialize with persons outside jail.


  • In the case of Prem Shanker Shukla v. Delhi Administration,[12] the petitioner was an under-trial prisoner in Tihar jail. He was required to be taken from jail to magistrate court and back periodically in connection with certain cases pending against him. The trial court has directed the concerned officer that while escorting him to the court and back handcuffing should not be done unless it was so warranted. But handcuffing was forced on him by the escorts. He therefore sent a telegram to one of the judges of Supreme Court on the basis of which the present habeas corpus petition has been admitted by the court.



  • In the case of D.K. Basu v. State of West Bengal,[13] the Court treating the letter addressed to the Chief justice as a writ petition made the following order:In almost every States there are allegations and these allegations are now increasing in frequency of deaths in custody described generally by newspapers as lock-up deaths. At present there does not appear to be any machinery to effectively deal with such allegations. Since this is an all India question concerning all States, it is desirable to issue notices to all the State Governments to find out whether they are desire to say anything in the matter. Let notices issue to all the State Government. Let notice also issue to the Law Commission of India with a request that suitable suggestions may be made in the matter. Notice be made returnable in two months from today.


  • In the case of Ajab Singh & Anr. v. State of Uttar Pradesh & Ors[14], the court said that: We do not appreciate the death of persons in judicial custody. When such deaths occur, it is not only to the public at large that those holding custody are responsible; they are responsible also to the courts under whose orders they hold such custody.


  • Maneka_Gandhi v. Union of India[15] was the turning point in the human rights Jurisprudence particularly in individual freedom. The expression ‘individual freedom’ in Article 21 is of the most stretched out sufficiency what’s more, covers each one of the rights which constitutes individual freedom of man. The individual freedoms have been raised to the status of particular crucial right and given extra security under Article 19.



International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights came into existence 23 March 1976. Article 10 of the International Covenant on Civil and Political Rights gives that any individual denied of their freedom should be treated with humankind and dignity. The article forces a necessity of division of detainees in pre-trial confinement from those as of now indicted violations, and in addition a particular commitment to separate blamed adolescent detainees from grown-ups and bring them before trial rapidly. There is likewise a prerequisite that the concentration of detainment facilities ought to be change and recovery, not discipline. These arrangements apply to those in penitentiaries, healing centers (especially psychiatric clinics), detainment offices, amendment offices or whatever other office in which a man is denied of their freedom. The article 7 of the Covenant, which bans torment or other remorseless, heartless or debasing treatment, by ensuring those denied of their freedom with an indistinguishable with the expectation of complimentary people.


UN Standard Minimum Rules for the Treatment of Prisoners

The UN Standard Minimum Rules for the Treatment of Prisoners came into force on 1955.The measures set out by the UN are not lawfully authoritative but rather offer rules in universal and metropolitan law as for any individual held in any type of care. They are by and large viewed as being great guideline and practice for the administration of custodial offices. The report sets out gauges for those in guardianship which covers enrollment, individual cleanliness, apparel and bedding, sustenance, exercise and game, restorative administrations, train and discipline, instruments of limitation, data to and objections by detainees, contact with the outside world, books, religion, maintenances of detainees’ property, warning of death, disease, exchange, expulsion of detainees, institutional staff and examination of offices. It likewise sets out rules for detainees under sentence which additionally incorporates treatment, order and individualisation, benefits, work, instructions and amusements, and social relations and after-care. There are additionally exceptional arrangements for rationally irregular detainees, detainees nabbed or procede trial, common detainees and people apprehend or kept without charge.

There are different nations which consider voting as human right subsequently they give detainees the opportunity to vote. Nations which offer appropriate to vote to detainees are-Czech Republic , Denmark, Finland. Ireland, Latvia, Lithuania, Macedonia, Montenegro, Serbia, Spain, Sweden, Switzerland and Ukraine..

Prisoners right in U.S- All detainees have the fundamental rights expected to survive and support a sensible lifestyle. Most rights are taken away apparently so the prison framework can look after request, teach, and security. Different rights are given like-be discipline through due procedures, authoritative interests, get to the parole procedure (denied to those imprisoned in the Federal System), rehearse religion openly, parallel insurance and so forth.

 Prisoners right in Uk- There are those who believe that all people should have access to certain human rights, regardless of who they are and what they have done in the past ,some of the rights are-the right to food and water ,an education ,a solicitor and private legal counsel ,freedom from discrimination and harassment ,good healthcare ,communication with those outside prison etc.

