218

IN THE HIGH COURT OF DELHI AT NEW DELHI

(EXTRAORDINARY WRIT JURISDICTION)
WRIT PETITION (CIVIL) nNO.
IN THE MATTEROF:
Sarvadaman Singh Oberoi ... Petitioner-in-person
Versus
Govt of NCT of Delhi & Ors. ....Respondents
INDEX-VOLUMEII
S.NO. PARTICULARS PAGES
Ie ANNEXURE P-3: UN General Assembly Resolution 217 219-27
(IID) dt. 10.12.1948
2: ANNEXURE P-4: UN General Assembly Resolution 2200 228-39
(XXI) dt. 16.12.1966
3. ANNEXURE P-5(COLLY): /1 Statement of Objects and 240-2
Reasons, The Protection of Human Rights Act, 1993 (3pp.),
/2 Act No.10 of 1994 w.e.f. 28.09.1993 as enacted 243-60
08.01.1994 (18pp.), /3 Amendment Act, 49 of 2000, 261
11.12.2000 (1pp.), /4 Amendment Act, 43 of 2006, 262-72
13.09.2006 w.e.f. 23.11.2006 (11pp.), /5 Amendment Act 273-5
No. 19 of 2019) 27.07.2019 w.e.f. 02.08.2019, Gaz. of India
Extra Pt. II Sec 1 No. 38 dt. 27.07.2019 (3pp.), /6 Act 34 of 276-330
2019, 09.08.2019 w.e.f. 31.10.2019 (55pp.), /7 Act No.10 of 331-47
1994 as amended upto 31.10.2019 (17pp.)
ANNEXURE P-6: UN General Assembly Resolution 348-54
48/134 dt. 04.03.1994 (National institutions for the
promotion and protection of human rights) Annx: Paris
Principles 20.12.1993
ANNEXURE P-7: Responsibility of States for 355-69
Internationally Wrongful Acts, 2001
ANNEXURE P-8: Extracts: United Nations Human Rights 370-481
ManualNo. 9 Judges Prosecutors Lawyers, 2003
Continued in VolumeIII
Place: New Delhi mal
Dated: 26.01.2021 vt,
Petitioner-in-person
Sarvadaman Singh Oberoi
1102, Tower 1, Uniworld Garden I, Sector 47 Gurugram-122018,
Mob. No. 9818768349
Email: [email protected]
ANNEXURE P-3 219
220
221
222
223
224
225
226
227
India acceded to both the Conventions on 10 April 1979 ANNEXURE P-4 228
229
230
231
232
233
234
235
236
237
238
239
 240
ANNEXURE P-5(COLLY)/1

STATEMENT OF OBJECTS AND REASONS

(ACT NO. 10 OF 1994)

India is a party to the International Covenant on Civil and Political Rights

and the International Covenant on Economic, Social and Cultural Rights,

adopted by the General Assembly of the United Nations on the 16 th December,

1966. The human rights embodied in the aforesaid Covenants stand

substantially protected by the Constitution.

2. However, there has been growing concern in the country and abroad about

issues relating to human rights. Having regard to this, changing social realities

and the emerging trends in the nature of crime and violence, Government has

been reviewing the existing laws, procedures and system of administration and

transparency in them, and devising more efficient and effective methods of

dealing with the situation.

3. Wide ranging discussions were held on the subject at various levels such as

the Chief Ministers Conference on Human Rights, seminars organised in

various parts of the country and meetings with leaders of various political

parties. Taking into account the views expressed in these discussions, the

Human Rights Commission Bill, 1993 was introduced in the Lok Sabha on

14th May, 1993. The Bill was referred by the Speaker to the Standing

Committee of Parliament on Home Affairs. In view of the urgency of the

matter, the Protection of Human Rights Ordinance, 1993, was promulgated by

the President on 28th September, 1993, after incorporating certain amendments

having regard to the discussions in the said Standing Committee

4. The salient features of the present Bill are—

(1) the constitution of a National Human Rights Commission consisting of

five Members appointed by the President with a Chairperson who has been a

Chief Justice of the Supreme Court;

 241

(2) the Chairpersons of the National Commission for the Scheduled Castes

and Scheduled Tribes and the National Commission for Women and the

National Commission for Minorities, will be deemed to be Members of the

Commission for the discharge of certain functions;

(3) the Commission will be a fact-finding body with powers to conduct inquiry

into complaints of violation of human rights;

(4) the Commission will be assisted by investigating agencies of the Central

and State Governments and the Government may also constitute one or more

special investigation teams;

(5) the State Government may set up Human Rights Courts for speedy trial of

offences, arising out of violations of human rights and may also specify a

Public Prosecutor or appoint an advocate as Special Public Prosecutor for the

purpose of conducting cases in such Courts;

(6) the Commission may make recommendations for the effective

implementation of the existing laws and treaties on human rights;

(7) the Commission may undertake research in the field of human rights and

take measures to promote awareness of human rights among all sections of

society;

(8) the constitution of the State Human Rights Commission on the lines of the

National Human Rights Commission.

5. The Bill seeks to replace the aforesaid Ordinance.

COMMENTS

Objects and reasons of the Act.—The objects and reasons of the Act should

be taken into consideration in interpreting the provisions of the statute in case

of doubt.1
 242

It is well settled that when the language of the statute is clear and admits of no

ambiguity, recourse to the Statement of Objects and Reasons for the purpose

of construing a statute is not permissible.2

In the matter of construction of statute, the cardinal principle applicable has to

be borne in mind that if the Legislature has provided some powers to a

statutory body or to the management by necessary implication it has to be

presumed that anything which is necessary for the purpose of carrying out the

object of the Act, has to be done.3

Use of different words.—When two different words are used in the same

statute, it may be presumed that those words, even if otherwise analogous,

have been used with different connotations.4

It is not a sound rule of interpretation to seek the meaning of words used in an

Act, in the definition clause of other statutes. 5

Contemporanea exposito Application of.—Contemporanea exposito is a

well-settled principle or doctrine which applies only to the construction of

ambiguous language in old statutes. It is not applicable to modern statutes.6

1. Doypack Systems Pvt. Ltd. v. Union of India, A.I.R. 1988 S.C. 782 at p. 797; Kumar Jagdish
Chandra Singh v. Eileen, A.I.R. 1995 S. C. 515; Bihar Chamber of Commerce v. State of Bihar,
A.I.R. 1995 Pat. 144 at p. 153; S. Gopal Reddy v. State of U. P., 1996 S.C.C. (Cr.) 792 at p. 804:
(1996) 4 S.C.C. 596 at p. 609; Ahmad Nassar v. State of Tamil Nadu, 1999 (4) All India Cr.L.R.
605 (S.C.).
2. Govind Saran Ganga Saran v. C.S.T., A.I.R. 1985 S.C. 1041 at p. 1045; Sulochana Amma v.
Narayana Nair, A.I.R. 1994 S.C. 152 at p. 157; Gauri Shankar Gaur v. State of U.P., A.I.R. 1994
S.C. 169 at p. 179; Modi Industries Ltd. v. State of U.P., 1994 S.C.C. (L & 5)286 at p. 292.
3. Monaranjan Das v. State of West Bengal, A.I.R. 1998 Cal. 22 at p. 27.
4. Shyamali Sarkar v. Ashim Kumar Sarkar, A.I.R. 1988 Cal. 124 at p. 126; Mahesh Fabrics P. Ltd.
v. Nirma Corporation, A.I.R. 1996 Raj. 111 at p. 118.
5. Rameshwar Jute Mills Ltd. v. State of Bihar, A.I.R. 1998 Pat. 164 at p. 165.
6. Doypack Systems Pvt. Ltd. v. Union of India, supra at pp. 801, 802; Amir Ahmad v, Ram Niwas
Agarwal, (1994) 2 S.C.C. 50 at p. 53; V.C. Madhavan Nambiar v. P. Bharathan, 1995 Cr. L.J. 2732
at p. 2734 (Ker.).
[Source: Protection of Human Rights, Khwaja Abdul Muntaqim, 2 nd Edition, 2014-15, Law
Publishers (India) Pvt Ltd, Allahabad 211001 at pp.309-310]
 243

ANNEXURE P-5(COLLY)/ 2
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
 261

ANNEXURE P-5(COLLY)/ 3

THE PROTECTION OF HUMAN RIGHTS

(AMENDMENT) ACT, 2000

ACT NO. 49 OF 2000 [ 11th December, 2000.]

An Act further to amend the Protection of Human Rights Act,

1993.
BE it enacted by Parliament in the Fifty- first Year of the Republic
of India as follows:-
1. Short title.- This Act may be called the Protection of Human
Rights (Amendment) Act, 2000 .
2. Amendment of Act 10 of 1994 .- After section 40 of the
Protection of Human Rights Act, 1993 , the following section
shall be inserted, namely:-
" 40A. Power to make rules retrospectively.- The power to
make rules under clause (b) of sub- section (2) of section 40 shall
include the power to make such rules or any of them
retrospectively from a date not earlier than the date on which this
Act receive the assent of the President, but no such retrospective
effect shall be given to any such rule so as to prejudicially affect
the interests of any person to whom such rule may be applicable.".

