Human rights are moral principles or norms that describe certain standards of
human behaviour, and are regularly protected aslegal
rights in national and international
law. They are commonly understood as
inalienable fundamental rights "to which a person is inherently
entitled simply because she or he is a human being," and which are "inherent in all
human beings"regardless
of their nation, location, language, religion, ethnic origin or any other
status. They are applicable everywhere and at
every time in the sense of being universal, and they are egalitarian in the sense of being the same for
everyone. They require empathy and the rule of law and impose an obligation on persons to
respect the human rights of others. They should not be taken away except
as a result of due process based on specific circumstances, and require freedom from unlawful
imprisonment, torture, and execution.
United Nations Charter
The provisions of
the United Nations Charter provided a basis for the development of
international human rights protection. The preamble of the charter provides
that the members "reaffirm faith in fundamental human rights, in the equal
rights of men and women" and Article 1(3) of the United Nations charter
states that one of the purposes of the UN is: "to achieve international
cooperation in solving international problems of an economic, social, cultural,
or humanitarian character, and in promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as to race,
sex, language, or religion". Article 55 provides that:
The United Nations
shall promote: a) higher standards of living, full employment, and conditions
of economic and social progress and development; b) solutions of international
economic, social, health, and related problems; c) international cultural and educational
cooperation; d) universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex, language, or
religion.
Universal Declaration of Human Rights
The Universal Declaration of Human
Rights (UDHR) was adopted by
the United Nations General Assembly in 1948, partly in response to the
atrocities of World War
II. It is generally viewed as the preeminent statement of international
rights and has been identified as being a culmination of centuries of thinking
along both secular and religious lines. Although the UDHR was a non-binding
resolution, it is now considered by some to have acquired the force of
international customary
law which may be invoked in
appropriate circumstances by national and other judiciaries. The UDHR urges member nations to
promote a number of human, civil, economic and social rights, asserting these
rights as part of the "foundation of freedom, justice and peace in the world." The declaration
was the first international legal effort to limit the behaviour of states and
pres upon them duties to their citizens following the model of the rights-duty
duality.
...recognition of
the inherent dignity and of the equal and inalienable rights of all members of the human family is
the foundation of freedom, justice and peace in the world.
—Preamble to the Universal
Declaration of Human Rights, 1948
Fundamental Rights
Fundamental
rights are a generally
regarded set of legal protections in the context of a legal
system, wherein such system is itself based upon this same set of basic, fundamental, or inalienable rights. Such rights thus belong without
presumption or cost of privilege to all human
beings under such jurisdiction.
The concept of human
rights has been promoted as a
legal concept in large part owing to the idea that human beings have such
"fundamental" rights, such that transcend all jurisdiction, but are
typically reinforced in different ways and with different emphasis within
different legal systems.
List of important rightsedit]
Some universally
recognized rights as fundamental, i.e., contained in the United
Nations Universal Declaration of Human
Rights, the U.N. International
Covenant on Civil and Political Rights, or the U.N. International
Covenant on Economic, Social and Cultural Rights, include the following:
Legal meaningedit]
Though many
fundamental rights are also widely considered human rights, the classification
of a right as fundamental invokes specific legal tests courts use to determine
the constrained conditions under which the United States government and various
state governments may limit these rights. In such legal contexts, courts
determine whether rights are fundamental by examining the historical
foundations of those rights, and determining whether their protection is part
of a longstanding tradition. Individual states may guarantee other rights as
fundamental.
Main article: Fundamental Rights in India
There are seven main fundamental rights of India
·
right to equality
·
right to freedom of
speech and expression
·
right to freedom of religion
·
right against exploitation
·
cultural and educational rights
·
right to constitutional remedies
Newly implemented 7th Fundamental right in
·
right to education
It was added in the constitution after the
86th amendment in the year 2002 under article 21A. It is the recently
implemented fundamental right. RTE Act enabled this right in the year 2010.
