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Graaduate Course
C

Discipliine Speecific Ellective (DSE-1)

( )
Hum
man Rigghts in a Comparativee Perspeective
Contentss
Pg. No.
Unit-1 : Human Rights:
R Theeory and In
nstitutionallization
(a) : Understannding Human Rights: Three
T Geneeration of Riights
Dr. Lamnneivah Sitlho
ou 01
(b) : Institutionnalization: Universal
U D
Declaration of Human Rights
R K
Kumar Gaurav 14
(c) : Provisionns of Rights in Indian and
a South African
A Consstitution S
Satya Prakaash 23
Unit-2 : Issues
(a) : Torture: USA
U and Inndia Rimpreet Kaur Sandh
hu 39
(b) : Surveillannce and Cennsorship: China and In
ndia Drr. Abhishekk Pratap Sing
gh 53
(c) : Terrorism
m and Insecuurities of Minorities:
M USA
U and Inddia
Dr. Anju and Prashhant Barthw
wal 64
Unit-3 : Structural Violencee
(a) : Caste andd Race: Indiia and Southh Africa Dr. Moonika Bathaam 78
(b) : Gender annd Violencee: India andd Pakistan Prashannt Barthwal and Dr. An
nju 92
(c) : Adivasis//Aboriginalss and the Laand Questio
on: Australia and India
Rimpreet Kaur Sandh
hu 104

Edited by:
b
Dr. Maangal Deo
Dr. Shaakti Pradayyani Rout

SCH
HOOL OF
O OPEN LEARNIING
UNIVE ERSITY OF DELHI
5, Cavalrry Lane, Delh
hi-110007

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Unit-1 : Human Rights: heory and Institutionalization

(a) Understanding Human Rights: Three Generation of Rights

Dr. Lamneivah Sitlhou

Structure

Introduction
Theoretical understanding of Rights
Human Right and Natural Right
Historical Landmark of Human Rights
United Nations & Human Rights regime
Three Generation of Rights
a) First Generation of Rights
b) Second Generation of Rights
c) Third Generation of Rights
Challenges to Human Rights Regime
Conclusion
Introduction
The post-world war witnesses the need for the establishment of an international organization
to promote international peace and security. This led to the establishment of the United
Nations in 1945. Under the umbrella of the United Nations various declarations and
conventions led to the establishment of human rights regime In the study of human rights, the
Universal Declaration of Human Rights in 1948 sets the foundation for the development,
protection, and promotion of human rights. Since then, the cause of human rights has
received tremendous recognition from the nation-states. Thus, Human rights become an
agenda of the United Nations and become a champion for the protection and promotion of
human rights across the regions.
Human rights are basic rights that are entitled to everyone by virtue of being born as
human beings. It is universal in nature i,e it belongs to every human being regardless of
geographical locations, nationality, and gender, etc. Human rights can be defined as an
entitlement to treatment a person has simply by virtue of being 'human', and as such human
rights must be applicable irrespective of time and place (Hoffman 2015:403). However,
human right lays claims on the state the responsibility to ensure the basic rights to the
individual. Human rights are inalienable to every person for they are entitled to these rights
by birth. It becomes indispensable for the growth and development of an individual as it

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secures the right to life, liberty, equality and ensures freedom of thought, conscience, religion,
etc.
Theoretical understanding of Rights
A Right is an entitlement to act or to be treated in a particular way. The original meanings of
rights stood for 'power' or 'privilege’. Human rights develop out of the natural rights theory
which protects the individual from the state. In the early Ancient Greek city-states,
Citizenship was restricted to those individuals who live within the state. The state has
absolute power and authority over the citizens. It refers to those rights that are entitled to the
king's i,e the divine rights of the king, the rights of the clergy, and the right of the nobility, etc.
However, in the modern state, it refers to an entitlement to act or to be treated in a particular
way (Heywood 2017:2). Rights also entail duties, the claim to have a right impose obligations
on others to act, or, perhaps to refrain from acting in a particular way. Rights thus provide
safety and security to an individual from any kind of oppressor be it a person, institution, or
state.
Political thinkers like Locke and Hobbes propounded the theory of ‘Natural rights’
almost around the same period. According to Hobbes, the right of nature or ‘Jus Naturale' is
the liberty of each man to use his power for the preservation of his nature i,e his own life.
Hobbes proposed that the natural right of every man must be given up as a necessary
condition for the establishment of a government and to end the anarchy of the state of nature.
Hobbes expects individuals to lay down their rights and live under the protection of the state.
Locke had a different approach from Hobbes and did not agree with the view that the
state of nature is inherently a state of war. According to Locke, in the state of nature men are
in perfect freedom to order their actions and dispose of their possessions and persons as they
think fit within the bounds of the law of nature, without asking leave or depending upon the
will of any other man. In the view of Locke, all are equal and independent. However, the
freedoms that are enjoyed by the individual are not the freedom to do as you like but freedom
'within the bounds of the law of nature. Locke speaks of man as being born with a title to
perfect freedom and unconditional enjoyment of all rights and privileges of the law of nature.
In the study of rights, two kinds of rights are claimed by the individual.
a) Legal rights
b) Moral rights
Legal rights are those rights that are enshrined in the law or a system of formal rules and are
enforceable in the court of law. This right ultimately relies on the state or acts of the legal
authorities. Legal rights are enjoyed within the political system and therefore vary
considerably from country to country. For instance in India, Legal rights such as
Fundamental rights are mentioned in the Indian constitution where any violation of these
rights, citizens can go to the courts. Legal rights are also called 'positive rights' as they are
enjoyed or upheld regardless of their moral content, keeping in view the idea of ‘positive law’

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(Heywood 2017:4) While on the other hand, moral rights are those rights that are not legally
enforceable. Moral rights are ‘ideal rights’, it has no legal substance but only exists as moral
claims. It is merely a duty to act in a certain manner with respect to the rights of others.
Human Rights & Natural Rights
Human rights are the modern and secular version of natural rights. Natural rights are deeply
rooted in the idea of religious belief where the moral worth of an individual was grounded in
divine authority. In this, human beings are usually seen as the creature of God. Therefore,
Political philosophers like Hobbes and Locke advance the idea of 'natural right' as God-given.
It becomes a part of the core idea of human rights that certain rights and privileges are
inalienable to a human being as it is bestowed to humans by birth.
Therefore, the modern concept of human rights draws the idea of the 'natural rights’ theory
while trying to explain the notion of human rights. Andrew Heywood (2014) broadly explains
the concepts of human rights. :
1) Human rights are basic rights entitled to human beings by virtue of being born as a
human.
2) Human rights are ‘Universal’; it belongs to every human being on this earth
irrespective of their region, religion, race, and gender, etc.
3) Human rights are 'indivisible', the basic rights that are essential of every individual
such as Civil, Political and Economic rights are interrelated and therefore one cannot
be given one and deny the other. All these rights are of equal importance for every
individual growth and development.
4) Human rights are ‘absolute’, it forms the basic ground for living a genuinely human
life.
Historical Landmarks of Human Rights
The development of the concepts of human rights is a product of the historical development
of different countries at different stages of development or with different historical relations
and cultural backgrounds. Therefore, there are different understandings and practices of
human rights. The development of human rights has been based on the significant landmarks
that contributed to the cause of rights:
i) Magna Carta (1215) England,
ii) Bill of Rights (1688) England,
iii) Declaration of Independence (1776) USA,
iv) Rights of Man and the Citizen (1989) France,
v) Declaration of the Rights of the working and the exploited people (1918) Russia.

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These rights and Declarations set the foundation for the claim of rights and freedom of the
people. The development of the focus on human rights and freedom is characterized by its
focus on the nation-states before the Second World War and the universal approach after the
war. In the first phase, people claim rights from the authority of the state. However, the post-
second world war witnessed a universal approach to rights. In the post-world war,
individualism got a new dimension where states and governments are obliged to protect the
rights and freedom of their citizens. The authority of the sovereign states accepts the legal
obligations under various international treaties. This set the international human rights regime
that exists today (Manzar 2014: 10). The nation-states are bound by international law and
treaties and therefore have to formulate their national and international policies based on the
standard set by international norms.
UN & Human Rights
The major development in the study of human rights has been the formation of the UN
Charter on 26th June 1945 in Sans Francisco, California United States, and came into force
on 24th October 1945. It is an inter-governmental organization to promote international peace
and security, develop friendly relations among nations, and achieve international cooperation.
The UN Charter codifies major principles of International relations, from sovereign equality
of states to the prohibition of the use of force. Based on the Charter, the government and
respective states agreed to promote friendly relations and cooperation in solving political,
social, economic, and other problems.
The UN Charter identified promoting respect for human rights as one of the principal
objectives of the United Nations. UN created a commission of human right which were
responsible for drafting Universal declaration of Human Rights. The most significant
achievement of the International Human right has been the adoption of the Universal
Declaration of Human Rights on 10th December 1948. It became a landmark declaration in
the institution of human rights. The UN Charter (1945) and the Universal Declaration of
Human rights (1948) became the most important document in the study of human rights.
The Preamble to the UN Charter contains a number of provisions pertaining to the
promotion of human rights. It proclaims, “We the people of United Nations, determined…to
reaffirm faith in fundamental human rights, in the dignity and worth of a human person, in
the equal rights of men and women and nations large and small...have resolved to combine
our efforts to accomplish these aims” (Ghosh 2015:6) The charter of the United Nations
forms the basis of the Universal Declaration of Human rights. Article 1(3) of the UN Charter
focuses on international cooperation to solve international problems and promote respect for
human rights and fundamental freedom for all without the distinction of race, sex, language,
or religion. The subsequent article like articles 8, 13, 55, 56, 62, 68 & 76 putting human
rights at the center. The purpose outlined in the UN Charter is cooperation among the nation-
states and promotion of human rights and fundamental freedom for all.

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The different provisions in the UN Charter led to the foundation of the Universal
Declaration of Human Rights. The UN General Assembly on 10th December 1948 adopted
the Universal Declaration of Human Rights which is devoted to the protection and promotion
of human rights. The UDHR is a common benchmark for all people and nations to achieve in
terms of securing rights and freedom to all, as well as ensuring recognition and observance
among the member states. It has received tremendous recognition from the nation-states as
well as the people of the world.
In the 1940s UN set up United Nations Human Rights Programme which got upgraded to
the Centre for Human Rights in the 1980s. With the need to establish a stronger organization,
the General Assembly Resolution established the Office of the High Commissioner for
Human Rights (OHCHR). The OHCHR assists the state in upholding human rights, empower
individuals and work objectively for the promotion of human rights. It monitors the state to
comply with the International human rights treaties and strengthens human rights across the
United Nations systems. The Mission of the OHCHR is for the protection of human rights for
all people, help to empower people to realize their rights, and to assist those responsible for
upholding and implementing human rights (Ghosh 2015: 10) The OHCHR is guided by the
mandate provided by the General Assembly resolution 48/141, the Charter of the United
Nations, the UDHR and the subsequent human right instruments such as the Vienna
Declaration. The General Assembly promotes international cooperation in the field of
economic, social, cultural rights assisting in the realization of human rights and fundamental
freedoms for all. The General Assembly initiates studies and reports of various issues and
makes a recommendation to the member states and specialized agencies of the UN. For
instance, The Economic and Social Council (ECOSOC) has been charged with
responsibilities that are directly linked to the protection and upliftment of human rights.
All the members of the UN signed the agreement of the Universal Declaration of Human
rights. UN is devoted to promoting the international regime of human rights and practice
humanitarian intervention on states that violate Human rights. UN has taken the lead in the
promotion of human rights through the different UN agencies like UNDP, UNICEF, ILO,
UNESCO, ECOSOC, UNHCR, etc. Some agencies may not directly deal with human rights
but are strong partners to promote human rights. However, the recommendation made by the
General Assembly is non-binding as it does not have the enforcement power or
implementation of policies. The final authority lies with the states and the different agencies
to implement these recommendations.
Article 1-30 of the UDHR laid down the rights and freedom essential for all. The Right
to Equality, Right to Life, Liberty and Security, Right from torture and degrading treatment.
The UDHR forms the basis for the claim of human rights by every individual and all nation-
states to follow a common standard of achievement on human rights. The subsequent years
witnessed the promotion and establishment of human rights organizations such as ICESCR
(1966), CERD (1969) ICCPR (1976), CEDAW (1979), Convention on the Elimination of All
Forms of Discrimination Against Women(1981), Convention on Rights of the Child (1990).

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There are other non-governmental originations such as UN Watch, Amnesty International,

Human Rights Foundation (HRF), Commonwealth Human Rights Initiative (CHRI) which
play a significant role in the promotion of human rights across geographical regions.
The UDHR has become the central focus of all the nation-states and promotes the
availability of basic human rights to all. Every individual is entitled to these rights; it gives an
individual the right to live a dignified life. The role of protecting individual rights and
promoting human rights lies not only on the state but also on the non-state actors. One of the
main features of the human rights regime is the role played by the Non-Governmental
Organisations (NGO’s). International NGO's like Amnesty International and Human Right
Watch has played a prominent role in the human right protection. They put pressure on the
government through media advocacy launched campaign programs to influence the
policymakers as well as the international community.
In the human rights regime, the state is the only actor that can directly promote human
rights and assure rights to its citizens. It is also an irony that the state is the main actor for
human rights violations. For the state to establish human rights rule, it needs to establish civil,
political, and economic rights in its domestic law. In most cases, the support of human rights
is merely an external expression of values and commitment to liberal democratic states
(Heywood 206:321). Therefore, just merely signing the declaration does not result in human
rights protection and promotion. To see the effective implementation, human rights should be
set as a pre-condition for the membership of the international community.
Three Generation of Rights
In the study of Human rights, The French Revolution (1979) is regarded as the foundation for
the three generations of rights. The slogans like “Liberty, Equality, and Fraternity” set the
foundation stone for rights and freedom that form the core basis of human rights. These three
slogans make a significant contribution to the advancement of human rights. The division of
Human Rights into three generations of rights was proposed in 1979 by Karel Vasak, a Czech
Jurist at the International Institute of Human Rights in Strasbourg. His division follows the
three important slogans of the French Revolution Liberty, Equality, and Fraternity which set
the foundation for the division of three generations of human rights.
Three Generation of human rights
Generation Type Key Themes Rights Key documents

First Life, Liberty,

Generation and Property UN Declaration
Non-
Eighteenth and Civic and Liberty discrimination Article 3 to 21
nineteenth Freedom from International
centuries) Political rights arbitrary arrest Covenant on

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freedom of Civil and Political

thought Rights.

Second Economic,
Generation social Equality Work UN Declaration
(twentieth and cultural
century) rights social security Article 22 to 27
International
Healthcare Covenant
on Economic,
Education Social
Paid holidays and Cultural Rights

Third Self- Stockholm

Generation determination Convention
Solidarity on the Human
(Post-1945) rights Fraternity Peace Environment, 1972
Rio 'Earth Summit',
Development 1992
Environmental
protection
First generation of rights
The Eighteenth and nineteenth-century are considered as the first generation of Human
Rights. The 17th century English Revolution and the 18th century French and American
Revolution advanced the idea of Civil & Political rights. The French Revolution (1789) with
its slogan of Liberty, Equality, and Fraternity became the foundation that sets the three
Generations of Human Rights. The French Revolutionary slogan, ‘Liberty’ was considered
crucial in the understanding of human rights and their proper growth. Based on this, the first
generation of rights essentially deals with Liberty. Accordingly, Civil and Political rights are
now universally recognized as First-generation rights.
During this time, Civil and Political rights were the earliest form of natural rights. Civil
and political rights provide legal protection against abuse by the state and seek to ensure
political participation for all citizens. The core idea of the first-generation civil and political
rights is the Right to life, liberty, and property, equality before the law, protection against
arbitrary arrest and detention.

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The first generation rights are sometimes called ‘Negative rights’ because they can only
be exercised if others are restrained or they can be enjoyed only if constraints are placed on
others. Negative rights are thus defined as encroachment of other individual rights and more
particularly from the interference of the state. For citizens to enjoy civil and political rights
state should provide rights and freedom and not exercise absolute authority over the citizens.
The citizens are protected through legal rights such as the right to vote, right to property, right
to participate in the political affairs of the state (Manzar 2014:12) These rights are reflected
in the Civil and Political Rights (ICCPR) 1966. The first generation of rights is based on the
principle of non-interference as it requires government and other people to generally leave
people alone. The Article 6 of International Convention on Civil and Political Rights
(ICCPR) states that human being has the inherent right to life. This right shall be protected by
law and no one shall be arbitrarily deprived of his life. Article 6 of the ICCPR states that “No
one shall be subject to arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedure established by law”.
(Gudavarthy 2012:393). Therefore in contemporary liberal democracies, the establishment of
the rule of law assured the protection of these rights. It guarantees the protection of the civil
and political rights of the individuals and guarantees protection against the violation of these
rights.
During the first generation, the understanding of human rights expanded to the idea of '
freedom' and include freedom from discrimination, freedom from slavery, freedom from
torture and other inhuman forms of punishment, and freedom from arbitrary arrest, etc. It
includes all aspects of freedom, freedom of religion, speech, assembly, and political
participation. Thus the negative human rights closely correspond to civil liberties such as
freedom of speech and expression, freedom of conscience, freedom of movement, freedom of
religion, and freedom to form an association, etc.
Second Generation of Rights
Post Second World War, the struggle for economic, social, and cultural rights started to gain
greater prominence rights. The French Revolution slogan 'Liberty, Equality' symbolizes all
types of economic, social, and cultural development of the rights. Another French
Revolutionary slogan was 'Equality' which symbolise all types of Economic, Social, and
Cultural Rights. It guarantees individual access to essential goods and services and seeks to
ensure equal social and cultural participation. It also includes the right to housing, health,
education, and social insurance (Donnelley 2014:4). Social and economic rights are the most
basic rights human rights as without these rights human dignity will be severely threatened.
These rights are the preconditions for the enjoyment of the other rights
The second-generation focus on the theme of ‘Equality’ based on the idea of ‘Socialism’.
It draws their attention from the socialist ideology and regard capitalism as the cause of social
justice and unequal class power. The focus is on socio and economic rights including the
right to social security, the right to work, the right to healthcare, and the right to education.
Socialism is an economic and political system where the state owns the means of production
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and the state is responsible to meet the needs of the citizens. It is believed that it will create a
more equal distribution of goods and services and create a more equitable society. This is
designed to counterbalance inequalities created by market capitalism by protecting the rights
of working-class citizens. Second-generation rights are also called 'Positive rights’ as they
require an intervention from the state to provide welfare programs.
With the adoption of the International Covenant on Economic, Social and Cultural
Rights (ICESCR) in 1966, the second generation of rights 'Equality' is fulfilled. These rights
are embedded in Article 22-27 of the International Covenant on Economic, Social, and
Cultural Rights. It ensures the principle of equality, equal conditions, and treatment to all
citizens on their rights such as the right to work, right to healthcare, right to education, social
security, and unemployment benefits (Bhatia 2019:10). To ensure these rights, the role of the
state is very crucial for the successful implementation of these rights. Therefore, critics are of
the opinion that for the claim of these rights, the state should have the material resources and
the willpower to implement policies on welfare measures. Due to this, it is seen more as a
moral responsibility rather than entitlements. It is also unclear whose responsibility it is in the
case where the state is unable to deliver its social and economic rights. Therefore, second-
generation rights are being debated and critique for various reasons as in the age of
globalization too much state interference will undermine the effectiveness of the capitalist
economy.
Third Generation of Rights
The post-1945 phase is also called the third generation of human rights that focuses not on
the individual but the broad spectrum of rights such as social groups and societies. The third
generation of rights was composed of solidarity rights as it fought for collective rights. The
third part of the French Revolution slogan ‘Fraternity' reflects the third generation of rights.
The third generation of rights is, on the whole, the demand of the third world countries or the
developing countries from the developed world to share equitable resources and development.
The third generation of rights is marked by the post-second world war which was marked
by the period of decolonization and national liberation movements. The third generation of
rights got linked with the movement for collective rights such as self-determination which
addresses the community of groups rather than individual rights. The third generation of
rights core interest is on the environment and sustainable development. It has a broader
approach such as the, Right to Self Determination, Right to Peace, right to Natural Resources,
the Right to Development, and Environment. Some landmark Declaration such as Stockholm
Declaration (1972), United Nations Conference on Environment, and the Rio Declaration
(1992). These Declarations promote the protection of the environment for all, safeguard the
environment for the future generation which requires participation and collaboration of all
nation-states.
The third generation rights cover those that were not covered under the first two
generations of rights i,e the civil political, social-economic, and cultural rights. Some rights

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are beyond the first two generations of rights which call for collective rights that call for the
common concern and well-being of all. In 1986 the UN General Assembly adopted the ‘Right
to Development’ that puts people at the center of the development process. Article of the
declaration states that “ the right to development is an inalienable human right by virtue of
every human person and all peoples are entitled to participate in, contribute to, and enjoy
economic, social, cultural and political development, in which all human rights and
fundamental freedoms can be fully realized”. The declaration states that development should
aim for the well-being of the entire population without any discrimination. Like all human
rights, the right to development belongs to all and recognizes the right to self-determination
and full sovereignty over natural wealth and resources.
The Right to Development got reaffirmed in the 1993 Vienna Declaration on World
Conference on Human Rights envisaged a new model of development around the principle of
equitable distribution, political participation, social well-being, and cultural recognition, etc.
Amartya Sen envisages the idea of “substantive freedom” which includes the idea of ‘human
dignity. It refers to the accessibility of resources, health, education, and equity of
opportunities and also participation in the life of the community, and the freedom to speak
without fear. Any effective and meaningful implementation of human rights has to integrate
various aspects including civil and political rights for political participation along with social
and economic rights for fair distribution. It is an ongoing process that requires domestic
policies with international cooperation ( Ajay 2012:13). The right to development emphasis
on the human being as the center of development.
The critics of the third generation of human rights do not agree with the idea of human
rights moving away from the individual to the community. They argued that the very idea of
human rights is based on the model of individual self-worth which is weakened whenever
people are thought in terms of a group membership. (Heywood 2014:314). However, the third
generation of rights has gained momentum in international politics as some of the pressing
issues of the world need to be addressed through collective effort.
Challenges to Human Rights Regime
With the UN declaration on UDHR, the issue of human rights has expanded beyond the state
actors to non-state actors. UN urged all the nation-states to promote and uphold human rights
but failed to specific states or direct states to protect or guarantee human rights. With world
politics dominated by the national interest, the UN is not taking a strong stand on states that
are known for violators of human rights. For instance, big powers are the main violators of
human rights but no legal action and sanctions have been imposed on them. One of the
primary reasons for non-enforcement is due to the fact that UDHR is not a legally binding
treaty. Due to this, it is impossible to punish those states that violate human rights. In most
cases, it becomes an internal matter and the international community can only call for the
state to respect UDHR. UDHR is seen as a customary international law that is used as a tool
to apply diplomatic and moral pressure to the government to respect human rights.

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With the establishment of the Office of the UN High Commissioner for Human Rights,
the office took the responsibility of promoting human rights and support bodies created by
human rights treaties. However, the office is criticized for being more effective in
highlighting human rights violations than in enforcing human rights law. The office along
with the other agencies has no authority to enforce or impose sanctions on those states that
violate human rights. They can only highlight and make recommendations to be discussed in
the General Assembly. The General Assembly in turn can advise the Security Council to take
action on those states that violate human rights. However, the UNSC which is usually
dominated by powerful nations always puts their national interest over humanitarian interest.
The UNSC is criticized for being biased in their approach when it involves their interest or
their ally interest. In certain cases, the state themselves have a dubious record of human rights
violations.
Conclusion
Today human rights have become one of the significant importance in the civil, political, and
economic spheres. The development of human rights is based on the different Bills and
Declarations that demand the rights of the citizens, the freedom from the oppression of the
state. With the establishment of the UN, State started to accept the legal obligation under
various international treaties and conventions. This in turn forced the state or government an
obligation to protect the right and freedom of its citizens.
The study of human rights can be traced from the three generations of rights, the first
generation of rights focuses on Liberty which provides individual legal protection against
abuse by the state. Therefore, attention is to secure civil and political rights and restrict the
state over absolute authority over its citizens. The second generation of rights puts Equality at
the center and strives for Social and Economic Rights. In this, the state has to play a
prominent role as it requires intervention by the state to implement the welfare measures. The
third generation of rights moves beyond the individual and stresses on the social groups. It is
also called solidarity rights as the scope is universal.
With the signing of the Universal Declaration of Human Rights, there has been
significant recognition and consideration of human rights in both domestic and international
politics. The scope of human rights has been expanded under several conventions, charters,
and protocols that reaffirm the universal character and sphere of its application. From the
Right to Liberty, Equality, and Fraternity the understanding and scope of human rights have
shifted from Individual rights to collective rights. The newly recognized rights include the
right to Environment, the right to development, and the right of the LGBT community.
Human rights are universal and the scope of human rights has been growing rapidly
extending its scope and influence. However, the success of these human rights depends on the
willingness of the states as nation-states have the sovereign right to incorporate these human
rights values in their constitution and reflect human rights values in their different policy
implementation. The most powerful organization is United Nations which binds all the states

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under one organization. But in practice, the UN is dominated by powerful nations mostly the
Permanent 5 members that still promote injustice, inequality to promote their self-interest.
This has become the biggest challenge to the promotion of human rights. Despite the
universally recognized rights, citizens still faced the challenge of human rights protection.
Therefore, mere declaration of human rights is not sufficient unless each state adopted a
policy and implement human rights values and principles in the domestic and foreign policies.
It requires the active participation of government, non-government organizations, and civil
society for the protection, promotion, and exercise of human rights.
List of Abbreviations
CEDAW Convention on the elimination of All Forms of Discrimination
CERD Committee on the Elimination of Racial Discrimination
CHRI Common Wealth Human Rights Initiative
ECOSOC Economic and Social Council
HRF Human Right Foundation
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ILO International Labour Organization
LGBT Lesbian, Gay, Bisexual, and Transgender
NGO Non-Government Organizations
OHCHR Office of the High Commissioner for Human Rights
UDHR Universal Declaration of Human Rights
UN United Nations
UNDP United Nations Development Programme
UNESCO United Nation Education, Scientific and Cultural Organization
UNHRC United Nations Human Rights Council
UNICEF United Nations Children’s Fund
UNSC United Nations Security Council
Questions
1. Examine the Evolution of the concept of Human Rights.
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2. Discuss the role of the United Nations in the protection and promotion of human rights.
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3. Describe in detail the three generations of rights.
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References
*UN Charter, 2021 Accessed from https://www.un.org/en/about-us/un-charter/full-text
*Universal Declaration of Human Rights (UDHR), 2021 Accessed from
https://www.ohchr.org/en/udhr/documents/udhr_translations/eng.pdf
Bhatia, V.J (2019), “Introduction to Human Rights “in Bhatia, V.J (eds) Your Laws and Your
Rights, Pinnacle Learning: New Delhi, pp. 17-27
Donnelley, J (2014), “Human Rights” in Baylis, J and Smith, S, et.al (eds.) The Globalization
of World Politics: An Introduction to International Relations, Oxford University Press: UK ,
pp.348-362
Ghosh, Peu (2015), International Relations, PHI: New Delhi, pp.333-341
Gudavarthy, A (2012), “Human Rights” in Chimni, B.S., and Mallavarapu, S (eds.)
International Relations: Perspective for the Global South, Dorling Kindersley Pvt. Ltd: New
Delhi, pp.389-403
Heywood, Andrew (2014), Global Politics, Palgrave Macmillan: New York, pp.310-337
Heywood, Andrew (2017), Political Theory: An introduction, UK Palgrave, pp.206-236
Hoffman, J, and Graham, P (2015), Introduction to Political theory, Routledge Taylor &
Francis: London, pp. 401-421
Manzar, Mehtab (2014), “Human Rights and International Politics” in Basu, R (eds.)
International Politics: Concepts, Theories,and Issues, Sage Pub.Ltd: New Delhi, pp. 336-353
Extra Readings:
Baxi, Upendra (2007), Human Rights in a Post-Human World, Oxford: Oxford University
Press.
Gould, Carol (2004), Globalization, Democracy and Human Rights, Cambridge: Cambridge
University Press.
Vincent, R.J (1986), Human Rights and International relations, Cambridge: Cambridge
University Press.
Woods, K (2014), Human Rights, Palgrave Macmillan: New York.

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(b) Institutionalization: Universal Declaration of Human Rights

Kumar Gaurav

1. Introduction
Human rights are entitlements to a person based on the simple fact that they are human
beings. The use of human rights in the modern world can be traced to the eighteenth-century
enlightenment period. The idea of human rights is often drawn from the writing of Immanuel
Kant. Kant’s idea of autonomy provides ground to the idea of human rights (Pavao and
Faggion 2016). Kant advocated the idea of considering humans as an end and not as a means
to an end. He advocated for humans an end in themselves, speaking against their exploitation
for any other goal. At the root of the conception of human rights, is the innate Kantian idea
that human beings are entitled to certain inalienable rights by being a human and do not need
any other qualification to have claims to those rights.
However, human rights became legally accepted only in the twentieth Century (Hoffman
and Graham 2015). The history of human rights has been one of constant struggle against
oppressive regimes and dominant sections of society. It can be characterised by continuity,
diversity, and change (Freeman 2017). The concept of human rights is useful in
understanding the arbitrary and oppressive nature of regimes throughout the world. The
notion of morality was part of most early societies and already contained much of the core
ideas of Human Rights. The institutionalisation of human rights was crucial to establish a
universal idea of human rights which could be used for cross-cultural reference in the context
of discussions on human freedom and dignity. The universality of human rights can be
attributed to the fact that almost all states believe in the dignity of the individual associated
with human rights
United Nations Charter declared in 1945 affirmed its faith in the dignity and worth of the
human person, giving equal rights to both men and women. The institutionalisation was
backed by the establishment of courts which would be responsible for the rightful action to be
taken against the offenders. The new International Criminal Court legally came into being in
July 2002, four years after the adoption of the Rome Statute by 120 countries. As of
December 2020, ICC has 123 members states. The ICC though can only investigate and
prosecute citizens of member states, within member states, or crimes referred by the United
Nations Security Council.
We will discuss the institutionalisation of human rights by dividing the chapter into two
sections. The first section is concerned with the history and conception of the Universal
Declaration of Human Rights (UDHR) in 1948. The second section would address the shift
from the theory of human rights to its practice.

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2. History and Formulation of Universal Declaration of Human Rights

The Peace of Westphalia (1648) that brought an end to the Thirty Years’ War is considered to
be the predecessor to the idea of international human rights. It recognised limited rights for
some of the Christian minorities. In 1878, we see major European powers accepting the
sovereignty of Serbia on the condition that it guarantees religious freedom. This was followed
by the Nineteenth Century movements against slavery advocating human rights. One of the
issues that have remained at the centre of a universal idea of human rights is how to create
norms that are accepted by most if not all the countries for any profound change to take place.
A consensus has emerged on the norms over the years which agrees on the descriptions
clubbed under the three generations of rights. (Samarsinghe 2018).
The twentieth-century movement addressing human rights can be traced to the interwar
period (the time between the two world wars). The Declaration of the International Rights of
Man was adopted by the International Law Commission in 1929. However, we also find that
while efforts for the advocacy of human rights was increasing, there were still minority
voices that justified sexism, colonialism, and racism. The rise of Nazism began to change
things and the allied powers were looking for ways to justify the war to their citizens and the
global community. The idea of human rights was central in this effort. In the 1941 State of
the Union speech, President Franklin D. Roosevelt said the war was aimed at four freedoms:
of speech, of religion, from want, and from fear (Donnelly 2017: 19). The Allied powers
leading up to the end of World War II had made the issue of human rights important
internationally.
While the allies did not do anything to support the Jews who were being systematically
targeted in Nazi Germany, the postwar period saw a sudden surge in the efforts to address the
genocide that took place in Germany. The Nuremberg trials that began in 1945, persecuted
prominent members who were part of the leadership of Nazi Germany for crimes against
humanity. For the very first time, the International Community held citizens of another State
accountable for a crime. The Nuremberg trials made it easier to get support in favour of an
overarching idea of Human Rights. The trials included two sets of trials: the one including
‘major war criminals’ was presented in front of the International Military Tribunal (1945-46),
and the other dealt with ‘lesser war criminals’. The Nuremberg trials were also criticised by
some for just being victor’s justice where the victor is imposing its idea of justice on the
losing side. The trials tried to look at the wrong done by the Nazi regime but the trials
depended on post hoc or retroactive laws. Retroactive laws are those laws that did not exist at
the time of the crime and came into force later. The problem with such laws is that they
violate the principle of crime without an antecedent law.
Despite the controversy about whether the Nuremberg Trials were fair or not, they turned
out to be a decisive moment in the history of the institutionalisation of human rights. It finally
led to the incorporation of human rights in the UN charter that was adopted in San Francisco
in 1945. Article 1 of the UN Charter stated one of its purposes as promoting and encouraging
respect for human rights and also promotion of freedom for all without distinction based on
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race, sex, language, or religion. The Commission on Human Rights under the UN Economic
and Social Council (ECOSOC) was created in 1946. It drafted an “international bill of rights”
that would have the declared principles and a legally binding convention on human rights
along with the procedures needed to enforce it. The first of this bill was adopted by the UN
General Assembly on December 10 1948 and came to be known as the Universal Declaration
of Human Rights. This is the reason that December 10 is globally accepted as Human Rights
Day.
UDHR while mostly supported by countries from the Global North also had enough
support from Global South. The view that the West was largely responsible for imposing the
idea of human rights on other countries has been rejected by several scholars (Morsink 1999;
Cassese 1992; Waltz 2001, 65, 70-2). The preamble that was part of the UDHR stated clearly
its stand against any repetition of the atrocities like the one in Nazi Germany. The declaration
substituted the term natural rights with human rights to avoid any controversy that might arise
due to the philosophical association of rights with nature (Morsink 1999, 283, 294-6, 300-2).
The concept of human rights was found not to be grounded in philosophy (Waldron 1987,
151, 166-209). Cassese (1992, 31) however, highlights the western bias of the concept of
human rights in favour of individual over collective action, rights over duties, and focus upon
civil and political rights over economic, social, and cultural rights. As opposed to the
International Bill of Rights which was legally binding, UDHR was not a legal obligation on
states but was rather seen as a goal that they should strive for (Robertson and Merrills 1996,
28-9). Despite its philosophical limitation, the UDHR had legal and political implications on
international politics. Now, there are almost 200 international legal human rights instruments
of which around 65 acknowledge the UDHR as their source of authority (Freeman 2017).
2.1 Content of UDHR
The preamble of the declaration recognises an inherent conception of dignity and rights as
central to the foundation of humanity lying on the pillars of freedom, justice, and peace.
Article 1 states that all human beings are born free and equal with dignity and rights. All of
them can reason and are endowed with conscience, and should act towards one another in a
spirit of brotherhood. Article 2 says that everyone is entitled to all the rights in the declaration
without any discrimination on the grounds of race, sex, nationality or other such status. This
was a rejection of the logic behind the Nazi concentration camps and explicit support of
egalitarian principles as the foundation of human rights. Article 7 elaborates Article 2
asserting equality before the law and equal protection of laws without any discrimination.
Article 3-5 fall within the category of what is called ‘personal integrity rights’. Article 3
reaffirms the conventional right to life, liberty, and security of an individual. Article 4
prohibits slavery, servitude, and the slave trade. Article 5 speaks against torture and “cruel,
inhuman or degrading treatment or punishment”. Article 5 while being comprehensive is
questioned on the ground of its interpretation and how torture has taken different forms in the
contemporary era.