SUBHASH C. JAIN,
Secy. to the Govt. of India
 262

ANNEXURE P-5(COLLY)/ 4

THE PROTECTION OF HUMAN RIGHTS

(AMENDMENT) ACT, 2006

NO. 43 OF 2006 [ 13th September, 2006*] *w.e.f. 23-11-2006

An Act further to amend the Protection of Human Rights Act,
1993.
BE it enacted by Parliament in the Fifty- seventh Year of the
Republic of India as follows:-
1. Short title and commencement.-
(1) This Act may be called the Protection of Human Rights
(Amendment) Act, 2006 .
(2) It shall come into force on such date* as the Central
Government may, by notification in the Official Gazette, appoint.
2. Amendment of section 2.- In section 2 of the Protection of
Human Rights Act, 1993 (hereinafter referred to as the principal
Act), in sub- section 1,-
(a) for clause (f), the following clause shall be substituted,
namely:-' (f)" International Covenants" means the International
Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights adopted by the
General Assembly of the United Nations on the 16th December,
1966 and such other Covenant or Convention adopted by the
General Assembly of the United Nations as the Central
Government may, by notification, specify;';
(b) for clause (g), the following clause shall be substituted,
namely:-' (g)" Member" means a Member of the Commission or
of the State Commission, as the case may be;';
 263

(c) for clause (i), the following clauses shall be substituted,

namely:-' (i)" National Commission for the Scheduled Castes"
means the National Commission for the Scheduled Castes referred
to in article 338 of the Constitution;
(ia) " National Commission for the Scheduled Tribes" means the
National Commission for the Scheduled Tribes referred to in
article 338A of the Constitution;'.
3. Amendment of section 3.- In section 3 of the principal Act,-
(a) in sub- section (3), for the words" the National Commission
for the Scheduled Castes and Scheduled Tribes", the words" the
National Commission for the Scheduled Castes, the National
Commission for the Scheduled Tribes" shall be substituted;
(b) in sub- section (4), for the words'' as it may delegate to him'',
the brackets, words, figures and letter'' (except judicial functions
and the power to make regulations under section 40B) as may be
delegated to him by the Commission or the Chairperson, as the
case may be'' shall be substituted.
4. Amendment of section 4.- In section 4 of the principal Act,-
(a) in sub- section (1), for the words" other Members", the words"
the Members" shall be substituted;
(b) in sub- section (2), for the words" vacancy in the Committee",
the words, brackets and figure" vacancy of any member in the
Committee referred to in the first proviso to sub- section (1)" shall
be substituted.
5. Substitution of new section for section 5.- For section 5 of the
principal Act, the following section shall be substituted, namely:-
 264

" 5. Resignation and removal of Chairperson and Members.- (1)

The Chairperson or any Member may, by notice in writing under
his hand addressed to the President of India, resign his office.
(2) Subject to the provisions of sub- section (3), the Chairperson
or any Member shall only be removed from his office by order of
the President of India on the ground of proved misbehaviour or
incapacity after the Supreme Court, on reference being made to it
by the President, has, on inquiry held in accordance with the
procedure prescribed in that behalf by the Supreme Court,
reported that the Chairperson or the Member, as the case may be,
ought on any such ground to be removed.
(3) Notwithstanding anything in sub- section (2), the President
may, by order, remove from office the Chairperson or any
Member if the Chairperson or such Member, as the case may be,-
(a) is adjudged an insolvent; or
(b) engages during his term of office in any paid employment
outside the duties of his office; or
(c) is unfit to continue in office by reason of infirmity of mind or
body; or
(d) is of unsound mind and stands so declared by a competent
court; or
(e) is convicted and sentenced to imprisonment for an offence
which in the opinion of the President involves moral turpitude.".
6. Substitution of new section for section 6.- For section 6 of the
principal Act, the following section shall be substituted, namely:-
" 6. Term of office of Chairperson and Members.- (1) A person
 265

appointed as Chairperson shall hold office for a term of five years

from the date on which he enters upon his office or until he attains
the age of seventy years, whichever is earlier.
(2) A person appointed as a Member shall hold office for a term
of five years from the date on which he enters upon his office and
shall be eligible for re- appointment for another term of five years:
Provided that no Member shall hold office after he has attained
the age of seventy years.
(3) On ceasing to hold office, a Chairperson or a Member shall be
ineligible for further employment under the Government of India
or under the Government of any State.".
7. Substitution of new section for section 8.- For section 8 of the
principal Act, the following section shall be substituted, namely:-
" 8. Terms and conditions of service of Chairperson and
Members.- The salaries and allowances payable to, and the other
terms and conditions of service of, the Chairperson and Members
shall be such as may be prescribed: Provided that neither the
salary and allowances nor the other terms and conditions of
service of the Chairperson or a Member shall be varied to his
disadvantage after his appointment.".
8. Amendment of section 10.- In section 10 of the principal Act,
for sub- section (2), the following sub- section shall be substituted,
namely:-" (2) Subject to the provisions of this Act and the rules
made thereunder, the Commission shall have the power to lay
down by regulations its own procedure.".
9. Amendment of section 12.- In section 12 of the principal Act,-
 266

(a) in clause (a), after the words" or any person on his behalf", the
words" or on a direction or order of any court" shall be inserted;
(b) for clause (c), the following clause shall be substituted,
namely:-" (c) visit, notwithstanding anything contained in any
other law for the time being in force, any jail or other institution
under the control of the State Government, where persons are
detained or lodged for purposes of treatment, reformation or
protection, for the study of the living conditions of the inmates
thereof and make recommendations thereon to the Government;".
10. Amendment of section 13.- In section 13 of the principal Act,
after sub- section (5), the following sub- sections shall be inserted,
namely:-" (6) Where the Commission considers it necessary or
expedient so to do, it may, by order, transfer any complaint filed
or pending before it to the State Commission of the State from
which the complaint arises, for disposal in accordance with the
provisions of this Act: Provided that no such complaint shall be
transferred unless the same is one respecting which the State
Commission has jurisdiction to entertain the same.
(7) Every complaint transferred under sub- section (6) shall be
dealt with and disposed of by the State Commission as if it were
a complaint initially filed before it.".
11. Substitution of new section for section 18.- For section 18
of the principal Act, the following section shall be substituted,
namely:-" 18. Steps during and after inquiry.- The Commission
may take any of the following steps during or upon the completion
of an inquiry held under this Act, namely:-
 267

(a) where the inquiry discloses the commission of violation of

human rights or negligence in the prevention of violation of
human rights or abetment thereof by a public servant, it may
recommend to the concerned Government or authority-
(i) to make payment of compensation or damages to the
complainant or to the victim or the members of his family as the
Commission may consider necessary;
(ii) to initiate proceedings for prosecution or such other suitable
action as the Commission may deem fit against the concerned
person or persons;
(iii) to take such further action as it may think fit;
(b) approach the Supreme Court or the High Court concerned for
such directions, orders or writs as that Court may deem necessary;
(c) recommend to the concerned Government or authority at any
stage of the inquiry for the grant of such immediate interim relief
to the victim or the members of his family as the Commission may
consider necessary;
(d) subject to the provisions of clause (e), provide a copy of the
inquiry report to the petitioner or his representative;
(e) the Commission shall send a copy of its inquiry report together
with its recommendations to the concerned Government or
authority and the concerned Government or authority shall, within
a period of one month, or such further time as the Commission
may allow, forward its comments on the report, including the
action taken or proposed to be taken thereon, to the Commission;
 268

(f) the Commission shall publish its inquiry report together with
the comments of the concerned Government or authority, if any,
and the action taken or proposed to be taken by the concerned
Government or authority on the recommendations of the
Commission.".
12. Amendment of section 21.- In section 21 of the principal
Act,-
(a) for sub- section (2), the following sub- section shall be
substituted, namely:-" (2) The State Commission shall, with effect
from such date as the State Government may by notification
specify, consist of-
(a) a Chairperson who has been a Chief Justice of a High Court;
(b) one Member who is, or has been, a Judge of a High Court or
District Judge in the State with a minimum of seven years
experience as District Judge;
(c) one Member to be appointed from among persons having
knowledge of or practical experience in matters relating to human
rights.";
(b) after sub- section (5), the following sub- section shall be
inserted, namely:-" (6) Two or more State Governments may, with
the consent of a Chairperson or Member of a State Commission,
appoint such Chairperson or, as the case may be, such Member of
another State Commission simultaneously if such Chairperson or
Member consents to such appointment: Provided that every
appointment made under this sub- section shall be made after
obtaining the recommendations of the Committee referred to in
 269