The United States of America was one of the first nations to be
founded on principles of freedom and equality, with no king and no hereditary
nobility. According to the Declaration of Independence, all men
have a natural right to "life, liberty, and the pursuit of
happiness". But this declaration of liberty was flawed from the outset by
the presence of slavery. Slave owners argued that their liberty was paramount,
since it involved property, their slaves, and that the slaves themselves had no
rights that any White man was obliged to recognize. The Supreme Court, in the Dred Scott decision, upheld this principle. It
was not until 1866, following the Civil War, that the US constitution was amended to
extend these rights to persons of color, and not until 1920 that these rights
were extended to women.
Freedom for Movement
Freedom of
movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect. As expressed in article 13 of
theUniversal Declaration of Human
Rights, it asserts that:
·
a citizen of a state in which that citizen is
present has the liberty to travel, reside in, and/or work in any part of the
state where one pleases within the limits of respect for the liberty and rights
of others,
·
and that a citizen also has the right to leave any
country, including his own, and to return to his country at any time
Philosophical grounds for a right to moveedit]
Scholars have
argued for a universal "right to move" based on several philosophical
grounds, including:
·
the idea of a common ownership of the earth
·
a natural right of movement existing prior to
the advent of nation states
·
an ethics of cosmopolitanism
Some advocates for
more immigration, including the Libertarian Party of the United
States, the International Society for
Individual Liberty, and economist Bryan
Caplan, assert that human beings have a fundamental human right to mobility
not only within states but between states.
Common limitationsedit]
Restrictions on
international travel on people (immigration or emigration) are commonplace.
Within countries, freedom of travel is often more limited for minors, and penal law can modify this right as it applies to
persons charged with or convicted of crimes (for instance, parole, probation,
registration). In some countries, freedom of movement has historically been
limited for women, and for members of disfavored racial and social groups.
Circumstances, both legal and practical, may operate to limit this freedom. For
example, a nation that is generally permissive with respect to travel may
restrict that right during time of war. In some instances,
the laws of a nation may assert a guarantee of thiswhich? peace.
Restrictions may
include:
·
national and regional official minimum wage
tariff barriers to labour-market entry (free movement or migration of workers);
·
official identity
cards (internal passports,
citizenship licenses) that must be carried and produced on demand;
·
obligations on persons to register changes of
address or of partner with the state authorities;
·
protectionist local/regional barriers to
housebuilding and therefore settlement in particular districts
Arrest
Arrest
is seizure of (someone) by legal authority and take them into custody.
An arrest is the act of depriving a person of
their liberty usually
in relation to the purported investigation or prevention of crime and
presenting (the arrestee) to a procedure as part of the criminal justice system.
The term is Anglo-Norman in origin and is related to the French wordarrêt,
meaning "stop".
Arrest, when used
in its ordinary and natural sense, means the apprehension of a person or the
deprivation of a person's liberty. The question whether the person is under
arrest or not depends not on the legality of the arrest, but on whether the
person has been deprived of personal liberty of movement. When used in the legal
sense in the procedure connected with criminal offences, an arrest consists in
the taking into custody of another person under authority empowered by law, to
be held or detained to answer a criminal charge or to prevent the commission of
a criminal or further offence. The essential elements to constitute an arrest
in the above sense are that there must be an intent to arrest under the
authority, accompanied by a seizure or detention of the person in the manner
known to law, which is so understood by the person arrested
Police and various other bodies have powers
of arrest. In some places, the power is more general; for example in England
and Wales—with the notable exception of the Monarch, the head of state—any
person can arrest "anyone whom he has reasonable grounds for suspecting to
be committing, have committed or be guilty of committing an indictable
offence", although certain conditions must be met before taking such
action.
Article 9 of the Universal Declaration of Human
Rights states that, "No
one shall be subjected to arbitrary arrest, detention or exile."