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Article 6-12 can be put under the umbrella of legal rights. These provisions have been
criticised for being too affected by the western history of rights as legal protection endowed
to individuals against the state while ignoring the notion of rights as an inherent part of the
idea of human dignity (Freeman 2017). Article 8 talks about National Tribunals addressing
the issues of violation of fundamental rights granted by the constitution of the country.
Article 9 forbids arbitrary detention, exile or arrest. Article 10 highlights the provision for a
fair trial against anyone charged with criminal misconduct.
Article 14 talks about the right to seek asylum in other countries if the individual has the
threat of persecution in their home country. This has become a controversial issue due to the
rise in the number of failed states and the refugees fleeing those states. The other issue has
been about how whistleblowers have been termed as traitors for highlighting the ill actions of
the state and its agencies responsible for the infringement of the rights of individuals. The
case of Edward Snowden is important to highlight the contradictions inherent in the discourse
of rights. He revealed the global surveillance system that was used by the National Security
Agency of USA in 2013 in collaboration with other intelligence agencies of the world to
snoop on citizens all across the globe. He was put on trial by the United States Department of
Justice for theft of government property and violating the espionage act of 1917. He
somehow escaped the USA and sought the right to asylum which was granted by Russia.
Thus, while rights are often claimed to have a universal presence, the politics associated with
rights cannot be ignored.
Article 16 includes three subparts and states, “(1) Men and women of full age, without
any limitation due to race, nationality or religion, have the right to marry and to found a
family. (2) They are entitled to equal rights as to marriage, during marriage and at its
dissolution. Marriage shall be entered into only with the free and full consent of the intending
spouses. (3) The family is the natural and fundamental group unit of society and is entitled to
protection by society and the State”. The initial section of the article takes a liberal view of
marriage. The conception of family needs to be taken critically here as families often act as
violators of the rights of women and children.
Article 17 is concerned with the right to property and states that no one can be deprived
of their right to property arbitrarily. This right is the reflection of the capitalist system on the
discourse concerning rights. The socialist movement does question the link between property
and rights but the right to property has now become a universal right as an inalienable part of
human rights.
Article 18 states that every person has the right to “freedom of thought, conscience, and
religion” and “to manifest his religion or belief in teaching practice, worship and
observance”. While this has been one of the most widely accepted human rights norms, the
contestation between religion and rights are too much to be ignored. Religion is generally
seen in conflict with rights discourse and has the potential to violate the human rights of
individuals. Article 22 deals with the realisation of economic, social, and political rights as
necessary for the dignity and free development of the personality of individuals which needs

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to be done through national effort and international cooperation. Article 25 provides for right
to adequate living standard needed for the health and well-being of an individual and their
family, and the right to security in the case of unemployment, sickness, disability,
widowhood, old age or other things needed for an adequate livelihood. Article 22 further
states that the realisation of economic, social, and political rights would be dependent on the
resource that a state has while article 25 does not put any such condition.
Article 27 focuses on the fundamental right of every individual having the choice “to
participate in the cultural life of the community”. However, there is an ambiguity here in the
context of whether the community is the national community or some other local community.
Paragraph 1 of Article 29 states that each individual has a duty towards the community under
whose umbrella alone, the free and full development of the personality of the individual is
possible.
The UDHR removed the right to self-determination which was of essential importance to
anti-colonial activists and authors. However, this was later fixed with Article 1 being
included in both the 1966 human-rights covenants. Instead of the right to rebel which was the
very foundation of the American and French revolutions, the phrase human rights as an
antidote to rebellion was used. This was supported by several countries from the global south
and the USSR. There was no provision for a right to appeal to the UN about the human-rights
violations. The UDHR was thus way too weak compared to other international human rights
law that had come up in the twentieth century.
3. From Theory to Practice
The UDHR included a very comprehensive list of human rights, but there was no obligation
on any country to comply with the rights. Since the UN had given its full commitment to the
idea of state sovereignty and human rights, it was not sure about what to do if the sovereign
states violated human rights. Except for slavery, genocide and extreme abuses of the rights of
aliens, nothing was illegal according to international law. From the start of UDHR till 1960,
the international community had little ability to protect the violations of human rights (Alston
1992: 139).
The cold war pushed the human rights discourse to the margin of international politics.
The two superpowers, the USA and the USSR used the idea of human rights arbitrarily, more
like propaganda. However, things started to change in the 1960s. The decolonisation of many
states led to the prioritisation of human rights issues like decolonisation, the right to self-
determination, and anti-racism. The western bias of human rights discourse was now being
changed due to the injection of activism by the newly independent countries. But, at the same
time, the universal nature of human rights received a setback in favour of particularism. The
newly independent nation-states used human rights discourse selectively along with the
principles of state sovereignty and non-interference as a defence against any criticism of their
arbitrary violation of human rights. This can be seen in the mass killings that took place in
Uganda under the leadership of Idi Amin and in Equatorial Guinea under Macias Nguema.

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The idea of cultural relativism was often used by the post-colonial countries as a reaction
against any claims by the western states or NGOs of human rights violation. Cultural
relativism sees issues as one that is grounded in culture and thus, universal principles like
those of human rights do not apply to them.
However, this selective activism was also helpful to the cause of the establishment of
universal human rights. In 1966, the ECOSOC and the commission on human rights were
asked by the General Assembly to suggest ways to improve the ability of the United Nations
to stop the gross human rights violations that were taking place. Two new procedures were
adopted to address this. In 1967, the ECOSOC came out with Resolution 1235 authorising the
commission to discuss the human rights violations that were taking place in certain countries.
In 1970, Resolution 1503 of ECOSOC established a mechanism to pursue talks with
governments if there was a gross and reliable attestation of human rights violations. The
Commission under Resolution 1235 had been given very little power and selectively
addressed violations in South Africa, Palestine, and Chile, while ignoring East Pakistan,
Cambodia, Brazil etc. In the 1980s, we see a considerable broadening of the commission
according to Resolution 1235. It was an advancement in the implementation of human rights
by the UN. The sanctions were still relatively remote.
The 1503 procedure provided the aggrieved people to petition the UN for human rights
violations, but there was still no way of redressal. Any talk with the government would
happen after a span of 2 years from the time of the complaint and even, this could be delayed
using stalling tactics and politics by the concerned government. Resolution 1503 had almost
no impact on the human rights violations that were happening (Alston 1992; Robertson and
Merrills 1996, 79-89; Donnelly 1998, 9, 53-4).
In 1966, we see two international treaties – the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social, and Cultural Rights-
were adopted and entered into force in 1976 with ratification by 35 countries (Freeman
2017). The covenants included the right to self-determination but left out the right to
property. The UDHR along with the two covenants were together known as the International
Bill of Rights and formed the core of the laws on international human rights. As of 10th
February 2016, 80 per cent of the 193 UN states ratified the two covenants.
In 1976, The Human Rights Committee was established consisting of independent
experts who were given the task of monitoring compliance with the existing Covenant on
Civil and Political Rights. The states that are signatory to the Covenant are obliged to reports
concerning the efforts they are taking to implement the rights in the Covenant. Apart from
this, nine other bodies monitor treaties. The unwillingness of the governments to co-operate
and provide resources is the main problem in the effectiveness of these bodies (Alston and
Crawford 2000). These treaty bodies are not given the power to enforce the states to comply.
In the 1970s, the West demanded the guarantee of human rights in return for the
communist blocs need for agreements on security and economic matters (Freeman 2017). In

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1973, the Conference on Security and Co-operation in Europe (CSCE) which later became
the Organization for Security and Co-operation in Europe (OSCE) was convened. This led to
the 1975 Helsinki Accord in which the Communist bloc accepted many of the human rights
commitments. Later, Helsinki based NGOs focusing on human rights were set up in USSR as
well but were not very successful in addressing human rights violations. While not having a
long-term effect, these events did impact the debates around human rights issues on a global
scale.
In the 1980s and early 1990s, cultural relativism became more prevalent in the UN
debates concerning human rights. In 1984, Iran refused to comply with any of the
international principles which were in contradiction to the prevalent Islamic laws in Iran.
There was a lot of debate around the conflict between Asian values and human rights in the
run-up to the UN world conference on Human Rights in Vienna in 1993. Vienna conference
affirmed that there can be no denial of a universal conception of human rights but also
conceded that the context and cultural specificity cannot be done away with while negotiating
international norms. The regional human rights Organisation such as the Council of Europe
demonstrates the existence of both universality and diversity of human rights.
In the Post-Cold war phase, we see an improvement in human rights with both the
General Assembly and the Commission on Human Rights becoming more active. The
challenge that was posed by the poor countries from the global south also weakened. The
Secretary-General’s office was successful in negotiating an agreement between the rebels and
the government in El Salvador. In 1991, the Iraqi occupation of Kuwait was reversed using
Operation Desert Storm. There was also a military intervention in northern Iraq to help the
persecuted Kurds and in southern Iraq, to help the Shia population. The war in Bosnia led to
ethnic cleansing with major powers not very eager to intervene militarily. Humanitarian
assistance was provided to them but this was a huge failure on the part of the UN. In 1999,
the NATO forces backed by the USA intervened militarily in Serbia, on the ground of
violation of human rights of the ethnic Albanians in Kosovo. This was being done without the
backing of the United Nations. UN security council could not intervene as Russia and China
had voted against the intervention. The immediate effects of this intervention were not good
as there were more violations against the Albanians with considerable casualty among the
Serb Civilians. While NATO overthrew the Serbian President, the intervention was
considered legally dubious lacking the required legitimacy.
When former Yugoslavia was dissolved, it led to a minority Serbian population in
Croatia, Minority Serbs, Croats, and Muslim population in Bosnia- Herzegovina, and an
Albanian minority in Kosovo. Serbia tried to protect the Serb minority in Croatia and Bosnia,
by launching a war against Croatia and intervening in Bosnia. International criminal tribunals
were set up for the former Yugoslavia and following the Rwandan genocide of 1994, further
improvements were made in the tribunals. However, the intervention on the ground of human
rights remained a deeply politicised issue with human rights not being the only criteria behind
the intervention. In 1997, the then UN Secretary-General Kofi Anna called for the integration

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of the human rights dimension into every sphere of UN work, especially humanitarian action
and development- a programme which is widely known as “mainstreaming" (Freeman 2017).
Meanwhile, the Vienna Conference emphasised the special vulnerability of certain
groups like Women, Children, minorities, indigenous population, persons with disabilities,
migrant workers, and refugees (Freeman 2017). The Vienna conference recommended ways
to address some of these issues by advocating the creation of a High Commissioner for
Human Rights which was approved by the General Assembly. High Commissioners are
supposed to work with the governments while also analysing their human rights records.
They are also given the responsibility of raising funds for the UN’s human rights, associated
treaties and other works. Till 13 December 2013, there were 13 country offices of the Office
of High Commissioner and 13 regional offices which are given the task to provide capacity
building to states and support and advice UN agencies and peacekeeping operations (Gaer
and Broeker 2013).
4. Conclusion
The institutionalisation of human rights raises some important questions about how the values
and norms are shaped in the international arena. This chapter is important in understanding
that while there needs to be a universal conception of human rights backed by international
agencies in the form of the United Nations and other regional organisations, the role played
by politics in shaping the discourse of human rights is also crucial. Any talk of human rights
needs to be seen within the larger context of realisation of those values which human beings
cherish and human rights should facilitate the realisation of such values. The understanding
of human rights in the contemporary era is also expanding and with the dawn of newer forms
of technology, the question of surveillance and privacy has become central to the question of
human rights. This chapter is not an all-encompassing one that will give answers to all the
questions related to human rights but should act as the basic ground for helping the students
understand the very conception of what it means to be a human being and how that is then
connected to the idea of human rights. The issue of human rights is evolving with time as the
human consciousness is now being seen increasingly embedded with the environment,
animals, and ecology. The idea of human rights is now increasingly connected to the
discourse around environmental rights as it is affecting the right to life which is the most
basic human right.
References
Alston, Philip, and James Crawford, eds. The future of UN human rights treaty
monitoring. Cambridge University Press, 2000.
Cassese, Antonio. “The General Assembly: Historical Perspective 1945-1989.” The
United Nations and human rights: A critical appraisal 25 (1992): 31-32.
Donnelly, Jack. “Cultural Relativism and Universal Human Rights.” International Law of
Human Rights (2017): 173-191.
Freeman, Michael. Human rights. John Wiley & Sons, 2017.

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Gaer, Felice D., and Christen L. Broecker, eds. The United Nations high commissioner
for human rights: Conscience for the world. Martinus Nijhoff Publishers, 2013.
Hoffman, John, and Paul Graham. Introduction to political theory. Routledge, 2015.
Morsink, Johannes. “Cultural genocide, the Universal Declaration, and minority
rights.” Human Rights Quarterly 21, no. 4 (1999): 1009-1060.
Pavão, Aguinaldo, and Andrea Faggion. “Kant for and against Human Rights.” In Kant
and Social Policies, pp. 49-64. Palgrave Macmillan, Cham, 2016.
Robertson, Arthur Henry, and John Graham Merrills. Human rights in the world: an
introduction to the study of the international protection of human rights. Manchester
University Press, 1996.
Samarsinghe, Natalie. “Human Rights.” In The Oxford Handbook on the United Nations.
2018.
Waltz, Susan. “Universalizing human rights: The role of small states in the construction
of the universal declaration of human rights.” Hum. Rts. Q. 23 (2001): 44.
Waldron, Jeremy. Nonsense Upon Stilts (Routledge Revivals): Bentham, Burke and Marx
on the Rights of Man. Methuen, 1987.

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(c) Provisions of Rights in Indian and South African Constitution

Satya Prakash

Structure
1. Introduction
2. Deprivation of Rights before Establishment of Democratic Constitution in India and
South Africa
3. Rights in the Indian and South African Constitution
4. Right to Education in South Africa and India
5. Affirmative Action in India and South Africa
6. Right of Women in India and South Africa

1. Introduction
Constitution of a nation is a compilation of fundamental laws on which the political society
of that nation is governed. It is a written document which empowers distinct organs of the
state to make laws, enforce laws and keep check on the violation of laws. The formation of
the constitution at the global level started from the Constitution of the United States of
America which was enforced in June 21, 1788i and thereafter many other nations followed
the path. After analyzing the constitutions at the global level the conclusion emerged that the
constitution of a nation also describes the socio-political structure of that nation. For instance
the social structure of India was divided on many grounds like caste, religion, culture,
language, regions, etc. In India, historic presence of inequality and denial of rights to the
unprivileged, on the grounds of castes or the other social phenomenon, consequence to under-
developments for a large chunk of the population. Like caste in India, South African
population is divided on the basis of race which was responsible for creating under-
developments for the black people, most of the black people were slaves and were denied
even the fundamental rights. Therefore the society in South Africa and India was governed on
the basis of purity and impurityii of caste for the later and the race for the former. The South
African Population on the racial basis could be classified into four categories i.e. Black
African (80.9 %); Mixed Race (8.8%); White (7.8%) and Indian/Asian (2.5%).iii While
making the constitution in both the nations the constitution makers addressed the issue of
social inequality and along with special measures an attempt to make an egalitarian society
was enforced. The dimensions of rights in the modern political world have attained a wider
currency. Right is practiced very frequently today. Some of the instances of the rights are
right to education, right to contest elections, right to be treated equally, right to opportunity,
right to life, right to travel freely, right to religion etc. In the every walk of lives rights
follows human being like a shadow. Many of the political values are linked with the ancient
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Greek but the ancient Greek does not provide a fix time of the origin of rights but they were
more concerned about the right conducts instead of rights of the human being. Before the
commencement of the constitution whether be it of India or South Africa the notion of rights
were practiced by the few privileged. But the enforcement of the constitutional law changed
the entire structure of the rights. The constitutional provisions of rights make the later
universal and for all however the constitution also imposed some reasonable restrictions on
the application of rights following the integrity and security of the nation which will be
discussed later in detail.
2. Deprivation of Rights before Establishment of Democratic Constitution in India and
South Africa
The history of constitution making in India is rooted in the history of British rule in India
who came to India as traders in the form of East India Company in 1600. The Britishers came
to India with the motive of trade but later the motive transformed from trader to invader. In
1765 the company acquired the right over revenue and civil justice of Bengal, Bihar and
Orissa which was also known as ‘Diwani’. After 1765 the Britishers enacted several rules and
regulations to govern India but those rules were enforced for the benefits of the Britishers and
it did not address the aspirations of the Indians. After the 1857 first war of independence in
1858 the British Queen took the responsibility of governance in India and it continued till
India acquired freedom from the British rule. In between 1765 and independence day the
Britishers made several laws which also had influence on the Indian Constitution. The British
carved rules could be divided into two periods one is pre-1857 war and then the post war. In
the pre-war period the Britishers made the rules like the Regulation Act of 1773 which made
the Governor of Bengal as the Governor-General of Bengal and also established Supreme
Court in Calcutta. The Pitts Act of 1784 a system of double government as it separated the
commercial and political function of the company and established two different offices for
the governance that is Court of Directors and the Board of Control respectively. The Charter
Act of 1813 brought a change in the market structure as it opened the Indian trade market for
all British Citizens and the company was entitled to trade in tea in India. In 1833 the British
Government brought major change in the governance model it made the Governor-General of
Bengal as the Governor-General of India and he had power to make laws for entire British
India. The charter act of 1853 introduced the civil servant examination which was open to all
including Indians and also separated the executive and legislative function of the Governor-
General. The 1857 revolution, named as the first war of independence by V.D. Savarkariv,
changed the British rule in India. The British government introduced first Government of
India Act, 1858. The Act of 1858 appointed the Governor-General of Bengal as the Viceroy
of India and ended the East India Company rules in India and transferred the power to rule to
the British Crown. For the first time in the history of British rule in India through Indian
Council Act, 1861 Indians, as non-official members, became the part of legislative Council of
Viceroy. The India Council Act, 1892 expanded the number of non-official Indians in both
the central and the provincial level legislative council and election was also introduced in

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limited aspects however it did not change much in the representation yet the Britishers
maintained their majority. The Morley-Minto, 1909 reform initiated the concept like
‘separate electorate’ for the Muslims and the Government of India Act, 1919 introduced
bicameral legislature and expanded the area of communal representative by extending
separate electorates for Sikhs, Indian Christians, Anglo Indians and the Europeans. Thereafter
the British Government introduced the Government of India Act, 1935. This act is vital in
many senses as the free India adopted several things in the law making for the country. This
act empowered 6 out of 11 provinces with bicameral structure and the also it separated the
function of government by introducing three lists that is Federal, Provincial and the
Concurrent lists and also introduced federal courts and Reserve Bank of India. Therefore it is
evident from the discussion of laws that the laws made by the Britishers were discriminatory
and derogatory for the Indians as it was not democratic and representative of the India
population. In the case of South Africa the situation was mostly similar. Before making a
democratic constitution in 1994, the South Africa had had three constitutions at the different
point of time for instance the Constitution of 1910v, 1961vi and 1983vii but these constitutions
did address the problems of blacks in South Africa. Their rights, liberty and the sense of
equality were neglected. It also dilapidated the ethnicity, multicultural and multilingual
society of South Africa. The white minority in South Africa restricted the majority blacks
from participating in the decision making processes. Many other racial populations who were
inferior as per whites vision faced series of human rights violation cases, deprivation of rights
and property and also they were forced to vacate the places where they lived and many of
them lost their citizenship.viii Therefore it could be marked in both the nations of India and
South Africa that the British rule in India and the Whites rule in South Africa ruined the
socio-economic and political sphere of majority of people in India and South African blacks.
The discrimination against blacks in South Africa researched its pinnacle and it was now on
the verse of explode. The period of apartheid in South Africa witnessed to several clash
between blacks allies and the whites, killings of prominent personalities like Steven Biko and
Albie Sachsix. The State of South Africa along with the state apparatus collectively created
dissatisfactions among the blacks and other deprived people of South Africa. Apartheid
which survived after 1948 in every nook and corner of South Africa adopted the policy of
divide and rule which also established the political, social, cultural and economic hegemony
of the whites. The discrimination and deprivation for the blacks by the whites also leads to
disempowerment for the former.
3. Rights in the Indian and the South African Constitution
In both the country of South Africa and India, chapter three and part III respectively discuss
about the provision of fundamental rights. In South Africa two traditions of rights were
marked the first was supported by the liberal whites and the other by the movements for
liberation of the blacks.x The former tradition had support from the whites in South Africa
who wanted to end the apartheid and established liberty based on democracy. The later was

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gravitated around the liberation for all including blacks. It supported the freedom, liberty,
equality and democratic socialization for all.xi
a. Preamble
Let’s begin the discussion about the provision of rights in India and South African
Constitution from the Preamble to the constitution. The Preamble to the Indian Constitution is
the part of the Indian Constitution has gone through several debates and discussions in the
apex courtxii and in India the Preamble to the constitution is called the soul of the Indian
Constitution as it outlined the basic structure of the Constitutionxiii which make it more vital
and noble. The Preamble to the Indian Constitution has broad features which creates the
founding vision of the constitution. Firstly it says that “We, THE PEOPLE OF INDIA….”xiv
that means it gives the people of India the prime priority and it’s the people who give
legitimacy and authority to the Constitution. Secondly the words (Sovereign, Socialist,
Secularxv, Democratic and Republic) enshrined in the Preamble describe what sort of nature
Indian State shall have. The mentioning of words like Justice, Liberty, Equality and
Fraternity in the preamble states about the goal of the Indian Constitution.
The sufferings of South African non-white population on racial grounds, the deprivation
of rights and unequal treatments got recognition in the preamble of the South African
constitution as the constitution mentions “we...recognise the injustices of past…”xvi and on
this basis the constitution makers tried to reorder the then existing social structure and
recommended to construct a new legitimate social order where everybody residing in the
territory of South Africa will have equal citizenship and shall be treated equally. The
Preamble to the Constitution of South Africa states that there shall be equality on the basis of
sex and every citizen shall have right to exercise their fundamental rights and freedom
without any discrimination and also everyone shall have equal protection of laws.xvii
b. Fundamental Rights and The Bill of Rights
To deal with the rights of the people the Indian and the South African constitutions have a
special section for rights. Part III of the Indian Constitution i.e. the Fundamental Rights
section has enlisted the provision of different varieties of rights and similarly in the South
African Constitution the Chapter 2 i.e. Bill of Rights section deals with the provision of
rights. Apart from these sections there are many other sections in both the constitutions which
discuss about the provisions of rights. Now before going in details about the provisions of
rights it is imperative to know the rights are granted against whom and who all are entitled to
those rights enshrined in the constitution of both the countries. The Fundamental Rights
section in part III of the Indian constitution brought a sea change which guaranteed rights to
citizens and foreigners irrespective of caste, religion, creed, language, sex etc. However it
imposes some reasonable restrictions on the foreigners while practicing the fundamental
rights. Prior to the Indian Constitution, the Government of India Act, 1935 provided the
governance structure in India but it was limited in providing a wider protection to the

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governed hence, the Fundamental Rights replaced the governance structure and promised a
wider vision of rights.
Fundamental Rights
When the Constitution was adopted on January 26, 1950 the number of Fundamental Rights
in part III of the Constitution were seven:
1. Right to Equality (Articles 14 – 18)
2. Right to Freedom (Articles 19 – 22)
3. Right Against Exploitation (Articles 23 – 24)
4. Right to Freedom of Religion (Articles 25 – 28)
5. Cultural and Educational Rights (Articles 29 – 30)
6. Right to Property ( Article 31)
7. Right to Constitutional Remedies (Article 32)
Since the introduction of Article 31 in Part III of the Indian Constitution it was under
criticism on various grounds therefore in 1978 through the 44th Constitutional Amendment
Act it was removed from the Fundamental Rights section and placed under Part XII, Article
300A as legal right. The Indian constitution mentions two words i.e. ‘citizen and any person’
the former depicts a narrow meaning and it has a close sphere whereas the later seems more
open and universal. Article 14 states that within the Indian Territory the state is responsible to
ensure any person equality before law and the equal protection of laws irrespective of
person’s caste, religion, sex etc. However Article 14 has few exceptions for instance the
Article 361 states that President and the Governor of states are not answerable to any court
for his acts, they cannot be arrested or punished during their tenure however Article 61
permits for initiate the process of impeachment if any of the act by the President found
contrary to the Constitutional laws; the constitution permits discrimination of those residing
in the backward areas.xviii In a case St. Stephen v. University of Delhi, 1992 Supreme Court of
India said that the unequals shall be treated unequally. In a case regarding equality before law
Vijay Sharma v. Union of India AIR 2008 the Supreme Court said that the abortion during
pregnancy for a particular sex and the abortion on the ground of medical advice are two
different cases therefore abortion for the later does not violate the essence of Article 14.
Article 15 of the Constitution Prohibits any kind of discrimination for the citizens based on
only grounds of religion, race, caste, sex, place of birth. However it does permit state under
the provision of Article 15 (3) to make special provisions for the development of women and
children and by doing so it does not contradict with the provision of Article 14. Article 15 (4)
empower state to make special provisions for the socially and educationally backward
classes. In 2019 under the NDA government the scope of Article 15 got enlarged as it
incorporated a new Article i.e. Article 15 (6) by the 103rd Amendment Act, 2019 which
empowered state to extend the affirmative action policy for the economically weaker
sections.xix The provision under Article 16 prohibits discrimination in Public employments
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for any citizens irrespective of class, caste, religion, sex, place of birth. However Article 16
(4) permits state to make special provision of reservation for the backward classes who are
not adequately represented in the government services. The historic practices of castes in
India had created a category of untouchables and untouchables; the later faced much
discrimination and had many restrictions on entry to the public places. Article 17 of the
Constitutions prohibited any such discrimination and abolished any kind of practices of
Untouchability. In the colonial times the British India and the feudal classes in India used the
titles like Raibahadur, Maharaja, etc. Article 18 abolished such titles however the titles
provided in military and academic distinctions shall remain in function. The Indian
Constitution gives freedom of expression to all citizens, but it also allows for considerable
limitations. Citizens in India are theoretically allowed to criticize the government, politics,
politicians, bureaucracy, and policies, yet there have been several examples of arrests for
doing so. There have been major cases in the Indian Supreme Court that have supported the
nation's policy of granting free press and expression to all citizens, as well as cases in which
the Court has maintained limits on freedom of speech and press. According to Article 19 of
the Indian constitution:
(19) Every citizen has the right—
a. to freedom of expression and assembly;
b. to congregate peacefully and without arms;
c. to establish organizations or unions;
d. to move freely within India's territory;
e. to dwell and settle in any portion of India's territory; and
f. to practice any profession or carry on any employment, trade, or business
These rights are restricted such that they do not affect: India's credibility, the state's security,
friendly connections with foreign states, the rule of law, morality or decency, defamation or
encouragement to commit an offence is considered contempt of court, etc. The National
Security Act of 1980 and UAPA, as well as the Prevention of Terrorism Ordinance (POTO)
of 2001, the Terrorist and Disruptive Activities (Prevention) Act (TADA) from 1985 to 1995,
and other comparable legislation, limit freedom of expression. Section 124A of the Indian
Penal Code, 1860, deals with sedition and deems any word or expression that promotes
contempt towards the government punishable by imprisonment ranging from three years to
life. Article 20 provides protection in respect of conviction for offences, this provision is
applicable to both citizens and the foreigners. Article 20 has three provisions i.e. first,
prohibits conviction of any person except for violation of laws in enforce, second, prohibits
the double punishment for the same offence and third, no person shall be forced to be witness
against himself. Article 21 provides the protection of life and liberty of everyone, it includes
the right to livelihood and the right to education under Article 21A. The President of India is
empowered to suspend the fundamental rights during the national emergency but Article 20

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and 21 are the exceptions. Article 22 provides protection against arrest and detention and it
says that the person being arrested must be informed about the reason of arrest, it empowers
the person to consult the legal experts for defending, produce before a magistrate within 24
hours of arrest, and release after 24 hours unless the magistrate authorises further detention.xx
Article 23 and 24 provide rights against exploitation and prohibits the child labour
respectively. The former prohibits three kinds of exportations i.e. trafficking of human being,
beggar and forced labour however the later prohibits employment of child under the fourteen
in any hazardous jobs.xxi Article 25 to 28 discuss about the right to religion. Article 25 states
that every citizen of India shall have the freedom of 3Ps i.e. to Profess, Practice and
Propagate religion. It empowers state to take measures against religious practices to maintain
public order, morality and health. xxii Article 26 states that keeping in view the public order,
morality and health every religion shall have right to maintain the institutions for religious
and charitable purposes and manage their own religious activities and acquire properties (the
movable and immovable) and administered those properties as per the law permit.xxiii Article
27 prohibits any sort of collection of religion related forced taxation from any person. It
directs state to be in neutral position in the taxation activities based on religion. Article 28
provides freedom to attain the religious instruction at the educational institutions. Article 28
discusses about four types of educational institutes that is educational institute maintained by
the state; educational institute recognised by the states, it could be public or private; institute
receiving aid from the sectors other than state; and the final category is the institute
recognised by state but established under any religious endowment. For all four categories
there are separate procedure to be followed like for the institution maintained by state fully,
student could not be given religious instructions; for the second and the third categories the
institute cannot force the students to follow religious instructions however for the final
category the institute may prescribed the religious instructions which will be followed strictly
by the students. Article 29 and 30 state about the conservation of the cultural and
administered the minorities institutions respectively. Article 29 allows the conservation of
culture, script and language and prohibits discrimination in admission in educational
institutions based on culture scripts and language. xxiv Article 30 directs state to not to
discriminate while giving aids to the educational institute based on minority status.xxv There
has been several incidence of violation of the fundamental rights in part III of the Indian
Constitution. To get such issues resolved Article 32 empowers the citizen to approach
Supreme Court of India and High Courts under Article 226. The Courts could issue writs like
Habeas Corpus, Mandamus, Prohibition, Certiorari or Quo Warranto to restore the
fundamental rights of the deprived citizen.
Bill of Rights
This is the most sacrosanct section of the South African Constitution. It is the part which
enables rights to the South African people with any discrimination for the development of
self. Chapter 2 of the South African Constitution contains the provision of rights. Section 7
i.e. related to rights has three sub-sections i.e. 7 (1) which defines the Bill of Rights as the
most vital part for establishing a flourished democracy in South Africa. It prioritises the basic
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human values like dignity, equality and freedom.xxvi Section 7 (2) states that it shall be the
responsibility of the state to respect, protect and promote the rights enshrined in the Bill of
Rights.xxvii Section 7(3) talks about the limitations of the Bill of Rights subjected to integrity.
Section 8 of this part says that the laws provided in Bill of Rights are applicable for all and
binds the legislature, executive and judiciary and all other organs of the state.xxviii Section 9 of
this part is almost similar to the provisions of Article 14, 15 and 16 of the Indian
Constitution. Section 9(1) states that everyone shall be treated equally before the laws and
shall have equal protection of laws. Section 9(2) prescribed the provision for positive
discriminations in favour of those who were deprived of rights in past. Section 9 (3) prohibit
discrimination of any kind to anyone based on sex, race, marital status, sexual orientation,
place of birth, language , culture, social origin. Section 9 (4) directs the legislature to make
laws to prohibit unfair discrimination.xxix Section 10 and 11 of the South African Constitution
discuss about the human dignity and right to life respectively. Section 12 (1) of this part
prohibits the deprivation of anyone of freedom without any just cause and also prohibits
detention without any trail, prohibits violence, torture, cruel punishment of any sorts whether
in private or public places.xxx Section 12 (2) make the people sovereign over their body and
permits the individual to take decision related to reproduction and prohibits any medical
experiment on anyone’s body without consent. Section 13 of this part states to end slavery of
any form. Right to religion is discussed under section 15 of the constitution. Section 16
contains the provision of freedom of expression, and section 16 (1) (a) states about the
freedom of press which is lacking in the Indian Constitution. Section 18 of the constitution of
South Africa empowers everyone to form their association and section 19 of this part
empowers citizen to join, form, recruit members to the political party and participate in
contesting and vote in the elections as per the prescribed age limits. Section 22 and 23 of this
section provide the freedom of choose the occupation and profession of their own choices and
also make trade union respectively. The right to property has been discussed in section 25
which prohibits the deprivation of anyone from their property except in terms of law of
general applications. It also discusses about the compensation in case the encroachment of
property in legal terms. The Bill of rights has also the provisions of right of the children
(section 28), education (Section 29), cultural rights (Section 30-31), Access to Courts
(Section 34), limitation of rights (section 36) etc.xxxi
Freedom of Speech & Expression in South Africa
Freedom of expression was restricted by apartheid legislation such as the Native
Administration Act of 1927 and the Suppression of Communism Act of 1950. Given South
Africa's racial and discriminatory past, notably the Apartheid era, the Constitution of the
Republic of South Africa of 1996 forbids expression that is comparable to advocating hatred
on the basis of several stated reasons. A clause of South Africa's Bill of Rights, Chapter 2 of
the Constitution, protects and limits freedom of expression. Section 16 provides for the
following:
(16) Right to free expression