sub- section (1) of section 22 in respect of the State for which a

common Chairperson or Member, or both, as the case may be, is
to be appointed.".
13. Amendment of section 22.- In section 22 of the principal
Act,-
(a) in the marginal heading for the words" other Members", the
word" Members" shall be substituted;
(b) in sub- section (1), for the words" other Members", the word"
Members" shall be substituted;
(c) in sub- section (2), for the words" any vacancy in the
Committee", the words, brackets and figure" any vacancy of any
Member in the Committee referred to in sub- section (1)" shall be
substituted.
14. Amendment of section 23.- In section 23 of the principal
Act,-
(a) for the marginal heading" Removal of a Member of the State
Commission", the marginal heading" Resignation and Removal of
Chairperson or a Member of the State Commission" shall be
substituted;
(b) for sub- section (1), the following sub- sections shall be
substituted, namely:- '' (1) The Chairperson or a Member of a State
Commission may, by notice in writing under his hand addressed
to the Governor, resign his office.
(1A) Subject to the provisions of sub- section (2), the Chairperson
or any Member of the State Commission shall only be removed
from his office by order of the President on the ground of proved
 270

misbehavior or incapacity after the Supreme Court, on a reference

being made to it by the President, has, on inquiry held in
accordance with the procedure prescribed in that behalf by the
Supreme Court, reported that the Chairperson or such Member, as
the case may be, ought on any such ground to be removed.'';
(c) in sub- section (2),-
(a) for the word, brackets and figure" sub- section (1)", the word,
brackets, figure and letter'' sub- section (1A)" shall be substituted;
(b) for the words" other Member" at both the places where they
occur, the word" Member" shall be substituted.
15. Substitution of new section for section 24.- For section 24
of the principal Act, the following section shall be substituted,
namely:-" 24. Term of office of Chairperson and Members of the
State Commission.- (1) A person appointed as Chairperson shall
hold office for a term of five years from the date on which he
enters upon his office or until he attains the age of seventy years,
whichever is earlier.
(2) A person appointed as a Member shall hold office for a term
of five years from the date on which he enters upon his office and
shall be eligible for re- appointment for another term of five years:
Provided that no Member shall hold office after he has attained
the age of seventy years.
(3) On ceasing to hold office, a Chairperson or a Member shall be
ineligible for further employment under the Government of a
State or under the Government of India.".
 271

16. Substitution of new section for section 26.- For section 26

of the principal Act, the following section shall be substituted,
namely:-" 26. Terms and conditions of service of Chairperson and
Members of State Commissions.- The salaries and allowances
payable to, and other terms and conditions of service of, the
Chairperson and Members shall be such as may be prescribed by
the State Government: Provided that neither the salary and
allowances nor the other terms and conditions of service of the
Chairperson or a Member shall be varied to his disadvantage after
his appointment.".
17. Amendment of section 40.- In section 40 of the principal Act,
in sub- section (2), in clause (a), for the word" Members", the
words" Chairperson and Members" shall be substituted.
18. Insertion of new section 40B.- After section 40A of the
principal Act, the following section shall be inserted, namely:-"
40B. Power of Commission to make regulations.- (1) Subject to
the provisions of this Act and the rules made thereunder, the
Commission may, with the previous approval of the Central
Government, by notification, make regulations to carry out the
provisions of this Act.
(2) In particular and without prejudice to the generality of the
foregoing power, such regulations may provide for all or any of
the following matters, namely:-
(a) the procedure to be followed by the Commission under sub-
section (2) of section 10;
 272

(b) the returns and statistics to be furnished by the State

Commissions;
(c) any other matter which has to be, or may be, specified by
regulations.
(3) Every regulation made by the Commission under this Act shall
be laid, as soon as may be after it is made, before each House of
Parliament, while it is in session, for a total period of thirty days
which may be comprised in one session or in two or more
successive sessions, and if, before the expiry of the session or the
successive sessions aforesaid, both Houses agree in making any
modification in the regulation or both Houses agree that the
regulation should not be made, the regulation shall thereafter have
effect only in such modified form or be of no effect, as the case
may be; so, however, that any such modification or annulment
shall be without prejudice to the validity of anything previously
done under that regulation.".
19. Amendment of section 41.- In section 41 of the principal Act,
in sub- section (2), in clause (a), for the words" the Members", the
words "the Chairperson and Members" shall be substituted.
K.N. CHATURVEDI,
Secy. to the Govt. of India.
 273
ANNEXURE P-5(COLLY)/ 5

**

**02-08-2019
274
275
 276

ANNEXURE P-5(COLLY)/ 6

jftLVªh lañ Mhñ ,yñ—(,u)04@0007@2003—19 REGISTERED NO. DL—(N)04/0007/2003—19

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EXTRAORDINARY
Hkkx II — [k.M 1
PART II — Section 1
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PUBLISHED BY AUTHORITY
lañ 53] ubZ fnYyh] 'kqØ okj] vxLr 9] 2019@ Jko.k 18] 1941 ¼'kd½
No. 53] NEW DELHI, FRIDAY, AUGUST 9, 2019/SHRAVANA 18, 1941 (SAKA)

bl Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g vyx ladyu ds :i esa j[kk tk ldsA
Separate paging is given to this Part in order that it may be filed as a separate compilation.

MINISTRY OF LAW AND JUSTICE

(Legislative Department)
New Delhi, the 9th August, 2019/Shravana 18, 1941 (Saka)
The following Act of Parliament received the assent of the President on the
9th August, 2019, and is hereby published for general information:—
THE JAMMU AND KASHMIR REORGANISATION ACT, 2019
NO. 34 OF 2019
[9th August, 2019.]
An Act to provide for the reorganisation of the existing State of Jammu and
Kashmir and for matters connected therewith or incidental thereto.
BE it enacted by Parliament in the Seventieth Year of the Republic of India as follows:—
PART-I
PRELIMINARY
1. This Act may be called the Jammu and Kashmir Reorganisation Act, 2019. Short title.
2. In this Act, unless the context otherwise requires,— Definitions.
(a) “appointed day” means the day which the Central Government may, by
notification in the Official Gazette, appoint;
(b) “article” means an article of the Constitution;
(c) “assembly constituency” and “parliamentary constituency” have the same
43 of 1950. meanings as in the Representation of the People Act, 1950 (43 of 1950);
(d) “Election Commission” means the Election Commission appointed by the
President under article 324;
(e) “existing State of Jammu and Kashmir” means the State of Jammu and Kashmir
as existing immediately before the appointed day, comprising the territory which
 277

2 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

immediately before the commencement of the Constitution of India in the Indian State
of Jammu and Kashmir;
(f) “law” includes any enactment, ordinance, regulation, order, bye-law, rule, scheme,
notification or other instrument having, immediately before the appointed day, the force
of law in the whole or in any part of the existing State of Jammu and Kashmir;
(g) “Legislative Assembly” means Legislative Assembly of Union territory of
Jammu and Kashmir;
(h) “Lieutenant Governor” means the Adminstrator of the Union territory
appointed by the President under artcle 239;
(i) “notified order” means an order published in the Official Gazette;
(j) “population ratio”, in relation to the Union territory of Jammu and Kashmir,
and Union territory of Ladakh means the ratio as per 2011 Census;
(k) “Scheduled Castes” in relation to the Union territory means such castes,
races or tribes or parts of groups within such castes, races or tribes as are deemed
under article 341 to be Scheduled Castes in relation to that Union territory;
(l) “Scheduled Tribes” in relation to the Union territory means such tribes or
tribal communities or parts of or groups within such tribes or tribal communities as are
deemed under article 342 to be Scheduled Tribes in relation to that Union territory;
(m) “sitting member”, in relation to either House of Parliament or of the Legislature
of the existing State of Jammu and Kashmir, means a person who immediately before
the appointed day, is a member of that House;
(n) “Union territory”, in relation to the existing State of Jammu and Kashmir,
means the Union territory of Jammu and Kashmir or Union territory of Ladakh, as the
case may be;
(o) “transferred territory” means the territory which on the appointed day is
transferred from the existing State of Jammu and Kashmir to Union territories formed
under sections 3 and 4 of this Act; and
(p) any reference to a district, tehsil or other territorial division of the existing
State of Jammu and Kashmir shall be construed as a reference to the area comprised
within that territorial division on the appointed day.
PART II
REORGANISATION OF THE STATE OF JAMMU AND KASHMIR
Formation of 3. On and from the appointed day, there shall be formed a new Union territory to be
Union known as the Union territory of Ladakh comprising the following territories of the existing
territory of
Ladakh State of Jammu and Kashmir, namely:—
without "Kargil and Leh districts",
Legislature.
and thereupon the said territories shall cease to form part of the existing State of Jammu and
Kashmir.
Formation of 4. On and from the appointed day, there shall be formed a new Union territory to be
Union territory known as the Union territory of Jammu and Kashmir comprising the territories of the existing
of Jammu and
Kashmir with State of Jammu and Kashmir other than those specified in section 3.
Legislature.