Procedure
to arrest
According
to Indian law, no formality is needed during the procedure of arrest. The arrest can be made by a citizen, a
police officer or a Magistrate. The police officer needs to inform the person
being arrested the full particulars of the person's offence and that they are
entitled to be released on bail if the offence fits the criteria for being
bailable
Bail
raditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect
from jail,
on the understanding that the suspect will return for trialor
forfeit the bail (and possibly be brought up on charges of the crime of failure
to appear). In some cases, bail money may be returned at the end of the
trial, if all court appearances are made, regardless of whether the person is
found guilty or not guilty of the crime accused. If a bondsman is used and a surety bond has been obtained, the fee for that
bond is the fee for the insurance policy purchased and is not refundable.
In some countries,
granting bail is common. Even in such countries, however, bail may not be
offered by some courts under some circumstances; for instance, if the accused
is considered likely not to appear for trial regardless of bail. Legislatures may also set out certain crimes to be
not bailable, such as those that carry the penalty of capital punishment. Even for lesser crimes, bail
will not be granted if it is deemed likely that the accused will flee or commit
the same offense before trial.
Indian law
stresses on the principles of presumption of innocence. The principle embodies
freedom from arbitrary detention and serves as a bulwark against punishment
before conviction. More importantly, it prevents the State from successfully
employing its vast resources to cause greater damage to an un-convicted accused
than he/she can inflict on society. While considering bail applications of the
accused, courts are required to balance considerations of personal liberty with
public interest.
Bail by Court
Under current law,
a defendant has an absolute right to bail if the custody time
limits have expired and otherwise ordinarily a right to bail unless there is
sufficient reason not to grant it,
Any person accused
of committing a crime is presumed innocent until proven guilty in a court of
law. Therefore a person charged with a crime should not be denied freedom
unless there is a good reason.
The main reasons
for refusing bail are that the defendant is accused of an imprisonable offence
and there are substantial
grounds for believing that the
defendant would:
2.
Commit further offences while on bail
The court should
take into account the:
1.
Nature and seriousness of the offence or default (and
the probable method of dealing with the defendant for it)
2.
Character, antecedents, associations and community ties
of the defendant,
3.
Defendant's bail record, and
The court may also
refuse bail:
·
For the defendant's own protection
·
Where the defendant is already serving a
custodial sentence for another offence
·
Where the court is satisfied that it has not
been practicable to obtain sufficient information
·
Where the defendant has already absconded in the
present proceedings
·
Where the defendant has been convicted but the
court is awaiting a pre-sentence report, other report or inquiry and it would
be impracticable to complete the inquiries or make the report without keeping
the defendant in custody
·
Where the defendant is charged with a
non-imprisonable offence, has already been released on bail for the offence
with which he is now accused, and has been arrested for absconding or breaching
bail
Where the accused
has previous convictions for certain homicide or sexual offences, the burden of
proof is on the defendant to rebut a presumption against bail.
The Criminal Justice Act 2003 amended the Bail Act 1976 restricting
the right to bail for adults who tested positive for a Class A
drug and refused to be
assessed or refused to participate in recommended treatment.
Where a defendant
is charged with treason, bail may only be
granted by a High Court judge or by the Secretary of State. Section 115 of the Coroners and Justice Act 2009prohibits
magistrates' courts from granting bail in murder cases.
Conditions
Conditions may be
applied to the grant of bail, such as living at a particular address or having
someone act as surety, if the
court considers that this is necessary:
·
To prevent the defendant absconding
·
To prevent the defendant committing further
offences while on bail
·
To prevent the defendant interfering with
witnesses
·
For the defendant's own protection (or if he is
a child or young person, for his own welfare or in his own interests
Conviction
In law, a conviction is the verdict that results when a court of
law finds a defendant guilty of a crime. The opposite of a conviction is an acquittal (i.e. "not guilty"). In Scotland and in the Netherlands,
there can also be a verdict of "not proven",
which counts as an acquittal. There are also cases where the court orders that
a defendant not be convicted, despite being found guilty; in the England, Wales
and Canada the mechanism for this is a discharge.