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1. Everyone has the right to free expression, which includes

a) press and other media freedom;
b) freedom to receive or transmit information or ideas;
c) artistic creative freedom; and
d) academic freedom and scientific research freedom
2. The privilege granted in article subsection (1) does not apply to
a. war propaganda;
b. encouragement of impending violence; or
c. promotion of hatred based on race, ethnicity, gender, or religion, which constitutes
incitement to inflict damage
4. Right to Education in South Africa and India
Right to Education in South Africa: The South African Constitution has been called a
transformative instrument, which implies that the Constitution aspires to improve South
Africa rather than maintaining the status quo. These revolutionary goals apply to the state’s
educational system as well. The South African Constitution provides everyone the right to a
basic education, which necessitates aggressive actions to promote education in the country.
Apartheid left South Africa with an education system that was severely unequal and
ineffective. The rate of change has been gradual after more than two decades of democracy.
A privileged few acquire world-class education; for the remainder, a basic education remains
a pipe dream rather than a reality. Let’s comprehensively overview the constitutional right to
a basic education, explaining where it fits in the South African Constitution, what it means,
and how it links to other rights. The right to a basic education and the right to higher
education are both enshrined in Section 29(1) of the Constitution. Section 29(1) states that
“…everyone has the right: (a) to a basic education, including adult basic education; and (b)
to further education, which the state, through reasonable measures, must make progressively
available and accessible”. The term 'everyone' refers to all persons living within the South
African boundary as the Supreme Court of Appeal upheld that the freedom to study is the
fundamental in human dignity; without it, a person is bereft of the possibility of human
fulfilment. It is inherent in all people — citizens and non-citizens alike – just by virtue of
their humanity. Furthermore, it is specifically protected by Section 29(1) of the Bill of Rights,
which gives everyone the right to a basic education, including adult basic education, as well
as the right to further education. However, it is crucial to realize that just because everyone in
the country has the right to a basic education does not mean that it cannot be curtailed in
specific situations. Rights are not absolute and can be limited if there is a good basis. The
potential of limits, however, does not deprive non-citizens of their privilege. The word “basic
education” is not defined in the Constitution. There was formerly debate about whether a
'basic' education constituted a period of time spent in school (the time-based approach) or an

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education of a suitable level (the adequacy-based approach). For good reason, policymakers
and judges have increasingly favored the adequacy-based approach. The Section 29(1) is the
first justification for an adequacy-based approach. The entitlement to 'adult' basic education is
included in this clause. This means that a basic education cannot be limited to specific age or
period of time spent in school. Another argument is that an adequacy-based approach is best
suited to the goals of the right to a basic education. In its landmark ruling in Governing Body
of the Juma Musjid Primary School v Essay, the Constitutional Court encapsulated some of
these goals. In that decision, Justice Bess Nkabinde stated, 'The relevance of education,
particularly basic education, for individual and social growth in our democratic system, in
light of the legacy of apartheid, cannot be underestimated.' The Constitution's Section 29 can
be defined as a “hybrid right.” Section 29 is a socioeconomic right that states that the
government must make education accessible and available to everyone. It is, nevertheless, a
civil and political right since it includes protections of freedom of choice, such as the right to
choose one's own language in school and the freedom to establish and operate autonomous
educational institutions. Individuals therefore have the option of attending either state-run or
privately run schools. While the exact standard protected by the right may vary depending on
conditions prevailing in a given State, education in all its forms and at all levels must exhibit
the following interrelated and essential features: availability, accessibility, acceptability, and
adaptability, according to General Comment No. 13 published by the Committee on Social,
Economic, and Cultural Rights (CESCR) of the ICESCR.
Availability - All students must have access to a functional educational institution.
Buildings, sanitary facilities for sexes, educational materials, libraries, computer
facilities, and internet connection are all part of this.
Accessibility has three overlapping dimensions: non-discrimination, physical
accessibility, and economic accessibility; this means that education must be
inexpensive, physically accessible, and provided on a non-discriminatory basis.
Acceptability entails the form and substance of education, including curriculum and
instructional techniques. This relates to the relevance, appropriateness, and quality of
education in relation to the educational objectives that must be met.
Adaptability - education must be adaptable in order to respond to societal changes and
the demands of learners in their different social and cultural situations.
Right to Education in India: The Right to Education Act 2009, commonly known as the
RTE Act 2009, was passed by the Indian Parliament on August 4, 2009. It explains the
importance of free and compulsory education for children aged 6-14 years in India under
Article 21 (A) of the Indian Constitution. This act went into effect on April 1, 2010, making
India one of the 135 nations to make education a basic right for all children. It establishes
minimal standards for elementary schools, forbids the operation of unrecognized schools, and
fights against contribution fees and admissions interviews for students. The Right to
Education Act conducts regular surveys in all communities to identify children who are
qualified for an education but lack the financial means to do so. For many years, India has

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faced educational issues at both the national and state levels. The Right to Education Act of
2009 establishes duties and obligations for the centre, states, and other local organizations in
order to close gaps in their education systems and improve the quality of education in the
country.
1. Universal and free education for all: In India, the government is required to offer free
and compulsory primary education to all children up to the eighth grade in a
neighbourhood school within one kilometer of their home. No kid is required to pay any
fees or other expenses that might prohibit him or her from pursuing and finishing
primary school. In order to lessen the burden of school fees, free education also involves
the distribution of textbooks, uniforms, stationery items, and special instructional
material for students with disabilities.
2. The standard mandate: The Right to Education Act establishes norms and criteria for
pupil-teacher ratios (the number of students per teacher), classrooms, and separate
bathrooms for girls and boys, drinking water facilities, the number of school-working
days, teacher working hours, and so on. To maintain a minimal level specified by the
Right to Education Act, every elementary school (Primary school + Middle School) in
India must comply with this set of rules.
3. Special arrangements for exceptional circumstances: The Right to Education Act
requires that a child who is not in school be admitted to an age-appropriate class and
receive special instruction to enable the child to reach an age-appropriate learning level.
4. The number and quality of teachers: The Right to Education Act mandates reasonable
teacher deployment by ensuring that the stipulated pupil-teacher ratio is maintained in all
schools, with no urban-rural imbalance. It also requires the appointment of adequately
qualified instructors, i.e. teachers who have the necessary entrance and academic
qualifications.
5. Zero tolerance for discrimination and harassment: The Right to Education Act of
2009 strictly prohibits of physical and mental harassment, as well as discrimination
based on gender, caste, class, and religion, screening procedures for admission of
children, capitation fees, private tuition centres, and the operation of unrecognized
schools.
For many years, educational inequality has been a major issue in India. While the Right
to Education Act is a first step toward an inclusive education system in India, its
implementation remains a difficulty.
6. Ensuring children's overall development: The Right to Education Act of 2009 calls
for the creation of a curriculum that would ensure the overall development of every
child. Increase a child's knowledge, human potential, and skill.
7. Improving learning results to reduce detention: According to the Right to Education
Act, no kid may be held behind or expelled from school until the eighth grade. In order

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to enhance children's school performance, the Right to Education Act instituted the
Continuous Comprehensive Evaluation (CCE) system in 2009 to ensure grade-
appropriate learning results in schools. Another motivation for instituting this approach
was to analyse every part of the child's life throughout their time in school so that gaps
might be detected and addressed in a timely manner.
8. Monitoring RTE compliance: School Management Committees (SMCs) play a critical
role in enhancing participatory democracy and governance in elementary education. All
schools subject to the Right to Education Act of 2009 are required to form a School
Management Committee comprised of a headmaster, a local elected representative,
parents, community representatives, and others. The committees have been given the
authority to supervise school operations and establish a school development plan.
9. The Right to Education Act is justiciable: The Right to Education Act is justiciable
and is supported by a Grievance Redressal (GR) process that allows persons to take
action if the terms of the Right to Education Act 2009 are not followed.
10. Creating inclusive environments for all: The Right to Education Act of 2009 requires
all private schools to reserve 25% of their seats for children from economically and
socially disadvantaged backgrounds. This Act provision aims to increase social inclusion
in order to create a more just and equitable society.
5. Affirmative Action in India and South Africa
Despite being constituted more than half of the population of the country, according to 1931
census, the issues of backward castes were not addressed adequately. Dr. Bhim Rao
Ambedkar, head of the drafting committee, was assigned the task to frame Constitution for
India. He, through Constitution, tried to establish an egalitarian society and introduced
distinct measures to empower backwards and downtrodden. Hence, the idea of reservation
and conferring special position to the downtrodden and marginalised are precisely
attributable to Dr. B. R. Ambedkar. He conveys that “if all these communities are to be
brought up to the level of equality, then the only remedy is to adopt the principle of inequality
and to give favoured treatment to those who are below the level”.xxxii The constitution makers
acknowledged the needs for introducing positive discrimination provisions in the Indian
constitution to elevate and empower the marginalized groups from economic and social
margins. The constitution became the instrument for initiating social, political and economic
transformation of the nation.xxxiii The Preamble of the Indian Constitution emphasized on
“equality of status and opportunity”xxxiv and the Constitution of India empowered the State to
make special measures for the development of backward classes. The provision given in
Article 46 in the Directive Principle of State Policy endows power to the State to promote
educational and economic interest of the weaker sections and also protect them from social
injustices. Thereafter, Article 15 and Article 16 prohibits discrimination by the state and
discrimination in regard to government employments, therefore to qualify the provisions of
Article 15 and 16, new Article 15 (4)xxxv and Article 16(4) were added in the Constitution of

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India which provided the base of reservation in India for the backward classes. In a way,
reservation, based on caste, in government services and higher educational institutions
became the primary tool for fulfilling the long waiting constitutional promises to establish an
egalitarian society in India.xxxvi In India the affirmative action policy has its origin in the long
practices of the castes where the castes at the lower end were denied many rights which left
the lower castes high and dry in every sector of the human development whether it was
education, social, economic or the political development. But the case of South Africa is
similar to India but race and colour were the main theme of discriminations and the
deprivations. The affirmative action policy is not a civil rights but an executive orders. The
affirmative action in South Africa was the most heated debate than the other rights. The
investigation about the development of South African racial populations begins with the most
dictatorial regime of apartheid in South Africa for decades, which denied the blacks and the
racial masses the most basic human rights. The provision under Chapter-2 section 9 (2) states
that “Equality includes the full and equal enjoyment of all rights and freedoms. To promote
the achievement of equality, legislative and other measures designed to protect or advance
persons, or categories of persons, disadvantaged by unfair discrimination may be taken”.xxxvii
The Section 9 (2) empowers the state to make special provisions for the upliptment of the
blacks and other deprived and disadvantaged. In educational institutions at the higher level in
the apartheid periods the universities were classified into three broader categories first was
the ‘elite-Afrikaans-speaking, second the Dutch universities and the third the middle class
English-speaking universities’ but these universities were largely dominated by the whites in
South Africa and very often a lucky South African blacks would get admission into these
institutions but in post-apartheid period marked a drastic changed scenario as due to
affirmative action policy many Blacks got admission in these reputed universities.xxxviii The
legislative body in South Africa enacted a law Employment Equity Act in 1998 which aimed
to provide equal opportunity in employment for all men and women with any discrimination
based on race or colour.xxxix
6. Rights of Women in India and South Africa
Women constitute approximately half of the world population but despite being half of the
total population they lacked many privileged in comparison to men not only in India and
South Africa but around the globe. They lacked social, political and economic rights. India
after independence adopted the adult franchises irrespective of gender disparities however
many developed and developing countries adopted these measures very late after attaining
independence. The Indian Constitution and the South African Constitution provided
legitimacy and recognise women as equal to the men and also empowered states to make
special provisions for the development of women. Provisions enshrined in Part III i.e.
Fundamental Rights and VI i.e. Directive Principle of the State Policy, of the Indian
Constitution provide legitimacy to the wide commitment made. Article 14, 15 and 16 of the
Indian Constitution which discuss about the equality before law and the equal protection of
laws; prohibition of discrimination on the ground of sex; and the right to equal opportunity

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irrespective of gender biasness respectively are some of the foundational laws which keep
women at the equality wen. Also the provision under Article 15 (3) directs state to make
special provisions for the development of women. The provisions under the Directive
Principle of State Policy like Article 39 (a) and 39 (d) empower state to make policies in such
a way that men and women could have adequate means of livelihood and also secure equal
pay for the equal work to men and women. Article 42 states that the state shall make
provisions for securing just and humane conditions of work and for maternity relief.
In South Africa the status of women were derogatory with respect to that of men. In 1994
South Africa’s long movement against the apartheid consequence to the liberation of the
South Africa population and finally a democratic government was established. The series of
discriminations and deprivation of rights for the South African women made them more
vulnerable and marginalised sections in South Africa. However when Constitution was being
drafted in South Africa in post-independence period women played a very crucial role and
they also got a respective position in the constitution. The first and foremost rights which was
given to the women of South Africa was equal rights for all men and the women irrespective
of race and colour, these were the foundational principles for which African National
Congress fought for.xl Human rights, equality and freedom for everyone are the founding
principles of the constitution of South Africa. Section 9 of the Constitution states protection
of the rights of all people, equal protection and benefit from law, and freedom from unfair
discrimination on the basis of sex, gender, marital status etc. The new Constitution contains a
number of rights for women whose mandate was to improve the overall quality of life of
women as a generic category. Thus, a number of rights were granted to them including the
right to property; sufficient food and water; access to adequate housing; right to education;
the right to a clean environment; access to health care services; and social security. The
establishment of the Office on the Status of Women (OSW) in The Presidency marked the
beginning of the building of gendered institutional machinery in South Africa. The aim of the
office was to develop a national gender policy framework and coordinate policies for women
at the national level. Another step was the establishment of the National Commission on
Gender Equality (CGE) by the parliament as one of the Chapter 9 institutions outlined in the
Constitution. Its mandate was to “promote respect for, and to protect, develop and attain
gender equality”. The mandate was to be achieved by monitoring, evaluating, investigation
complaints, research, conducting public awareness and inculcating education on women’s
rights and gender equality. Another major milestone was the establishment of the National
Policy Framework for Women’s Empowerment and Gender Equality which was referred to
as the Gender Policy Framework (GPF). It aimed to achieve gender equality by “equality of
opportunity” and “equality of treatment”. The framework focused on the political and
economic aspect of empowering women.

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Answer the Following Questions

A. Multiple Choice Questions
1. Which one of the following options discusses about the ‘Freedom of Press’ in South
African Constitution?
a. Section 16
b. Section 11
c. Section 7
d. None of the Above
2. Which of the following Act discusses about the ‘System of Double Government’ in
India?
a. Pitts Act, 1784
b. Charter Act of 1833
c. Charter Act of 1853
d. Charter Act of 1813
3. Right to Property in the Indian Constitution is a:
a. Fundamental Rights
b. Legal Rights
c. Both
d. None of the Above
B. Long Question-Answer
1. Discuss the Constitutional Provision Regarding Right to Education in India and South
Africa.
2. Fundamental Rights and the Bill of Rights are the foundational principles of the human
development explain.
3. Describe the right to freedom of speech and expression provisions in Indian and the
South African Constitution.

i
https://www.indiatoday.in/education-today/gk-current-affairs/story/list-of-many-firsts-of-the-world-1546774-
2019-06-11
ii
The concept of “Purity and Impurity” has been discussed in the Louis Dumont Homo Hierarchicus: Caste
System and Its Implications, Chicago: Chicago University Press, 1988.
iii
Statistics of South Africa, cited by BBC News, “South Africa’s ‘toxic’ Race Relations”.
https://www.bbc.com/news/world-africa-46071479

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v
In this year South Africa attained independence from the British rule.
vi
South Africa formed a constitution in 1961 and declared South Africa a republic.
vii
There were three ethnic group exited majorly in South Africa and the South African Constitution of 1983
established tri-cameral parliament.
viii
Jeremy Sarkin, “The Drafting of South Africa’s Final Constitution From a Human-Rights Perspective”, The
American Journal of Comparative Law 47, no. 1 (1999): 67.
ix
Mark S. Kende, Constitutional Rights in Two Worlds: South Africa and The United States, New York:
Cambridge University Press, 2009, p. 1.
x
Ninan Koshy, “Fundamental Rights in South Africa”, Economic and Political Weekly 29, no. 26 (1994): 1582.
xi
Ibid.
xii
Refer to the Case: Keshvananda Bharati v. State of Kerala, AIR 1973 SC 1461: (1973) 4 SSC 225: 1973 Supp
SCR 1.
xiii
Keshavananda Bharati v. State of Kerala, AIR 1973; Indira Gandhi v. Raj Narain, AIR 1975; Minerva Mills
Pvt. Ltd. V. Union of India, AIR 1980 are few cases related to basic structure.
xiv
See Preamble to the Indian Constitution, The Constitution of India
xv
The term Socialist was added to the Preamble by 42nd Amendment Act, 1976.
xvi
Refer to Constitution of South Africa, Preamble.
xvii
Anees Ahmed, “A Study of the Rights Regime in South African Constitution”, Journal of the Indian Law
Institute 38, no. 4 (1996): 514.
xviii
Refer to case- M. P. Oil Extraction v. State of Madhya Pradesh, AIR, 1997.
xix
https://pib.gov.in/PressReleasePage.aspx?PRID=1577969
xx
https://indiankanoon.org/doc/581566/
xxi
https://lexforti.com/legal-news/right-against-exploitation-article-23-24/
xxii
https://www.unoreads.com/article/right-to-freedom-of-religion
xxiii
Ibid.
xxiv
Rajbir Singh Dalal, “Fundamental Rights Enshrined in the Indian Constitution: Provision and Practices”, The
Indian Journal of Political Science 70, no. 3 (2009): 784-85.
xxv
Ibid. 785.
xxvi
https://www.gov.za/documents/constitution/chapter-2-bill-rights#39
xxvii
https://www.gov.za/documents/constitution/chapter-2-bill-rights#39
xxviii
https://www.gov.za/documents/constitution/chapter-2-bill-rights#39
xxix
https://www.gov.za/documents/constitution/chapter-2-bill-rights#39
xxx
https://www.gov.za/documents/constitution/chapter-2-bill-rights#39
xxxi
https://www.gov.za/documents/constitution/chapter-2-bill-rights#39
xxxii
Dhanajay Keer, Dr. Ambedkar: Life and Mission (Mumbai: Popular Prakashan, 1995), 84.
https://books.google.co.in/books/about/Dr_Ambedkar.html?id=B-2d6jzRmBQC
xxxiii
There were three main disadvantaged groups i.e. Scheduled Castes, Scheduled Tribes and Other Backward
Classes but the social, educational and political status of OBCs was in much better condition than the SCs and
STs.
xxxiv
Preamble to the Constitution of India.
xxxv
Champakam Dorairajan v. the State of Madras; Article 15 (4) was added to the Indian Constitution after
First Amendment Act, 1951.
xxxvi
Tarunabh Khaitan, “Transcending Reservations: A Paradigm Shift in the Debate on Equality,” Economic
and Political Weekly 43, no 38 (September, 2008): 8.
xxxvii
Constitution of South Africa, https://www.zaoerv.de/61_2001/61_2001_1_a_403_458.pdf
xxxviii
https://www.zaoerv.de/61_2001/61_2001_1_a_403_458.pdf
xxxix
https://www.zaoerv.de/61_2001/61_2001_1_a_403_458.pdf
xl
John Hatchard, “The Constitution of the Republic of South Africa”, Journal of African Law 38, no. 1 (1994):
73.

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Unit-2 : Issues

(a) Torture: USA and India

Rimpreet Kaur Sandhu

Structure
1.1 Introduction
1.2 Important International Conventions against Torture
1.2.1 UNCAT
1.2.2 Minimum Rules For The Treatment Of Prisoners(1955)
1.2.3 Declaration on the protection of all persons from being subjected to torture
and other cruel inhuman or degrading treatment or punishment (1975)
1.2.4 for protection of all persons under any form of detention or imprisonment
(1988)
1.2.5 statute of the international criminal court (1998)
1.2.6 Istanbul protocol (1999)
1.3 History of Torture in India
1.3.1 Timeline of Torture in India
1.3.2 Torture During British Rule
1.3.3 Torture During Post Colonial Period
1.4 Types of torture: India
1.4.1 Torture in Police Custody and Custodial Death
1.4.2 Custodial Torture of Women
1.4.3 Custodial Torture of Children
1.5 Case Study- Faizan Custodial Death Case
1.5.1 Timeline of the Events
1.5.2 Actions taken by the Authority
1.5.3 FIR Statement
1.5.4 Conclusion
1.6 History of Torture in US
1.7 Types of Torture: US
1.7.1 “Enhanced Interrogation Technique”

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1.7.2 Waterboarding
1.7.3 Stress positions, force nudity, forced standing
1.7.4 Threats of harm to person, family
1.7.5 Sleep Deprivation use of Loud Music
1.7.6 Prolonged Solitary Confinement, Confinement in Small Space
1.8 A Case Study: Prisoners in Guantanamo Bay
1.9 Data on Custodial Deaths:India
1.10 Data on Custodial Deaths: US
1.11 Laws Against Torture in India
1.11.1 Constitutional provisions against Custodial Torture in India
1.11.2 Other Legal Provisions against Custodial Torture
1.12 Laws against Torture in US
1.13 Current Scenario in India and US
1.14 Conclusion
1.15 References

1.1 Introduction
Torture is the extreme pain and suffering, both mental and physical, inflicted on a person by
another person or by someone under public authority, in a general sense. But particularly1,
torture is when a government official cause extreme mental or physical pain and suffering on
someone else in order to extract substantive information from a detained person. It is an
inhumane act violating the fundamentals of human rights and its ideals. Such barbaric acts
cause immense psychological trauma and leads to deterioration of mental health of the victim.
As per article 5 of Universal Declaration of Human Rights, ‘no one shall be subjected to
torture or too cruel, inhumane or degrading treatment or punishment.’2
Various cruel methods are used in the world to torture people such as giving electric
shocks, beating, sexual humiliation while some tortures of psychological nature are
prolonged solitary confinement, sleep deprivation, among others.3 These methods are
recognized as illegal by international law. In order to put an end to torture various measures
have been taken at the international level such as United Nations Convention against Torture,
Rome Statute of the International Criminal Court, etc. But regardless of their illegal nature
many countries have not supported the initiatives taken at international level to end torture
completely. Moreover, such countries have not criminalized torture in their national laws.
According to Amnesty International report of torture, between January 2009 and May 2013,

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Amnesty International received reports of torture in 141 countries from every region of the
world.4
Prominent examples of torture in 21st-century are the torture of protesters in 2011
uprising in Egypt wherein women protesters were detained and were forced to do ‘virginity
tests’ and were strip searched by the authorities; Saydnaya Military Prison in Syria where
detainees were detained in dark, overcrowded and fully packed prison cells devoid of fresh
air, sunlight and food. Thousands have died here due to secret mass executions, disease,
starvation and torture. Another example is since 2015 Australian government is forcefully
transferring refugees to camps in Papua New Guinea and Nauru where they are kept in filthy
surroundings devoid of adequate healthcare and face hostility from the local population
which sometimes leads to physical assault.
Another example is of Guantánamo Bay where in January 2002, following the
declaration of “war on terror” gross human rights abuses were reported, committed by the US
government in the name of fighting terrorism. Similarity, many such examples exist where
gross human rights violations have been reported and demand speedy redressal and for that
matter there are various international agreements against torture that have come up with
principles and measures, if followed by countries, can help in overcoming this menace.
1.2 Important International Conventions against Torture
1.2.1 United Nations Convention against Torture (UNCAT) (1984) or The Convention
against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment
It is an international treaty on Human Rights under United Nations which was adopted in
1984. It was among first documents at the international level and its goal is to prevent torture
and acts of cruel, inhuman or degrading treatment or punishment across the world. The party
states are supposed to take necessary measures to stop torture in their respective areas of
authority and it also prohibit party states to transport people to other countries where they can
be tortured. Government of India has signed the convention in October 1997 but is yet to
ratify it. It is among those 25 countries which have not ratified the convention given the fact
the rampant use of torture which prevails in India as per the reports of National Human
Rights Commission. Once ratified states are supposed to send a report within a span of one
year after which they must report once in every four years. The Committee against Torture
(CAT) is a group of human rights experts which checks whether the state parties are adhering
to the convention.
An Optional Protocol to Convention against torture (OP-CAT) was adopted by
United Nations General Assembly on 18 December 2002. Under this independent
international and national bodies regularly visit those places where people are deprived of
their freedom to prevent torture in any form anywhere in the world.

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The current status of Countries under Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment is given below (as on September, 2020)

1.2.2 Standard Minimum Rules for the Treatment of Prisoners (1955)

The standard minimum rules for the treatment of prisoners were adopted in 1955 by the first
United Nations conference on the prevention of crime and the treatment of offenders and
approved by economic and social Council in 1957 and 1977, respectively. These rules apply
to all the category of detainees, including sentenced prisoners detained without charge and
those under administrative detention.3 The purpose of these rules is to provide necessities of
survival such as accommodation, food drinking, water, personal hygiene, clothing, education,
sanitary, etc. Cruel Punishments like corporal retribution are banned under the Standard
Minimum Rules for the treatment of prisoners. Further, on 20 December 1971, the General
assembly recommended to all the member states that these rules must be successfully put into
practice in the administration of penal and correctional institution and urged them to
incorporate these rules in their national legislations.5
1.2.3 Declaration on the Protection of All Persons from Being Subjected to Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975)
It was a Resolution adopted by United Nations’ General Assembly on 9 December 1975. It
was the first non-binding international declaration to stop torture entirely. It was made prior
to the drafting of Convention against torture. It has 12 articles. Article 1 states that, “torture
means any act by which severe pain or suffering whether physical or mental, is intentionally

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inflicted by or at the instigation of a public official on a person for such purposes as obtaining
from him or a third person information or confession, punishing him for an act he has
committed or is suspected of having committed, or intimidating him or other persons. it does
not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions
to the extent consistent with the standard minimum rules for the treatment of prisoners.6 One
of its articles also specify that torture cannot be justified under any circumstances be it threat
of war, internal political instability or any other public emergency.
1.2.4 Principles for the Protection of All Persons under any form of detention or
imprisonment (1988)
It has the body of principles which mentions that the rights of persons who are under arrest
and detention must be provided with legal aid, medical care and access to records of their
detention, arrest, interrogation and medical treatment. State should prohibit any act contrary
to the principles, make such acts subject to proper sanctions and conduct impartial
investigation of complaints (principal 7).7
1.2.5 Rome Statute of the International Criminal Court (1998)
It sets up an international tribunal to try perpetrators of genocide, crimes against humanity
and war crimes. It was adopted by a United Nations Diplomatic Conference of
Plenipotentiaries on 17 July 1998. According to article 7, the systematic or widespread
practice of torture and “other inhuman acts of a similar character intentionally causing great
suffering, or severe injury to body or to mental or physical health” constitute crime against
humanity.
1.2.6 Istanbul Protocol (1999)
Istanbul Protocol also known as Manual on the Effective Investigation and Documentation of
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The manual and
the principles contained under it was presented by a coalition of experts standing for 40
institutions or organizations. It aims at impartial and prompt investigation and documentation
of complaints and reports of torture.
1.3 History of Torture in India
1.3.1 Timeline of Torture in India
1.3.1.1 Torture during British Rule
History of torture is as old as human existence. But, torture in India became a common sight
during British rule in India. Indigenous police officers who were poorly paid and were not
literate used to extract money from poor peasants to fulfil their needs. And the Britishers did
nothing to eradicate this problem because of their reliance on these officers to achieve their
selfish goals.
1.3.1.2 Torture during Postcolonial Period
The postcolonial period is also not aloof of the term ‘torture’. It was used as an instrument by
police and armed forces against people under police custody to extract information to help

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them in solving cases at the earliest. However, over the years many cases have been reported
wherein people who were not guilty of any crime were wrongfully detained and were tortured
ruthlessly. This resulted in mental and psychological traumas leaving them to deal with it for
the rest of their lives.
1.4 Types of tortures: India
1.4.1 Torture in Police Custody and Custodial Death
Torture in police custody in India is a frequent practice. And the highest risk of torture occurs
in the first 24 hours of the detention. It is unknown whether a person taken into the police
custody will have his/her detention recorded, whether he will be given access to a lawyer,
whether there will be a fair medical examination or not, all such questions are a result of
weaknesses that exist in Indian laws and in their implementation.
As per the latest data of National Crime Records Bureau of Ministry of Home Affairs, as
many as hundred cases of custodial deaths through torture were reported in 2017, of which 42
deaths were under police custody. Maharashtra topped the list with 456 cases, Gujarat and
Rajasthan followed with 191 and 169 cases, respectively.8
85 cases of custodial deaths were reported in the year, 2019 (NCRB report), with Tamil
Nadu registering the highest number of cases followed by Gujarat, Punjab, Rajasthan and
Odisha, however, no police officer was convicted.
1.4.1.1 Torture to extract confessions
Many cases related to extraction of confession is related to theft and petty crimes. This means
that the suspects belonging to poor background are more vulnerable to tortures of this type.
For instance, in September 2008, police led by inspector A Rocky reportedly stripped,
chained and tortured Maruthan, an Irula tribal, for 37 days during interrogation in connection
with alleged rape and murder of a tribal woman in Kerala. Mr. Maruthan was apparently
detained because he was the first to see the dead body of the woman near a stream in
September 2007 in Attappadi and informed other community members.9 and many such
instances take place all over India.
1.4.1.2 Torture resulting from a failure to pay bribes
On 12 June 2008, Nirmal Singh (45 years), a resident of Tilak Nagar in Delhi, died following
alleged torture by the police for refusing to pay a bribe. A police team went to the victim's
house to excluded non-bailable warrant issued relating to a bounced cheque. The police
claimed the victim locked himself in the bathroom. The police then broke open the door
where they found him unconscious and he later died in the hospital.10
1.4.2 Custodial Torture of Women
Custodial torture of women include rape, sexual violence, virginity testing, stripping naked,
humiliation of a sexual nature, insult, etc. and all this is done with the consent of public
officials. As per National Crime Records Bureau (NCRB), one custodial rape case was

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reported in India in 2007, to custodial rape case were reported in 2006, and seven custodial
rapes were in 2005. These figures cannot be considered an exact reflection of the incident of
rape in custody11. This shows that the situation is far cry from reality.
1.4.3 Custodial Torture of Children
The Juvenile Justice (Care and Protection) Act of 2000 continued to be violated. The Justice
act provides that child offenders cannot be detained in police custody but must be produced at
once before the juvenile Justice boards. According to this act every police station must have
at least one officer with proper training which could handle the cases dealing with children in
conflict with law. However, there are many cases in which children are often arrested and
even falsely charged, sexually assaulted, stripped and sexually abused. For instance, on the
night of 20 January 2008, 12-year-old schoolboy was allegedly tortured to death by four
police men at Dataganj in Badaun district of Uttar Pradesh. The policeman reportedly
tortured him to reveal the whereabouts of his brother who was wanted in connection with a
burglary. The police man allegedly hanged the boy from a ceiling fan to make the death look
like suicide.12
1.5 A Case Study- Faizan Custodial Death Case
During the riots in February 2020 that took place in the region of North East Delhi. Faizan
was one of the victims of the riots. Ab video had surface-to-air police personnel were seen
harassing and assaulting a bunch of young man sing them to sing Vande Mataram. The video
was allegedly shot in Kardam Puri in North East Delhi on February 24. Four men were
tortured in total and Faizan was one of them. Two days after being illegally detained, but he
couldn't survive due to the severe injuries that were inflicted on him. Even after a month of
his death there was no investigation that was conducted and police had no explanation to give
for his death. However, one of the prominent political parties bring this issue to the limelight.
The party highlighted this in a petition in the Delhi High Court. The petition detailed the role
of the police during the North East Delhi rights and amnesty international cover
implementation.13
1.5.1 Timeline of the events
On February 24, 2020, Faizan was picked up from the anti-CAA protest site and thrashed by
the policemen. He was taken to the hospital later and then brought back to Jyoti Nagar Police
Station. Police did not permit the family members to meet Faizan for two days. On February
26, 2020, the family was asked to come and pick Faizan, as he could not move or speak at
that time. Kismatun, his mother, who was 61 at the time, got Faizan home. Faizan later stated
that he had been beaten badly. Recalling his state, she said that he was like a living corpse,
black and blue from head to toe, unable to eat, drink or sit up. Kismatun recounted:
“By that time, Dr Khaliq Ahmed, who runs a clinic in the neighborhood, asked the
family to rush Faizan to hospital as soon as he saw him. He was taken to GTB Hospital where
he died the next day”.Faizan struggled to get a treatment in hospital. He was refused from the

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lok Nayak Jai Prakash Narayan hospital as his medico legal case was pending at the Guru
Teg Bahadur hospital at that time. And this delay caused his death. The SHO of Jyoti Nagar
police station under whose jurisdiction the case of Faizan would have come was adamant on
the fact that the assault occurred outside his jurisdiction and that the case was registered at
Bhajanpura police station. But Bhajanpura police station claimed that the case of medico
legal was filed in Jyoti Nagar so it came under their jurisdiction. This resulted in a blame
game which further shows their lack of empathy towards the victim and his family.14
1.5.2 Actions taken by authority
On February 28 2020 the Bhajanpura Police Station registered Faizan's murder case. Though,
the case was later transferred to the Delhi crime branch. On September 21 2020 Delhi police
special cell filed a 24,584-page long charge sheet. But the role of police in the case was not
highlighted and the incident had no mention anywhere in the charge sheet.
1.5.3 FIR Statement
The FIR lodged at Bhajanpura police station had no mention of video footage where police
was seen assaulting the men. The FIR mentions that Faizan died after he went missing from
Guru teg Bahadur hospital.
1.5.4 Conclusion
The brutality is unimaginable and till now Faizan's family has not gotten a copy of his
autopsy report let alone justice. SIT probe is still going on in this case.15
1.6 History of Torture in US
US is known as a torture state. But it has managed to institutionalize the practice of torture in
a professional manner. The history of torture by the United States supports a more general
theoretical proposition: the more states legislate against terrorism, the more likely they will
use torture as an instrument of terror.
The recent development of torture falls into three stages. The first stage would be after
the second world war under which US assembled torture expertise in line with a national
security ideology leaping from the anti-Communist campaign. The second stage is during the
period of 1950s and 60s, in a backlash against liberation and equality movements, crime
panic led to criminal justice restructuring. This began in mid-1970s and continuing into the
present 21st century.16 In all such incidents prepared the US institutionally and its people
ideologically to enter in its current course of terror law and torture.
Torture was rampant even before second World War as there was no national policy of
torture. Soldiers routinely tortured Native Americans (Churchill 1997; Slotkin 1985). As
slavery was prevalent during that time, slaves were tortured by slave owners, and after 1865
racial lynching was rampant. Third degree methods were used by police on regular basis to
extract information and confessions.