Governor of 5. On and from the appointed day, the Governor of the existing State of Jammu and
existing State Kashmir shall be the Lieutenant Governor for the Union territory of Jammu and Kashmir, and
of Jammu and
Kashmir to be Union territory of Ladakh for such period as may be determined by the President.
common
Lieutenant
Governor.
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SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 3

6. On and from the appointed day, in the First Schedule to the Constitution, under the Amendment
heading—“I. THE STATES”,— of First
Schedule to
(a) entry 15 shall be deleted. the
Constitution.
(b) entries from 16 to 29 shall be renumbered as 15 to 28.
(c) under the heading —“II. UNION TERRITORIES”,—
after entry 7, the following entries shall be inserted, namely:—
“8. Jammu and Kashmir: The territories specified in section 4 of the
Jammu and Kashmir Reorganization Act, 2019”.
“9. Ladakh: The territories specified in section 3 of the Jammu and
Kashmir Reorganization Act, 2019”.
7. Nothing in the foregoing provisions of this Part shall be deemed to affect the power Saving powers
of the Government of successor Union territory of Jammu and Kashmir to alter, after the of the
Government
appointed day, the name, area or boundaries of any district or other territorial division in that
of Union
Union territory. territory of
Jammu and
Kashmir.
PART III
REPRESENTATION IN THE LEGISLATURES
The Council of States
8. On and from the appointed day, in the Fourth Schedule to the Constitution, in the Amendment
Table,— of Fourth
Schedule to
(a) entry 21 shall be deleted; Constitution

(b) entries 22 to 31 shall be renumbered as entries 21 to 30, respectively;

(c) after entry 30, the following entry shall be inserted, namely:—
“31. Jammu and Kashmir ……………………4”
9. (1) On and from the appointed day, four sitting members of the Council of States Allocation of
representing the existing State of Jammu and Kashmir shall be deemed to have been elected sitting
members.
to fill the seats allotted to the Union territory of Jammu and Kashmir, as specified in the First
Schedule to this Act.
(2) The term of office of such sitting members shall remain unaltered.
The House of the People
10. On and from the appointed day, there shall be allocated five seats to the successor Representation
Union territory of Jammu and Kashmir and one seat to Union territory of Ladakh, in the in House of
the People.
43 of 1950. House of the People, and the First Schedule to the Representation of the People Act, 1950
(43 of 1950) shall be deemed to be amended accordingly.
Delimitation 11. (1) On and from the appointed day, the Delimitation of Parliamentary Constituencies Delimitation
of Order, 1976 shall stand amended as directed in the Second Schedule of this Act. of
Parliamentary Parliamentary
Constituencies (2) The Election Commission may conduct the elections to the House of the People for the Constituencies.
Order 1976. Union territory of Jammu and Kashmir and Union territory of Ladakh as per the allocation of seats
specified in the Delimitation of Parliamentary Constituencies Order, 1976 as amended by this Act.
12. (1) Every sitting member of the House of the People representing a constituency Provision as
which, on the appointed day by virtue of the provisions of section 10, stands allotted, with to sitting
members.
or without alteration of boundaries, to the successor Union territory of Jammu and Kashmir
or Union territory of Ladakh, as the case may be, shall be deemed to have been elected to the
House of the People by that constituency as so allotted.
(2) The term of office of such sitting members shall remain unaltered.
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4 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

The Lieutenant Governor and The Legislative Assembly of Union territory of

Jammu and Kashmir
Applicability 13. On and from the appointed day, the provisions contained in article 239A, which are
of article applicable to “Union territory of Puducherry”, shall also apply to the “Union territory of
239A of
Jammu and Kashmir”.
Constitution.

Legislative 14. (1) There shall be an Administrator appointed under article 239 of the Constitution
Assembly for of India for the Union territory of Jammu and Kashmir and shall be designated as Lieutenant
the Union
Governor of the said Union territory.
Territory of
Jammu and (2) There shall be a Legislative Assembly for the Union territory of Jammu and Kashmir.
Kashmir and
its (3) The total number of seats in the Legislative Assembly of the Union territory of
composition. Jammu and Kashmir to be filled by persons chosen by direct election shall be 107.
(4) Nowithstanding anything contained in sub-section (3), until the area of the Union
territory of Jammu and Kashmir under the occupation of Pakistan ceases to be so occupied
and the people residing in that area elect their representatives—
(a) twenty four seats in the Legislative Assembly of Union territory of Jammu
and Kashmir shall remain vacant and shall not be taken into account for reckoning the
total membership of the Assembly; and
(b) the said area and seats shall be excluded in delimiting the territorial
constituencies as provided under PART V of this Act.
(5) On and from the appointed day, the Delimitation of Assembly Constituencies
Order, 1995, as applicable to Union territory of Jammu and Kashmir, shall stand amended as
directed in the Third Schedule of this act.
(6) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in the
Legislative Assembly of the Union territory of Jammu and Kashmir.
(7) The number of seats reserved for the Scheduled Castes and the Scheduled Tribes
in the Legislative Assembly of the Union territory of Jammu and Kashmir under sub-section
(6) shall bear, as nearly as may be, the same proportion to the total number of seats in the
Assembly as the population of the Scheduled Castes in the Union territory of Jammu and
Kashmir or of the Scheduled Tribes in the Union territory of Jammu and Kashmir, in respect
of which seats are so reserved, bears to the total population of the Union territory of Jammu
and Kashmir.
Explanation: In this sub-section, the expression “population” means the population
as ascertained at the last preceding census of which the relevant figures have been published:
Provided that the reference in this Explanation to the last preceding census of which
the relevant figures have been published shall, until the relevant figures for the first census
taken after the year 2026 have been published, be construed as a reference to the 2011
census.
(8) Notwithstanding anything in sub-section (6), the reservation of seats for the
Scheduled Castes or Scheduled Tribes in the Legislative Assembly of the Union territory of
Jammu and Kashmir shall cease to have effect on the same date on which the reservation of
seats for the Scheduled Castes or the Scheduled Tribes in the House of the People shall
cease to have effect under article 334 of the Constitution of India:
(9) In the Second Schedule to the Representation of the People Act, 1950, under the 43 of 1950.
heading :—“I. THE STATES:”
“(a) entry 10 shall be deleted”.
“(b) entries 11 to 29 shall be renumbered as 10 to 28”.
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SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 5

43 of 1950. (10) In the Second Schedule to the Representation of the People Act, 1950 , under the
heading :—“II. Union Territories”
(a) after entry 4, the following entries shall be inserted, namely:—
1 2 3 4 5 6 7
‘‘5. Jammu and Kashmir 83 6 …. 83 6 …..’’
(11) The provisions of articles 324 to 327 and 329 of the Constitution of India, shall
apply in relation to the Union territory of Jammu and Kashmir, the Legislative Assembly and
the members thereof as they apply, in relation to a State, the Legislative Assembly of a State
and the members thereof respectively; and any reference in articles 326 and 329 to “appropriate
Legislature” shall be deemed to be a reference to Parliament.
15. Notwithstanding anything in sub-section (3) of section 14 the Lieutenant Governor Representation
of the successor Union territory of Jammu and Kashmir may nominate two members to the of women.
Legislative Assembly to give representation to women, if in his opinion, women are not
adequately represented in the Legislative Assembly.
16. A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly Qualification
unless he— for
membership
(a) is a citizen of India and makes and subscribes before some person authorised of Legislative
in that behalf by the Election Commission an oath or affirmation according to the form Assembly.
set out for the purpose in the Fourth Schedule of this Act;
(b) is not less than twenty-five years of age; and
(c) Possesses such other qualifications as may be prescribed in that behalf by or
under any law made by the Parliament.
17. The Legislative Assembly, unless sooner dissolved, shall continue for five years Duration of
from the date appointed for its first meeting and no longer, and the expiration of the said Legislative
Assembly.
period of five years shall operate as a dissolution of the Legislative Assembly:
Provided that the said period may, while a Proclamation of Emergency issued
under clause (1) of article 352 is in operation, be extended by the President by order for
a period not exceeding one year at a time and not extending in any case beyond a
period of six months after the Proclamation has ceased to operate.
18. (1) The Lieutenant Governor shall, from time to time, summon the Legislative Sessions of
Assembly to meet at such time and place as he thinks fit, but six months shall not intervene Legislative
Assembly,
between its last sitting in one session and the date appointed for its first sitting in the next prorogation
session. and
dissolution.
(2) The Lieutenant Governor may, from time to time,—
(a) prorogue the House;
(b) dissolve the Legislative Assembly.
19. (1) Legislative Assembly shall, as soon as may be, choose two members of the Speaker and
Assembly to be respectively Speaker and Deputy Speaker thereof and, so often as the office Deputy
Speaker of
of Speaker or Deputy Speaker becomes vacant, the Assembly shall choose another member Legislative
to be Speaker or Deputy Speaker, as the case may be. Assembly.
(2) A member holding office as Speaker or Deputy Speaker of the Assembly—
(a) shall vacate his office if he ceases to be a member of the Assembly;
(b) may at any time by writing under his hand addressed, if such member is the
Speaker, to the Deputy Speaker, and if such member is the Deputy Speaker, to the
Speaker, resign his office;
(c) may be removed from his office by a resolution of the Assembly passed by a
majority of all the then members of the Assembly:
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6 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