Breaches of prisoners’ rights in international law

United States of America

The American government has been accused of many breaches of prisoners’ rights in international law. The most publicized case is the detention facility it maintains in Guantanamo Bay, Cuba. The American government claimed that the facility was not covered by the Geneva Conventions protecting prisoners of war as the detainees were ‘enemy combatants’. Regardless of the status accorded to detainees, international law still prohibits torture. It is now clear that the CIA allowed water boarding which is not only a breach of international law but also the American Army Field Manual which prohibits cruel, humiliating or degrading treatment.


In Afghanistan, US soldiers are accused of abusing prisoners in a secret prison in Bagram Air Base. The prisoners held there were exposed to extreme temperatures, not given adequate food, bedding, or natural light and religious duties were interfered with. There are also claims of abuse in Shebarghan prison in northern Afghanistan for which America is jointly responsible with the Afghan government. Shebarghan prison is claimed to be overcrowded with inadequate bathing and ablution facilities, as well as lack of food and medical care.


In 2003, accusations started to emerge of prisoner abuse in Abu Ghraib prison. US soldiers at Abu Ghraib prison serving there were accused of beating prisoners, forcing prisoners to strip, forcing prisoners to masturbate, and threatening prisoners with dogs, smearing prisoners with faeces, making prisoners simulate sex and form naked piles. There were also accusations that prisoners were raped, sodomised and beaten to death.



The State can’t, by law or generally denies any individual of the privilege to live with essential human pride. Torment or savage, brutal or corrupting treatment or discipline which trenches upon human respect would be impermissible under the Constitution. In this way the Supreme Court hoisted insusceptibility against torment or corrupting treatment to the status of a key directly under Article 21, however it is not particularly identified as a key right in the Constitution.[16]

Punishment of Custodial brutality is unlawful and in addition illegal, however that being said, it is still by and by. Custodial Violence is an infringement of essential human rights and opportunities, as per Universal Declaration of Human Rights with respect to custodial torment and mishandle of force by law requirement powers.

Despite the fact that there are various articles in constitution and numerous areas in the Criminal Procedure Code, 1973, Indian Penal Code, 1860 and Evidence Act, 1872, which protects the enthusiasm of the detainees, the topic of whether there is a legitimate usage, is an imperative viewpoint to be noted. Indeed, even in this present situation, we find numerous instances of tormenting to death in the police headquarters, punishment of custodial viciousness upon the detainees, and so forth.


The suggestion in regard to Prisoners right in context of India could be-

  • Legislation can take active interest in framing the Rights of Prisons.
  • There should be enough facilities for the prisoners inside the prison in order to give them dignified and humane condition.
  • State may form separate committees for inspection in jails in order to ensure the wellbeing of prisoners.
  • There should be inside jail mechanism to hear the disputes and problems of the prisoners
  • State may also plan for the establishment of new policies which may help the prisoners to carry their life smoothly after coming out of the jail
  • There should be regular interrogation and checking of the behaviour of the authorities in the jail.
  • There should be set criteria for the code of conduct of the authorities in the jail and also remedies for the same.
  • Prisoners should be acknowledged with their rights and duties and also there should be enough opportunity to represent themselves.


[1] Prison system which is a method of handling criminals was the result of historic accidents. It was not a carefully thought out plan. The great prison in Rome was built by Pope Innocent X in 1655. There were generalised institutions for the care of criminals. The Seventeenth and Eighteenth centuries saw the rise of “Prisons”, “Jails”, “Houses correction ”etc. See John Lewis  ,Gillin, Qriminology and Penology (1977)page-372.

[2] The Philosophy of Punishment (1969), p.282 J.D.Mc Clean and J.C.Wood, Criminaly Justicew and, Treatment for Offenders (1969),page :83-87.

[3] V.N.Rajan,  Whither_ Criminal Justice Policy? (1983) , p.178.

[4] F.Galliher and James L.Mc Cartney, Criminology (1977), p.110.

[5] It is often referred to as the hedonistic calculus. Jeremy Bentham was the exponent of this theory. He viewed people possessing a free will. According to him the criminal laws should prescribe punishment just severe enough to offset the pleasure people receive froma committing a criminal act. See Galliher and Mc Cartney, page.110.

[6] V.N.Rajan,  Whither_ Criminal Justice Policy? (1983) , p.178.

[7] A.I.R. 1978 S.C. 1675 at p.l727 per Desai¢ J.

[8] Sunil Batra v. Delhi Administration, A.I.R. 1980 S.C.

[9] Maneka Gandhi vs Union Of India on 25 January, 1978 SCR (2) 621.