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From1936 onwards, starting from Brown vs Mississippi case (1936)17 US Supreme

Court started intervening excessively in the state criminal justice system in order to curtail
official torture. But the efforts were futile at that time. However, by 1970s, US Supreme
Court was successful in doing away with torture from the US criminal justice system and this
was all due to the Bill of Rights restrictions to state governments. Yet torture is still a popular
method used for confessions and retrieving information the only difference is that it is now
used in covert manner. After 9/11 attack in US torture mechanism has been used extensively
ever since in the name of “war on terror”.18
1.7 Types of Torture: US
1.7.1 “Enhanced interrogation techniques”
Following September 11 2001 attacks on the United States, the US government authorized
enhanced interrogation techniques on people who were suspected terrorists in US custody.
Techniques like waterboarding, deprivation of light and auditory stimuli, hooding during
questioning.
1.7.2 Waterboarding
This is in this technique a person who is being tortured undergo near drowning experience.
The subversion of the head in the water is classified as torture in this technique. The US
government has officially acknowledged waterboarding on 3 detainees: Khalid Sheikh
Mohammed, Abu Zubaydah and Abd Al-Rahim Al- Nashiri. Muhammad was waterboarded
183 Times, Zubaydah 83 times and Al- Nashiri twice.19
1.7.3 Stress positions, forced nudity, forced standing
Standing in painful positions for prolonged period is torturous. Suspension for long periods in
contorted positions is also described as torture. Another method of torture is unnatural
positions for extended periods, being forced to kneel or set immobilize for long periods,
being hung by once wrists, being forced to stand up and sat down to the point of collapse.
Report by international committee of the Red Cross some detainees in US custody was
subjected to “prolonged stress standing to sessions naked held with the arms extended and
change above the head… for periods from two to three days continuously, and for up to two
or three months intermittently during which period toilet access was sometimes denied
resulting in allegations from four detainees that they had to defecate and urinate over
themselves.”20 many detainees also described being subjected to extended periods of nudity,
ranging from several weeks to several months.
1.7.4 Threats of harm to person, family
Threats of extreme violence of sexual or physical abuse of family members autocracy in 2019
CIA inspector general’s report states that during interrogations is CIA debriefer put an
unloaded gun to Al Nashiri’s head and turned it on and off to frighten him while he was
naked and hooded. Interrogators made threats against his family by telling him, “We can get
your mother in here”, “we can get your family in here.”21

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1.7.5 Sleep deprivation, use of loud music

The ICRC report details continuous playing of loud music or hissing noises to long
interrogations and stress positions and sleep deprivation. Abu Zubaydah also known to have
been held by CIA he told sometimes when he was falling asleep guards wood splash water in
his face to keep him awake.
1.7.6 Prolonged solitary confinement, confinement in small space
Detainees are “forced to kneel down and set immobilized for long periods being hung by
one’s wrists, being forced to stand up and sit down to the point of collapse”. The ICRC report
mentions how detainees were kept in prolonged solitary confinement and incommunicado
detention for more than 4 to 5 years.22
1.8 A Case Study: Prisoners in Guantanamo Bay
600 people that were secretly picked up by the forces from all over the world and put in a
prison in Guantanamo Bay, it is a place near Cuba which is controlled by American Navy.
The US government considers them to be enemies and it believes that they have linkages
with attacks on New York on 11 September 2001. Moreover, the government of these
respective people were not asked or even informed about their imprisonment. The families of
prisoners got to know about their whereabouts only through the media. Not a single person
was allowed to meet them. The US army arrested, interrogated them and decided whether to
keep them there or not. No trials were conducted before any magistrate. These prisoners were
not even allowed to approach their own countries' attorneys and governments. It is only when
an international Human Rights organization, Amnesty International, reported the atrocious
conducts of prisoners in Guantanamo Bay that the world came to know about its reality. They
exposed that the prisoners were treated in such a manner which violated the laws. They were
even denied of the treatment in the jail that is compulsory in nature to be given to prisoners as
per the international treaties.23 Prisoners performed hunger strike to end the atrocities against
prisoners however prisoners were not released even if they were not declared guilty. This is a
UN supported finding. Now there are rising demands of closing of this prison. It is yet to be
seen whether current OK will shut this facility or not.
1.9 Data on Custodial Deaths: India
1727 deaths between 2001 to 2018 (Including deaths in judicial custody and those rested but
not yet produced before the court). On an average 96 persons die in custody every year. India
Annual Report on Torture 2019 :- 1731 custodial deaths in India in 2019. (1606 in judicial
custody while 125 in the police custody). State wise data shows that Uttar Pradesh tops the
list – 14 out of 125 cases, followed by Tamil Nadu and Punjab both with 11 deaths,
respectively. Vikas Dubey, gangster turned politician was shot dead recently in an alleged
ambush with the police of Uttar Pradesh.24

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1.10 Data on Custodial Deaths: US

According to deaths in custody reporting program, the mortality rate for white jail inmates in
2016 is 240 deaths per 100,000 white inmates while the rate of black inmates was 118 deaths
per 100,000 black inmates. In 2018, 4135 deaths were reported by state prison. The period
between 2016- 2018, the prison mortality rate jumped from 303 to a record 344 per 100,000
people.25
1.11 Laws against Torture in India
1.11.1 Constitutional Provisions against Custodial Torture in India
Article 21 safeguards right to life and personal liberty accept according to the
procedure established by law. It is thus a constitutional guarantee against torture
assault or injury.
Article 20(1) no person shall be convicted of any offence except for violation of
law in force at the time of the commission.
Article 20 (2) protection against double jeopardy.
Article 20 (3) no accused can be compelled to be a witness against himself
Article 22 (1) arrestee has the right to receive information on the grounds of his
arrest
Article 22 (2) provides opportunity of quick trial of the accused. Production
before the nearest magistrate within a period of twenty-four hours is mandatory;
further detention needs the approval of a magistrate.
1.11.2 Other Legal Provisions against Custodial Torture
Section 24 of the Indian Evidence Act, 1872: makes all confessions made under
inducement, threat or promise are inadmissible.
Section 163 of the CrPC 1973: prohibits the investigating officer for making any
inducement, threat of promise to the accused.
Section 164(4) of the CrPC 1973: provides recording and signature of confessions
in proper manner this isn't even with article 14(3)(g) of the International Covenant
on Civil and Political Rights)
Section 50 of the CrPC, 1973: also provides the arrested person the right to seek
bail.
Section 348 of Indian Penal Code, 1860: prohibits wrongful confinement of
extortion confession or information.
Section 25 of the Indian Evidence act 1872: ensures that no confession made to a
police officer can be used to prove any offence against him.

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Section 26 of the Indian Evidence act 1872: makes all confessions made during
custody inadmissible unless made in an immediate presence a magistrate.
Section 49 of the CrPC 1973: states that an arrested person shall not be subjected
to more restraint than is necessary to prevent his escape.
Section 50A of the CrPC 1973: police have to give information of arrest
(including the place of arrest) the difference relatives of the arrested person.
Section 55A of the CrPC, 1973: Persons in charge of custody is required to take
care of the health and safety of the detainees.
1.12 Laws against Torture in US

Fourth amendment in bill of rights: right to be free of unreasonable search for seizure
which encompasses the right not to be abused by the police.
Fifth amendment of bill of rights: right against self incrimination this includes the
right to remain silent during interrogation.
Eighth amendment of bill of rights: right to be free of cruel or unusual punishment.
Fourteenth amendment of bill of rights: guarantees due process ensuring fundamental
fairness in criminal justice system.
Article 4 of the convention against torture state parties must ensure that all acts of
torture are criminal offences.
1.13 Current Scenario in India and US
The Torture mechanism is used excessively in both India and US. Recently coma the death of
George Floyd in US highlighted the atrocious nature of police officials towards detainees.
Similarly, in India, in June 2020, a father son duo died after their arrest by the police in Tamil
Nadu for allegedly violating covid-19 norms. This shows the barbarity of police who wanted
to “teach them a lesson” to behave and ended up taking their life. There are endless examples
of custodial deaths and torture of people at the hands of public authorities which demand
redressal at the earliest.
1.14 Conclusion
Torture is the most barbaric act committed by the so-called saviors of the people and
guardians of the laws i.e. government authorities. It is ironic that those who are supposed to
guard our laws are actually the violators and are responsible for taking the lives of the people
themselves. Torture is present since time immemorial. Earlier it was committed at the hands
of aristocrats, then on prisoners of wars by enemy nations, colonial masters on local
revolutionaries of the colonies to the current times where the government authorities of
modern Nations are following the suit.

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Over the years many international organizations have set up agreements against torture.
And majority of nations are party to them and adhere to their norms. However, still many
nations are there who have not obliged. This is one of the reasons why torture does not end
completely. India and US are two such nations where torture is used as a mechanism for
confessions and retrieval of information from detainees. The prime reason is loopholes that
exists in laws of these countries which further gives a breeding ground for prosperity of
practices like torture.
Nevertheless, there are hopes that one day torture can be eradicated from the face of the
earth and that one day the law will prevail and this can be achieved only when everyone
works in coordination and when the laws, the government authorities and their intentions are
in harmony with each other.
1.15 References
1. ”particularly” here refers to torture specifically dealing with government authorities.
2. United Nations Declaration of Human Rights
3. Ibid.
4. Amnesty international report, 2009-2013
5. www.ohchr.org
6. Ibid.
7. Principle For the Protection Of All Persons Under Any Form Of Detention Or
Imprisonment,1988
8. The Hindu, Article-Ending Police Brutality by M.P Nathanael
9. Book-Torture in India 2009, Asian Centre For Human Rights
10. Ibib.
11. Ibid.
12. Ibid.
13. Case study- Magazine- Academike, Article- Custodial Deaths in India: Two tales of
Torture, Death and Despair
14. Ibid.
15. Ibid.
16. Book- Social Theory of Fear by Terror, Torture and Death in a Post Capitalist World
by Geoffrey R. Skoll, Palgrave Macmillan.
17. Ibid.
18. Ibid.

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19. Human Rights Watch, USA and Torture: A History of Hypocrisy

20. Ibid.
21. Ibid.
22. Ibid.
23. Teacher’s Guide to Democratic Rights, Part 1, Janagraha Centre For Citizenship and
Democracy
24. India Annual Report on Torture,2019
25. www.prisonpolicy.org

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(b) Surveillance and Censorship: China and India

Dr. Abhishek Pratap Singh

In a modern socio-economic set up and with a political system based on rule of law and
democratic government, the question of surveillance and censorship has to be carefully
allowed only within constitutional rules and procedures. Rule of law demands that any limit
on individual rights and freedom needs to justified only in larger public interest and to
strengthen if necessary the concerns on national security.
Outline and Structure
1. Introduction of the Subject
2. Types and Elements of Censorship
3. India and Censorship
4. Censorship and Media
5. Rule of Law, Freedom and Surveillance
6. China’s Political System and Censorship
7. Legal Reforms and Political System in China
8. Judiciary, Civil Society and Surveillance in China
9. Comparison between India and China
10. Conclusion
11. Referencing
Key points to be understood-
1. Defining and meaning of law in a political system?
2. Does Rule of Law relate to protection of rights and freedom?
3. Understanding rule of law debate in China and Censorship?
4. How Indian constitution addresses censorship and rights?
5. How Political surveillance functions in China’s party model?
6. Legal Reforms, Judiciary and Censorship in China

Introduction to the Subject

In case of India, the democratic set up of governance did not allow any larger scope for the
government to exercise the power of censorship more commonly. The vibrant Indian civil
society and the independent judiciary make s for a necessary check on the power of
government. And if the executive power is widened to limit the scope for rights and freedom,
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the highest court has fundamental power and authority to intervene. In contrast to this, the
party-state model of China does gives absolute power to the Communist Party of China
(CPC) to exercise strict surveillance and censorship over its citizens. This is so regular and
established in the Chinese system that many scholars refer to the Chinese state model as of
being censorship state or Surveillance state. These are common words, which are often used,
in the public discourse to refer Chinese political system.
Types and Elements of Censorship
In a democratic society secrecy and openness reflect conflicting values and freedom of
thought in a political system. However, in case of censorship by the state or any kind of
political establishment there are always efforts to control information in different contexts.
Norms about the concealment of information and restrictions on communication are mostly
present in different forms in Constitutional practice and in the running of government. For
example, Britain’s Official Secrets Act or the United States’ Freedom of Information Act, are
statutory laws with a character of secrecy and element of restricting information from the
public domain.
One of the fundamental attribute of censorship involves Secrecy, which is the norm
about the control of information, whether limiting access to it, destroying it, or prohibiting or
shaping its’ creation. Secrecy is a general and fundamental social process known to all
societies. In preventing or restricting communication, the legally supported form of
censorship discussed here involves secrecy. Press and broadcast organizations and the major
newspapers and television networks have codes of ethics and voluntary standards. These
agencies are often subject to censorship in various types by regimes in any of the democratic
and authoritarian systems. The political system has a tendency to use state laws at times on
different agencies, which are subject to control and regulation by the executive. Apart from
secrecy censorship is also practiced in the name of populism and newly formed democratic
states in the contemporary world. This can be seen in many third world countries and some
democratic turned authoritarian states.
India and Censorship
In a democratic country like India there can be no scope for the exercise of any kind of
censorship or surveillance by the state. The India constitution permits broad set of rights and
protection against any kind of executive action, which violates the law and procedure.
However, the development of democracy in the post independent era has does witnessed
some steps and actions by the state which are often in the category of exercising censorship in
India. Despite India’s deeper democratic foundations, there have been instances when the
government has tried to restrict freedom for the citizens. The infamous Emergency in 1970s
is one such instance when we witness the use of extreme form of censorship and surveillance
by the state in India. This was the time when in fear of public opposition and social upheavals
the government of the day tried to suppress the freedom and rights for the citizens.

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When we talk of censorship, it basically denotes the systematic repression or control of

ideas and information, which is supposed to be circulated in an open society. A censorship is
something, which goes against the basic principles of free flow of information. Any political
system making way to this kind of process and practise is termed as establishing censorship.
It is also interesting to understand that since the time of Greek republics to the contemporary
modern form of Government, censorship has been used widely as a major tool to battle any
unwanted criticism for the government.
Under Article 19 the right to freedom of speech and expression is guaranteed by our
Constitution. In order to limit different form of public expression, which may cause some
disruption to the executive interests and its authority, many states across the globe are bound
to adhere to frequent use of censorship laws and regulations to consolidate their authority. In
the government system, like India for instance it provides for a certain broad set of protection
against censorship. In comparison to China, India is best placed in terms of rights protection
globally.
Censorship and Media
A classic example of censorship in India is the institution of Central Board of Film
Certification (CBFC). This comes under the authority of Ministry of Information and
Broadcasting under Government of India. The Board is responsible to monitor and regulate
anything, which is deemed offensive, or subjects considered being politically and socially
untenable. While the board is one such institution for the exercise of censorships in the
domain cinema and art in India. It needs to be understood that many times the activity and
regulation of boards are subject to public criticism for the over exercise of censorship in
India. The board has often become a contested point between the defenders of freedom and
any executive authority.
In post independent India the Congress party has largely controlled the ruling
establishment in the states and union level. The single party dominance by the Congress at
most levels was largely present in the 1950s and 1960s. However, the step taken by the
Congress government in the 1970s, which led to the declaration of Emergency in India, was
another step, which led to new censorship in India. During this period the reaction of the print
media to the imposition of emergency and new censorship laws in India became a matter of
much criticism and debate among the civil society. This criticism can be divided into two
phases.
1. The initial response was of sense of despair due to loss of freedom and choice.
2. After some time Press which was supposed to oppose the government became silent
on executive criticism.
In the present age of Information and Technology, India has also passed and executed certain
IT laws in order to better monitor and regulate this sector. However, there are also concerns
raised due to some recent amendments in the IT laws of India. After the 2011 amendments to

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the Information Technology Act were issued in May 2011, the Indian government
approached many IT corporations like Google and, Yahoo to pre-censor their web content,
before they are brought into public domain. This was directed to monitor or filtering the
information and content that was being produced by these platforms. According to the new
rules, it was expected from these platforms to remove or disallow any content that was
critical or objectionable in one way or the other. Especially sensitive dissemination of
information was supposed to be restricted subject to public order, morality and health..
However, many leaders of these platforms and some public intellectuals do criticise these
steps, which in their opinion was not fair and acceptable in the democratic setup. To them,
these regulations are not aimed in monitoring the web content as desired by the executive
action but are more designed to protect the criticism to the executive power. The amendments
to the IT laws in India also led to the debate on the convergence of freedom, state power and
censorship in India.
Rule of Law, Freedom and Surveillance
The rule of law is very much enshrined as a fundamental value in the concept of
constitutionalism. The idea of limited government is key to constitutionalism and basically
rests upon broad parameters of rule of law. It refers to the principle that law should ‘rule’,
and ‘supremacy of law’, must be adhered at all levels of government. It must provide a legal
framework for the governance at social, economic and political levels. The principle has
found theoretical argument in ancient political writings. In the Greek political thought, Plato
and Aristotle have discussed about rule of law. The conception of ‘ideal state’ in Plato’s
political thought is built around three key human virtues of wisdom, courage and appetite has
also underscored its importance. He said, “Where the law is subject to some other authority
and has none of its own, the collapse of state, in my view, is not far off; but if law is the
master of the government and government is its slave, then the situation is full of promise and
men enjoy all the blessings that the gods shower on the state”.1 Similarly, Aristotle maintains
that citizens must have good laws and must be habitual to adhere to them. His argument was
that “law must govern”.2 In his understanding of rule of law it represents a required habit of
obedience and adherence. In the discipline of legal jurisprudence, contemporary legal
positivists like Jeremy Bentham, John Austin and H.L.A. Hart share commonality with Greek
political philosophers in understanding rule of law as a general habit of obedience on the part
of a citizenry, a social fact of citizen acquiescence.3
The rule of law owes much of its conceptual origin and advancement to the development
of nation state model. The convergence between industrial revolution and renaissance period
marked significant push for rule of law as a principle. This marked the end of medieval age
theocracy and paved the way for emergence of modern nation state model with rule of law as
its key foundational basis. The earlier theoretical exponents of rule of law include writings of
John Locke. He emphasized that fundamental purpose of rule of law is to protect individual
rights, which in Locke’s view meant right to life, liberty and property. Later on A.V. Dicey,
renowned British jurist and constitutional theorist popularized the principle of rule of law. In

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the view of Dicey rule of law embraces certain key characteristics. This includes that there
must be punishment for breach of law, it requires ‘equal subjection’ to law, more commonly
understood as equality before the law, with application of law at all times and circumstances
and lastly, embodiment of individual rights in fundamental law of land. 4 He discusses in
detail necessary mechanisms for rule of law to prevail at large. The basic parameters on
which principle of rule of law has evolved for centuries serves to protect individual rights
from the government abuse; at the same time, it ensures governance based on law and not of
men. Such an idea was enshrined in German concept of Rechtsstaat, a state based on law,
which came to be widely adopted throughout continental Europe and encouraged the
development of codified and professional legal systems.5
It is undeniable that rule of law stands one of the most important political ideal in
contemporary world. Public intellectuals and scholars frequently invoke the concept in an
attempt to justify or condemn state actions, political decisions, or whole legal systems. It has
been used as a testing ground and parameter of governance in different countries. Despite this
there exists wide disagreement among scholars on the conception of rule of law. The
principle being intrinsic to liberal democratic model of governance is still much contested in
west too.
The term is frequently criticized for having no determinate meaning. Waldron referred to
it as an “essentially contested concept”.6 The similar expression was made by Olufemi Taiwo
who said that, “it is very difficult to talk about rule of law; there are as many conceptions of
rule of law as numbers of people defending it”. 7 Accordingly, these observations have
aroused in due course of evaluating the presence and level of rule law in a given society.
There may be theoretical agreements but when it comes to application of this principle in
testing different models of governance and their ability to protect individual rights difference
of opinion emerge at large. There is also conflict of opinion on rule of law being a political
ideal or moral value. Some argue that it is a value, albeit not a moral value, while others
regards it as among the highest of political ideals.
China’s Political System and Censorship
The foremost question that strikes to our mind as we talk of rule of law in China is whether
there can be any kind of rule of law in one party led authoritarian rule. It is largely argued
that a Chinese state model is based on the inherent tendencies where a strong surveillance and
censorship model is practiced by the government. Given the one-party state model there are
always questions on Chinese state being a perfect model of surveillance, with no scope for
individual rights and freedom. Unlike India where whole set of constitutional guarantees are
provided by the Constitution, and any executive action must be subject to rule of law
principles. On the other hand, Chinese model largely approves to the strong censorship model
in order to protect the party rule and its authoritarian character.
If we argue that rule of law can take place only in liberal democratic state then it may
limit its scope and analysis at different levels of governance in non-democratic state. The rule

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of law as a principle enshrines certain key values, and if they are present in a non-democratic
arrangement then the principle can be viable there too. In case of China with sustained
economic growth and lack of political reforms the debate still continues on how far and up to
what level it is likely to take root in these states.
The issue of rule of law in China occupied larger political and legal discourse after
reform and opening up of 1978. More importantly, it became popular in Chinese society since
its adoption in the third amendment to the Chinese constitution in 1999. Legal scholars in
China including western ones see 1978 as a new epoch in Chinese modern history and a
turning point in setting rule of law discourse in China. Legal system was declared a necessity
for socialist modernization. There was repeated emphasis by party leaders on the importance
of law for providing a social order and being conducive to economic development. Deng
Xiaoping as a “Two Hand” policy summarized such a need for economic development and
for law. On the one hand, economy must be developed; and on the other hand, legal system
must be strengthened. It was in this background that the party declared in 1978, “There must
be laws for people to follow; these laws must be observed; their enforcement must be strict;
and law breakers must be dealt with...” 8
Legal Reforms and Political Censorship in China
The post reform era witnessed series of legal reforms in China on various issues. This drew
academic attention if these reforms could lay any impact on China’s rule of law credentials.
Rule of law debate in China is an inevitable outcome of key legal reforms. However, the
larger question which still remains unanswered and forms key component of rule of law
debate China is whether these changes paved way for shift to rule of law based governance in
China or not.
In the framework of contemporary debates on rule of law, China is more often portrayed
as a problem case, for the law and development movement because it has achieved economic
growth with a weak legal system, has resisted the third wave of democratization, and has a
poor record on civil and political rights. The debate is largely based on two sides of
arguments.
On the one hand there are those who argue that the question on how China has enjoyed
remarkable economic growth in the past several decades, apparently without the benefits of
“the rule of law”, contradicts the widely hailed view that a proper code of conduct for
regulation of economic activities is significant if not mandatory for economic growth. On the
other hand some argue that the problem is political in nature and the mere fact that China has
resisted forces democratization prove that it still remains a socialist state with authoritarian
character with lack of respect for individual rights and rule of law. Thus, the first argument
questions the validity of sustained economic growth in the absence of well codified legal
system based on rule of law, while the other side of argument simply disapproves of China’s
progress on rule of law. However, the reality lies somewhere in between because it is true
that China has not been able to convert itself into a nation-state based on true principles of

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rule of law largely conceived in western terms, but the pace of legal reforms which
underwent in China in past three decades has no doubt guaranteed some rights to the citizens
in their individual capacity, largely in economic and social sphere, if not truly in political
sphere. And these rights and privileges are being supported and safeguarded by laws and
regulations in their defined capacity. Thus one can remain dismissive of China being a state
based on rule of law but the fact also remains that three decades of legal reforms have
contributed to the China’s effort in promoting rule of law.
In context of China, the main issue is whether the ruling regime is willing to accept the
basic tenets of rule of law. The application of even a thin conception of rule of law seems
largely absent in respect to China, where the fundamental principle of legality is still being
contested. Thin conceptions of rule of law are most useful as a benchmark for states that are
still in the process of establishing a modern and functional legal system. In such countries,
much of the discussion is about which reforms are required to bring the system into
compliance with the requirements of a thin theory of rule of law. However, there also exists
disagreement in China, as well as within Asian discourse, on the dominant and partial
western notions on rule of law. They argue that, in striking contrast to the many volumes on
rule of law in the Western literature, relatively little work has been done on clarifying
alternative conceptions of rule of law in other parts of the world, including Asia.9 No doubt,
authoritarian regimes have at times used the rhetoric of Asian values for self-serving ends,
playing the cultural card to deny citizens their rights, and then fend off foreign criticism.
There may still be dominant patterns within Asia. It is true that “Asian values” is a construct.
But then so are “the West” and “liberalism,” both of which encompass a tremendous diversity
of views.10 Although rule of law is not a privilege of western countries, we should appreciate
that implementing rule of law entails deep changes in a pattern of governance in country, and
it is closely tied up with the principle of political legitimacy.
Law has its limits, and so does the rule of law, conceptually and practically. The concept
of rule of law has evolved, and will continue to evolve. The concepts of rule of law is a
protean one, and rule of law discourses in Asia and encompass multiple strands, some of
them at odds with or at least in tension with each other. In China as well, there are wide range
of sharply divergent and radically different political views on thick conceptions of rule of
law. In non-democratic states, there is a tension between a liberal democratic rule of law and
alternatives that reflect local values, traditions, and in many cases differences in levels of
economic development and institutional arrangements.11
Judiciary and Civil Society in China
The legal reform may signal a change with emphasis on rule of law but the question remains
whether this practice will necessarily have desired effect at the time when objective of legal
reforms is much debatable and largely economic in nature. In case of China, one has to
understand that the executive power of surveillance and censorship is often backed by the
judicial sanction. Since rule of law is much absent in the party state model of China, we see
limited relief from the courts or judiciary against censorship policies of the government.
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Rule of law requires a judiciary that is independent, competent, and enjoys sufficient
powers to resolve disputes fairly and impartially. China’s legal system falls short on each of
these critical dimensions. As a matter of law, the Peoples Republic of China (PRC)
constitution provides that courts shall “in accordance with law exercise judicial power
independently and are not subject to interference by administrative organs, public
organisations or individuals”. 12 However, there are violations at the level of admission,
adjudication and execution of judicial verdict questioning judicial integrity and authority.
China lacks centralized form of judiciary as a branch of state power. It results into local
protectionism in jurisdiction also causing miscarriage of justice in China. Localism can be in
various forms in civil process, for example; courts may have pre-selection of filings and
territory of jurisdiction, or may settle disputes simply in interest of the local parties, or may
have bias in the enforcement of court decisions and orders. 13 Thus, without deeper
institutional judicial reforms in judiciary that would decrease the dependence of the courts on
local governments and people’s congresses, local protectionism will remain a problem in
China.
The independence and integrity of judiciary in China also suffers from less authoritative
intent. Despite being vulnerable to other external and internal influences, it is also marred by
the limited powers granted to courts within the China’s governmental structure. As in many
civil law countries, courts in China do not have the power formally to make law. But in
practice, courts everywhere “make law” to the extent that they are allowed to interpret law,
and such interpretations are taken as binding for the subsequent cases in lower courts with
precedential value. But in China courts were only given the right to interpret laws where
necessary to decide issues that have arisen, or arguably are likely to arise in specific cases.
Moreover, the interpretative powers of the court in theory are limited to clarifying laws
without altering their original meaning or adding to their content.14 And when courts have
limited power and no restrictive authority on executive action then ruling establishment is
well equipped to re-enforce its censorship policies and surveillance over civil society.
Moreover, judiciary in China also suffers from well-qualified judges with less
professional competence reasonably due to method of judicial recruitment. Legal training in
1980s was a simple routine exercise and normally they got a certificate, which was deemed as
university degree after three or four months of training, and were absorbed into judicial
positions. Similarly, practice of appointing judges from ranks of military officers also
damaged judicial professionalism in China. The situation is deteriorated by appointment of
people from government institutions like public security, or party organs, such as political-
legal committee. A similar trend is the promotion of lower level personnel from courts to
high judicial positions due to their connections and experience. Thus, someone might start off
as a court police officer equivalent to a bailiff, or a secretary who records the proceedings
during trail, and after several years of practice that person might be promoted to enforcement
division or be put in charge of accepting cases. Consequently, the quality of the judgments
will not be high, especially when the judges in the lower courts, which deal with more than
eighty percent cases, do not have enough professional knowledge to cope with complicated
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legal problems.15 The overall low competence of judiciary has resulted in various numbers of
incorrect judgments.
The lack of quality of judges led to two set of problems. Firstly, it had its adverse impact
on delivery of justice with less average disposition. Secondly, the authority of court was
being undermined the way litigations were being heard by the judges handling the case with
less legal knowledge. Meanwhile, legal reformers are hard-pressed to argue that poorly
trained judges should be given more power and responsibility. The high level of wrong and
revision of judicial decision has generated criticism from citizenry and threatens legitimacy
of China’s legal system and its ability to deliver fair justice.
Given these examples we can see in China an extended presence of executive personals
and many people from the party appointed within judiciary. Given their party background, it
creates a challenge for them in order to exercise judicial authority against executive
censorship in China.
The problem of corruption in judiciary is another challenge, which allows censorship to
prevail in China. In case of China, this is a less explored field of enquiry and research.
Probably due to much emphasis on party intervention and local protectionism in courts, and
due to lack of access and transparency to what is seen in courtroom provides little
information on what happened behind the scenes. Wang describes this practice in China as a
judicial corruption in a special environment which includes institutional corruption carried
out semi-officially by courts, such as illegal overcharging of litigation fees.16 In addition the
problem becomes complicated and more penetrating when detection of corruption in the
courts is usually, if not always is tied to a particular case. To say when a judge is caught for
corruption in one case, previous cases tried by the same judge will not normally be re-
examined. The nature of corruption also includes exchanges performed in the form of favours
done in judgement. These favours are not always in monetary terms and involve return of
favour too.
The civil society founds itself in a much weaker position because judiciary in China is
never in a better position to enforce laws properly and is less likely to question government
on censorship and surveillance.
Conclusion
Historically speaking, the role for law in China was understood in the framework of ‘class
notions’ in under the early communist era. This was necessitated to ensure power
consolidation for the continuous revolutionary struggle and strengthening peoples power. At
the same time, the general understanding about law, in terms of being a source for
‘procedural justice’ much like common law traditions was found less convincing in China.
The shift was undertaken towards building the idea of ‘substantive justice’ in China. Though
initial law making in early revolutionary era, before 1949 saw some examples of progressive
law making towards social transformation in China. In later years this was abandoned in the
name of strengthening socialism given the launch of Anti-rights campaign and Cultural
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Revolution in China. Under the influence of Marxist notion of law being an “instrument of
class coercion”, the role of formal legal processes was found less suitable in communist
China under the Maoist rule. All these developments make a convincing case of China being
a state, which relies on ruthless application of laws in order to address question on party
power consolidation and less scope for freedom and rights. The use of law, courts and
judiciary, which includes all the pillars of legal machinery is always directed to formulate
state censorship and an over arching surveillance model over the civil society.
The problem of rule of law and censorship in China cannot be simply attributed to
structural weaknesses of its legal system but has much to do with authoritarian regime
character. China’s failure to adopt institutional attributes of a mature legal system presumes
the reluctance of ruling regime to democratic practices and the complex ways in which state
and society interact in China. In this scenario, with democratic governance not being the
viable option in China, legal reforms aimed at implementing necessary framework rule of
law, is one of the key channels for political reform. However, there seems to be some
shortcomings in their efforts and also on behalf of Chinese leadership on this issue. On one
major occasion, Hu Jintao called the constitution “the fundamental law of the country”,
urging all government agencies, political parties, armed forces, business firms, and social
groups to safeguard the dignity of constitution and ensure its implementation. Yet on most
other occasions, Hu has stated that the party has ultimate authority over the military, the
selection of government officials, the judiciary, and the media. This contradiction between
policy and practice is damaging China’s rule of law credentials and raises serious questions
on their ability to deliver it in near future. With the settling of new leadership in China one
can be hopeful of rule of law getting enough space in the goal of achieving Chinese dream.
Unlike India, which is open and democratic state with better guarantees for freedom and
protection of rights, Chinese state is running a model based on authoritarian state, which is
always likeable to state censorship and surveillance.
The use of censorship and surveillance as a means of limiting the spread of information
is a popular practise in many countries across the globe. Even in many democratic states this
remains a deliberate choice by the state. However, in democratic countries like India it has
been a relaxed ad flexible practise, which is not so often. India largely adheres to a political
structure in lines with the liberal democratic state model. But the party state model in China
is never admissible to any kind of public dissent or criticism from the society, making it a
befitting case for state censorship model in the contemporary world.
*Holds PhD in China Studies from JNU and is Assistant Professor, Deshbandhu College,
University of Delhi.
Questions for the Exercise
1. How do you understand relations between Censorship and Freedom?
2. How censorship and surveillance restrict/challenge rule of law?
3. Does China’s political system supports surveillance and state censorship?
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4. What are major types of methods/tactics used by state for censorship?