Provided that no resolution for the purpose of clause (c) shall be moved
unless at least fourteen days’ notice has been given of the intention to move the
resolution:
Provided further that, whenever the Assembly is dissolved, the Speaker
shall not vacate his office until immediately before the first meeting of the
Assembly after the dissolution.
(3) While the office of Speaker is vacant, the duties of the office shall be performed by
the Deputy Speaker or, if the office of Deputy Speaker is also vacant, by such member of the
Legislative Assembly as may be determined by the rules of procedure of the Assembly.
(4) During the absence of the Speaker from any sitting of the Legislative Assembly,
the Deputy Speaker, or, if he is also absent, such person as may be determined by the rules
of procedure of the Assembly, or, if no such person is present, such other person as may be
determined by the Legislative Assembly, shall act as Speaker.
(5) There shall be paid to the Speaker and the Deputy Speaker of the Legislative
Assembly, such salaries and allowances as may respectively be fixed by the Legislative
Assembly of the Union territory of Jammu and Kashmir by law and, until provision in that
behalf is so made, such salaries and allowances as the Lieutenant Governor may, by order
determine.
Speaker or 20. (1) At any sitting of the Legislative Assembly, while any resolution for the removal
Deputy of the Speaker from his office is under consideration, the Speaker, or while any resolution for
Speaker not to
preside while a the removal of the Deputy Speaker, from his office is under consideration, the Deputy
resolution for Speaker, shall not, though he is present, preside, and the provisions of sub-section (4) of
his removal section 19 shall apply in relation to every such sitting as they apply in relation to a sitting
from office is from which the Speaker or, as the case may be, the Deputy Speaker, is absent.
under
consideration. (2) The Speaker shall have the right to speak in, and otherwise to take part in the
proceedings of, the Legislative Assembly while any resolution for his removal from office is
under consideration in the Assembly and shall, notwithstanding anything in section 25, be
entitled to vote only in the first instance on such resolution or on any other matter during
such proceedings but not in the case of an equality of votes.
Special address 21. (1) At the commencement of the first session after each general election to the
by Lieutenant Legislative Assembly and at the commencement of the first session of each year, the Lieutenant
Governor to
Legislative
Governor shall address the Legislative Assembly, and shall inform the Legislative Assembly
Assembly. of the causes of its summons.
(2) Provision shall be made by the rules regulating the procedure of the Legislative
Assembly for the allotment of time for the discussion of matters referred to in such address.
Rights of 22. Every Minister and the Advocate-General for the Union territory of Jammu and
Ministers and Kashmir shall have the right to speak in, and otherwise to take part in the proceedings of, the
Advocate
General as
Legislative Assembly, and to speak in, and otherwise to take part in the proceedings of, any
respects committee of the Legislative Assembly of which he may be named a member, but shall not by
Legislative virtue of this section be entitled to vote.
Assembly.
Rights of 23. (1) The Lieutenant Governor may address the Legislative Assembly and may for
Lieutenant that purpose require the attendance of members.
Governor to
address and (2) The Lieutenant Governor may also send messages to the Legislative Assembly
send messages whether with respect to a Bill then pending in the Legislative Assembly or otherwise, and
to the
Legislative when a message so sent, the Legislative Assembly shall with all convenient despatch consider
Assembly. any matter required by the message to be taken into consideration.
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SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 7

24. Every member of the Legislative Assembly shall, before taking his seat, make and Oath or
subscribe before the Lieutenant Governor of the said Union territory, or some person affirmation by
members.
appointed in that behalf by him, an oath or affirmation according to the form set out for the
purpose in the Fourth Schedule of this Act.
25. (1) Save as otherwise provided in this Act, all questions at any sitting of the Voting in
Legislative Assembly shall be determined by a majority of votes of the members present and Assembly,
power of
voting, other than the Speaker or person acting as such.
Assembly to
(2) The Speaker, or person acting as such, shall not vote in the first instance, but shall act
notwithstanding
have and exercise a casting vote in the case of an equality of votes.
vacancies and
(3) The Legislative Assembly shall have power to act notwithstanding any vacancy quorum.
in the membership thereof, and any proceedings in the Legislative Assembly shall be valid
notwithstanding that it is discovered subsequently that some person who was not entitled
so to do, sat or voted or otherwise took part in the proceedings.
(4) The quorum to constitute a meeting of the Legislative Assembly shall be ten
members or one- tenth of the total number of members of the Legislative Assembly, which
ever is greater.
(5) If at any time during a meeting of the Legislative Assembly there is no quorum, it
shall be the duty of the Speaker, or person acting as such, either to adjourn the Legislative
Assembly or to suspend the meeting until there is a quorum.
26. (1) No person shall be a member both of Parliament and of the Legislative Assembly, Vacation of
and if a person is chosen a member both of Parliament and of such Assembly, then, at the seats.
expiration of such period as may be specified in the rules made by the President, that
person's seat in Parliament shall become vacant, unless he has previously resigned his seat
in the Legislative Assembly of the said Union territory.
(2) If a member of the Legislative Assembly—
(a) becomes subject to any of disqualification mentioned in section 27 or section
28 for membership of the Legislative Assembly; or
(b) resigns his seat by writing under his hand addressed to the Speaker, and his
resignation is accepted by the Speaker,
his seat shall thereupon become vacant.
(3) If for a period of sixty days a member of the Legislative Assembly is without
permission of the Assembly absent from all meetings thereof, the Assembly may declare his
seat vacant:
Provided that in computing the said period of sixty days, no account shall be
taken of any period during which the Assembly is prorogued or is adjourned for more
than four consecutive days.
27. (1) A person shall be disqualified for being chosen as, and for being, a member of Disqualifications
the Legislative Assembly— for
membership.
(a) if he holds any office of profit under the Government of India or the
Government of any State or the Government of Union territory of Jammu and Kashmir
or the Government or administration of any other Union territory or other than an
office declared by law made by Parliament or by the Legislative Assembly not to
disqualify its holder; or
(b) if he is for the time being disqualified for being chosen as, and for being, a
member of either House of Parliament under the provisions of sub-clause (b), sub-
clause (c) or sub-clause (d) of clause (1) of article 102 or of any law made in pursuance
of that article.
(2) For the purposes of this section, a person shall not be deemed to hold an office of
profit under the Government of India or the Government of any State or the Government of
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8 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

Union Territory of Jammu and Kashmir or the Government of any other Union
territory by reason only that he is a Minister either for the Union or for such State or Union
territory.
(3) If any question arises as to whether a member of the Legislative Assembly becomes
subject to any of disqualification under the provisions of sub-sections (1) and (2), the
question shall be referred for the decision of the Lieutenant Governor and his decision shall
be final.
(4) Before giving any decision on any such question, the Lieutenant Governor shall
obtain the opinion of the Election Commission and shall act according to such opinion.
Disqualification 28. The provisions of the Tenth Schedule to the Constitution shall, subject to the
on ground of necessary modifications (including modifications for construing references therein to the
defection for
being a Legislative Assembly of a State, article 188, article 194 and article 212 as references,
member. respectively, to the Legislative Assembly of Union territory of Jammu and Kashmir, as the
case may be, section 24, section 30 and section 50 of this Act), apply to and in relation to the
members of the Legislative Assembly of Union territory of Jammu and Kashmir as they apply
to and in relation to the members of the Legislative Assembly of a State, and accordingly,—
(a) the said Tenth Schedule as so modified shall be deemed to form part of this
Act; and
(b) a person shall be disqualified for being a member of the Legislative Assembly
if he is so disqualified under the said Tenth Schedule as so modified.
Penalty for 29. If a person sits or votes as a member of the Legislative Assembly before he has
sitting and complied with the requirements of section 24 or when he knows that he is not qualified or
voting before
making oath
that he is disqualified for membership thereof, or that he is prohibited from doing so by the
or affirmation provisions of any law made by Parliament or the Legislative Assembly of the Union territory
or when not of Jammu and Kashmir, he shall be liable in respect of each day on which he so sits or votes
qualified or to a penalty of five hundred rupees to be recovered as a debt due to the said Union territory.
when
disqualified.