[10] Article 14 reads:— “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

[11] Francis Coralie Mullin vs The Administrator, Union … on 13 January, 1981: 1981 AIR 746,  SCR (2) 516

[12] Prem Shankar Shukla vs Delhi Administration on 29 April, 1980 AIR 1535, 1980 SCR (3) 855

[13] Shri D.K. Basu,Ashok K. Johri vs State Of West Bengal,State Of U.P on 18 December, 1996

[14] Ajab Singh & Anr. vs State Of Uttar Pradesh & Ors. on 9 March, 2000

[15] Maneka Gandhi vs Union Of India on 25 January, 1978 AIR 597, 1978 SCR (2) 621

[16] P.N.Bhagwathi, “Human Rights in the Criminal Justice System”, 27 JILI (1985) l at p.25.


Written by Priyanka Parag Taktawala

5th year BBA LLB Student, Institute of Law, Nirma University


“It takes us a long time to raise our children. Then, when they grow up, they are shot. This cannot go on. We no longer want to look for our children in the morgue.

—Yumlembam Mema, women’s rights activist in Manipur”.[1]

The Armed Forces (Special Powers) Act, 1958[2] is the oldest, most arbitrary legislations which exists in India. Its origin is the British colonial ordinance which was initially intended to begin the Indian independence movement[3]. The Special Forces are given, under this act, unlimited powers that are unrestricted, once there is a declaration of insurgency, for carrying out their operations. In order to maintain public order and safety, on mere suspicion, even a non- commissioned officer has the power to shoot and kill[4]

The armed forces[5], in the name of “aiding civil power” are given wide rights to shoot, search and arrest. It was earlier applicable to the North Eastern States only i.e. Assam and Manipur[6], but was extended even to Tripura, Meghalaya, Arunachal Pradesh, Mizoram, Nagaland[7]. There has been countless incidents after the enforcement of AFSPA regarding detention, torture, rape, looting and arbitrary acts in the North Eastern States by such Armed Personnel. This particular legislation has always been defended and supported by the Government of India itself by contending that it is to prevent the North Eastern states from seceding away from the Union of India.

Relation of AFSPA and Human Rights

Supreme Court is overburdened and flooded with several cases that challenge the very existence and constitutionality of AFSPA itself. In Inreajit Barua vs. The State of Assam And Anr[8]: AFSPA was held to be constitutional but the High Court of Delhi. It is extremely disappointing and highly surprising that the High Court of Delhi found such an arbitrary legislation to be constitutional since it clearly contradicts and violates some of the most important Articles enshrined in the Constitution of India, one of them being guarantee of basic human rights.

Article 21 of the Constitution:

Article 21: Right to life. “No person shall be deprived of his life or personal liberty except according to procedure established by law”[9]. It was held in a landmark judgment of Maneka Gandhi vs Union Of India[10] that “procedure established by law means a fair, just and reasonable law”.

The Section 4(a)[11] gives unrestricted powers to the armed forces to shoot and kill anyone arbitrarily which violated the right to life[12]. Such a legislation is by no means fair and reasonable since it gives unrestricted powers to the armed forces to use any amount of force, which might be disproportionate. The Offences under 4(a) are: “acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or fire-arms, ammunition or explosive substances”.[13] In the offences stated above, none of them necessarily involve the use of force, but even then the armed forces are allowed to use disproportionate forces with any kind of offence.

There are many cases that show us the true picture about how Border Security Force (BSF) and the army misuses their power which is vested by them through this legislation in the North East that undoubtedly results in the violation of human rights. In a recent incident in April 1995, in West Tripura a localite was reading a book near the border post when he was asked to stop by a soldier and when the villager refused to stop, he was shot dead by the soldier. There was an even more grave killing on the 5th of March 1995, when the Rastriya Rifles thought that the tire blast was a bomb explosion and shot people dead randomly in Kohima. This shooting went on for an hour that resulted in 7 deaths and 22 injured which included 2 young girls and 7 children. These regular incidences show the level of arbitrary killings in the North East.

Article 22 of the Constitution:

Article 22 of the Indian Constitution states that “(1) No person who is arrested shall be detained in custody without being informed, as soon as maybe, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”[14] The other sections are dealing with the limits and extent on these two sections in cases of Preventive Detention. Prima facie, AFSPA is not preventive detention legislation, therefore the limitation of (1) and (2) would not always be applicable but should be guaranteed to the arrested victims under AFSPA.