For a host of
reasons, the criminal
justice system is not
perfect, and sometimes guilty defendants are acquitted, while innocent people
are convicted. Appeal mechanisms mitigate this problem to
some extent. An error which results in the conviction of an innocent person is
known as a miscarriage of justice.
After a defendant
is convicted, the court determines the appropriate sentence as a punishment.
Furthermore, the conviction may lead to results beyond the terms of the sentence
itself. Such ramifications are known as the collateral consequences of
criminal charges.
A minor conviction is a warning conviction, and it does
not affect the defendant but does serve as a warning.
A history of
convictions are called antecedents,
known colloquially as "previous" in the United
Kingdom, and "priors" in the United
States and Australia.
The history of convictions also shows that a minor law conviction can be
prosecuted as any individuals punishment.
Conviction by sentencing
A sentence is a decree of punishment.
In law, a sentence forms the final explicit act of a judge-ruled process, and also
the symbolic principal act connected to his function. The sentence can
generally involve a decree of imprisonment, a fine and/or
otherpunishments against a defendant convicted of
a crime. Those imprisoned for
multiple crimes will serve a consecutive
sentence (in which the period
of imprisonment equals the sum of all the sentences), a concurrent sentence (in which the period of imprisonment
equals the length of the longest sentence), or somewhere in between, sometimes
subject to a cap. Additional sentences include:Intermediate or those served on the weekend
(usually Fri-Sun), Determinate or a specific set amount of time (90
days) orIndeterminate which
are those that have a minimum and maximum time (90 to 120 days). If a sentence
gets reduced to a less harsh punishment, then the sentence is said to have been
"mitigated" or "commuted". Rarely (depending on
circumstances) murdercharges are
"mitigated" and reduced to manslaughter charges. However, in certain legal systems, a
defendant may be punished beyond the terms of the sentence, e.g. social stigma,
loss of governmental benefits, or, collectively, the collateral consequences of criminal charges.
Parole
Parole is the provisional release of a prisoner who
agrees to certain conditions prior to the completion of the maximum sentence
period. Originating from the French parole ("voice", "spoken words"), the
term became associated during the Middle Ages with the release of prisoners who gave their word.
In India , the grant of Parole is
largely governed by the rules made under the Prison Act, 1894 and Prisoner Act,
1900. Each of the States has its own parole rules, which have minor variations
with each other.xix] There are two types of parole- custody and regular. The
custody parole is granted in emergency circumstances like death in the family,
serious illness or marriage in the family. It is limited to a time span of six
hoursxx] during which the prisoner is escorted to the place of visit and return
therefrom. The grant of parole is subject to verification of the circumstances
from the concerned police station and is granted by the Superintendent of
Jailxxi].
ü Regular
Parole is allowed for a maximum period of one month, except in special
circumstances, to convicts who have served at least one year in prison. It is granted
on certain grounds such as:
ü Serious
Illness of a family member
ü Accident
or Death of a family member
ü Marriage
of a member of the family
ü Delivery
of Child by wife of the convict
ü Maintain
family or social ties
ü Serious
damage to life or property of the family of convict by natural calamities
ü Pursue
filing of a Special Leave Petition.
Certain categories of convicts are
not eligible for being released on parole like prisoners involved in offences
against the State, or threats to national security, non-citizens of India etc.
People convicted of murder and rape of children or multiple murders etc. are
also exempted except at the discretion of the granting authority
E-courts In India
Courts around the world
can use technology to conduct their functioning effectively and to bring
efficiency and transparency. Some
of the courts are actually trying to use technology for these purposes. This
interface of technology and traditional courts has given rise to a new category
of courts known as electronic courts or e-courts. However,
e-courts are different from computerised courts and till full fledged e-filing,
online submission of plaints and documents, online evidence producing, etc are
also available, an e-court does not comes into existence. Further,
adoption of the concept of e-courts by the legal fraternity and other
stakeholders is a must for successful implementation of any e-court
project. The
first e-court of India India India
The first indication of
establishment of e-courts in India India is yet to be established in India
Indian e-court project is suffering
from numerous deficiencies and shortcomings. These include :
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