Powers, 30. (1) Subject to the provisions of this Act and to the rules and standing orders
privileges, regulating the procedure of the Legislative Assembly, there shall be freedom of speech in the
etc., of
members.
Legislative Assembly.
(2) No member of the Legislative Assembly shall be liable to any proceedings in any
court in respect of anything said or any vote given by him in the Assembly or any committee
thereof, and no person shall be so liable in respect of the publication by or under the
authority of such Assembly of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of the Legislative Assembly
and of the members and the committees thereof shall be such as are for the time being
enjoyed by the House of the People and its members and committees.
(4) The provisions of sub-sections (1), (2) and (3) shall apply in relation to persons
who by virtue of this Act have the right to speak in, and otherwise to take part in the
proceedings of, the Legislative Assembly or any committee thereof as they apply in relation
to members of the Legislative Assembly.
Salaries and 31. Members of the Legislative Assembly shall be entitled to receive such salaries
allowances of and allowances as may from time to time be determined by the Legislative Assembly by law
members.
and, until provision in that behalf is so made, such salaries and allowances as the Lieutenant
Governor may, by order determine.
Extent of 32. (1) Subject to the provisions of this Act, the Legislative Assembly may make laws
legislative for the whole or any part of the Union territory of Jammu and Kashmir with respect to any of
power.
the matters enumerated in the State List except the subjects mentioned at entries 1 and 2,
namely “Public Order” and “Police” respectively or the Concurrent List in the Seventh
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SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 9

Schedule to the Constitution of India in so far as any such matter is applicable in relation to
the Union territories.
(2) Nothing in sub-section (1) shall derogate from the powers conferred on Parliament
by the Constitution to make laws with respect to any matter for the Union territory of Jammu
and Kashmir or any part thereof.
33. The property of the Union shall, save in so far as Parliament may by law otherwise Exemption of
provide, be exempted from all taxes imposed by or under any law made by the Legislative property of
the Union
Assembly or by or under any other law in force in the Union territory of Jammu and Kashmir: from taxation.
Provided that nothing in this section shall, until Parliament by law otherwise
provides, prevent any authority within the Union territory of Jammu and Kashmir from
levying any tax on any property of the Union to which such property was immediately
before the commencement of the Constitution liable or treated as liable, so long as that
tax continues to be levied in that Union territory.
34. (1) The provisions of article 286, article 287 and article 288 shall apply in relation to Restrictions
any law passed by the Legislative Assembly with respect to any of the matters referred to in on laws passed
by Legislative
those articles as they apply in relation to any law passed by the Legislature of a State with Assembly with
respect to those matters. respect to
certain
(2) The provisions of article 304 shall, with the necessary modifications, apply in matters.
relation to any law passed by the Legislative Assembly with respect to any of the matters
referred to in that article as they apply in relation to any law passed by the Legislature of a
State with respect to those matters.
35. If any provision of a law made by the Legislative Assembly with respect to matters Inconsistency
enumerated in the State List, in the Seventh Schedule to the Constitution is repugnant to between laws
made by
any provision of a law made by Parliament with respect to that matter, whether passed before Parliament
or after the law made by the Legislative Assembly, or, if any provision of a law made by the and laws made
Legislative Assembly with respect to any matter enumerated in the Concurrent List in the by Legislative
Assembly.
Seventh Schedule to the Constitution is repugnant to any provision of any earlier law, other
than a law made by the Legislative Assembly, with respect to that matter, then, in either case,
the law made by Parliament, or, as the case may be, such earlier law shall prevail and the law
made by the Legislative Assembly of the Union territory shall, to the extent of the repugnancy,
be void:
Provided that if such law made by the Legislative Assembly has been reserved
for the consideration of the President and has received his assent, such law shall
prevail in the Union territory of Jammu & Kashmir:
Provided further that nothing in this section shall prevent Parliament from
enacting at any time any law with respect to the same matter including a law adding to,
amending, varying or repealing the law so made by the Legislative Assembly.
36. (1) A Bill or amendment shall not be introduced into, or moved in, the Legislative Special
provisions as
Assembly except on the recommendation of the Lieutenant Governor, if such Bill or
to financial
Amendment makes provision for any of the following matters, namely:— Bills.
(a) the imposition, abolition, remission, alteration or regulation of any tax;
(b) the amendment of the law with respect to any financial obligations undertaken
or to be undertaken by the Government of the Union territory;
(c) the appropriation of moneys out of the Consolidated Fund of the Union
territory;
(d) the declaring of any expenditure to be expenditure charged on the
Consolidated Fund of the Union territory or the increasing of the amount of any such
expenditure;
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10 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

(e) the receipt of money on account of the Consolidated Fund of the Union
territory or the public account of the Union territory or the custody or issue of such
money or the audit of the account of the Union territory:
Provided that no recommendation shall be required under this sub-section for
the moving of an amendment making provision for the reduction or abolition of any
tax.
(2) A Bill or Amendment shall not be deemed to make provision for any of the matters
aforesaid by reason only that it provides for the imposition of fines or other pecuniary
penalties, or for the demand or payment of fees for licences or fees for services rendered, or
by reason that it provides for the imposition, abolition, remission, alteration or regulation of
any tax by any local authority or body for local purposes.
(3) A Bill which, if enacted and brought into operation, would involve expenditure
from the Consolidated Fund of Union territory shall not be passed by the Legislative Assembly
of the Union territory unless the Lieutenant Governor has recommended to the Assembly,
the consideration of the Bill.
Procedure as 37. (1) A Bill pending in the Legislative Assembly shall not lapse by reason of the
to lapsing of prorogation of the Legislative Assembly.
Bills.
(2) A Bill which is pending in the Legislative Assembly shall lapse on dissolution of
the Legislative Assembly.
Assent to 38. When a Bill has been passed by the Legislative Assembly, it shall be presented to
Bills. the Lieutenant Governor and the Lieutenant Governor shall declare either that he assents to
the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration
of the President:
Provided that the Lieutenant Governor may, as soon as possible after the
presentation of the Bill to him for assent, return the Bill if it is not a Money Bill together
with a message requesting that the Assembly will reconsider the Bill or any specified
provisions thereof, and, in particular, will consider the desirability of introducing any
such amendments as he may recommend in his message and, when a Bill is so returned,
the Assembly will reconsider the Bill accordingly, and if the Bill is passed again with or
without amendment and presented to the Lieutenant Governor for assent, the Lieutenant
Governor shall declare either that he assents to the Bill or that he reserves the Bill for
the consideration of the President:
Provided further that the Lieutenant Governor shall not assent to, but shall
reserve for the consideration of the President, any Bill which,—
(a) in the opinion of the Lieutenant Governor would, if it became law, so
derogate from the powers of the High Court as to endanger the position which
that Court is, by the Constitution, designed to fill; or
(b) relates to any of the matters specified in clause (1) of article 31A; or
(c) the President may, by order, direct to be reserved for his consideration.
Explanation.—For the purposes of this section and section 39, a Bill shall be
deemed to be a Money Bill if it contains only provisions dealing with all or any of the
matters specified in sub-section (1) of section 36 or any matter incidental to any of
those matters and, in either case, there is endorsed thereon the certificate of the
Speaker of the Legislative Assembly signed by him that it is a Money Bill.
Bills reserved 39. When a Bill is reserved by Lieutenant Governor for the consideration of the
for President, the President shall declare either that he assents to the Bill or that he withholds
consideration.
assent therefrom:
Provided that where the Bill is not a Money Bill, the President may direct the
Lieutenant Governor to return the Bill to the Legislative Assembly together with such
a message as is mentioned in the first proviso to section 38 and, when a Bill is so
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SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 11

returned, the Assembly shall reconsider it accordingly within a period of six months
from the date of receipt of such message and, if it is again passed by the Assembly
with or without amendment, it shall be presented again to the President for his
consideration.
40. No Act of the Legislative Assembly and no provision in any such Act, shall be Requirements
invalid by reason only that some previous sanction or recommendation required by this Act as to sanction
and
was not given, if assent to that Act was given by the Lieutenant Governor, or, on being recommendations
reserved by the Lieutenant Governor for the consideration of the President, by the President. to be regarded
as matters of
procedure
only.

41. (1) The Lieutenant Governor shall in respect of every financial year cause to be Annual
laid before the Legislative Assembly of the Union territory of Jammu and Kashmir, a statement financial
statement.
of the estimated receipts and expenditure of the Union territory for that year, in this Part
referred to as the “annual financial statement”.
(2) The estimates of expenditure embodied in the annual financial statement shall
show separately—
(a) the sums required to meet expenditure described by this Act as expenditure
charged upon the Consolidated Fund of the Union territory of Jammu and Kashmir,
and
(b) the sums required to meet other expenditure proposed to be made from the
Consolidated Fund of the Union territory of Jammu and Kashmir; and shall distinguish
expenditure on revenue account from other expenditure.
(3) The following expenditure shall be expenditure charged on the Consolidated Fund
of the Union territory of Jammu and Kashmir:—
(a) the emoluments and allowances of the Lieutenant Governor and other
expenditure relating to his office;
(b) the charges payable in respect of loans advanced to the Union territory of
Jammu and Kashmir from the Consolidated Fund of India including interest, sinking
fund charges and redemption charges, and other expenditure connected therewith;
(c) the salaries and allowances of the Speaker and the Deputy Speaker of the
Legislative Assembly;
(d) expenditure in respect of the salaries and allowances of Judges of High
Court of Jammu and Kashmir;
(e) any sums required to satisfy any judgment, decree or award of any court or
arbitral tribunal;
(f) expenditure incurred by the Lieutenant Governor in the discharge of his
special responsibility;
(g) any other expenditure declared by the Constitution or by law made by
Parliament or by the Legislative Assembly of the Union territory of Jammu and Kashmir
to be so charged.
42. (1) So much of the estimates as relates to expenditure charged upon the Procedure in
Consolidated Fund of Union territory of Jammu and Kashmir shall not be submitted to the Legislative
Assembly with
vote of the Legislative Assembly, but nothing in this sub-section shall be construed as respect to
preventing the discussion in the Legislative Assembly of any of those estimates. estimates.
(2) So much of the said estimates as relates to other expenditure shall be submitted in
the form of demands for grants to the Legislative Assembly, and the Legislative Assembly
shall have power to assent, or to refuse to assent, to any demand, or to assent to any
demand subject to a reduction of the amount specified therein.
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12 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