Sub clause (2) had been a subject matter of debate when the Constitutional framers were drafting the Indian Constitution. There was an elaborate discussion regarding whether there should be a time limit specified or whether “with the least possible delay” should be used and leave it at the discretion of the armed forces. Dr. Ambedkar, stated that “with the least possible delay” would lead to the accused being held for a shorter period of time, while “24 hours’ would lead to him being in custody for maximum 24 hours[15]. It can now be said that a specified time frame would have been a better option which would constitute a greater safeguard.

The use of “least possible delay”[16] under the AFSPA, has given free space to the armed forces to keep accused people under custody for days, months and even years sometimes. In Nungshitombi Devi v. Rishang Keishang[17], the victim was arrested by CRPF on 10th January 1981 and the complaint was filed by his wife since he was missing till 22nd February 1981. He was arrested under section 4(c) [18]. The could held that such unnecessary delays are illegal and too long even under section 5[19]. In the case of Civil Liberties Organisation (CLAHRO) v. PL Kukrety, [20], people were arrested in Manipur’s village; Oinam, and held in custody for 5 long days even before they were presented before the magistrate which is a clear cut violation of Article 22 of the Constitution.

Arbitrary and illegal detention of innocent people is blatantly being practiced by the armed forces in India because they get protection under AFSPA. Though there is a contention that the provisions under AFSPA are preventive detention laws, it would be a clear violation of Article 22[21]. Any person can be arrested for 3 months under the preventive detention laws[22]. But for any detention that would be longer than 3 months, it is necessary that the Advisory Board reviews it[23]. Article 22(5) says that when any detention is done under any preventive detention legislation, the authority that passes such an order has to communicate the grounds of such detention to the person detained as soon as possible and shall give him ample opportunity to make his presentation against such an order[24]. But AFSPA is contrary to such laws, it says that any person can be arrested by armed forces even without issuing any warrant, on mere suspicion that the person is going to commit any offence[25]. The armed forces do not have any obligation to communicate the grounds for such an arrest nor is there any provision for an advisory board. These arbitrary and unrestricted arrests are volative of the Fundamental Rights enshrined in the Constitution of India[26] . These armed forces have very precisely and systematically tortured the innocent people that they arrest in the North East[27]. The International Covenant on Civil and Political Rights (ICCPR) prohibits the use of torture of any kind and has termed it as a non derogable right[28]. During the Operation Bluebird, there was an extensive abuse of the rights conferred to the armed forces and arbitrary atrocities and torture was committed by the Assam Rifles in Manipur. Just within the initial few days of this operation, there were incidences of villagers being treated with all kinds of cruelty and inhuman treatment that degraded human life by the Assam Rifles[29]. The armed forces then retaliated by inferring the same kind of atrocities on the villagers of Oinam[30]. More than 300 villagers were beaten and tortured according to the Amnesty International Report[31]

The following extracts are taken from “OPERATION BLUEBIRD” AND THE STRUGGLE FOR LEGAL JUSTICE.[32]

From August 22, 1988 the Sessions Judge at Imphal, Shri C. Upendra Singh, began recording evidence of the NPMHR witnesses. Here are extracts of what they told the court:
” I was taken to Oinam Post and beaten severely during interrogation …I was beaten with sticks and iron rods all over my body and given electric shocks in my private parts…”


Ng. Khailang ,Ngamju Sha Village-
” I was arrested by the Assam Rifles on 30th August 1987 and taken to their camp till 3rd September 1987. On 4th September I was taken to a Magistrate at Imphal and forced to put my signature on a false affidavit prepared by Assam Rifle


  1. Jonathan, Phuba Thapham Village
    “I was beaten very badly outside the Church, I got a severe injury in my pelvic bone and legs. I can no longer walk or sit.”

Thaiso, Sorbung Village

“Ten houses were forcibly dismantled by the Assam Rifles in my village … the Commanding Officer C. P. Singh was himself in the village when they dismantled houses … I saw one villager, Sosang, being badly tortured. Later he was found dead.”. [33]

The above cited statements clearly prove that how heinous crimes and tortures are being committed by the armed forces where there is an insurgency.

