University of Kashmir Srinagar

KULR KASHMIR UNIVERSITY LAW REVIEW Vol. XXIII 2016 School of Law University of Kashmir Srinagar Vol. XXIII ISSN 0975-6639 Cite this Volume as: XXIII KULR (2016) Kashmir University Law Review is Published Annually Annual Subscription: Inland: ` 500.00 Overseas: $ 15.00 © Head, School of Law University of Kashmir Srinagar All rights reserved. No Part of this journal may be reproduced in any form whatsoever, e.g., by photoprint, microfilm, or any other means without written permission from the publishers. E-mail: [email protected] Printed at: Crown Printing Press Computer Layout and Design by: Shahnawaz Ahmad Khosa Phone No: 7298559181 KASHMIR UNIVERSITY LAW REVIEW Patron Prof. (Dr.) Khurshid I. Andrabi Vice – Chancellor University of Kashmir Chief Editor Prof. Mohammad Hussain Head and Dean School of Law University of Kashmir Editors Dr. Fareed Ahmad Rafiqi Dr. Mir Junaid Alam Editorial Board Prof. Farooq Ahmad Mir Prof. Mohammad Ayub Dr. Beauty Banday Dr. Shahnaz The editors, publisher and printer do not claim any responsibility for the views expressed by the contributors and for the errors, if any, in the information contained in this journal. With Best Compliments From Prof. Mohammad Hussain Head & Dean School of Law University of Kashmir Srinagar CONTENTS S. No. Page No. Articles 1 Human Rights and their Protection 1-32 A. M. Matta 2 A Constitutional Perspective on Article 35-A and its 33-54 Role in Safeguarding the Rights of Permanent Residents of the State of J&K Altaf Ahmad Mir Mir Mubashir Altaf 3 Anton Piller– Analysed and Catalysed 55-82 S. Z. Amani 4 An Appraisal of Fraud Rule Exception in Documentary 83-104 Credit Law with Special Emphasis on India Susmitha P Mallaya 5 The Expanding Horizons of Professional Misconduct of 105-120 Advocates vis-a-vis Contempt of Court: A Review of the Code of Ethics of Advocates Vijay Saigal 6 Eagle Eye on the New Age of Corporate Governance: A 121-136 Critical Analysis Qazi M. Usman 7 Empowerment of Women vis-a-vis Labour Welfare 137-162 Legislation in India: A Socio-Legal Analysis Nayeem Ahmad Bhat Mushtaq Ahmad 8 Digital Licensing Under Copyright Regime: Problems 163-186 and Perspectives Imran Ahad Fareed Ahmad Rafiqi 9 Ethnicity and Ethnic Crimes: Legal Scenario 187-206 Shabina Arfat Shahnaz Notes and Comments 1 Incidence of Divorces in District Srinagar of the State of 207-220 Jammu and Kashmir: A Socio-Legal Study Fareed Ahmad Rafiqi Shazia Ahad Bhat 2 Educational Safeguards and Scheduled Tribes of J&K: 221-244 An Analysis Sofiya Hassan Human Rights and their Protection A. M. Matta* [email protected] Abstract In their origin and development Human Rights have a long history and garnering respect for them has been the concern of the humans from the inception of human race. Different religions, cultures and philosophies have contributed to the evolution of the concept of human rights, and emphasized the need for their promotion and protection. The need for strengthening human rights was felt more after the World Wars, which saw least regard for human rights, leaving behind a trail of sighs and sorrows, in numberless deaths, countless disablements and a state of wailing and sobbing. It is not only during the wars that human rights have been abused and their abuse has been witnessed in normal times too at the hands of despotic rulers. The democracies have also not been successful in protecting humans from the violation of their birth rights as the people in power perceive every call for protection of these rights as a challenge to their authority. Hence, the very idea of protection of human rights is denounced and the champions of these rights are ridiculed and harassed at the hands of the rulers in a bid to perpetuate their misrule. Even in the so called civilised societies these rights are not spared as has been seen in the policies of apartheid, denial of the right of self-determination and disregard of human dignity in umpteen other ways. Although the present century is full of promises on this front but the abuse of human rights goes unabated. The United Nations Organisation (UNO) and its relevant organs and agencies have made tireless efforts to improve the situation of human rights in the world. Although these efforts have had considerable effect, at least in creating awareness about these rights, the condition is still far from satisfactory. Here, an attempt is made to trace the historical evolution of human rights, the contribution of the individuals, groups, schools of thought- philosophical and others, Religions and the UNO in the process of promotion and protection of these rights. The reasons for either the absolute or partial failure of these efforts would be identified and some suggestions would be put forth with a view to seek further strengthening of the UNO and its organs and agencies in order for them to be stronger and more effective in promoting and protecting these rights. After all it is a question of preservation of human dignity. Key Words: Human rights, Natural