5. How do understand debate on censorship in India?

Referencing

1
Plato (1974) The Republic, Penguin Books London.
2
Aristotle (1981) The Politics, Penguin Publications.
3
Jill Frank (2007), “Aristotle on Constitutionalism and Rule of Law”
Theoretical Inquiries in Law, Vol 8, No 1, 40.
4
Dicey, A.V. (1982) Introduction to the Study of the Law of the
Constitution, Liberty Fund Incorporated, pp. 62.
5
Heywood, Andrew (20004) Political Theory: An Introduction, Palgrave
Macmillan.
6
Waldron J. (2002) Is the Rule of Law essentially contested concept (in
Florida)? Law and Philosophy 21:
137-164.
7
Taiwo, O. (1999) The Rule of law: The new leviathan, Canadian Journal
of Law and Jurisprudence 12: 151-168.
8
Communiqué of Third Plenum of the Eleventh Central Committee of
Chinese Communist Party (CCP), on line available at URL:
https://www2.stetson.edu/secure/history/hy308C01/thirdplenum.html.
9
Jayasuriya, Kanishka ed. (2006) Law, Capitalism and Power In Asia : The
rule of law and legal institutions, Routledge Publication, pp .58.
10
Peerenboom, Randall (2004) (ed.), Asian Discourses of Rule of Law:
Theories and Implementation of Rule of Law in Twelve Asian Countries,
France and the US, London, New York, Routledge Curzon, pp. 13.
11
W. Orts, Eric “The Rule of Law in China”, Vanderbilt Journal of
Transnational Law, January 2001, Vol 34, No 1: 99.
12
Wang, Li Ming (2000) Research on Judicial Reforms, China Law Press,
pp. 422.
13
Jiang, Qing-Yun (2005) Court Delay and Law enforcement in China -Civil
process and Economic Perspectives, Deutscher University Press
14
Peerenboom, Randon (2002) China’s Long March Towards rule of Law,
Cambridge University Press.
15
Law Year Book of China 2009-2010 (2011) Press of Law Yearbook of
China.
16
Yaxin Wang (2005) An Interpretation of Judicial Corruption, Sixiang
Zhanxian (Ideological Battlefront)
31, 4: 50.
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(c) Terrorism and Insecurities of Minorities: USA and India

Dr. Anju1 and Prashant Barthwal2

Structure
Introduction
What is Terrorism
Terrorism and Status of Minorities in USA & INDIA
The major terrorist attack in India
Current Scenario of Terrorism: India and the USA
Conclusion

Introduction
Terrorism has emerged as the most critical challenge to the global peace and, specifically, to
Asia’s internal and external security. It is a crime against humanity that has harmed
communities across the world. The terrorist has put the values of democracy and freedom at
jeopardy, as well as the existence, progress, and development of humanity. Due to the ease
with which terrorist organizations are able to get highly modern weapons, terrorism has taken
on a whole new dimension. There are numerous different terrorist groups operating
throughout the world that are not affiliated with any other international terrorist
organizations. Terrorist attacks have increased dramatically after the end of USSR, probably
the rise of Terror in gulf countries, and this is a source of great concern1.
Terrorism is indeed a concept that has changed or upgraded itself in various forms
throughout time. 2 However, although terrorism is such a broader terminology, governments
have not universally accepted it as the same. Several factors determine why it is hard to agree
on the unified definition of terrorism. First, some analysts believe the lack of an accepted
global definition is the primary need to combat terrorism worldwide. Second, terrorism is not
a new phenomenon globally; however, its features, particularly the techniques, methods, and
easily accessible weapons, are incredibly different from the previous ones. This is essential to
examine that transition in terrorist organisation, their tactics and actions. Even then, the state
and global authorities may use that analysis to understand and prevent further attacks.
Terrorism involves the “illegal use or threatened use of violence, is intended to coerce
societies or governments by inducing fear in their populations, and typically involves
ideological and political motives.”3 The state has been concerned about the “war on

1
Assistant Professor, Dept. of Political Science, Sri Aurobindo College (M), University of Delhi.
2
Assistant Professor, Dept. of Political Science, Sri Aurobindo College (M), University of Delhi.

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terrorism” because citizen’s psychological well-being cannot be ignored. Terrorism could be

psychologically damaging and dangerous, whether a mass physical attack or a chemical,
biological, nuclear, or nuclear disaster.
India is dealing with several problems when it comes to managing its own security.
Domestic Terrorist groups are rising in various regions in India, including activities of cross-
border terrorist groups. Terrorism has now taken on global proportions and has become a
worldwide issue. Terrorist groups and organizations are using contemporary methods of
communication and technology, such as communication systems, transportation, advanced
weapons, and several other resources, to expand their horizons and capabilities. So, by using
global technology and methods now, they can terrorize and affect a more significant number
of people. The Indian criminal justice system isn’t designed to handle these terrible acts. But
in these circumstances, it was highly needed to implement specific anti-terror laws that would
tackle these heinous crimes efficiently.
What is Terrorism
The phenomenon of terrorism is complicated to define. This is due to the multifaceted and
ambiguous concepts and the difference in point of view. The term ‘terrorism’4 comes from
the French word ‘terrorisme’, which is based on the Latin verb ‘terrere’ meaning ‘to cause to
tremble.’ 5 According to Oxford English Dictionary 1989, terrorism is a “policy intended to
intimidate or cause terror.” The Encyclopedia Britannica defines “terrorism as the systematic
use of violence to create a general climate of fear in a population and thereby to bring about
particular political objectives. Terrorism is violence or other harmful acts committed or
threatened against civilians for political or other ideological goals.” The European Union
defines “terrorism as an act with the aim of destabilizing or destroying the fundamental
political, constitutional, economic or social structures of a country.” The Code of Federal
Bureau of Investigation of USA has defined terrorism as “the unlawful use of force and
violence against persons or property to intimidate or coerce a Government, a civilian
population or any segment, in furtherance of political or social objectives.” The FBI further
describes terrorism as either “domestic or international depending on the origin, base, and
objectives of the terrorists.”6 Thus, terrorism refers to the mass murder of people by non-
government actors for various reasons, generally to make a political influence. As a result,
terrorism has too many sides and can be masked as a religion, philosophy, politics, or any
other name.
Types of Terrorism
Terrorism is defined as the systematic use of violence and other coercive techniques against
individuals, organisations, societies, and nation-states to achieve one’s objectives. Terrorist
actions are listed in the following views:7
Contemporary Terrorism: The danger of prominent casualty strikes by rebel
terrorist organisations, innovative and inventive organisational structures, global

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religious unity, and expanded moral grounds for political violence are all
contemporary Terrorism. (For example, the 9/11 terrorist attack).
State Terrorism: Terrorism “committed by governments against perceived enemies.
State terrorism can be directed externally against adversaries in the international
domain or internally against domestic enemies” (Martin, 2016).
Rebellious Terrorism: Terrorism “committed by non-state movements and groups
against governments, ethno-national groups, religious groups, and other perceived
enemies” (Martin, 2016: 31).
Religious Terrorism: “Terrorism motivated by an absolute belief that an
otherworldly power has sanctioned and commanded the application of terrorist
violence for the greater glory of the faith. Religious terrorism is usually conducted in
defence of what believers consider to be the one true faith” (Martin, 2016).
Ideological Terrorism: Terrorism is driven by political systems of ideology
(ideologies), including theoretical and philosophical arguments for demanding the
rights of the championed group or interest by violence.
International Terrorism: “Terrorism that spills over onto the world’s stage. Targets
are selected because of their value as symbols of international interests, either within
the home country or across state boundaries” (Martin, 2016).
Terrorism and Minorities Status
Minorities have always been struggling for equality and inclusion with the nation’s majority
culture around the world. Minority communities in European countries and North America
have been excluded due to political, religious, ethnic, economic, and cultural marginalization.
The link between countries’ socioeconomic characteristics and the incidence of terrorist acts,
such as economic discrimination against minorities, might be an unnoticed factor. So, the
experience of minority group discrimination has been identified as a factor that motivates and
fuels domestic terrorist campaigns of individual countries or terrorist movements. Regarding
aspects of domestic terrorism, democratic governance, political stability, and country
demographic makeup have played a significant role.
Some theoretical research suggests that there is a causal relationship between minority
injustice and domestic terrorism within countries. Minority discrimination, which generally
involves employment discrimination, unequal access to government health, educational, or
social services, formal or informal housing segregation, and a lack of economic opportunities
available to the rest of society, is a factor in the emergence of minority group grievances
directed at the state, the financial status quo, and the main political parties.8 Discrimination
also enhances social isolation and a sense of otherness among marginalised groups. As a
result, disappointed minority populations become alienated from the mainstream economic
system, distrustful of state institutions and authority, and thus more vulnerable to extremism,

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providing fertile ground for terrorist organisations to recruit cadres, raise funds, and plan and
execute attacks.
Terrorism is a major worldwide issue that requires a well-thought-out plan at the
national, regional, and international levels to combat. These organisations have created a
separate ecosystem, structure, and industry since 9/11. Failure in Afghanistan reflects the
region’s and the world’s failures to safeguard their countries. Afghanistan still has a lot of
lessons to teach, as well as a lot of experiences to draw from. Taliban, Lashkar-e-Taiba
(LeT), Jaish-e-Mohammad (Jem), al-Qaeda, and Daesh are only a few examples of extreme
terrorist organisations.
Since the 11 September 2001 attacks, minorities, specifically Muslims in the United
States and Europe, have been subjected to more significant restrictions and governmental
authorities. The Minority Rights Group (MRG) has pointed out that rules like religious
profiling by authorities can divide communities, promote hate, and create conditions of future
conflict. Stops, searches, strict scrutiny, and surveillance are examples of religious profiling,
which includes preconceptions about people who are thought to follow a specific religion.
Most often, the “war on terror” has been fought at the price of human rights. Mark
Lattimer, Executive Director of MRG, says, in most cases, “people from minority
communities have been the target, often suffering in silence because of their minority status.”
According to MRG, “in most cases, anti-terror laws target Muslim minority groups and have
resulted in an increase in arbitrary arrests, detention without charge or trial and torture of
people from these communities. The United States, Canada and some European states,
including the United Kingdom, Spain and Holland, have seen anti-terror laws produce
violations of the rights of Muslim, Asian, North African and Middle Eastern minority
communities.” Muslims and South Asians in these nations frequently feel targeted and
alienated, contributing to increased sympathy for terrorist groups.
Religious profiling is opposing to international law, which prohibits discrimination on
religious belief about the administration of justice and policing. But profiling is not just
illegal; it is counter-productive. The problem with profiling is that strange though it may
seem, the authorities do not know whom to profile. Not all terrorists are Muslims. And even
if they were, not all Muslims look alike, nor do they come from the same place.
The conversation regarding terrorism became a leading topic in law enforcement
communities after New York City’s events on September 11, 2001. Significant concerns have
been voiced regarding the root of these attacks, raising questions concerning how terrorist
groups can arrange organized strikes. Recognition of international terrorist organizations such
as AL-Qaeda has risen to the mainstream populace, resulting in a significant concern of
potential attacks within the immigrant Muslim population. In addition, attacks of domestic
terrorism, such as the Boston Marathon bombing and the recent attack at pulse bar and
nightclub in Orlando, Florida, have put migrant Muslim communities under scrutiny from
law enforcement and the civilian population.9 The marginalization of a minority populace

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may prove to be vastly detrimental and divisive to the societal majority. Rude and potentially
discriminating minority groups could create an alienated and quickly radicalized section of
the community. To prevent prospective unforeseeable outcomes, public awareness should be
raised to the varied types of systematic discrimination minorities often face and potential
factors that may lead to sympathy to the radical belief system. The development of effective
forms of integration into a host nation’s culture will help deter the formation of domestic
terrorist groups and acts of terrorism from an immigrant population.
Terrorism and Status of Minorities in USA & INDIA
USA
Minority communities and indigenous populations worldwide continued to be troubled by the
aftermath of the 11 September 2001 violent attacks on the United States of America.
President George W. Bush declared the “war on terror” at the time. However, conflicts
between governments and armed groups have continued to result in international and
domestic flight, weakening already vulnerable communities. Since then, the state-sanctioned
discriminatory policies has risen. They have fueled the conflict between freedom of religion
and freedom of expression in some places, resulting in bloodshed amongst populations that
had previously coexisted peacefully. While President Barack Obama’s presidency has
officially distanced itself from the term “war on terror,” other countries often use the word,
and the battles continue. MRG has been tracking how the different effects of the “war on
terror” have always significantly influenced religious minorities’ lives.
According to Minority Rights Group International, the worldwide “war on terror” has
devolved into a “war on minorities,” with millions of individuals from minority communities
facing clear human rights violations in the name of counter-terrorism. Since 9/11,
governments have increasingly utilised the “war on terror” to target minorities, mainly ethnic
and religious minorities, and restrict their rights, according to the London-based human rights
organisation. Minority populations have also been falsely labelled as terrorists in the last five
years.10 In the aftermath of the Christmas Day 2009 attempted bombing of an airliner over
Detroit, Michigan, by a Nigerian Muslim, the US authorities targeted citizens of 14 countries,
13 of them predominantly Muslim, for particular scrutiny at airports.11 Congress has failed to
pass the necessary laws to combat racial profiling.12 The idea of non-discrimination needs to
be enforced, with particular attention given to the rights of vulnerable groups. Anti-terrorism
measures that target specific ethnic or religious groups are human rights violations, and they
exacerbate the problem of discrimination and racism.
Law enforcement authorities have often mistreating minorities in the United States.
Before 9/11, Blacks were the primary targets of racial profiling.13 However, since the terrorist
incident, Arabs and Muslims have become the primary focus of police enforcement
surveillance. There are some significant similarities between the profiling of Black people
and Arabs and Muslims. The fundamental issues with racial profiling in both cases are that it
violates the personal rights of innocent individuals and refuses to acknowledge minorities

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equal protection under the law. According to MRG, in most cases, “anti-terror laws target
Muslim minority groups and have resulted in an increase in arbitrary arrests, detention
without charge or trial and torture of people from these communities. The United States,
Canada and some European states, including the United Kingdom, Spain and Holland, have
seen anti-terror laws violate the rights of Muslim, Asian, North African and Middle Eastern
minority communities. The Muslims and South Asians living in these countries often feel
targeted and isolated, potentially leading to an increase in sympathy with extremist groups,
the silencing of moderate voices and setbacks for women’s rights.” Lattimer says, “The high-
profile violations of the rights of minorities by the US and other Western states in the name
of the ‘war on terror’ have given a licence to other states around the world to excuse or justify
their own repression; of minorities.” All of these have a direct impact on the enjoyment of
fundamental human rights. For authorities, it is the challenge to end the current violations of
civil liberties and ensure equality before the law for all citizens.
This data of daily harassment must be disturbing for Ethnic and racial minorities who
really are harassed by law enforcement personnel everywhere in the state. Unnecessary stops
and searches, the humiliation of innocent individuals, and, in the worst-case situations, the
murder of defenceless citizens are all examples of abuse. For example, Alvin Penn, a
prominent African American politician in Connecticut, was stopped and questioned by a
police officer in Trumbull, Connecticut, in May 1996.14 Gary Rodwell, 42, of Philadelphia,
was arrested and searched for narcotics in Maryland in January 1996. During the search,
Rodwell, like other Black motorists, was harassed and despised. The beating of Rodney King
in Los Angeles and the sexually molesting of Abner Louima in New York City are two of the
most heinous acts of torture. On March 3, 1991, Abner was severely assaulted by policemen
from the Los Angeles Police Department. A witness captured the entire event on film.15
Thirteen years after the King incident, LAPD officers were again caught on tape beating a
Black person. The victim, Stanley Miller, was repeatedly hit with a flashlight and kicked.
Initial reports indicate that Miller was unarmed and did not resist arrest. On August 9, 1997,
Louima was beaten and sexually molested by four officers of the NYPD (the United States of
America against Justin Volpe 1999).16
Human Rights Watch 1998 points out, “Numerous unarmed Blacks and Hispanics have
also been killed by police officers. In January 1996, for example, a 15year old Puerto Rican
boy, Frankie Arzuega, was killed by an NYPD officer. Arzuega was a passenger in a car that
was stopped by the police. So too, in December 1997, WiIIiam Whitfield was killed by an
NYPD officer at a supermarket.” Generally, Blacks are excessively portrayed among victims
of police brutality. This reality points to severe violations of the United States Constitution’s
provisions of equality and liberty. Law enforcement officers have targeted minorities for
stops, searches, and arrests in their campaign against crime. They have invaded the civil
freedoms of innocent minorities in the process. Though it’s difficult to ignore some of these
incidents as small cases, it’s necessary to consider that all these represent significant failings
of democracy’s fundamental ideals.

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Arabs and Muslims, like other traditional minorities, are now vulnerable to racial
profiling. While profiling of Blacks and Hispanics has primarily taken place in drug battles
and illegal immigration, profiling of Arabs and Muslims has been related to the War on
Terror. Not surprisingly, law enforcement agencies that have become part of the Homeland
Security Department are primarily responsible for profiling Arabs and Muslims. While racial
profiling of African-Americans is widely accepted as an issue in American culture, profiling
Arabs and Muslims is far worse.
These authorities have raided fast-food restaurants, cafes, call centres, bookstores, and
other businesses where ‘radical Islamists’ are thought to meet, or that are suspected of
providing financial support to ‘radical Islamist networks’, in addition to the surveillance
activities described in the State of the World’s Minorities and Indigenous Peoples 2010
report. As a result, businesses are frequently subjected to a court or administrative fines,
leading to their closure in some circumstances.
India
As the representative body of Government of India, the planning commission listed the
reason for the violence to the minority in India. 17 The expert body clearly stated in a social,
economic, and political context that Dalits and Adivasis who led the foundation for the
movement are deprived of even their fundamental human rights for decades.18 It also shows
that the root causes are denial of righteousness and justice, exclusion and alienation, and
human rights violations for minorities.
There has been a steep rise in terrorism in India in the last two decades. There is a
various terrorist attack in cities like Jaipur, Ahmedabad Bangalore, Mumbai and Pune.
Prevention of such terrorist attacks is essential; it might be possible by laws like POTA. After
the 26/11 attack on Mumbai, regulations have become more strict about limiting such
activities. 19 There is no second opinion that terrorism is a big challenge for India security and
democracy. States have undertaken several measures like anti-terrorism legislation
implementation of special development schemes for affected areas, strengthening the security
and intelligence apparatus, deployment of the police force in anti naxal operation, and
negotiation with representatives of militants groups.
The roots of terrorism in India can be traced before it got independence in 1947, but
those aimed to create fear among the British ruler and not killed the general people. During
the early freedom years, Kashmir Punjab and the northeast Frontier part were affected by
terrorism. But due to advancement, now the scope has been increased. Today, the following
states’ major terrorist activities are jammu and Kashmir, Mumbai, Central India ( Naxalism),
and the Seven Sister States. As it has been in the past, the Punjab insurgency results in
militant activity in the Indian state of Punjab and the national capital Delhi. 20 Terrorist acts
throughout the centuries performed on the religious ground to either spread or in force a
system of belief viewpoint or opinion. Domestic and external terrorist activity is currently
rising in India due to spiritual causes and factors like poverty, unemployment, not being

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developed, etc. Us state department’s annual report 2007 declared India as the second-worst
affected country by terrorist violence.
The Sikhs militant during the Khalistan movement the moist the Kashmiri extremist and
the insurgent in the northeast I climb the stairs of terrorist methods directly or indirectly.
Various terrorist attacks in India were linked to foreign sponsorship for involvement. 21
As per the US state department annual report, 2007 based on casualties in 2008 with over
1000 civilian deaths, India has been declared second on the list. It has also noted a significant
decline in terrorism while the armed violence in the North eastern region of India is high. 22
There has been a different reason for terrorism like ‘secessionist violence in Kashmir,
insurgencies in the northeast,’ 23 and other factors like language, religion sect caste and tribe
which raised the question on identity of ones, ultimately cause excessive damage to life and
property over the years.
Arvind Verma, an expert on left-wing terrorism in India, claims that terrorist
victimisation stems from the terrorist squads’ brutality and the police agencies’ unlawful
activities.24 Maoists would definitely perpetrate terrorism against people to persuade the
government to withdraw its troops stationed against them. As a result, there is no reason to
concern state-sponsored terrorism.
The major terrorist attack in India25

12 March 1993 (Series of 13 bombs go off killing 257)

14 March 2003 (Bomb goes off in a train in Mulund killing 10)
29 October 2005 (Delhi bombings)
2005 (Ram Janmabhoomi attack in Ayodhya)
2006 (Varanasi bombings)
11 July 2006 (Series of seven bombs go off in trains killing)
26 November 2008 to 29 November 2008 (At least 170 people have been killed in a
coordinated sequence of attacks.)
18 Sept. 2016 (URI attack)
10 July 2017 Amarnath yatra attack
This data demonstrates that terrorist operations in India have risen since 1980. India has
fought a battle against terrorism, and more than 6000 people have died due to these attacks.
In addition, the attacks claimed the lives of about 9000 security officers and 70,000 civilians.
As a result of terrorism, over six lakh individuals in India have become homeless.26 The fatal
attack on CRPF troops in Sukma, Chattisgarh, on March 13, 2018, is the latest incident of
Maoists attempting to disrupt road connectivity in that area.27 Ethnic-nationalist terrorism,
religious terrorism, left-wing terrorism, narco-terrorism, and “cross-border terrorism” are

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examples of “terrorism in India.” 28 Several terrorist and insurgent organisations, including

Lashkar-e-Tayyiba (LET), Jaish-e-Mohammed (JEM), and the Indian Mujahideen, carry out
terrorist acts (IM). Daesh (previously known as ISIL), Al Qaeda in the Indian Subcontinent
(AQIS), and other terrorist organisations. Terrorism and conflict always have a detrimental
influence on a country’s economy. Terrorists target valued products and services as well as
productive resources. Maoists have sought to stymie progress on several occasions by
attacking security troops and destroying resources. Terrorist actions in the nation threaten to
impede the flow of tourists.
“Terrorism typically rises where human rights are violated,” the Supreme Court of India
has observed, and “the loss of hope for justice offers fertile grounds for terrorism.” Anti-
terrorism legislation in India has long been a source of contention. One argument is that these
regulations infringe on people’s fundamental rights, guaranteed under Part III of the
Constitution. The legislature has passed anti-terrorist legislation in the past, and the judiciary
has supported it, albeit reluctantly. 29 The object was to pass these laws and have them in
effect until the situation improved. The goal was not to make these extreme measures a
permanent part of the legal system. However, due to ongoing terrorist actions, the statutes
have been reintroduced with the necessary changes.
Currently, the legislation in force to tackle terrorism in India is the National Security
Act, 1980 and the Unlawful Activities (Prevention) Act, 1967. There have been other anti-
terrorism laws in force in India at a different point in time, such as the Unlawful Activities
Prevention Act, 1967(UAPA); Terrorist and Disruptive Activities (Prevention) Act, 1987
(TADA); The Maharashtra Control of Organized Crime Act, 1999 (MCOCA); Prevention of
Terrorism Act, 2002 etc. 30
Following a surge in terrorist activity, including the attack on the Indian Parliament and
the Mumbai attacks, the Indian Parliament adopted three legislation in recent years. First,
following the Mumbai attack, there was a need to simplify collaboration across states, which
was addressed by the National Investigative Agency Act, 2008, to increase professionalism in
the investigation process of terrorist operations. Second, the 1967 Unlawful Activities
(Prevention) Act was amended. Third, the Code of Criminal Procedure Amendments of
1973.31 The legislation aims to provide a federal agency with the authority to investigate
serious crimes, including terrorism and organised crime. There will be special courts that will
hear terrorism-related cases promptly. Because it is critical to provide justice and recompense
to the families of the innocent victims of terror attacks.
India firmly supports all efforts to improve international and regional cooperation in the
fight against terrorism, particularly those undertaken under the auspices of the United
Nations. India is a signatory to 13 United Nations anti-terrorism treaties. In 1996, India took
the initiative to launch a comprehensive draft convention on international terrorism (CCIT) to
create a comprehensive legal framework to combat terrorism. In 2007, a draught text of the
CCIT developed, mainly due to India’s aggressive pursuit. It is agreeable to most
governments.

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Current Scenario of Terrorism: India and the USA

Terrorism has emerged as the most significant security concern in post-Cold War
international relations. It is an issue of national as well as international importance. It is one
of the most more critical threats to international peace and security in the 20th century.
Terrorism’s goals and manifestations have clearly evolved since its earliest days.
International terrorism has risen as a result of transforming territories due to globalization,
allowing them to target any country in the globe. Terrorism is spreading in many regions
around the world at a fast pace. Terrorism is heavily active in over 60 nations. Due to internal
and international terrorism, several countries, including the United States and India, have
modified their foreign policies. Every government has switched its attention to weapons of
mass destruction, counterterrorism, nonproliferation, and dealing with cad states.
In the years after independence, India’s antiterrorism and other security legislation have
been adopted, repealed, and reenacted, following a pattern established by the British. This
loop is predominantly influenced by fundamental flaws in India’s traditional criminal justice
system. Even when they create unique mechanisms and procedural rules, India’s
antiterrorism laws rely on the same institution or police, prosecution. As a result, these
traditional institutions cannot fight against terrorism or fail to protect human rights
by enforcing ordinary criminal laws. 32 To change this situation and specifically address the
human rights concerns raised by India’s special anti-terrorism laws, it is necessary to improve
and reform the police and criminal justice systems in general, both to better protect human
rights and to relieve the pressures that led to the enactment of special antiterrorism and
security laws in the first place.
The Prevention of Terrorism Act of 2002, which established a permissive set of legal
standards to punish acts of terrorism entirely outside the traditional criminal justice system’s
traditional norms, was abolished in 2004, marking a huge step forward for human rights in
India. Though POTA33 was adopted after the significant terrorist attacks in both the United
States and India in 2001, it is based on India’s lengthy history of anti-terrorism and other
security legislation. Even though India has long faced severe threats from terrorism and
different types of political violence, this anti-terrorism legislation has not proven wildly
successful in combatting terrorism. It made a sincere effort not to identify the terrorist with
their religious, linguistic, or ethnic community.
Instead, the state should take significant steps; otherwise, the issue becomes
communalised, fulfilling terrorists’ evil intentions and poor purpose of generating social
distance and hatred between two groups. Terrorism is clearly linked to the underdevelopment
of a group, community, area or nation. The evil elements exploit the poor’s feelings to join
the fight against injustice as a weak link. As a result, it is necessary to eliminate poverty and
inequality transparently that provides everyone equal access to economic activities for their
livelihood and employment.