(3) No demand for a grant shall be made except on the recommendation of the Lieutenant
Governor.
Appropriation 43. (1) As soon as may be after the grants under section 42 have been made by the
Bills. Legislative Assembly, there shall be introduced a Bill to provide for the appropriation out of
the Consolidated Fund of the Union territory of all moneys required to meet—
(a) the grants so made by the Legislative Assembly, and
(b) the expenditure charged on the Consolidated Fund of the Union territory of
Jammu and Kashmir but not exceeding in any case the amount shown in the statement
previously laid before the Assembly.
(2) No amendment shall be proposed to any such Bill in the Legislative Assembly
which will have the effect of varying the amount or altering the destination of any grant so
made or of varying the amount of any expenditure charged on the Consolidated Fund of the
Union territory of Jammu and Kashmir and the decision of the person presiding as to whether
an amendment is inadmissible under this sub-section shall be final.
(3) Subject to the other provisions of this Act, no money shall be withdrawn from the
Consolidated Fund of the Union territory except under appropriation made by law passed in
accordance with the provisions of this section.
Supplementary, 44. (1) The Lieutenant Governor shall—
additional or
excess grants. (a) if the amount authorised by any law made in accordance with the provisions
of section 43 to be expended for a particular service for the current financial year is
found to be insufficient for the purposes of that year or when a need has arisen during
the current financial year for supplementary or additional expenditure upon some new
service not contemplated in the annual financial statement for that year, or
(b) if any money has been spent on any service during a financial year in excess
of the amount granted for that service and for that year,
cause to be laid before the Legislative Assembly, another statement showing the estimated
amount of that expenditure or cause to be presented to the Legislative Assembly with such
previous approval a demand for such excess, as the case may be.
(2) The provisions of sections 41, 42 and 43 shall have effect in relation to any such
statement and expenditure or demand and also to any law to be made authorising the
appropriation of moneys out of the Consolidated Fund of the Union territory of Jammu and
Kashmir to meet such expenditure or the grant in respect of such demand as they have effect
in relation to the annual financial statement and the expenditure mentioned therein or to a
demand for a grant and the law to be made for the authorisation of appropriation of moneys
out of the Consolidated Fund of the Union territory of Jammu and Kashmir to meet such
expenditure or grant.
Votes on 45. (1) Notwithstanding anything in the foregoing provisions of this Part, the
account. Legislative Assembly shall have power to make any grant in advance in respect of the
estimated expenditure for a part of any financial year pending the completion of the procedure
prescribed in section 42 for the voting of such grant and the passing of the law in accordance
with the provisions of section 43 in relation to that expenditure and the Legislative Assembly
shall have power to authorise by law the withdrawal of moneys from the Consolidated Fund
of the Union territory of Jammu and Kashmir for the purposes for which the said grant is
made.
(2) The provisions of sections 42 and 43 shall have effect in relation to the making of
any grant under sub-section (1) or to any law to be made under that sub-section as they
have effect in relation to the making of a grant with regard to any expenditure mentioned in
the annual financial statement and the law to be made for the authorisation of appropriation
of moneys out of the Consolidated Fund of the Union territory of Jammu and Kashmir to
meet such expenditure.
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SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 13

46. (1) The Legislative Assembly may make rules for regulating, subject to the provisions Rules of
of this Act, its procedure and the conduct of its business: procedure.

Provided that the Lieutenant Governor shall, after consultation with the Speaker
of the Legislative Assembly, make rules—
(a) for securing the timely completion of financial business;
(b) for regulating the procedure of, and the conduct of business in, the
Legislative Assembly in relation to any financial matter or to any Bill for the
appropriation of moneys out of the Consolidated Fund of the Union territory of
Jammu and Kashmir;
(c) for prohibiting the discussion of, or the asking of questions on, any
matter which affects the discharge of the functions of the Lieutenant Governor
in so far as he is required by this Act to act in his discretion.
(2) Until rules are made under sub-section (1), the rules of procedure and standing
orders in force immediately before the commencement of this Act, with respect to the
Legislative Assembly of the existing State of Jammu and Kashmir shall have effect in relation
to the Legislative Assembly of the Union territory of Jammu and Kashmir subject to such
modifications and adaptations as may be made therein by the Speaker of Legislative Assembly.
47. (1) The Legislative Assembly may by law adopt any one or more of the languages Official
in use in the Union territory of Jammu and Kashmir or Hindi as the official language or language or
languages of
languages to be used for all or any of the official purposes of the Union territory of Jammu
Union
and Kashmir. territory of
Jammu and
(2) The business in the Legislative Assembly of the Union territory of Jammu and
Kashmir and
Kashmir shall be transacted in the official language or languages of the Union territory of language or
Jammu and Kashmir or in Hindi or in English: languages to
be used in
Provided that the Speaker of the Legislative Assembly or person acting as such, Legislative
as the case may be, may permit any member who cannot adequately express himself in Assembly
any of the languages aforesaid to address the Legislative Assembly in his mother- thereof.
tongue.
48. Notwithstanding anything contained in section 47, until Parliament by law otherwise Language to
provides, the authoritative texts— be used for
Acts, Bills,
(a) of all Bills to be introduced or amendments thereto to be moved in the etc.
Legislative Assembly,
(b) of all Acts passed by the Legislative Assembly, and
(c) of all orders, rules, regulations and bye-laws issued under any law made by
the Legislative Assembly of,
shall be in the English language:
Provided that where the Legislative Assembly has prescribed any language
other than the English language for use in Bills introduced in, or Acts passed by, the
Legislative Assembly or in any order, rule, regulation or bye-law issued under any law
made by the Legislative Assembly of the Union territory of Jammu and Kashmir, a
translation of the same in the English language published under the authority of the
Lieutenant Governor in the Official Gazette shall be deemed to be the authoritative text
thereof in the English language.
49. No discussion shall take place in the Legislative Assembly with respect to the Restriction on
conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties. discussion in
the Legislative
Assembly.
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14 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

Courts not to 50. (1) The validity of any proceedings in the Legislative Assembly shall not be called
inquire into in question on the ground of any alleged irregularity of procedure.
proceedings of
Legislative (2) No officer or member of the Legislative Assembly in whom powers are vested by or
Assembly.
under this Act for regulating procedure or the conduct of business, or for maintaining order
in the Legislative Assembly shall be subject to the jurisdiction of any court in respect of the
exercise by him of those powers.
Secretariat of 51. (1) Legislative Assembly shall have a separate secretariat staff.
the Legislative
Assembly. (2) The Legislative Assembly may by law regulate the recruitment, and the conditions
of service of persons appointed, to the secretarial staff of the Legislative Assembly.
(3) Until provision is made by the Legislative Assembly under sub-section (2), the
Lieutenant Governor may, after consultation with the Speaker of the Legislative Assembly
make rules regulating the recruitment, and the conditions of service of persons appointed, to
the secretarial staff of the Assembly and any rules so made shall have effect subject to the
provisions of any law made under the said sub-section.
Power of 52. (1) If at any time, except when the Legislative Assembly is in session, the Lieutenant
Lieutenant Governor thereof is satisfied that circumstances exist which render it necessary for him to
Governor to
promulgate take immediate action, he may promulgate such Ordinances as the circumstances appear to
Ordinances him to require:
during recess
of Legislative Provided that the power of making an Ordinance under this section shall extend
Assembly. only to those matters with respect to which the Legislative Assembly has power to
make laws.
(2) An Ordinance promulgated under this section shall have the same force and effect
as an Act of the Legislative Assembly assented by the Lieutenant Governor but every such
Ordinance—
(a) Shall be laid before the Legislative Assembly and shall cease to operate at
the expiration of six weeks from the re-assembly of the Legislative Assembly, or if
before the expiration of that period a resolution disapproving it is passed by the
Legislative Assembly; and
(b) May be withdrawn at any time by the Lieutenant Governor.
Council of Ministers for the Union territory of Jammu and Kashmir
Council of 53. (1) There shall be a Council of Ministers consisting of not more than ten percent
Ministers. of the total number of members in the Legislative Assembly, with the Chief Minister at the
head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to
matters with respect to which the Legislative Assembly has power to make laws except in so
far as he is required by or under this Act to act in his discretion or by or under any law to
exercise any judicial or quasi-judicial functions.
(2) The Lieutenant Governor shall, in the exercise of his functions, act in his discretion
in a matter:
(i) which falls outside the purview of the powers conferred on the Legislative
Assembly; or
(ii) in which he is required by or under any law to act in his discretion or to
exercise any judicial functions.
(iii) related to All India Services and Anti Corruption Bureau:
Provided that if any question arises whether any matter is or is not a matter as
respects which the Lieutenant Governor is by or under this Act required to act in his
discretion, the decision of the Lieutenant Governor in his discretion shall be final, and
the validity of anything done by the Lieutenant Governor shall not be called in question
on the ground that he ought or ought not to have acted in his discretion.
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SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 15