Rights, UNO, UDHR, ICCPR, ICESCR _______________________________ * Principal Vitasta School of Law, Nowgam, Srinagar—190015 1 Human Rights and their Protection I. Introduction It is highly reprehensible that even after millions of years of existence of man we have failed to realise the essence of his dignity and ensure its protection. Most nations of the world claim to be civilized but most of them have a dismal record on the front of human rights1.The United Nations Organisation (UNO), which was perceived, inter alia, as a protector of human rights has also not beenfully successful in its task. The UNO has, in this regard, proved a weak organisation, being lopsided in the constitution of its organs as well as its functioning. Its attempts made from time to time in garnering respect for human rights have not been fully successful, as the states, which have a dismal record of protection of human rights, have defended themselves under the shield of ‘state sovereignty’, thereby keeping the world community at bay from interfering in their domestic affairs. Nevertheless, the UNO’s perseverance in its efforts for the cause of human rights, at least in spreading awareness about these rights, cannot but be appreciated. In 1993 World Conference on Human Rights in Vienna we saw a solemn commitment of all states to fulfil their obligations to promote universal respect for, and observance and protection of 1United States of America, which claims to be a champion of the human rights, has also not had a spotless record in this regard. The treatment meted out to the prisoners in Guatanamo Bay (in Cuba) is well known as in utter disregard of the basic human rights. It was a centre for torture based interrogation, intimidation and revenge, where different kinds of sexual abuse were practised in addition to forcing prisoners to drink salt water until they vomit, punishment of keeping prisoners standing for prolonged periods, sleep deprivation, water boarding, loud noise, beating on the face and ribs while immersed in ice to hide the bruising [see Muhammad Auld Slahi (of Mauritia—the most tortured prisoner in Guatanamo Bay prison) 2015]. These abusive practices of punishment in violation of international law were also used in Iraq and Afghanistan prisons post- 9/11 as also in some ships in international waters. The cases of racial discrimination are also not uncommon. Similarly in the Tiananmen Square episode in China in 1989 military tanks were used to bulldoze the protestors demanding democratic reforms, freedom of speech including that of press and action against corruption. Martial law was imposed in Beijing and the state action cost 180-2600 lives of civilians, 50 soldiers and policemen as estimated by the Chinese Red Cross. 2 KULR-XXIII ISSN : 0975-6639 all human rights and fundamental freedoms for all in accordance with Charter of the United Nations, other relevant instruments, and international law. This was a welcome development which raised high expectations among the people, particularly those who face large scale abuses of their human rights. Astonishingly, after about thirty four years of the Vienna reaffirmation, the commitment remains unfulfilled. Human rights abuses are taking place in almost all parts of the world without any concrete action being taken at the international level, other than a hollow condemnation, unless the violator is a weak country when the stronger countries, under the guise of human rights protectors, immediately intervene with intent to implement their ulterior geo- political agenda. Ironically, the violation of human rights generally takes place at the hands of the state against whom these rights were essentially meant. The concern shown for human rights in such situations of their violation is perceived by the state as a challenge to its authority thus concealing its failure. The failure of the international organization in fully preventing such violation of human rights exposes its weakness. What exactly is meant by the expression “human rights” has not been conclusively determined. There are differences among different countries of the world in their approach to the concept of human rights. The differences arise due to the different perceptions of human rights in different countries based on their varying stages of economic, social, cultural and other development, which determine the aspirations of their people. The problem arises also due to the divergent ideologies surrounding the concept of human rights and different criteria at the international, regional or national levels adopted for their determination and their protection. Added to this is the attachment of the people to their traditions and moors deep rooted in traditional societies. It is for such reasons that all attempts to formulate a universal definition of the expression “Human 3 Human Rights and their Protection Rights” have failed giving rise to a state of uncertainty about their content, their scope and the extent and urgency of their protection.

Load more