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The Indian Supreme Court in Kartar Singh v. State of Punjab (1994) held that the
country has been in the firm grip of spiralling terrorist violence and is caught between deadly
pangs of disruptive activities that have always been a subject of much controversy.34
In 2018, the Indian government made a voluntary donation of USD 550,000 to the newly
created UN office for counterterrorism (OCT) as part of India’s ongoing commitment to
boost multilateral efforts to combat terrorism and support the work of the OCT.35 POTA and
other anti-terrorism laws in India have raised plenty of human rights concerns, some of which
are comparable to those made by anti-terrorism legislation in other nations, such as the
United
There was no law of excellent standard after TADA expired in 1995 that could be used
as a weapon against India’s rising terrorist activities. Subsequently, India witnessed
significant terrorist incidents, which included the hijacking of the India Airlines flight IC -
814 to Kandahar in 1999 and the attack on the Parliament on December 13, 2001, along with
the response to the 9/11 attacks on the World Trade Centre in the USA, the Indian
perspective has changed and in the March session of Parliament of 2002 the Prevention of
Terrorist Activities Act (POTA), 2002 was introduced.36
In the case of People’s Union for Civil Liberties v. Union of India, the Supreme Court
affirmed the constitutional legality of POTA, 2002. However, several restrictions have been
included in the POTA, 2002, to reduce the risk of it being misused.37 One argument is that
these regulations violets the citizens’ fundamental rights, which are protected by Part III of
the Constitution. The goal was not to make these harsh measures a permanent part of the
legal system. However, due to the active combat against terror organizations, the legislation
has been reintroduced with the necessary changes.
It was not the goal of making these severe measures for fighting terrorism a permanent
part of the nation’s law. However, due to ongoing terrorist actions, the laws have been again
reimplemented with the necessary changes. Therefore, in April of 2000, the Legislation
Commission of India, led by a former Supreme Court judge, recommended that law being
passed to deal forcefully and effectively with terrorists and their activities.38
While India’s anti-terrorism laws have been shaped primarily by a domestic political
perspective which has progressed over several decades, the United Nations Security
Council’s efforts to implement and enforce Resolution 1373, the mandatory resolution
adopted after September 11, 2001, terrorist attacks under Chapter VII of the United Nations
Charter, have also shaped the debate in recent years. Human rights activists have complained
that the Security Council and its Counter-Terrorism Committee have not paid enough
attention to human rights concerns in their attempts to scrutinize nations. In recent years, the
Indian government has taken several significant moves to limit the misuse of anti-terrorism
legislation and resume efforts to reform its colonial-era police and criminal justice systems.
Following the recent bombings in Mumbai, the Government of India wisely decided not to
implement new restrictive measures to replace POTA, instead emphasising the need to

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improve the country’s intelligence and investigative capabilities to prevent terrorist acts hold
accountable people or organisations.
Terrorist groups like ISIS, al-Qaida, and Hizballah are still plotting attacks against the
US and its allies and partners. The Department of State intends to establish a global
agreement to weaken and destroy these terrorists as the risks are done by these
growing groups. The Department works with a foreign government to improve the
capabilities needed to prevent, degrade, detect, and respond to terrorist threats
through international engagement and foreign aid. This includes strengthening law
enforcement and judicial capacities, strengthening border enforcement, improving emergency
response teams, and combating violent extremism.39 The US Government supports more
pressure to confront terrorist threats and encourages nations to strengthen counterterrorism
capability in their respective regions through its global engagement. To lead an integrated
strategy for the entire globe to international counterterrorism, the State Department
cooperates with the Departments of Defense, Homeland Security, Justice, Treasury, and the
Intelligence Community.40
Many things need to be done by governments to combat the threat of indiscriminate
violence, including improving intelligence agency coordination, speeding up information
distribution, hardening potential targets, and providing intelligence and law enforcement
agencies with more consistent ability and resources to carry out the often specialised
investigative work required to apprehend and detain terrorists. But, maybe most importantly,
Governments should stop profiling.
The UN Human Rights Council (HRC) should play a key role in monitoring and
evaluating the implementation of religious registration laws, paying particular attention to the
impact of such laws on minorities and alleged “non-traditional” religious groups, and making
recommendations to ensure that their religious freedom is adequately protected.
Conclusion
Terrorism is a crime against humanity that has wreaked havoc on societies all over the world.
Terrorists have not only put the principles of democracy and freedom in jeopardy, but they
have also posed a significant threat to humanity’s existence, growth, and development.
Terrorism is frequently used to describe violent acts committed just by non-state
individuals and groups. Unless a neutral and accurate definition of terrorism is applied to all
parties, any violence done by the state that falls under the description will indeed be
considered a criminal act. The UN Human Rights Council (HRC) should play a key role in
monitoring and evaluating the implementation of religious registration laws, paying particular
attention to the impact of such laws on minorities and alleged “non-traditional” religious
groups, and making recommendations to ensure that their religious freedom is adequately
protected.
Indiscriminate, illogical, and disproportionate mass fatalities and damage imply horrific
intentions. There are many ways to undermine a group’s goals; however, there are many

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different forms of religious terrorism that use minorities discrimination for increasing their
strength. A greater understanding of such groups, their leadership, and their goals will allow
for a more reasonable approach, perhaps leading to much more success in combating their
propaganda and use of terrorism in the name of religion. A variety of counterterrorism
strategies aimed at decreasing or eradicating religious-based terrorism are discussed in certain
parts. These alternatives need a basic grasp of the organisation, its leadership, and the goals
for which it is fighting. Furthermore, no kind of religious terrorism can be destroyed only by
the use of force.

Endnotes and References:

1
Roy, Caesar (2011) Terrorism in India and Legislation for its Prevention : Quest - The Journal of UGC - ASC
NTaeinrriotarilsm ; Volume 5, Issue 2.
2
Nanda,V., The role of international law in combating terrorism, 10Mich. St, U DCL Int. L (2001).
3
Silva, C.(2016); Minorities and domestic terrorism, preventing radicalization in western nations: GRIN
verlag, open Publishing Gmbh, ISBN:9783668271210.
4
The word terrorism, in and of itself, was coined during the French Revolution’s Reign of Terror (1793–1794).
In the Reign of Terror (Le Gouvernement de la Terreur), a group of rebels, the Jacobins, used the term when
self-reflexively portraying their own actions in-and explanations of-the French Revolution. Sir Edmund Burke
commented on the French Revolution and warned about “thousands of those hell hounds called terrorists.
5
Burgess, Mark (2003). A Brief History of Terrorism. Washington, D.C.: Center for Defense Information (CDI);
Tuman, Joseph S. (2009). Communicating Terror: The Rhetorical Dimensions of Terrorism (2nd ed.). Thousand
Oaks, CA: Sage.
6
Roy, Caesar (2011) Terrorism in India and Legislation for its Prevention : Quest - The Journal of UGC - ASC
NTaeinrriotarilsm ; Volume 5, Issue 2.
7
Martin, Gus (2017), Developing Next-Generation Countermeasures for Homeland Security Threat Prevention
California State University, USA.
8
Piazza, James A (2011) Poverty, minority economic discrimination, and domestic terrorism
Journal of Peace Research: Sage Publications, Vol. 48, No. 3.

9
Silva, C.(2016); Minorities and domestic terrorism, preventing radicalization in western nations: GRIN
verlag, open Publishing Gmbh, ISBN:9783668271210,
10
Minority rights group international, https://minorityrights.org/2006/09/08/global-war-on-terror-has-
become-a-global-war-on-minorities/.
11
Ghanea, Nazila and Goldston, James A. et.al. (2010) Religious minorities in a post-9/11 world,
https://minorityrights.org/wp-content/uploads/old-site-downloads/download-842-Religious-minorities-in-a-
post-911-world.pdf.
12
Bah, Abu B., RACIAL PROFILING AND THE WAR ON TERROR: CHANGING TRENDS AND PERSPECTIVES: ethnic
studies review, vol.9, Northern Illinois University.
13
Ibid.
14
United nations (2008) International Instruments related to the Prevention and Suppression of International
Terrorism: new York, ISBN 978-92-1-133777-8. V.2
15
Hewitt, Christopher (2005) Political Violence and Terrorism in Modern America: A Chronology, ISBN: 0-313-
33418-8.
Reviewed by Alisa Stack-O'Connor

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16
Bah, Abu B., RACIAL PROFILING AND THE WAR ON TERROR: CHANGING TRENDS AND PERSPECTIVES: ethnic
studies review, vol.9, Northern Illinois University.
17
Anuradha M. chenoy and Kmal A., (2010) maoist and other armed conflicts, penguin book, new delhi.
18
CONCERN FOR HUMAN RIGHTS IN THE FIGHT AGAINST TERRORISM: CHALLENGES AND OPTIONS BEFORE
INDIA, Pupul Dutta Prasad, Journal of the Indian Law Institute, Journal of the Indian Law Institute, Vol. 58, No.
4 (October - December 2016), pp. 457-480 (24 pages), Published by: Indian Law Institute
19
Legal Service india.com, Anti - terrorism laws in India: Distinguishing Myth & Reality by Acharya;
http://www.legalservicesindia.com/article/382/Anti---terrorism-laws-in-India.html.
20
Ibid.
21
CONCERN FOR HUMAN RIGHTS IN THE FIGHT AGAINST TERRORISM: CHALLENGES AND OPTIONS BEFORE
INDIA, Pupul Dutta Prasad, Journal of the Indian Law Institute, Journal of the Indian Law Institute, Vol. 58, No.
4 (October - December 2016), pp. 457-480 (24 pages), Published by: Indian Law Institute
22
https://www.jstor.org/stable/pdf/resrep09368.pdf?ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&refre
qid=fastly-default%3A95b41f85a688910deeb25cd9cf412113
23
Ibid.p.8.
24
Shubramania, K.S. (2007) political violence and the police in india; sage publication, new delhi.
25
Legal Service india.com, Anti - terrorism laws in India: Distinguishing Myth & Reality by Acharya;
http://www.legalservicesindia.com/article/382/Anti---terrorism-laws-in-India.html.
26
Legal Service india.com, Anti - terrorism laws in India: Distinguishing Myth & Reality by Acharya;
http://www.legalservicesindia.com/article/382/Anti---terrorism-laws-in-India.html.

27
Negative effects of terrorism on the enjoyment of human rights,
https://www.ohchr.org/Documents/HRBodies/HRCouncil/AdvisoryCom/Terrorism/NHRC_India_2.pdf.
28
https://www.satp.org/terrorist-groups/india.
29
Legal Service india.com, Anti - terrorism laws in India: Distinguishing Myth & Reality by Acharya;
http://www.legalservicesindia.com/article/382/Anti---terrorism-laws-in-India.html.
30
Ibid.
31
Roy, Caesar (2011) Terrorism in India and Legislation for its Prevention : Quest - The Journal of UGC - ASC
NTaeinrriotarilsm ; Volume 5, Issue 2.
32
KALHAN, ANIL and GERALD, P. et.al. (2005) COLONIAL CONTINUITIES: HUMAN RIGHTS, TERRORISM, AND
SECURITY LAWS IN INDIA, https://www.nycbar.org/pdf/ABCNY_India_Report.pdf.
33
The Prevention of Terrorism Act, 2002 (POTA) was an Act passed by the Parliament of India in 2002, with the
objective of strengthening anti-terrorism operations.
34
Legal Service india.com, Anti - terrorism laws in India: Distinguishing Myth & Reality by Acharya;
http://www.legalservicesindia.com/article/382/Anti---terrorism-laws-in-India.html
35
https://www.ohchr.org/Documents/HRBodies/HRCouncil/AdvisoryCom/Terrorism/NHRC_India_2.pdf
36
Roy, Caesar (2011) Terrorism in India and Legislation for its Prevention : Quest - The Journal of UGC - ASC
NTaeinrriotarilsm ; Volume 5, Issue 2.
37
Roy, Caesar (2011) Terrorism in India and Legislation for its Prevention : Quest - The Journal of UGC - ASC
NTaeinrriotarilsm ; Volume 5, Issue 2.
38
Ibid.
39
https://www.jstor.org/stable/pdf/26297135.pdf?refreqid=excelsior%3Ae34d63b44513d263d00631b69b580f
56
40
US Department of State, https://www.state.gov/policy-issues/countering-terrorism/.

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Unit-3 : Structural Violence

(a) Caste and Race: India and South Africa

Dr. Monika Batham
“All human beings are born free and equal in dignity and rights…”
(Universal Declaration of Human Rights, 1948)

Structure
Introduction
Caste in India
Origin of Caste System
British Influence on Caste
Social Reforms during British India
Pre-Independent India
Race
Significance in Political Science
South African Constitution
Indian Constitution
Conclusion
References

Introduction
The term equality itself is a complex term since we are all different beings but we all should
be treated equally, which is adopted in our constitution. As we know that Equality is a crucial
feature of democracy and influences all facets of democracy for its functioning. It appears to
be natural to ascribe negative meanings to differences, to associate difference with the
supposedly inferior or superior or the dangerous, although it’s not. It is something we learn
and is therefore something we can unlearn (Kelvin Boyle: 2005). This chapter is about the
different concepts that we understand to differentiate between Caste and Race in Indian and
in South African context. How these concepts are giving meanings on the quality of life of
millions of people.
Caste in India
Since the beginning of the Indian sub-continent when the foreigners like Megasthenes, Al
Baruni and many more came to India, caste has been such a prominent factor of Indian
society that it has never failed to attract the attention of the foreigners or outer world. The
Hindu society is divided into many groups, known as castes or Jaati with varying degrees of

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respectability and circles of social intercourse. Caste is the most general form of social
organization in India but its shape and flavor has been shaped during various courses of time.
Caste has two distinct features ubiquity and strangeness which attracted attention from many
prominent scholars like G S Ghurye, Gail Omvedt, Gopal Guru, Vivek Kumar, S K Thorat,
Sushrut Jadhav, Surinder Jodka and even after 75 years of India’s independence it’s been
discussed and debated in different angles by emerging scholars like Gaurav Pathania, Sujata
Sarvapalli, Suraj Yengde, etc.
Origin of Caste System
Any definition of caste is bound to fail because of the complexity of the phenomenon. There
are numerous theories associated with caste. For instance in Rig-Veda (the most popular
theory among all) the very first man of the universe Brahma destroyed himself to create the
present society of India. His various body parts actually represent different Varna categories.
For example Brahmins came from his head, which are responsible for knowledge and are
highly intelligent. Priests and teachers belong to this category. Kshtriya Community comes
from his shoulders and arms which represent warriors and rulers. Vaishya comes from his
thighs, mainly traders or businessmen, farmers, merchants come in this category. Shudras
originate from his legs/feet as laborers. But no one defines who these Dalits are who are also
known as Avarna and they have assigned cleaning services to all.
Karma and Reincarnation theory is the second theory, which explains that anybody’s
caste is dependent on his/her previous birth’s deeds. If a person has done good karma he/she
will be reborn in present society as a Brahmins. Hindu’s who are born as Shudras or
Untouchables learned to support rather than oppose their own oppression. According to this
theory, Hinduism teaches low-caste people that the way to improve their position in their next
life is by leading a virtuous life, this time around with no acts of deviance towards the caste
system.
Few people say that it’s not caste which decides occupation of an individual but its
occupation of someone’s which decides a caste of a person. However, anyone from varnas
could also become a Brahmin after extensive acquisition of knowledge and cultivation of
one’s intellect. (Ancient History Encyclopedia: 2017)
According to Manu Smriti, a Brahmin woman must only marry only a Brahmin and no
other, but she remains free to choose the man. She, under rare circumstances, is allowed to
marry a Kshatriya or a Vaishya, but marrying a Shudra man is restricted. The restrictions in
inter-caste marriages are to avoid subsequent impurity of progeny born of the matches. A
man of a particular caste marrying a woman of higher caste is considered an imperfect match,
culminating in dishonorable offspring. According to this theory this caste system is a bit fluid
because after achieving certain knowledge one can become Brahmin.
Meanwhile the caste system becomes rigid and caste rules can be seen everywhere in the
society- like where you work with whom you took your tea or meal, where you marry with
whom and according to which culture or tradition. This is one of the reasons why Dalits were
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not allowed to touch the high caste community and were required to stand a certain distance
away from the higher castes.
Around the 6th century after the emergence of Buddhism in the Indian sub-continent,
many individuals of the lower castes who were getting fed up with suppression turned to
Buddhism. Buddhism as a religion began with a reaction to the violence of the Hindu society,
including the brutality of the caste system. Buddhism concentrates not on the society, but on
the individual thus it separates religion from the interests of ruling and dominance. In
Buddhism previous birth deeds don’t affect the present birth position. This is the main reason
for why Dr. B.R. Ambedkar along with 5 lakh SC people converted into Buddhism as a mass
conversion in 1956.
British Influence on Caste
For Britishers the system of caste was really complex and they wanted to make it simple for
administrative purposes. Henry Waterfield who belongs to the Statistics and Commerce
Department, India office believed that caste was even more vexing. Waterfield noted that
‘Great pains have been taken by the writers of the several reports in the classification of the
population according to caste. The result, however, is not satisfactory, owing partly to the
intrinsic difficulties of the subject, and partly to the absence of a uniform plan of
classification, each writer adopting that which seemed to him best suited for the purpose’.
The general report on the census of the Northwest Provinces prepared under the guidance
of W.C. Plowden wrote that, ‘The whole question of caste is so confused, and the difficulty
of securing correct returns on this subject is so great, that I hope on another occasion no
attempt will be made to obtain information as to the castes and tribes of the population’.
According to James Prinsep who took charge of the census of Benares in 1834, ‘no less
than 107 distinct castes of Brahmins were found in that one city. For 1872, The Primary
Principle of classification used in 1872 and again in 1881 was that of Varna’. The empirical
project of the census was closely linked to the most general of Orientalist categories for the
classification of the social order, with built in assumptions about hierarchy and precedence.
Whereas in Madras Presidency, W.R. Cornish (who was responsible for the census of
Madras 1871) commented that ‘It is plain that we can place no reliance upon the statements
made in the Hindu sacred writings. Whether there was ever a period in which the Hindus
were composed of four classes is exceedingly doubtful’.
For the 1872 census, Waterfield thought that it would be easier to classify Indians along
the four Varna systems. As we all know that everyone today identifies Varna systems into
four categories. But it was W.R.Cornish who observed that ‘it is doubtful that there was any
period during which the Hindu was divided only into four categories and that even more
divisions existed’. So the British popularized the four varna systems in which the Brahmans
were classified at the top as the privileged class. Can you guess with whose help the
Britishers are able to do their paperwork?

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Brahmins – The highest ranked of the four varnas or traditional social classes
of India include Hindu priests, advisors, and intellectual leaders.
Kshatriya- The second highest of the varnas, includes rulers, military leaders,
and large landowners.
Vaishya- The third highest of the four varnas includes merchants, traders and
farmers.
Shudra- The lowest ranked varnas- traditionally includes artisans, laborers,
and servants.
Dalit- (formerly called ‘untouchables’) a fifth category, with no varna
designation, includes various low status persons and those outside the caste
system.
The Hindu Muslim laws that completed its first phase in 1864, actually taken by Warren
Hastings In 1772. Warren Hastings hired eleven Brahmin Pandits, Who took advantage of the
situation and applied Vedic laws even more widely and rigidly. This is termed as
‘Brahmanism’ or ‘Brahmanvaad’ that was forced upon the Hindus because until then, the
Vedic system of four castes was not so widely practiced and nor did every Hindu practice it.
It was forcefully imposed and British India increased the divide between the upper and the
lower castes in India.
M.N. Srinivas believes that British India made social mobility and intermingling within
castes even more difficult. Earlier, it was possible for people belonging to castes other than
Brahmans to gain political power, but the British made this even more difficult. For instance,
Lord Hardinge, the Viceroy of India in the 1910s, declared that all the seats in public services
would be filled up by an open competition examination, which would be conducted in
English medium. This was a huge advantage for the Brahmans of the Madras Presidency
because they were the sole ones who had the privileged access to learning English. As a
result of that, Brahmans in Madras (who comprised only 3% of the population there)
occupied more than 80% of the posts. So, in the princely state of Mysore, the Tamil
Brahmans monopolized all the jobs. (EPW: 2000)
Social Reforms during British India
Few social reformers without fear of the Indian masses criticized caste inequalities during
British India. One of them was Rammohan Roy, who translated an old Buddhist text that was
critical of the caste system. The Prarthana Samaj while following the tradition of Bhakti
believed in spiritual equality of all castes while The Pramhans Mandali for the abolition of
caste the society was founded in Bombay in 1840. Many thoughtful and educated people of
upper castes came for the restructurings in the caste system and became members of these
associations. Time and again, in secret meetings, these reformers would violate caste taboos
on food habits and touch; it is an effort to get rid of the hold of caste prejudice in their lives.

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Christian missionaries began setting up schools for tribal groups and ‘lower caste’
children during the course of the nineteenth century, who questioned the injustices of the
caste social order. Children in these schools were thus equipped with some resources to make
their way into a changing world. Simultaneously, the poor began leaving their villages to look
for jobs that were opening up in the cities. There was work in the factories that were coming
up, and jobs in municipalities. While expanding the cities the new demands of labour created.
Drains had to be dug, roads laid, buildings constructed and cities cleaned. This requires
manual workers like coolies, diggers, carriers, bricklayers, sewage cleaners, sweepers,
palanquin bearers, rickshaw pullers. All the poor people come from the villages, small towns,
and neigbouring tribal areas for this manual work. Many of them are from low castes, began
moving to the cities where there was a new demand for labour. Some also went to one the
oldest migration streams in modern India i.e., for work in plantations in Assam, Mauritius,
Trinidad and Indonesia. Most of the time work in the new locations was very hard. But the
poor, the people from low castes, saw this as an opportunity to get away from the repressive
system of upper caste landowners exercised over their lives and the daily humiliation they
suffered.
It’s not the only jobs left for this category, for instance the army (Mahar Regiment)
offered opportunities. A number of Mahar people found jobs in the army which is considered
to be an untouchable caste. The father of B.R. Ambedkar, the leader of the Dalit movement
taught at an army school.
Pre-Independent India
There were a lot of people in the 19th and the 20th century who took concrete measures
against the caste system, e.g. the three noteworthy people-Shahuji Maharaj, Jyotiba Phule and
B.R Ambedkar.
Shahuji Maharaj was the first person in India on 26 July 1902 issued a historic document
in the gazette of the Karveer, Kolhapur state, where he reserved fifty percent of government
posts for backward class candidates. It was a progressive step at that time.
Jyotirao Phule, one of the vocal among oppressed classes, who was born in the Shudra
caste. He studied in schools set up by Christian missionaries and was very inspired by the
struggle of the slaves in America. While growing up he developed his own ideas about the
caste biases in the society. In 1873, he established the ‘Satyashodhak Samaj’ for the
upliftment of the lower castes and propagated social equality. He refused to regard the Vedas
as sacrosanct and refused to believe that only the Brahmans should have control over the
Hindu religion. Phule believed that the ‘upper’ castes had no right to their land and power, in
reality land belonged to indigenous people, the so-called low caste.
The biggest contribution in the 20th century against the caste system has arguably been
that of B.R. Ambedkar. Ambedkar was born to a Mahar family which considered him a lower
caste. He has experienced what caste prejudice meant in day to day life. He has written
popular books like ‘Annihilation of Caste’ and ‘The Emancipation of the Untouchables’. He
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was demanding separate representation for the lower castes that he also referred to as
‘Oppressed’ or ‘Depressed’ class. Separate representation not just against the British, but also
against the Brahmans. He organized a Depressed classes congress in 1930 in Nagpur and
declared classes, and declared that for the safety of the depressed classes, they needed
independence from both the British as well as the congress.
Dr. Ambedkar demanded to allot separate electorates for the depressed classes, under
which all the minorities mainly, Muslims, Parsis, Anglo- Indians and depressed classes were
being granted a separate electorate. In August 1932, British PM Ramsay McDonald accepted
the demands of Dr. Ambedkar. A joint reserved electorate on the other hand, would mean that
all could vote but only Dalits could contest the elections. When Gandhiji got to know that the
British had granted a separate electorate to the Dalits, he announced a fast unto death as a
protest. He believed that this policy was creating a gulf between Dalits/Harijians and the rest
of the Hindus.
Despite the protest of Gandhiji, Dr. Ambedkar remained unmoved. His faith in a separate
electorate was the way to upliftment of the depressed classes. But when Gandhiji's health
began to deteriorate, Dr. Ambedkar had no other option left. He had to negotiate in what
came to be known as ‘Poona Pact’. But Gandhiji comforted him that instead of separate
electorates, more reservations could be provided for the depressed classes in the joined
electorates. So, the 78 seats reserved for them were increased to 148 seats after the Poona
Pact.
A lot of people believe that had Dalits been granted a separate electorate, then their
situation would have been much different today. But all of this is guess work and we do not
know what the actual situation would have been because we neither have evidence, nor
research.
Post Independent India and Caste
In a free India, depressed classes were given reservation and political representation in both
education as well as public employment. The system of joint electorates continued for
political representation. Out of the 543 Lok Sabha Seats, 84 seats have been reserved for the
Scheduled Castes (SC) and 47 seats have been reserved for the Scheduled Tribe (ST).
Along with this, Article 15 and 16 were added in it which allow for special provisions
being granted to uplift the socially provisions being granted to uplift the socially and
educationally backward classes, when the constitution was being drafted in 1950. The seats
have been allotted in proportion to population, 15 percentage of the seats are reserved for SC
and 7.5 percentage of seats are reserved for ST at present.
Earlier, reservation only existed for the SC’s and ST’s but post 1993 reservation was
extended for the other backward classes (OBC) as well after the Mandal Commission report.
According to this report, 27 percentage reservations were granted to the OBC’s in
government jobs and later educational institutions as well, which brought the percentage of

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reserved seats under the central government to 49.5 percentage. State governments were
given the power to extend the reservations for the rest of the communities. We can see that
today, for instance the Haryana government talks about reservation for the Jats, Maharashtra
government talks about reservations for the Marathas, Rajasthan government talks about
reservations for the Gujjars, and so on.
In 2019, this reservation went one step ahead and granted a 10 percentage reservation to
economically weaker sections belonging to the general category in the higher educational
institutes, which brought the total share of reservations to almost 60 percentages. Do you see
any absurdity in providing reservation more than 50 percentages?
Conclusion
Historically, one of the main dimensions of the Indian Caste System is that people are
socially differentiated through class, religion, region, tribe, gender, and language. Although
this or other forms of differentiation exist in all human societies, it becomes a problem when
one or more of these dimensions overlap each other and become the sole basis of systematic
ranking and unequal access to valued resources like wealth, income, power and prestige
(Sekhon: 39). The present Indian society is moving from its closed systems towards a state of
change and progression marked by the assertion of the human spirit irrespective of castes and
creeds (Velassery: xii). The protest and struggle of and by the Dalit’s or SC’s has influenced
the Indian government to frame new laws in keeping with the spirit of Fundamental rights.
Although the existence of a right or a law or even a policy on paper does not mean that it
exists in reality. The desire for equality, dignity and respect is not new. It has existed in
different forms throughout Indian history. If inequality exists, similar processes of struggle,
writing, negotiation and organizing the Dalit movement need to continue in future.
Race
When we think about race, we would probably focus on outer appearances- skin colour, hair
type, maybe even on the structure of bodies and faces. But most of the time, those physical
criteria mean different things; depending on the culture we are a part of. Skin colour is an
obvious example of this kind of branding. White and Black are the two colours to describe
two races, but the distinction in skin color between races is not clear. A white person getting
a tan doesn’t change their race. However, black people’s light skinned will not change
anything; he will be considered a different race or black. Undoubtedly, race is about more
than just someone’s skin color. Therefore let’s talk about race and why this topic goes more
than skin deep.
Race is a socially constructed category like gender. It is used to categorize people who
share biological traits that a society thinks are important. It’s astonishing to see that how can
a race be both a social construct and which is based on biology? What a society thinks is the
key part of that definition of race is the last part is important. Skin colour varies widely across
regions of the world. Nevertheless, like colour, and we don’t consider people with other
physical features like blue eyes a different race than people with brown eyes. Physical
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appearance often describes or identifies a race but they’re not always applied consistently.
For instance, the so-called ‘One Drop’ rules in the United States where even the smallest
amount of African-American ancestry is enough to classify someone as Black rather than
White. Though, is it not right that someone with one black parent and one white parent is
almost never considered White and people from different places or different time periods
have defined racial groups differently. In the United States nowadays, light skinned people of
European descent are usually considered ‘white’. Whether your heritage is Irish or British or
French or Italian or Polish or German- you’re classified as ‘white’. But that wasn’t
considered in the early 1900’s anyone who wasn’t a White Anglo-Saxon Protestant was
considered ‘ethnic’- so for example if you were Italian or Irish, you weren’t considered
White.
Today in the United States, being Jewish is often seen as an ethnicity but Europeans are
most likely to think of being Jewish as a race. Accordingly, we should focus on the most
relevant question; what’s the difference between ethnicity and race?
An ethnic group is a group that has a shared cultural heritage. Language, traditions,
religions-these are all types of culture that can determine your ethnic background. Therefore,
ethnicities are socially constructed categories based on cultural traits that a society finds
important, rather than strictly biological traits. Two people of different races might share the
same ethnicity and conversely, two people of the same race might be totally different
ethnicities. It is a sentiment of loyalty towards a distinctive population, cultural group or
territorial area. Ethnicity is complex because it has both cultural and racial overtones.
Meanwhile, Race refers to physical or genetic differences amongst humankind that
supposedly distinguish one group of people from another on biological grounds such as skin
and hair colour, physique and facial features. It’s a group of people who share a common
ancestry and ‘one blood’ is known as race. Race is a controversial term both scientifically and
politically. Scientific evidence suggests that there is no such thing as ‘race’ in the sense of a
species-type difference between people. Politically, racial categorization is commonly based
upon cultural stereotypes, and is simplistic at best and pernicious at worst.
Significance in Political Science
The European racialism of the nineteenth century first established the link between race and
politics. Racialism preached doctrines of racial superiority/inferiority and racial segregation,
in the twentieth century. Mixing fascism with racialism produced Nazism, and it helped to
ignite right-wing nationalism or anti-immigration movements. Such movements are mainly
driven by racial or ethnic unification in society which will be considered more cohesive and
successful. Multiculturalism and multiracialism have always been sources of conflict and
instability. Very different form of racial or ethnic politics has developed out of the struggle
against colonialism in particular and as a result of racial discrimination and disadvantage in
general. Though the conjunction of racial and social disadvantage has generated various
styles of political activism.

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For instance the civil-rights movements, that led in the USA in the 1960s by Martin
Luther King to militant and revolutionary movements, such as Black Power movement and
Black Moslems (now the Nation of Islam) in the USA and the struggle of the African
National Congress (ANC) against apartheid in South Africa up to 1994. (Andrew Heywood:
226-227)
Racism or Racialism
Racism is an ideological construct which assigns few races or ethnic groups to a position of
power over others on the basis of physical and cultural attributes, as well as economic wealth,
involving hierarchical relations where the ‘superior’ race exercises domination and control
over others. Racial discrimination is any distinction, exclusion, restriction or preference based
on race, colour, descent or national or ethnic origin which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise, on a equal footing, of human
rights and fundamental freedoms in the political, economic, social, cultural or any other field
of public life. (Kevin Boyle: 11)
The acceptance that social or political assumptions can be drawn from the idea that
humanity is divided into biological distinct races is racism. Therefore Racialist theories are
based upon two assumptions, the first is that there are fundamental genetics, and differences
amongst the people of the world-racial differences are meaningful. Second, these genetic
divisions are reflected in cultural, intellectual and moral differences, making them politically
or socially significant. For instance, apartheid and in doctrines of ‘blood’ superiority or
inferiority, Aryanism or anti-Semitism are political racialism which is again displaying racial
segregation in the state.
Racialism and Racism are commonly used interchangeably, but the latter is better used to
refer to prejudice or hostility towards a person because of their racial origin, whether or not
this is linked to a developed racial theory. ‘Institutionalised’ racism is a racial prejudice that
is entrenched in the norms and values of an organisation or social system. The term is highly
contagious and has been used, amongst other things, to refer to unwitting prejudice,
insensitivity to the values and culture of minority groups, racists stereotyping, racism as a
deliberate act of policy, and racial oppression as an ideological system (as in Nazism).
(Andrew Heywood: 70)
Apartheid
Apartheid the official policy of racial segregation and ill treatment of
blacks followed by the government of South Africa between 1948-1989.
Nelson Mandela became South Africa’s first democratically elected president in 1994. It was
the official end of white minority rule otherwise known as Apartheid. Before 1994 Nelson
Mandela and along with his seven other fellow leaders were sentenced to life imprisonment
in 1964 for opposing the apartheid regime in their country.