In another operation “Operation Rhino”, the village was surrounded by Rajputana Rifles in the village Bodhakors, Assam on October 4, 1991[34]. During this operation Rhino, there are statements of eyewitnesses that there was a house to house search during which the women were sexually harassed and brutally raped while men were taken into interrogation camps[35]. They were tortured and starved according to official reports when there were events that lead to the death of people captive by the armed forces[36]

The above mentioned operations and unnecessary arrests by the armed forces clearly shows how the human rights guaranteed under Article 21 and 22 of the Constitution of India is violated in areas of insurgency


The state has its own limitations and is absolutely justified in taking precautionary measures in order to overcome terrorism for protecting its civilians, maintain law and order and bring culprits of such offences to justice. But in order to serve justice, it should always be in a reasonable and humane manner. Legations like AFSPA need to be reviewed and repealed if necessary since it was failed to achieve its very basic objective and is being misused by the armed forces. A state like Manipur is the perfect example since it is declared insurgent and according to its Chief Minister Ibobi Sing, 8,000 innocent villagers and 12,000 members of armed groups of opposition have lost their lives[37]. Such armed groups have been increasing constantly from 4 in 1980 to 20 in 2014. Such incidences clearly indicates that AFSPA is a big failure and has violated human rights under its umbrella. But even after such statistics, if the Government of India is of the belief that North Eastern states can be controlled only by AFSPA, then there should be proper measures that all the armed forces should be properly trained according to the UN Code of Conduct for law enforcement personnel[38]. The officials would have to respect the human dignity at all times and give highest importance to the human rights of all people[39]. There should be proper training given to the armed forces which would be known to the public as well so as to maintain complete transparency regarding public accountability and human right issues. These changes would help the local villagers of North East who are stuck between insurgents and military troops.


[1] “The Killing of Thangjam  Manorama Devi”.  Human Rights Watch. Aug 2009.

[2] The Armed Forces Special Powers Act, 1958

[3] “The Armed Forces (Special Powers) Act- Repressive Law,” Combat Law: The Human Rights Magazine, vol. 2(1), April/May, 2003. Also Amnesty International, “Document – India: Briefing on The Armed Forces (Special Powers) Act, 1958,” ASA20/025/2005, May 9, 2005,

[4] § 4, The Armed Force (Special Power) Act, 1958

[5] Supra footnote 2

[6] Ibid.

[7] The Armed Forces (Assam and Manipur) Special Powers (Amendment) Act, 1972

[8] Indrajit Barua V. The State of Assam And Anr, AIR 1983 Delhi 513

[9] Article 21, The constitution of India

[10] Maneka Gandhi v. Union Of India ,1978 AIR 597, 1978 SCR (2) 621

[11] The Armed Force (Special Power) Act, 1958

[12] Article 21, The Constitution of India

[13] § 4(a) , The Armed Force (Special power) Act, 1958

[14] Article 22, The constitution of India

[15] Vol IX, Constituent Assembly Debates (Proceedings) ,

[16] § 5, The Armed Force (Special Power) Act, 1958

[17]  Nungshitombi Devi v. Rishang Keishang (19S8) 2 Gauhati LR 137

[18] The Armed Force (Special Power) Act, 1958

[19] Ibid.

[20] Civil Liberties Organisation (CLAHRO) v. PL Kukrety (1988) 2 GLR 137

[21] The Constitution of India

[22] Article 22 (4), The Constitution of India

[23] Article 22 (4) (a), The Constitution of India

[24] Article 22(5), The Constitution of India

[25] § 4(c), The Armed Force (Special Power) Act, 1958

[26] Article 22(5), The Constituion of India.

[27] Supra footnote 2

[28] § 7 , International Covenant on Civil and Political Rights (ICCPR)  , 999 UNTS 171 and 1057 UNTS 407 / [1980] ATS 23 / 6 ILM 368 (1967)


[30] John Parrat, Wounded Land: Politics and Identity in Modern Manipur, Mittal Publications

[31] Supra footnote 29

[32] Naga Peoples Movement for Human Rights (NPMHR), Based on the 2nd & 3rd reports of The Co-ordinating Committee on Oinam Issue (COCOI).

[33] Ibid.

[34] No End in Sight: Human Rights Violations in Assam, Vol. 5 Issue 7, Human Rights Watch

[35] Khatoli Khala, The Armed Forces Special Powers Act (AFSPA) and Its Impact on Violence Against Women in Nagaland

[36] A Report on Human Rights Violations and State Terrorism in Assam During Operation Rhino, September 1991, Manav Adhikar Sangram Samiti (MASS), pp. 9,12-13

[37] Ibobi unhappy over mushrooming growth of ultras’ outfits, The Sangai Express, Imphal,16 June 2003

[38] As per Code of Conduct for Law Enforcement Officials Adopted by General Assembly resolution 34/169 of 17 December 1979,

[39] Article 2, Code of Conduct for Law Enforcement Officials