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What exactly was Apartheid? It’s an Afrikaans word for separateness. Before 1994 it was
a system of Racial Segregation that governed South Africa for nearly fifty years. For the
protection of the domination of the White South Africans over non-whites in every aspect of
life, but it has its own repercussions. During the colonial period between the Dutch
descendent, Afrikaners and the British, the rights of native black South Africans were
sidelined. Therefore, when Apartheid was officially made law in 1948 by the Afrikaner led
national party it was an extension of injustices which was already happening. This system
was oppressive for the native Blacks. There were many restrictions, for example they were
forbidden from living in white residential areas. They need to have permits if they are
entering their space for work. Public services like transportation, schools, colleges, hospitals,
cinema halls, public toilets and what not were separated for whites and blacks. The native
blacks had to carry ID permits at all times and obey strict curfews. People were classified into
four racial categories- White, Black, Indians and Coloured (people of mixed races). They
were all separated into different residential areas. Blacks were divided into ten so-called
homelands, based on different tribal groups. Homelands were rural overcrowded and lacked
jobs, forcing blacks to seek work as migrant labourers. Wages were low and strikes were
illegal for workers. Apartheid was not only politically motivated but also economically
exploitative. Dominant whites need cheap workforce to work in the country’s gold mines.
Powerful mining magnets had a huge take in Apartheid policies since their profits depended
on keeping black wages low. Outside their designated homeland non-whites had no political
rights. Since they were not citizens technically they couldn’t vote. Education also divided, the
state set up a separate education system for blacks natives and for the whites. Mandatory
education ended at age of 13 and was structured to funnel blacks into unskilled migrant
labour exploitation by design. Protests were often led by black students and youth and were
met with severe repression. Out of these struggles came leaders like Nelson Mandela, Oliver
Tombow and Walter Sisulu who would help bring an eventual end to apartheid system.
Since 1950, all the oppressed classes- the blacks, coloured and Indian fought against the
apartheid system. They launched protest marches and strikes. The African National Congress
(ANC) was the umbrella organization that led the struggle against the policies of segregation.
This included many workers unions and the Communist Party. Many thoughtful whites also
contributed their support in this struggle and joined ANC to oppose apartheid. Several
countries denounced apartheid as unjust and racist system but the white racist government
continued to rule by detaining, tourturing and killing thousands of blacks and coloured
people.
Could you imagine living under such an environment? Are there any similarly unjust
laws that still exist where you live?
Sooner the government realized that they could no longer keep the blacks under their rule
through repression, since protests and struggles against apartheid had increased. The white
regime changed its discriminatory laws and policies. Ban on political parties and restrictions
on the media were lifted. After 28 years of imprisonment Nelson Madela walked out of the

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jail as a free man. At the midnight of 26 April 1994, the new national flag of the Republic of
South Africa was unfurled creating a history for new born democracy in the world. The
apartheid government came to an end, with the formation of a multi-racial government.
South African Constitution
The South African constitution is a good way to understand why we need a constitution and
how a constitution changes the perspective of the whole world. In this new democracy the
oppressor (whites) and the oppressed (native black) were planning to live together as equals.
It was not an easy task to trust each other. Since, they had their own fears. They wanted to
safeguard their interests. The black majority was keen to ensure that the democratic principle
of majority rule was not compromised. They wanted substantial social and economic rights.
The white majority was keen to protect its privileges and property. After long negotiations
both parties agreed for a compromise. The whites agreed to the principle of majority rule and
that of one person one vote. Everyone also agreed to accept some basic rights for the poor
and the workers. The blacks agreed that majority rule would not be absolute. They agreed
that the majority would not take away the property of the white minority. This compromise
was not easy, since they have a rough past together. How was his compromise going to be
implemented? Even if they managed to trust each other, what was the guarantee that this trust
will not be broken in future?
For maintaining trust and hope in the new situation, they need to write down some rules
of the game that everyone would abide by. These rules lay down how the rulers are to be
chosen in future. It also determines what the elected governments are empowered to do and
what they cannot do. Finally the rights of the citizens will work only if the winner cannot
change them very frequently. This is what the South African did. They agreed on some basic
rules. They also agreed that these rules will be absolute, that no government will be able to
ignore these. This set of basic rules or rule book is known as the constitution.
After two years of regressive discussion and debate, South Africa came out with one of
the finest constitutions the world has ever had. The South African constitution not only
inspires democrats all over the world but gives the most extensive rights to its citizens
available in any country. A state denounced by the entire world till 1994 as the most
undemocratic one is now seen as a model of democracy.
Indian Constitution
The long experience of authoritarians under the Bristishers convinced Indians that free India
should be a democracy in which everyone should be treated equally and be allowed to
participate in government. The society and polity is defined in and through the list of
Fundamental rights that are an important part of the constitution. It is often referred to as the
conscience of Indian democracy. Fundamental rights have two main objectives- first, every
citizen must be in a position to claim these rights and second, these rights must be binding
upon every authority that has got the power to make laws. These rights are available to all

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Indians equally. As far as the SC’s and ST’s are concerned, they have drawn these rights in
two ways-
a. By insisting on their fundamental rights- they have forced the government to
recognize the injustice done to them.
b. They have insisted that the government enforce these laws, because in some cases
the struggles of the marginalized have influenced the government to frame new
laws, in keeping with the spirit of the Fundamental Rights.
For instance, for abolition of untouchability Article 17, states that no one can practice
untouchability to anyone henceforth no one can prevent Dalits from educating themselves,
entering temples, using public facilities etc. It’s also a punishable crime in India.
Another Article 15 of the constitution helps and strengthens the logic against
untouchability, where no citizen of India shall be discriminated against on the basis of
religion, race, caste, sex, or place of birth. This has been used by Dalits to seek quality where
it has been denied to them.
In this way the government empowers Dalits since they can ‘invoke’ or ‘draw on’
fundamental rights in situations where they feel insecure or badly treated by some individuals
or a community or any institute or any government or private organization.
Conclusion
In a country is a set of written rules that are accepted by all people living together in a
country known as the constitution. The Constitution determines the relationship among
people living in a territory (called citizens) and also the relationship between the people and
government. A constitution has many goals-
1. It generates a degree of trust and coordination that is necessary for different kinds of
people to live together.
2. It specifies how the government will be constituted, who will have power to take
which decisions.
3. It lays down limits on the powers of the government and tells the rights of the citizens
are and
4. It expresses the aspiration of the people about creating a good society.
All the countries that have constitutions are not necessarily is democratic countries. But all
countries that are democratic will have constitutions. After the war of independence against
Great Britain, the American gave themselves a constitution. After the Revolution, the French
people approved a democratic constitution. Since then it has become a practice in all
democracies to have a written constitution.
A constitution is not merely a statement of values and philosophy. In fact it is about
embodying these values into institutional arrangements. Much of the constitution describes
the institutional arrangements in a very legal language and for the beginners it’s not easy at
all. Yet the basic institutional design is not very difficult to understand.

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In this chapter the issues of equalities affects various aspects of life in a democratic
countries like India and South Africa. Any country cannot be described as being fully
democratic. There are always individuals and communities trying to expand their notion of
democracy and thrive for a greater recognition of equality on existing as well as new issues.
In a democratic India and South Africa the principle of the equality of all persons is
recognized.
References
A Pinto, (2001), “UN Conference against Racism: Is Caste Race?”, Economic and
Political Weekly Vol. 36 (30)
Andrew Heywood (2013), Key Concepts in Politics, New York, Palgrave Macmillan,
D O’Byrne (2007), “Apartheid”, Human rights: An Introduction, Delhi: Pearson, pp
241-262
Joti Sekhon (2000), ‘Modern India’ Boston: McGraw-Hill.
Kelvin Boyle (2005), ‘Dimensions of Racism’, United Nations, New York and Geneva,
pp 11
Nicholas B. Dirks (2001), ‘Caste of Mind: Colonialism and the Making of Modern
India’, Princeton University Press, New Jersey, pp 255-270.
R Wasserstrom (2006), “Racism, Sexism, and Preferential Treatment: An approach to
the topic”, in R Goodin and P Pettit Contemporary Political Philosophy: an Anthology,
Oxford Blackwell, pp 549-574.
R Wolfrum (1998), “Discrimination, Xenophobia and Racism” in J Symonides, Human
Rights: New Dimensions and Challenges, Aldersgot, Ashgate/UNESCO, pp. 181-198.
Thomas E Weisskopf, ‘Impact of Reservation on Admission to Higher Education in
India’, Vol 39, Issue no. 39, 25 September 2004.
Questions to think and write
1. Why does a democratic country need a constitution?
……………………………………………………………………..…………………….
…………………………………………………..……………………………………….
……………………………..…………………………………………………………….
………..……………………………………………………………………..……………
2. What is caste and race and their contribution in the making of the constitution in India
and South Africa respectively.
……………………………………………………………………..…………………….
…………………………………………………..……………………………………….
……………………………..…………………………………………………………….
………..……………………………………………………………………..……………

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3. What do you understand by the term ‘all persons are equal before the law’? Why do you
think it is important in a democracy?
……………………………………………………………………..…………………….
…………………………………………………..……………………………………….
……………………………..…………………………………………………………….
………..……………………………………………………………………..……………
Extra Readings
1. Valmiki, Omprakash (2003), ‘Joothan: A Dalit’s Life’, SAMYA, Kolkata.

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(b) Gender and Violence: India and Pakistan

Prashant Barthwal1 and Dr. Anju2

Structure
Introduction
Gender Differentiation Leads to Gender Violence: Approaches
Dimensions of Gender Violence
Issues of Gender Violence: A Case Study of India
Issue of Gender Violence: A Case Study of Pakistan
Concluding Observation
Introduction
The practice of gender distinction in “a patriarchal culture creates the conditions that result in
female deprivation, discrimination, and crimes against women. Females are denied access to
resources and facilities due to gender-discriminatory ideology supporting gendered roles,
norms, practices, and values. As a result of the practice of male-female differentiation, the
female is subjected to structural deprivation in areas such as health and medical services,
inheritance, education, and even denial of life through practices such as female infanticide
and foeticide”1; discrimination against the female on a behavioural level in areas such as
employment, access to skills and technology, poor health care, and atrocities such as wife-
beating; and denial of life through practises such as “female infanticide and foeticide”2. More
importantly, “in a patriarchal culture, the underlying concept of gender differentiation
obscures gender discrimination and the purposeful harnessing of male potentials, which leads
to the development of the male capacity to control resources on an unequal basis”3.
Gender analysts offer “a diverse range of perspectives, approaches, and techniques that
are promoted for analysing and addressing women’s unfavourable location in society. This
includes ensuring that women have greater access to facilities and resources, eliminating
discrimination and violence against women based on sexual orientation, structural
transformation of existing gender hierarchies, the establishment of women’s interests as
represented and shaped by women’s experiences, and a focus on female pluralities that
emerge from local specificities”4. Indicators such as the male-to-female sex ratio, excess
female child mortality, the practice of female foeticide, male-to-female differences in access
to health facilities, literacy rates, work participation rates, and the nature of work can all be
used to determine the differential female placement in society. Discrimination and physical
abuse, such as sexual harassment, that “women experience is also a prominent topic in

1
Assistant Professor, Dept. of Political Science, Sri Aurobindo College(M), University of Delhi.
2
Assistant Professor, Dept. of Political Science, Sri Aurobindo College (M, University of Delhi.

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women’s equality. Discrimination against women is prohibited by the Convention on the

Elimination of all Forms of Discrimination Against Women, which directs state legislation to
prohibit discrimination against women in all sectors of life - political, economic, social,
cultural, and civic”5. Efforts to structurally restructure gender hierarchies focus on women’s
discrimination as a symptom of women’s lower status in society relative to males, rather than
on women themselves. They are more concerned with upending “the underlying systems of
society. Women’s ‘real’ interests, according to Molyneux, are represented by what she calls
strategic gender needs,’ which “arise from the analysis of their subordination”6. She evinces
some of these interests, including “the abolition of the sexual division of labour; the
alleviation of domestic labour and childcare; the removal of institutionalised forms of
discrimination such as rights to own land or property, or access to higher education”7. By
addressing these strategic gender demands, which vary depending on “specific socio-cultural,
political, and economic contexts,”8 she proposes a shift in existing gender roles to challenge
women’s unfavourable placement. Other views see women’s oppression as a result of men’s
actions, and their main concerns are separating women from oppressive male structures of
domination and authority. In this regard, “radical feminists have been represented, whose first
and the most essential premise is that women as a social group are oppressed by males as a
social group and that this oppression is the primary source of oppression for women”9.
Gender Differentiation Leads to Gender Violence: Approaches
Within the comprehensive viewpoints of ‘equality’ and ‘diversity,’ scholars disagree in their
methodology, usage of terminology, and techniques for dealing with women’s unfavourable
conditions. According to the equality perspective, “unequal gender placements are the
primary cause of women’s subordinate position. However, methods differ in how they assign
causation and, as a result, develop intervention strategies to attain gender equality in society.
Various approaches to equality have been developed, ranging from the enforcement of non-
discrimination or the supply of “formal equality” to a more structural restructuring of uneven
power relations”10. Of course, equality remains at the heart of the feminist debate, but its
recurrence in work indicates as much dispute over its definition as it does agreement on its
goals. A commitment to sexual equality does not, in and of itself, tell us what form such
equality should take into practice. “Do we want equal compensation for the work that women
do or equal shares in the work that men do? What is more important: equal possibilities to
compete with men or numerical equality in every field of life? Improved working
circumstances at home or equal responsibility for household and children are two options”11.
The underlying idea that all people are equal just by being human is the “driving force
behind gender equality in access to opportunity”12. Because every human being is believed to
be similar to the other, a male and a female are fundamentally equal in every way except one.
According to popular belief, “women’s unfavourable social standing results from
discriminatory behaviour and submissive practises directed against the female genital sex.
Aiming to correct women’s unequal access to opportunities and improve participation
opportunities in comparison with men, this strategy seeks to promote and safeguard

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individual women by preventing discriminatory acts from taking place”13. In the beginning,
the focus was on increasing women’s access to opportunities within the current socio-
economic and political context. As a result, it was necessary to accept the biological
distinctions between men and women to achieve gender equality in intervention. Gradually,
“when gender distinctions were recognised as socially constructed rather than purely natural,
the emphasis switched away from providing access to regulating discriminatory and
prejudiced behaviour and eventually to the concept of androgyny itself. When it comes to
androgynous societies, the argument that humans are equal by their humanness and that
human traits in each individual need to be nurtured have provided support for them”14.
In the late 18th Century, Mary Wollstonecraft was a leading advocate for women’s
suffrage in the United Kingdom. According to her book, A Vindication of Women’s Rights,
“the unfavourable social status of women is linked to their unequal access to educational
opportunities. Equal educational opportunities for women were sought to achieve gender
parity with males”15. John Stuart Mill and Harriet Taylor both expressed support for this
demand. When they published their book, titled The Subjugation of Women, they argued that
“women’s inferior status needed to be elevated via education and granting them the same
civil rights and employment prospects as males. Female suffrage, which challenged the
naturalness of women’s exclusion from citizenship rights, education and employment, not
only won women some legal, political, and economic rights but also brought to light
women’s impoverished status and the need to improve it, which was an important
contribution to the advancement of feminist thought”16. It was made possible by recognising
“the role of socialisation processes in moulding and channelizing behaviour that was
antithetical to women’s rights, which created an urge to promote equality in human beings.
An androgynous human being with both masculine and feminine characteristics was expected
to ensure that all people received equal treatment because of the possibility that innate
humanity in males and females could be universalised and homogenised in a human being
with both masculine and feminine characteristics”17. According to the findings, the socially
built disparities between the sexes were the most significant source of female oppression. To
a large extent, “female feminist philosophy was concerned with creating a distinction
between sex and gender and understanding sex roles as a means of social control. According
to the proposition, the entwining of ‘difference’ is necessary to replicate a single human
entity, an androgynous person. However, it could not acknowledge or respond to the
hierarchical structures that create gender distinction since it rejected both male and female
identities simultaneously”18. The proposition of a human standard built on an edifice of
unrecognised disparities and their accompanying hierarchical structure projects the dominant
norm, the male norm, as a human standard, as the prevailing norm.
According to Anne Philips A, “Human identity is sexually differentiated and manifests
itself in a physical body”19. Some will write in one sex exclusively as their standard because
they attempt “to deny the body, deal only in abstractions such as “the individual” or “the
citizen,” and believe it should make no difference whether these individuals are women or
men. Women may only be included on an equal footing with men if their sexual differences

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are first acknowledged.” The framework for equal opportunity has been criticised for being
exclusively limited to the ‘public’ domains and failing to address the root causes of injustice.
Sexual oppression, like racial oppression, can act on two distinct levels at the same time.
Long periods of history have passed in both situations during which the oppressed were
denied their very position in humanity. In both cases, the successful negotiating of this key
hurdle appears to have left oppressive systems in place”20. Women’s oppression is the first
part of liberal feminism to gain power and resonance. The remarkable denial of women’s
right to vote is a blatant example of arbitrariness in action. The second aspect is what causes
so many people “to believe that liberalism is insufficient because while few societies today
will dare to challenge the legal equality of women and men, it is still the case (in the words of
the United Nations) that ‘women constitute one half of the world’s population, perform
nearly two-thirds of its work hours, receive one-tenth of the world’s income, and own less
than one-hundredth of the world’s property”21. Traditionally, liberalism has concentrated on
formal equality; however, what relevance does this have for women in today’s world? As a
technique, it is corrective in nature and individual-focused, with “the implication that formal
equality may be counter-productive due to the consequences. Although this strategy has
received some criticism, it has been limited to attaining gender equality in the traditional
setting and solely targeting the public domain. In essence, this policy was geared toward
extending women the privileges that the state had previously granted to men”22. Spheres such
as the family, where the state does not meddle, were left unmanaged by the government.
Dimensions of Gender Violence
Violent behaviour against women has been described in a variety of ways, concerning the
subject-object relationship, i.e., “the perpetrator-victim relationship, by attaching meaning to
various acts as adversely affecting the status of women, i.e., from discrimination to violence;
through its manifest manifestations, i.e., rape, molestation, dowry murder, and other types of
violence against women”23. Several dimensions of gender violence are reflected in these
definitions: can its scope be restricted to only somatic effects that are visible and can be used
to identify both the perpetrator and the victim, can it be focused on only certain forms of
violence while keeping the process invisible, and can it be distinguished from gender
ideology that manifests itself in ways that deprive, discriminate, and abuse women with an
impact that harms or injures the foetus? Violence is defined exclusively in terms of “the
subject-object framework, legal definitions, and psychologically damaged functioning,
representing a specific target: women and a perpetrator or perpetrators. Gender violence is
reduced to observable action only in this context and also to an individual victim-perpetrator
frame. Such an approach is limited because it focuses solely on individual attitudes and the
socialisation process rather than institutional issues that contribute to violence against
females”24. Even in the absence of a clearly defined target victim or perpetrator, women’s life
chances are diminished just because they are physically female. For example, many
behaviours such as genital mutilation and rape are experienced by women regardless of their
caste, social level, age, or other factors.

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Another characteristic of gender violence is that it does not discriminate based on the sex
of the victim, that is, females and that males can also be victims of this type of violence.
Gender violence can affect both men and women. Numerous gender violence analyses
distinguish between random violence and gender-based violence. Still, they do not include
violence directed towards men or women for reasons unrelated to their sex. Many studies of
gender violence define gender-based violence as “the notion of violence against women”25.
They do not include violence directed towards men or directed towards women for reasons
unrelated to their sex. If the distinction is made only based on the victim’s gender, it is
possible that “the generalisation is not entirely correct. When it comes to violence against
women, it is commonly assumed that force or coercion (verbal or physical) is socially
acceptable because the victims are female. It is not in dispute that females constitute the vast
majority of victims of gender violence. However, the fact that men are also victims of this
abuse cannot be overlooked”26.
The premise is that “gender violence involves both violence against males and violence
against women and that both are equally harmful. Because they are instruments of the gender
system and perpetuators of gender ideology, they are both victims and perpetrators in the
same way. In addition to this, when victims are influenced by gender norms, violence may be
perceived only as severe physical abuse”27. As a result, no outrage or injustice is perceived or
displayed. Instead, the status quo is maintained, allowing for perpetuating the related acts and
the subjugated gender system.
Consequently, if women are victims of gender ideology, they may be rendered invisible
in the face of gender violence such as rape during the marriage. These forms of normatively
accepted “gender violence would be impossible to collect or analyse using experiential
definitions and analyses of women’s maltreatment and sexism. Another significant question
is whether or not incidences of gender discrimination or deprivation should be counted as
instances of violence”28. While the argument that these should be referred to as “gender
inequalities–discriminations”29 is valid, it is only beneficial if viewed as a part of a
continuum, such as differentiation–discrimination–deprivation–violence, is not persuasive.
Gender atrocities are only possible in the presence of the first three of these requirements.
Gender differentiation is “the social positioning of people based on predefined roles and
characteristics. Generally speaking, the practice of gender violence operates under the
following broad conditions: (i) a gender distinguishing ideology; (ii) the power unleashed by
the intersection of the gender ideology and the development process”30.
Equal opportunities provide equal treatment in the face of difference–men and women
have physical demands that differ and, as a result, demand distinct options from their
environment. It is maintained that “equality cannot be accomplished by holding everyone to
the same abstract standard—i.e., similar treatment—like everyone else. Instead, equality can
only be achieved by acknowledging that people differ from one another in a wide variety of
ways. If we want to ensure that everyone has the same opportunity to participate, we must
accept and accommodate different perspectives. It is necessary to acknowledge the biological
distinctions that exist between men and women”31. For example, men are not able to become

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pregnant, whereas women are. Equal treatment has been used as an excuse to oppose
maternity leave for working women in some countries. Accommodation of the maternal
situation “in employment legislation under the pretence of special treatment and positive
discrimination has resulted in women being at a competitive disadvantage. For example,
several firms avoided recruiting women in the official sector to avoid paying maternity
benefits; yet, women were recruited in the informal sector and paid maternity benefits”32.
Women’s particular placement due to sex differences and differing gender ideologies was
overlooked by such tactics toward equality in the workplace.
Furthermore, when women are subjected to male ideals, their unique characteristics are
overlooked. With the advent of feminist politics, which advocated for “the differentiation of
human identity based on sexual orientation, the limitations of the equality framework, which
in operational reality substantiated male hegemony rather than a human perspective, became
even more apparent”33. In the human parity paradigm, women’s experience of the domestic
sphere, their sexuality, and their special biological requirements were not considered, and
women’s unfavourable standing in society remained unaffected.
To counteract violence against women, “the emphasis should be placed on gender
ideology rather than equal rights or specific requirements for each female victim. This is
because equality focuses on universal values. In contrast, difference focuses on specific
needs, and neither calls into question the institutions of dominance and the resulting violence
against women that result from them”34. Thus, patriarchy must be explicitly addressed as an
ideology within the context of universal principles exhibiting themselves in particular needs
manifesting themselves in specific ways in specific places.
Issues of Gender Violence: A Case Study of India
Violence against women is an issue that exists around the world. Women of all races, ethnic
groups, social classes, and nationalities are affected by this disease. An individual woman
faces “a potentially life-threatening situation, and it is a severe concern for people of various
socioeconomic and educational backgrounds. It cuts across cultural and religious boundaries,
hindering women’s ability to engage entirely in society and achieve their full potential.
Violence against women manifests itself in a bewildering range of ways, ranging from
domestic abuse to rape to child marriages and female circumcision, among other things”35.
However, the abuses of the most fundamental human rights are consistent across the board.
The Indian constitution, which serves as “the nation’s foundational law, contains several
measures to benefit and protect women. In the Indian constitution, the concepts of equality
and non-discrimination are given their appropriate consideration”36.
Furthermore, it gives the state the authority to enact affirmative action policies favouring
female employees and students. In addition to fundamental rights, some particular provisions
“to protect women’s rights have been inserted into the Directive Principles of State Policy,
outlined below. Gender discrimination and unfairness, on the other hand, continue to exist
despite constitutional protection and several legislative initiatives”37. This is primarily

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because people who implement the laws or interpret them do not always share the concept of
gender justice.
Indian women are, on the whole, disadvantaged when “it comes to obtaining all of the
necessary documents to obtain access to justice. Illiteracy is ubiquitous, as are cultural
obstacles and subordination, both of which are reasonably common. The unfavourable nature
of the legal system has kept the majority of troubled women away from the legal system and
courts. Victimized women have a wide range of experiences with the criminal justice systems
in their respective countries”38. They can’t always rely on the criminal court system for safety
or rehabilitation, and they shouldn’t have to. When it comes to preventing violence against
women, there are frequently gaps and inconsistencies in the legislation that criminalises
violence against women. Laws against violence against women are often fragmented,
focusing “on certain forms of violence rather than dealing with all forms of violence against
women in a holistic manner. Even when the legislation is in place, law enforcement is
frequently ineffective. As a result, victims become apathetic and distrustful of the system,
avoiding engaging with it. Corruption among police officers and other law enforcement
personnel can be a severe roadblock in certain instances, such as those involving cruelty and
dowry murders”39. Governmental agencies, social organisations, women’s organisations,
volunteer groups, and non-governmental organisations (NGOs) should all come up to support
the cause of rape victims and their families. There is an urgent need “to change the attitude of
the police authorities toward rape cases, which is currently in place. They should have a
sympathetic attitude toward rape victims, and they should provide essential support to the
victims of the crime”40. Law enforcement, police, and the courts can all help reduce rape and
other crimes against women. From the time “a crime is reported to the time, it is prosecuted
and punished, law enforcement is ongoing. This involves processes including investigation,
prosecution, trial, and judicial judgement. Throughout, the victim must be assisted. Long
trials have also driven the complainant to covertly compromise with the victim outside the
court, defeating the fundamental purpose of the legislation”41.
Human rights, such as “the right to liberty and security, are violated by violence against
women. Violence against women can be physical, emotional, or mental. Fear of violence
prevents women from participating in different aspects of life. Even after post-violence
correction and rehabilitation, the trauma stays in their psyche. The respondents’ district and
area distribution indicate the victims are spread out”42. There is a variation in percentage,
although violence occurs in both high and low prevalence areas. Similarly, “the socio-
demographic characteristics of the interviewees’ reveal that violence is widespread. Religion,
caste, and education do not matter. Every age group of women has experienced violence.
Every crime should be reported, and every victim of violence should be compensated. The
reporting trends are influenced by many socio-cultural elements, judicial institutions, and
judicial personnel attitudes. Unreported sexual violence in India is “much higher” than
statistics show. Before the new law, police responses to violence against women were often
inefficient and underreported by both officers and victims”43. In general, victims and society
see police personnel as critical sources of support accessible in violent situations. Their

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approach helps women seeking justice and protection feel safe and secure. As a result of this,
victims, offenders, and the larger community receive a mixed message. This causes societal
criticism and reprobation, or social tolerance for violence.
The Public Prosecutor’s involvement begins once “the police have investigated and filed
the charge sheet in court. They represent the State and prosecute on its behalf. The prosecutor
is not involved in the police inquiry. Prosecutors are not mandated to pursue a conviction
regardless of the evidence but to guarantee justice. A ‘Public Prosecutor’ is an autonomous
organisation and cannot be ordered by the police to do anything. Police, politicians, or
anyone else cannot sway their decisions or actions, including withdrawing a case. The Public
Prosecutor does not represent the police and is only influenced by public opinion”44. Thus, it
is critical to grasp the public prosecutors’ views on violence and their roles and
responsibilities towards the victims. Various forms of violence have been documented in the
country, with the maximum conviction being “Assault on a woman with the purpose to
affront her modesty, followed by rape and kidnapping and abduction. The findings show that
while public prosecutors praise the support and assistance of other systems like police and
medical officers, their involvement and consent is not always guaranteed, which causes issues
in the case proceedings. Prosecutors faced numerous obstacles during the case. Some public
prosecutors support victims by telling them about victim welfare funds and other resources.
From this chapter, it is evident that public prosecutors are vital in assisting victims in
obtaining justice”45. Most of them do an excellent job. However, prosecutors must address
the lack of sensitivity and support in some cases.
It’s tempting to focus on “the physical impacts of violence. Body injuries can be life-
altering or even fatal. However, it’s also crucial to examine the victim’s mental health. A
violent event can lead to depression, anxiety, and low self-esteem. Insanely harmful
psychological effects Many victims describe suicidal thoughts. The psychological impact
may modify the victim’s personality. Thus, the victim needs psychological support. The
victim receives this support through the process of counselling. Professional aid and direction
in overcoming personal or psychological issues are called counselling”46. It hinders their
capacity to work regularly and form healthy relationships. So, the job of a counsellor in a
victim’s life is deemed vital.
Deprivation and discrimination against women are sanctioned by the predominance of
male child choice across all income categories in rural and urban locations. The data support
the idea that gender disparities affect female health, education, skill, and employment. The
‘double load’ of income-generating and gendered roles of nurturers and caregivers was also
shown to have occurred.
Issue of Gender Violence: A Case Study of Pakistan
Even when Pakistan attained independence from foreign rule, “it remained dominated by
patriarchal and obscurantist elements. Because feudal characteristics dominated the political
structure, women were increasingly marginalised. Women became symbols of national
identity, but their symbolic appropriation by the state eroded their political rights. The

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colonial and post-colonial experiences of Pakistani women differ from those of other Muslim
women. Females were segregated and restricted to the home in Pakistan”47. In Pakistani
society, “women’s bodies became bearers of the community’s honour. Women are brutalised
in and out of the house for the sake of community honour. Women face numerous violence,
including sexual abuse, burning alive, throwing acid, beatings and threats, ritual integrity, and
murder. It looks at the practises that enabled such killings, specifically the appropriation of
women’s bodies for the honour. Women’s perceived disobedience of social standards has
been added to the list of what defiles honour”48. These include a woman’s desire to marry or
divorce.
Women’s violence is “a global issue affecting half of humanity. Women worldwide
experience many sorts of violence simply for being women. Deep-seated cultural and
traditional ideas, conventions, and social structures in Pakistani society legitimate and so
perpetuate violence against women. Men regard women as personal property and hence want
to regulate their conduct and movements. Women are not considered human in several areas,
including the NWFP, Baluchistan, rural Sindh, and rural Punjab”49. They are seen as
“personal property to barter and deal with. Rural areas with traditional norms still trade girls
and women to settle debts or disagreements. Rural women work both at home and in the
fields. Men strongly believe that women should labour at home and not outside and should
not be educated. Women are viewed as markers of community identity and bearers of
community honour in Pakistan”50. Women’s bodies are thus susceptible to twin violence:
intra-community violence and inter-community violence. This chapter examines the
appropriation of women’s bodies in communities and violence against women’s bodies in
communal conflict.
As the household leader, “a male has absolute decision-making power, and the wife
generally obeys him because he provides her with food, housing and clothing. In other words,
in society, women are physically, socially, and economically dependent on men. The
economic status of women’s husbands and fathers limits their economic options. Women’s
career prospects are constrained by social expectations and tradition. In Pakistan, a man is
traditionally regarded to be responsible for the family’s economic well-being. Usually, males
make decisions, and women must obey them, even in their own lives”51. The right to liberty
of women in Pakistan is curtailed for modesty, protection, and morality. In the name of social
character. Pakistani society established stereotypes in which “women lost their rights.
Women are frequently subjected to violence in and out of the home. The various forms of
violence include family members sexually abusing each other, ritual honour killings, and acid
hurled. In Pakistan, violence is deeply ingrained in culture and tradition, and women are
frequently the victims of barbaric killings”52.
The use of violence “to maintain social control had become a technique. Cultural
violence is a tradition that legitimises direct or institutional violence. Fear, lack of security
and justice, oppressive legislation are all patriarchal institutions that make women subject to
men. Fighting for women’s rights is a fight against these systems, which is a fight against the

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prevailing social setup. These elements are linked. For honour, customs, restitution for crimes
or inadequate dowry, women in Pakistan face direct assault and are often brutally
murdered”53. It is explicit violence when a husband kills “a female relative out of suspicion or
other reason. When most males kill women, it is structural violence rooted in a patriarchal
culture, and when society ignores this barbaric practice, cultural violence legitimises
structural and direct violence. There is a lack of awareness and a general gender-biased
approach in Pakistani society, extending from government institutions to the general
public”54. In Pakistan, violence against women not only injures women physically but also
psychologically. This violence causes a deep trauma that never heals.
Honour killing is “a horrendous kind of violence against women”55. It is a severe form of
physical violence that has devastating emotional and psychological effects. Pakistan has
recently been condemned for an increase in honour killings. In Pakistan, “honour is a
multifaceted concept involving familial and social respect. Losing honour, especially by a
female member, is disgraceful. Nothing is more crucial than female chastity. Honour killings
are extrajudicial punishments for alleged sexual and marital transgressions. These offences
include sexual faithlessness, marrying against parental wishes, having a relationship that the
family deems improper, and defying tribal and social marriage conventions. The murdering
of women is justified by bringing dishonour and shame to the family or clan”56. Some
murders are disguised as honour killings. Men kill women to avoid divorce, lower dowries,
property sharing and cover it up as honour killings. People who kill women are accused of
being evil women. The murderer can avoid “the death penalty by presenting the crime as an
honour killing. Some phoney honour killings may be motivated by a desire for land. Her
brother may kill her to get a lady’s land, labelling her a ‘bad’ woman. Also, raped women are
slain for bringing disgrace to the family. Because rape requires four male witnesses, many
people believe the victim had consensual intercourse”57. Many males seem to have accused
their mothers, spouses, or female relatives of dishonouring their family for financial gain.
Walwar58, or bride money, has been a custom in Pakistan’s tribal areas for decades. A
bride price is a payment made by the groom to the bride’s family in exchange for the bride.
This ritual was initially intended “to bring families together by relieving the financial
constraints placed on the bride’s family during the wedding ceremony. But today, this
method looks to be commercialised and has lost much of its traditional usefulness. This
centuries-old ritual has now become a list of expectations from the bride’s family. It now
appears that the man is “buying” his wife based on her beauty, wealth, and age”59. These
iniquitous custom lowers young women to chattels, which clearly violates their fundamental
human rights and dignity. Pakistani society is still feudal, with men treating women as
property. Women are held in restrictive conditions as a matter of honour. A man is worth
more than a woman.
Concluding Observation
While equal rights and specific needs should be considered, the emphasis should be placed on
gender ideology. Because neither equality nor difference calls into question power structures

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and the violence against women those results as a result. Patriarchy as “an ideology must be
considered in the context of universal principles manifesting themselves in locally distinctive
manifestations of their own. To end the cycle of abuse, educators, health-care providers,
legislators, judges, and the media will all need to work together to achieve success. Both men
and women will benefit from education in terms of changing their attitudes and ideas. It is
difficult to modify deeply rooted cultural attitudes or discriminatory habits that have
developed over time”60. In conclusion, gender violence is a human rights violation that both
men and women who believe in justice for all citizens, regardless of class, caste, racial,
religious, and cultural backgrounds, must vigorously resist. It’s a big job. The future is hazy,
but we can see the stages ahead.

Endnotes and References:

1
E. Gross, “What is Feminist Theory in Crowley, in H. and Himmelweit, S. (ed.) Knowing Women: Feminism and
Knowledge, Cambridge University Press, 1994, p. 398.
2
Ibid, p. 290.
3
Ibid.
4
Crowley, H. and Himmelweit, S (ed.), Knowing Women: Feminism and Knowledge Cambridge University
Press, 1994, p. 1.
5
Convention on the Elimination of all Forms of Discrimination Against Women (1975), United Nations. For
more detail, see also Department of Human Resource Development (1988), National Perspective Plan for
women 1988 – 2000, Delhi, Annexures.
6
Ibid., p. 231
7
Ibid, p. 150.
8
Crowley and Himmelweit, Op. Cit., p. 98.
9
R. Rowland and R. Klein, Radical Feminism: History, Politics, and Action in D. Bell and R. Klein (eds.) Radically
Speaking: Feminism Reclaimed, Zed Books, London, 1996, pp. 18-19.
10
Ibid, p. 29.
11
Ibid, p. 99, 121, 190.
12
Approaches to understand Women’s empowerment: A critical review
https://shodhganga.inflibnet.ac.in/bitstream/10603/81428/7/07_chapter%201.pdf
13
Ibid., p. 6.
14
Ibid, p. 98.
15
Ibid, p. 101.
16
John Stuart Mill, The Subjugation of Women Reprinted in Three Essays, OUP, London 1869, p. 103
17
Rowland and Klein, Op. Cit., p. 29.
18
Ibid, p. 159.
19
Crowley and Himmelweit, Op. Cit., p. 101.
20
Ibid, p. 212.
21
Ibid, p. 190.
22
Anne Phillips, 'Feminism, Equality and Difference’ in McDowell, L. and Pringle, R. (eds.) Defining Women
Social Institutions and Gender Divisions, Cambridge University Press, Cambridge, 1994, p. 210
23
Ibid, p. 121.
24
Ibid, p. 98.
25
Crowley and Himmelweit, Op. Cit., p. 69.
26
J. Brenner, (1996), 'The Best of Times, The Worst of Times: Feminism in the United States in Threlfall’, in M.
(ed.) Mapping the Women's Movement, Verso, London, 1996, p. 45
27
Ibid., pp. 39-42.
28
Ibid.
29
Anne Phillips, Op. Cit., p. 119.
30
Ibid, p. 79.

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31
S., Walby, Theorizing Patriarchy, Blackwell, Oxford, 1990, p. 185
32
Ibid, pp. 45-49.
33
Ibid.
34
J. Brenner, Op. Cit., p. 59.
35
Crowley and Himmelweit, Op. Cit., p. 109.
36
D. D. Basu, Indian Constitution, p. 190.
37
Socio-Economic Programme for Women, National Commission for Women, 1994, p. 320.
38
Ibid., p. 120.
39
Manjari Singh, India Together, 19th Feb. 2016, http://www.indiatogether.org/for-rape-survivors-and-
families-the-nightmare-continueswomen
40
Ibid.
41
Government of Uttar Pradesh, Home department, Government of Uttar Pradesh, November 15, 2012,
http://uphome.gov.in/women-powerline-1090.html
42
Govt. of India, Ministry of Women and Child Development. 2015. Press Information Bureau. [Online]
December 18, 2015. http://pib.nic.in/newsite/mbErel.aspx?relid=133564
43
Ibid.
44
Tackling Violence Against Women: a study of State Intervention Measures [A comparative study of impact of
new laws, crime rate, and reporting rate; changes in awareness level], sponsored by Ministry of Women and
Child Development, Govt. of India, p. 15, 2017.
https://wcd.nic.in/sites/default/files/Final%20Draft%20report%20BSS_0.pdf
45
Ibid, https://wcd.nic.in/sites/default/files/Final%20Draft%20report%20BSS_0.pdf
46
Justice Verma, PRS Legislative Report. [Online] January 18, 2013.
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20repor
t.pdf
47
Tahira Shamim, ‘Battered Housewives in Pakistan, Women’s Division, Govt. of Pakistan, Islamabad, 1985, p.
2.
48
Ibid, p. 11.
49
Farida Shaheed, ‘Engagements of Culture, Customs and Law: Women’s lives and Activism’, in ‘Shaping
Women’s Lives: Laws practices and Strategies in Pakistan, Shirkar Gah (ed.), Lahore, 1998, p. 70.
50
Ibid, p. 66.
51
S. Mojab and H. Amir, ‘The Politics & culture of honour killing: The murder of Fadime Sahindal, Pakistan
Journal of Women’s Studies: Alam-e-Niswan, (2002), pp. 57-77
52
Ibid, p. 58.
53
Nafisa Shah, ‘Role of the Community Honor Killings in Sindh’, in Neelam Hussain (ed.), Endangering the
Nation-State, Vol. I, Lahore, 1997, pp. 242-245.
54
Ibid, p. 244.
55
Ibid.
56
Roundtables/awareness sessions held by CAMP, Phase II of RLPP Project, Islamabad, 2011
57
Human Rights Watch Report, 2001.
58
Saman Yazdani, Harmful cultural Practices and Women’s Sexual and Reproductive Rights Pakistani
Perspective, Shirkat Gah, Pakistan, Bangkok, 2009.
59
Sana Khan, ‘‘Under the Veil: The Holy Women in Pakistan’, Proceedings of Indian History Congress, 73rd
Session, Mumbai University, 2012.
60
Women as Victims of Violence: Women’s Bodies, Community Honor and the State, p. 44.
https://shodhganga.inflibnet.ac.in/bitstream/10603/221417/12/11%20chapter%205.pdf

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(c) Adivasis/Aboriginals and the Land Question: Australia

and India
Rimpreet Kaur Sandhu
Structure
1.1 Introduction
1.2 Meaning of Adivasis and Aboriginals
1.2.1 Adivasis
1.2.2 Aboriginals
1.3 History of Adivasis in India
1.4 History of Aboriginals in Australia
1.5 Adivasi and the land question
1.6 Aboriginals and the land question
1.7 Adivasi Movement
1.7.1 Background of Adivasi Movements
1.8. Major Reasons of Tribal Movement
1.8.1 Before independence
1.8.2 After independence
1.9 Aboriginals' Struggle For Recognition/ Indigenous Rights Movement
1.10 Constitutional & Legal protection to the indigenous Adivasis
1.11 Legal protections to Australian Aboriginals
1.12 Case Study of Adivasi
1.13 Striking inequalities
1.14 Conclusion
1.15 References
1.16 Questions

1.1 Introduction
Adivasis and aboriginals have been marginalized for the longest of time. They have been
alienated from their native places where they were living for centuries now. The similarities
that Adivasis and Aboriginals have is that they practice different cultures and lead such
lifestyles which are very different from the mainstream cultures. This is the major reason of

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their alienation from the majority communities. Adding to their ordeal, governments have
further played their part in detaching them from their roots by uprooting them from their own
lands in the name of development and modernization. Likewise, aboriginals were ousted by
British colonialists from their own land where they were living for thousands of years. Later
in the chapter we will try to understand their origin, their problems related to land, the laws
brought against and in favour of them.
1.2 Meaning of Adivasis and Aboriginals
1.2.1 Adivasis also referred to as tribals or original inhabitants are communities who lived,
and often continue to live, in close association with forests. Around 8 per cent of India’s
population is Adivasi and many of India’s most important mining and industrial centres are
located in Adivasi areas – Jamshedpur, Rourkela, Bokaro and Bhilai among others. Adivasis
are not a homogeneous population: there are over 500 different Adivasi groups in India.
Adivasis are particularly found in states like Chhattisgarh, Jharkhand, Madhya Pradesh,
Odisha, Gujarat, Maharashtra, Rajasthan, Andhra Pradesh, West Bengal and in the north-
eastern states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and
Tripura. A state like Odisha is home to more than 60 different tribal groups. Adivasi societies
are also most distinctive because there is often very little hierarchy among them. This makes
them radically different from communities organised around principles of jati-varna (caste) or
those that were ruled by kings.
Adivasis practice a variety of tribal religions that are different from Islam, Hinduism and
Christianity. These often involve the worship of ancestors, village and nature spirits, the last
associated with and residing in various sites in the landscape– ‘mountain-spirits’, ‘river-
spirits’, ‘animal-spirits’, etc. The village spirits are often worshipped at specific sacred groves
within the village boundary while the ancestral ones are usually worshipped at home.
Additionally, Adivasis have always been influenced by different surrounding religions like
Shakta, Buddhist, Vaishnav, Bhakti and Christianity. Simultaneously, Adivasi religions
themselves have influenced dominant religions of the empires around them for example, the
Jagannath cult of Odisha and Shakti and Tantric traditions in Bengal and Assam. During the
nineteenth century, substantial numbers of Adivasis converted to Christianity, which has
emerged as a very important religion in modern Adivasi history. Adivasis have their own
languages (most of them radically different from and possibly as old as Sanskrit), which have
often deeply influenced the formation of ‘mainstream’ Indian languages, like Bengali.
Santhali has the largest number of speakers and has a significant body of publications
including magazines on the internet or in e-zines.1
1.2.2. Aboriginals– The word aboriginal comes from the Latin words ab ( from ) and origo (
origin ) popularly used in Australia. Aboriginals are considered as those people who have
lived in a place for the earliest of time. The term was used in Australia to describe its
Aboriginal peoples as early as 1789. It became capitalized and was employed as the common
name to refer to both Aboriginal and Torres Strait Islanders, although today the latter are not

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included in the term. The term “Aborigine” (as opposed to “Aboriginal”) is disfavored, being
regarded as having colonialist connotations.
While the term “Indigenous Australians” has grown in popularity since the 1980s, many
Aboriginal and Torres Strait Islander peoples dislike it, feeling that it is too generic and
removes their identity. Many people find the term useful and convenient, and it can be used
where appropriate.2
The current Australian definition of Indigeneity states that an Indigenous person is one who:
1. has Aboriginal or Torres Strait Islander descent
2. identifies as an Aboriginal or Torres Strait Islander person
3. is accepted as an Aboriginal or Torres Strait Islander by the community in which he
or she lives.
This definition is developed by the Commonwealth Department of Aboriginal Affairs in the
1980s is widely accepted within government departments, statutory bodies and institutions,
but is sometimes contested by Aboriginal groups as imposed. People who do not know their
stories and history may not be sure of their identity, this in turn impact on how they feel
about themselves and how they relate to service providers including health and education
institutions. However they still face challenges in postcolonial times including the question of
their identity.3
1.3 History of Adivasi in India
Adivasis have lived on their lands for centuries. They are claimed to be the original
inhabitants of India, some communities are said to have evolved after the decline of the Indus
valley civilization. During British rule the colonial rulers barged into the tribal lands which
led to resentment against the British among the tribesmen. The regularly supported rebellions.
Land both forest areas which belong to adivasis was rapidly made the property of of British
employed zamindars who intern sake to their economic benefits from their land.Major
Adivasi Groups are: Bhils, Gonds, Mundas, Santhals, Khasis, Mizos, Meenas, Garos,
Kharias, Hos, Irulas, Bhutias, Asurs, Baigas, Birhors, Bhumijs, Angamis, Chakmas, Lepchas,
Kotas, Todas, Tharus.
1.4 History of Aboriginals In Australia
Australian Aboriginal peoples include two distinct groups of Indigenous peoples of Australia,
the other being the Torres Strait Islander peoples. They have spiritual connections and they
take care of the health of their land and water which is central to their culture. It is said that
Australia is the only continent where the entire indigenous population maintained a single
kind of adaptation that is hunting and gathering into modern times. There are evidences of
practice of agriculture and aquaculture by aboriginal peoples. This finding raises questions
regarding the traditional viewpoint that presents Aboriginal peoples and Torres Strait Islander

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peoples as perhaps unique in the degree of contrast between the complexity of their social
organization and religious life and the relative simplicity of their material technologies.
1.5 Adivasi and the Land Question
Governments are trying to get their lands by promising fake jobs, houses and all the facilities
for various development projects such as dams, highways, etc. Even after so many years of
independence the problems of Adivasi communities have only increased. It is hard for them
to get access to basic necessities. Facilities such as sustainable livelihood elementary
education food drinking water, etc. As per our constitution, the article equality of opportunity
is still not fulfilled.
Tribal culture and its values are not taken care off by the government. The tribal
communities have witnessed division of their habitats and their lands. Their cultures have
been disrupted by the government projects on tourism and development. This has resulted in
their impoverishment. Majority of the tribal communities across the states have been
dispossessed systematically through state action. However, it should be remembered that
their right of tribal communities in India protected by the constitution and special legislations.
Despite all of this their rights to land remains under danger.
1.6 Aboriginals and the Land Question
Aboriginals have close relations with their land. Land is treated as a mother which instill a
stronger urge in Aboriginals to take good care of it. The relationship between many
Indigenous people and the land is one of reciprocity and respect – the land sustains and
provides for the people, and the people sustain and manage the land through culture and
ceremony. Because of this close connection, when the land is disrespected, damaged or
destroyed, this can have real impact on the wellbeing of Indigenous people.4“(The land) is
our life”, says Andrew Johnson, a community member from Lajamanu in the Northern
Territory. “If they come and destroy our land and our sacred site, that takes away our life
too.” Djapirri Muninggirrity, from Nhulunbuy in the Northern Territory, says simply,
“Without the land, we are nothing.”5
Honoring the sacred relationship with land is just as important for Aunty (Rev) Janet
Turpie-Johnston, a community leader in Melbourne, Victoria. She asks all of us, “How are
we ultimately going to honor this relationship with the very thing, the very earth, the very
waters, the very air, the very sky, that gives us life and existence?”6
1.7 Adivasi Movements
Land as a social justice concern for Adivasi has a long historical precedent in rebellions and
struggles across Central India (Arnold 1984; Pati 2011; Bates and Shah 2014). The land
rights that are claimed demand both the recognition of unique Identity and material
distribution of resources. These strong laws exist only on papers and never implemented
more than half heartedly and that too with much variation between States and even across

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territories within States. However rights enshrined in laws remain as important mobilization
factors for movements working towards their actual implementation.
1.7.1 Background of Adivasi Movements
Before Independence, tribal revolts stood primarily against alien rulers. Most of the tribal
movements had their origins in religious upheavals. Vaishnavist movements were one of the
important religious movements found among the Meithei tribe in Manipur, Bhumij in West
Bengal, Nokte Naga in Assam, Bathudi in Orissa and tribals in Jharkhand, Orissa and south
India. These were also found among Gonds in central India, Kondh in Orissa and Bhils in
Rajasthan.7
In the early years of colonisation, adivasi or tribal communities put forward such heroic
resistance to British rule and faced tragic consequences as did by tribal communities of
present Jharkhand, Chhattisgarh, Orissa and Bengal. There were movements against
oppressing landlords, moneylenders and harassment by police and forest officials in Bihar,
Bengal, Orissa and Chhattisgarh. For example, Bhagat movements were found among Oraon
of Chotanagpur, Bhils of Rajasthan, etc. Moreover, these were revivalist movement for
avoiding animal food, liquor and blood sacrifices. Apart from that, Mundas reformative
movement was also reported under a powerful charismatic leader Dharti Aba who preached
Hindu ideals of ritual purity, morality and asceticism and criticized the worship of priests. 8
However extinction of two important resources to tribals that is land and forests were
affecting dam negatively. Erosion of land rights of tribes began with the coming of the British
rule and administration.It was brought about by a combination of forces that were at work
during the British period. Of these the most important were the introduction of the private
property in land and the penetration of the market forces. The two taken together opened up
the way for large-scale alienation of land from tribes to non-tribes especially after the tribal
areas came to be linked by roads and railways. The mechanisms through which this was
achieved were fraud, deceit, coercion and the most widely debt bondage.9
The major source of land alienation in the post-independence period is not so much the
encroachment of the non-tribals into the tribal land as the process of development that the
Indian State has followed during the period. The large scale industrialisation and exploitation
of mineral resources and the construction of irrigation dams and the power projects that the
tribal areas have witnessed during the period have been the single most factors that have
uprooted more people out of their lands than the transfer of land from tribals to non-tribals on
the individual basis.10
At the extreme end, there are instances of tribal movements for the agenda of liberation.
We can include the instances of Naga revolution, Mizo movement, and the Gond Raj
movement, under this category. Thus, on the whole, tribes of India have launched different
kinds of movements and these were mainly related to their issues of livelihood, socio cultural
security, oppression and discrimination, neglect and backwardness, poverty, hunger,
unemployment and exploitation. 11

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1.8 Major Reasons of Tribal Movements

Various reasons have stimulated the tribals for uprising. Historically speaking, however, there
is a qualitative shift in tribal movement in independent India as compared to the period before
1947.
1.8.1 Before Independence
It is possible to classify tribal movement in India before 1947 into three types.
The first type is called the ‘reactionary’ movement. It attempted to oppose political or
social reform by the tribes mostly in the context of mixture with non-tribes. Such
movement was mostly seen among the tribals living a simple and isolated life in
forest. Whenever they saw alien groups creating obstacles in their life, they became
offensive and tried to bring back the ‘good old days’.
The second type is ‘conservative’ which opposed any kind of changes in tribal life
and culture and sought to maintain status quo.
The third type is ‘revolutionary’ that aimed to replace certain traits of their traditional
culture or social order with a progressive one. This movement is also termed as
‘revivalistic’ as the leaders of such movement also sought to ‘purify’ certain elements
of culture by eliminating evil customs, beliefs and institutions.
Apart from these, there are several other attempts to classify tribal movements. For example
there is a four fold classification which is based on i) political autonomy (e.g. Jharkhand
movement), ii) agrarian (e.g. Santhal Movement) and forest based issues (Koi movement), iii)
sanskritization (e.g. Bhagat movement), and iv) cultural movements for script and language
(Bhil movement). Again, another leading expert has classified tribal movements into five
types: a) Ethnic rebellion, b) Reform movements, c) Political autonomy movements within
the Indian Union, d) Secessionist movements, and e) Agrarian unrest. For Dubey (1982),
these movements are of four categories namely, a) Religious and social reform movements,
b) Movements for separate statehood, c) Insurgent movements and d) Cultural rights
movements. Shah (1990) too has categorised them in three groups which are Ethnic,
Agrarian, and Political. 12
1.8.2 After Independence
After independence, the Government of India and various state governments have made great
and incessant efforts in the direction of tribal welfare and development. Various efforts have
been made by these governments to improve the socio-economic status of the tribals and to
guarantee constitutional safeguards given to tribal people. But, at the same time, the
establishment of heavy industries, construction of dams and launching of development plans
in tribal zones has necessitated displacement of local population. Destruction of forests as a

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consequence of felling of trees for industrial purposes has threatened the small communities
of hunters and food gathers.
In spite of some rehabilitation and resettlement programmes, unfortunately a large
section of the tribals became the victims of developmental projects and they could not also
adequately adopt themselves with new challenges. Against rising economic and social
disparities, the tribals started raising their collective voice in independent India. The tribals
especially in central India had reacted sharply against their exploiters. These movements
were directed towards freeing their land from all those who exploited them economically and
culturally. At the same time, each of these movements put emphasis on revitalization of their
culture, their traditional culture which was swayed under the impact of the outsiders. So, the
basic issues behind the tribal movements in India after independence are: land alienation,
unemployment, deprivation, cultural sub-mergence and unbalanced development. 13
1.9 Aboriginals' Struggle for Recognition/ Indigenous Rights Movement
Aboriginals’ struggle for recognition can be followed through a timeline which shows us
indigenous people’s fight for recognition throughout Australian history.
1. 1901: Commonwealth of Australia formed. Indigenous Australians are excluded from
the census and the lawmaking powers of the Commonwealth Parliament.
2. White Australia Policy. Indigenous people are excluded from the vote, pensions,
employment in post offices, enlistment in Armed Forces, maternity allowance.
3. 1938: Day of Mourning held by the Aborigines League (est 1932) and the Aborigines
Progressive Association (1937). It is the first major protest by Indigenous people. The
manifesto “Aborigines Claim Citizen Rights” and the newspaper “Abo Call” are
published.
4. 1949: Australian Citizenship Act gives Indigenous Australians the vote in
Commonwealth elections if they are enrolled for State elections or have served in the
Armed Forces.
5. 1957: National Aborigines Day Observance Committee (NADOC) formed with
support from Federal and State Governments, churches and major Indigenous
organizations. Its aim is to promote Aboriginal Sunday as a day to draw community
attention to Indigenous people in Australia.
6. 1958: The Federal Council for the Advancement of Aborigines (later the Federal
Council for the Advancement of Aborigines and Torres Strait Islanders) begins a ten
year campaign to end Constitution's discrimination against Indigenous people.
7. 1962: All Indigenous people are given the vote in Commonwealth elections.
8. 1967: Referendum held – 90.7% of Australians vote YES to count Indigenous
Australians in the census and to give the Commonwealth Government the power to
make laws for them.

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9. 1970-1971: Aboriginal Legal Service and Aboriginal Medical Service set up in

Redfern (grassroots activists include Mum Shirl, Fr Ted Kennedy), along with
Aboriginal Housing Company.
10. Whitlam Government elected; White Australia policy abolished. Department of
Aboriginal Affairs established. Self-determination adopted as policy for Indigenous
people.
11. 1983: Aboriginal Land Rights Act 1983 (NSW) recognizes dispossession and
displacement.
12. 1990: ATSIC established.
13. 1991: Royal Commission into Aboriginal Deaths in Custody presents report. 339
recommendations, with the final recommendation being that a formal process of
reconciliation between Indigenous and non-Indigenous Australia be undertaken.
14. Council for Aboriginal Reconciliation established by Act of Parliament – to have a 10
year-lifespan.
15. Commonwealth Parliament makes statement of commitment to Reconciliation.
16. 1997: Bringing Them Home, the report of the inquiry into the Stolen Generations, is
released. It recommends a national sorry day to commemorate the history and effects
of removing children from their families.
17. PM Howard makes a personal apology to the Stolen Generations, but refuses to make
an official apology on behalf of Australia.
18. At the National Reconciliation Conference on 27th May, hundreds of people turn their
backs on Howard during his speech, in protest at his refusal to apologise to the Stolen
Generations.
19. 1998: Native Title Amendment Act 1998 is passed; seen by many to reduce native
title rights for Indigenous people.
20. 2007 – 21st June: Howard Government announces its intervention into Northern
Territory Indigenous communities.
21. 2008 – 13th February: Prime Minister Kevin Rudd says 'Sorry' to the Stolen
Generations.
22. 2010 – 8th November: Prime Minister Julia Gillard announces plans to recognise
Indigenous Australians in the Constitution.14
1.10 Constitutional & Legal protection to the indigenous Adivasis
1. The Vth Schedule of the Indian Constitution [Indian Constitution, Article 244(1)]
clearly stipulates that a ‘Tribes Advisory Council’ (TAC) composed solely of
members from the Adivasi community who will advice the Governor of the State

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about any and everything concerning the protection, well- being and development of
the Adivasi people in the State. The Governor is the constitutional custodian of the
Adivasi people and he/she can make laws on his/her own and can annul any other law
enacted by the parliament or state assembly always keeping in mind the welfare of the
Adivasi people. This provision is applicable in the nine States of central India where
Adivasis are a significant population.
Whereas the reality is that in none of the States during all these nearly seven decades
has any State Governor ever used his/her constitutional discretionary power to reach
out to the Adivasi people proffering the excuse that they have to work in harmony
with the elected government of the State.
2. The Scheduled Castes And The Scheduled Tribes (Prevention Of Atrocities)
Act, 1989 (Act Of Parliament, No. 33 Of 1989) was enacted by Indian parliament to
forestall the increasing atrocities on Adivasis and Dalits by non-ST/SC
individuals/organizations/govt officials etc. The intention was good. Chapter II lists a
detailed description of Offences of Atrocities.
Whereas the reality is that it remains significant by its non implementation.
3. The Panchayats (Extension to Scheduled Areas) Act [PESA],1996 [No:40 of 1996]
which was a fruit of long drawn disenchantment and struggle of the Adivasi people
and their political representatives and which for the first time recognized the fact the
Adivasi communities in India have had a rich social and cultural tradition of self-
governance outlined the composition and functioning of the Gram Sabha.
Whereas the reality is this Act of the parliament has deliberately been left
unimplemented in all the nine states.
4. Samatha Judgment, 1997 of the Supreme Court came as a huge relief to the Adivasi
communities in Scheduled Areas. It came at a time when consequent to the policy of
globalization, liberalization, marketization, privatization national &
international corporate houses started to invade particularly the Adivasi areas in
central India to mine the mineral riches. The government machinery gave its full
cooperation to these companies. Any resistance by the Adivasi people was put down
with an iron hand. The judgment was meant to provide some significant safeguards
for the Adivasis to control the excavation of minerals in their lands and to help
develop themselves economically.
Whereas the reality is consistent efforts have been made by the state to ignore this
verdict of the highest court.
5. Forest Rights Act, 2006: [Act of Parliament No:2 of 2007] jal, jangal, jamin, as we
know, are the basis of the economic life of the Adivasi people. But with globalization,
marketization, privatization geared towards industrialization are laying a ruthless
blow to the economic sustenance of the indigenous peoples.

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Whereas the reality is far from desirable. From 2006 to 2011 of its operation, about 30
lakh applications were made all over the country for title-deeds, of which 11 lakhs
were approved but 14 lakhs were rejected and five lakhs were pending. At the present
moment the government is urging the administration to speed up the process, with
what results is yet to be seen.
6. Land Acquisition Act of 2013-Displacement and land-alienation of the Adivasi people
has been and is a vexing problem. The ‘Land Acquisition Law’ of 1894 of
the colonial rule was kept intact for more than a century as a result of which about 6
crore population has been displaced for various projects such as small & large dams,
mines, infrastructure, industries. Of them 40% are Adivasis. Only 25% of them have
been resettled. No one has been rehabilitated because that involves social and cultural
dimensions. People are reaching a state of mind that enough is enough and have
started to protest and resist displacement increasingly in more and more organized
ways. It was this predicament which forced the UPA government to pass a fresh
‘Land Acquisition Law’ of 2013 replacing the old colonial law. This law contains
some favourable elements for farmers in general and Adivasi people in particular. 15
1.11 Legal protections to Australian Aboriginals
1. In 1976 Australian Government passes Aboriginal Land Rights (Northern Territory)
Act. In mid-1975 the Whitlam government had introduced legislation to parliament
based extensively on Woodward’s recommendations. However, before the Bill could
be passed the government was dismissed in the November 1975 constitutional crisis.
The December 1975 election brought the Malcolm Fraser led Coalition to power with
a landslide victory. Fortunately, the new government had promised to continue the
push for Aboriginal land rights. In December 1976 the Aboriginal Land Rights
(Northern Territory) Act was passed with historic bipartisan support. It was the first
legislation that allowed for First Nations peoples to claim land title if traditional
association could be proven.16
2. In Queensland, the Aboriginal Land Act 1991 and the Torres Strait Islander Land Act
1991 provide for Aboriginal Torres Strait Islander freehold respectively.
3. In South Australia, in the 2013 Review of the Aboriginal Lands Trust Act 1966, the
powers of the Trust were reviewed and changed to modernise the Trust and
the Aboriginal Lands Trust of South Australia Act 2013 (SA) was passed.17
4. Western Australia- The Aboriginal Lands Trust (ALT) of Western Australia was
established by the Aboriginal Affairs Planning Authority Act 1972. This body holds
about 24,000,000 hectares (59,000,000 acres), or 10% of the State's land. There are
different types of tenures held by different parts of this land, including reserves, leases
and freehold property. There are many remote communities on this land, inhabited by
about 12,000 people. Land reform is ongoing, to use the land in a way which benefits
the Aboriginal people.18

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1.12 Case Study of Adivasis

The Adivasi village of Karampot, in Jharkhand, among India’s most prominent coal-bearing
regions, consists mostly of mud and some basic brick houses. Scattered alongside them,
however, is a smaller number of much more conspicuous structures: Sizable, brightly
coloured, gated concrete houses, most often with a large motorbike parking in the courtyard.
Only about a decade ago, such stark disparities in living conditions were not part of the
landscape. It is all due to coal mining.
In recent years, the impact of coal and other mining projects on India’s Adivasi
communities who inhabit much of the country’s resource-rich tracts has drawn significant
public attention.
The problem is not only these projects’ environmental footprint. Critics point out how
mining brings about large-scale land dispossession for Adivasis and leads to the pauperisation
and destruction of their communities, which are traditionally reliant on access to land and
forests.
But there is another, more hidden effect of mining that could spell the death knell of
tribal society: New, profound forms of inequality in these communities, which fracture their
very social fabric.19
The case of Karampot
Compared to the rest of Indian society, marked by pervasive social hierarchies along the lines
of caste and class, Adivasi communities are considerably more egalitarian in their structure
and values. This is reflected, notably, in low-economic differences between households, and
an age-old practice of mutual labour exchange, for example, to construct and repair their mud
houses. All this existed in Karampot as well, but has been steadily disintegrating since mining
and dispossession entered the scene some 15 years ago. Here lies the nub of the matter:
Rather than uniform impoverishment, as is often assumed, mining and dispossession have led
to the emergence of social differentiation within the community, producing salient internal
disparities.
Paradoxically, the culprit is a relatively generous compensation policy for land that is
dispossessed for state-run mining projects. In 2008, one such project located not far from
Karampot announced that as part of an expansion plan, it would be taking over the entire
territory of a neighbouring Adivasi hamlet to make room for a new opencast pit. For their
loss of land, and after a lengthy process of negotiation with the project by local Adivasi
political leaders, most of that hamlet’s residents were able to receive jobs in the colliery as
assistants, as part of the existing but often poorly implemented compensation policy for
dispossession. For many of these Adivasis, especially from the younger generation,
relinquishing in exchange for a compensatory job wasn’t in fact a bad deal. Like most
Adivasis in rural India, they had been struggling to get by through subsistence agriculture,
faced with demographic pressure and casual wage labour. The possibility of a permanent,

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salaried job - a scarce, sought-after commodity in India’s precarious labour environment

especially for marginalized populations such as Adivasis -was certainly attractive.
The jobs that were meted out to Adivasis near Karampot can be seen as a success, or at
least a relative one. Indeed, compared to the multiple reported cases where compensation for
dispossession by mining was nowhere near adequate, the attainment of jobs around
Karampot– following pressure and mediation by local leaders - was a much more favourable
outcome.20
1.13 Striking inequalities
But it also had ruinous side effects, as it produced novel, striking inequalities within local
Adivasi society. The rest of Karampot’s inhabitants, on the other hand, live a veritably
precarious existence.
As is evident in Karampot, capitalist economic dynamics are beneficial for some, but
detrimental to others. In some cases, rather than dispossession itself, it is the insidious
processes of inequality unleashed by them that break down what was there before.21
Case Study of Aboriginals
The situation for Aboriginal people and land rights in the Kimberley is a case study on the
contradictory nature of Indigenous policy in Australia. The most vulnerable Australians have
to fight – sometimes for decades – to be formally recognized under law as traditional
landowners; only to come up against a wall of red tape, or in some cases outright
discrimination, preventing the full utilization of their land rights. Today Aboriginal people in
the Kimberley region are calling for a full and fair realization of their Native Title rights, to
enable them to care for their country, to practice their culture and secure their future.22
1.14 Conclusion
Adivasis and Aboriginals have experienced similar kind of marginalization for very long
time. They have been alienated from their native places where they were living for centuries
now. The similarities that Adivasis and Aboriginals have is that they practice different
cultures and lead such lifestyles which are very different from the mainstream cultures. This
is the major reason of their alienation from the majority communities. Adding to their ordeal,
governments have further played their part in detaching them from their roots by uprooting
them from their own lands in the name of development and modernization. Likewise,
aboriginals were ousted by British colonialists from their own land where they were living for
thousands of years. Later in the chapter we will try to understand their origin, their problems
related to land, the laws brought against and in favour of them.
1.15 References
1. NCERT, Civics
2. Wikipedia

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3. Wikipedia
4. australianstogether.org.au
5. Ibid.
6. Ibid.
7. https://t.me/iasgyanpdfs
8. Ibid.
9. Ibid.
10. Ibid.
11. Ibid.
12. Ibid.
13. Ibid.
14. Australian Human Rights Commission, Track the history timeline: stolen generations.
15. Wiki.
16. Wikipedia
17. Ibid.
18. Ibid.
19. Ibid.
20. A study of the Land Rights of Adivasis in India, Advaith Raj.
21. Ibid.
22. Oxfam International.
1.16 Questions
1) Who are Adivasis and Aboriginals?
……………………………………………………………………………………………
…………………………………….………………………………………………………
………………………………………………………………………….…………………
…………………………………………………………………………………………….

2) What are the similarities between the Adivasis and Aboriginals?

……………………………………………………………………………………………
…………………………………….………………………………………………………

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………………………………………………………………………….…………………
…………………………………………………………………………………………..
3) What are Tribal Movements? Give example of some tribal Movements.
……………………………………………………………………………………………
…………………………………….………………………………………………………
………………………………………………………………………….…………………
…………………………………………………………………………………………….
4) Explain the history of Aboriginals.
……………………………………………………………………………………………
…………………………………….………………………………………………………
………………………………………………………………………….…………………
…………………………………………………………………………………………….
5) Mention the constitutional and legal protections available to Adivasis.
……………………………………………………………………………………………
…………………………………….………………………………………………………
………………………………………………………………………….…………………
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