(3) The question whether any, and if so what, advice was tendered by Ministers to the
Lieutenant Governor shall not be inquired into in any court.
54. (1) The Chief Minister shall be appointed by the Lieutenant Governor and the Other
other Ministers shall be appointed by the Lieutenant Governor on the advice of the Chief provisions as
to Ministers.
Minister.
(2) The Ministers shall hold office during the pleasure of the Lieutenant Governor.
(3) The Council of Ministers shall be collectively responsible to the Legislative
Assembly.
(4) Before a Minister enters upon his office, the Lieutenant Governor shall administer
to him the oaths of office and of secrecy according to the forms set out for the purpose in the
Fourth Schedule.
(5) A Minister who for any period of six consecutive months is not a member of the
Legislative Assembly shall at the expiration of that period cease to be a Minister.
(6) The salaries and allowances of Ministers shall be such as the Legislative Assembly
may from time to time by law determine, and until the Legislative Assembly so determines,
shall be determined by the Lieutenant Governor.
55. (1) The Lieutenant Governor shall make rules on the advice of the Council of Conduct of
Ministers— business.

(a) for the allocation of business to the Ministers; and

(b) for the more convenient transaction of business with the Ministers including
the procedure to be adopted in case of a difference of opinion between the Lieutenant
Governor and the Council of Ministers or a Minister.
(2) Save as otherwise provided in this Act, all executive action of the Lieutenant
Governor, whether taken on the advice of his Ministers or otherwise, shall be expressed to
be taken in the name of the Lieutenant Governor.
(3) Orders and other instruments made and executed in the name of the Lieutenant
Governor, shall be authenticated in such manner as may be specified in rules to be made by
the Lieutenant Governor on the advice of council of ministers, and the validity of an order or
instrument which is so authenticated shall not be called in question on the ground that it is
not an order or instrument made or executed by the Lieutenant Governor.
56. It shall be the duty of the Chief Minister— Duties of
Chief Minister
(a) to communicate to the Lieutenant Governor all decisions of the Council of as respects the
Ministers relating to the administration of the affairs of the Union territory and furnishing of
proposals for legislation; information
to the
(b) to furnish such information relating to the administration of the affairs of the Lieutenant
Union territory and proposals for legislation as Lieutenant Governor may call for. Governor, etc.

Legislative Council
57. (1) Notwithstanding anything to the contrary contained in any law, document, Abolition of
judgment, ordinance, rule, regulation or notification, on and from the appointed day, the Legislative
Council of the
Legislative Council of the existing State of Jammu and Kashmir shall stand abolished. State of
(2) On the abolition of the Legislative Council, every member thereof shall ceased to Jammu and
Kashmir.
be such member.
(3) All Bills pending in the Legislative Council immediately before the appointed day
shall lapse on the abolition of the Council.
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16 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

PART IV
ADMINISTRATION OF UNION TERRITORY OF LADAKH
Appointment 58. (1) The Union territory of Ladakh will be administered by the President acting, to
of Lieutenant such extent as he thinks fit, through a Lieutenant Governor to be appointed by him under
Governor of
Union
article 239.
territory of (2) The President may make regulations for the peace, progress and good government
Ladakh.
of the Union territory of Ladakh under article 240 of the Constitution of India.
(3) Any regulation so made may repeal or amend any Act made by Parliament or any
other law which is for the time being applicable to the Union territory of Ladakh and, when
promulgated by the President, shall have the same force and effect as an Act of Parliament
which applies to the Union territory of Ladakh.
(4) The Lieutenant Governor shall be assisted by advisor(s) to be appointed by the
Central Government.
PART V
DELIMITATION OF CONSTITUENCIES
Definitions. 59. In this Part, unless the context otherwise requires,—
(a) “associate member” means a member associated with the Delimitation
Commission under section 60;
(b) “Delimitation Commission” means the Delimitation Commission to be
constituted under section 3 of the Delimitation Act, 2002; and thereafter by any law 33 of 2002.
made by the Parliament.
(c) “Election Commission” means the Election Commission appointed by the
President under article 324 of the Constitution of India;
(d) “latest census figures” mean the census figures ascertained at the latest
census of which the finally published figures are available;
(e) “Parliamentary Constituency” means a constituency provided by law for the
purpose of elections to the House of the People from Union territory of Jammu and
Kashmir and Union territory of Ladakh.
(f) “Assembly Constituency” means a constituency provided by law for the
purpose of elections to the Legislative Assembly.
Delimitation 60. (1) Without prejudice to sub-sections (3) of section 14 of this Act, the number of
of seats in the Legislative Assembly of Union territory of Jammu and Kashmir shall be increased
constituencies.
from 107 to 114, and delimitation of the constituencies may be determined by the Election
Commission in the manner hereinafter provided—
(a) the number of seats to be reserved for the Scheduled Castes and the Scheduled
Tribes in the Legislative Assembly, having regard to the relevant provisions of the
Constitution;
(b) the assembly constituencies into which the Union territory shall be divided,
the extent of each of such constituencies and in which of them seats shall be reserved
for the Scheduled Castes or for the Scheduled Tribes; and
(c) the adjustments in the boundaries and description of the extent of the
parliamentary constituencies in each Union territory that may be necessary or expedient.
(2) In determining the matters referred to in clauses (b) and (c) of sub-section (1), the
Election Commission shall have regard to the following provisions, namely:—
(a) all the constituencies shall be single-member constituencies;
(b) all constituencies shall, as far as practicable, be geographically compact
areas, and in delimiting them, regard shall be had to physical features, existing
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SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 17

boundaries of administrative units, facilities of communication and conveniences to

the public; and
(c) constituencies in which seats are reserved for the Scheduled Castes and the
Scheduled Tribes shall, as far as practicable, be located in areas where the proportion
of their population to the total population is the largest.
(3) The Election Commission shall, for the purpose of assisting it in the performance of
its functions under sub-section (1), associate with itself as associate members, four persons
as the Central Government may by order specify, being persons who are the members of the
Legislative Assembly of the Union territory of Jammu and Kashmir or four members of the
House of the People representing the Union territory of Jammu and Kashmir:
Provided that none of the associate members shall have a right to vote or to sign any
decision of the Election Commission.
(4) If, owing to death or resignation, the office of an associate member falls vacant, it
shall be filled as far as practicable, in accordance with the provisions of sub-section (3).
(5) The Election Commission shall—
(a) publish its proposals for the delimitation of constituencies together with the
dissenting proposals, if any, of any associate member who desires publication thereof
in the Official Gazette and in such other manner as the Commission may consider fit,
together with a notice inviting objections and suggestions in relation to the proposals
and specifying a date on or after which the proposals will be further considered by it;
(b) consider all objections and suggestions which may have been received by it
before the date so specified; and
(c) after considering all objections and suggestions which may have been
received by it before the date so specified, determine by one or more orders the
delimitation of constituencies and cause such order or orders to be published in the
Official Gazette, and there upon such publication, the order or orders shall have the
full force of law and shall not be called in question in any court.
(6) As soon as may be after such publication, every such order relating to assembly
constituencies shall be laid before the Legislative Assembly of the Union territory of Jammu
and Kashmir.
61. (1) The Election Commission may by notification in the Official Gazette,— Power of
Election
(a) correct any printing mistakes in any order made under section 60 or any error Commission
arising therein from inadvertent slip or omission; and to maintain
Delimitation
(b) where the boundaries or name of any territorial division mentioned in any Orders up-to
such order or orders is or are altered, make such amendments as appear to it to be date.
necessary or expedient for bringing such order up-to-date.
(2) Every notification under this section relating to an assembly constituency shall be
laid, as soon as may be after it is issued, before the Legislative Assembly.
62. (1) On and from the appointed day, notwithstanding the publication of orders Special
33 of 2002. under sub-section (1) of section 10 of the Delimitation Act, 2002 or anything contained in provision as
to
sub-section (2) or sub-section (4) of the said section, the Delimitation Act, 2002 shall be readjustment
deemed to have been amended as provided below: of
Parliamentary
(a) in section 2(f), the words “but does not include the State of Jammu and and Assembly
Kashmir” shall be omitted; and Constituencies
on the basis of
(b) for the purpose of delimitation of Assembly and Parliamentary Constituencies, 2011 census.
the words and figure “census held in the year 2001”, wherever occurring, shall be
construed as words and figure “census held in the year 2011”.
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18 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

(2) Readjustment of the constituencies as provided under section 60 in the successor

Union territory of Jammu and Kashmir into Assembly Constituencies, shall be carried by the
Delimitation Commission, to be constituted under the Delimitation Act, 2002 as amended by
this Act, and shall take effect from such date as the Central Government may, by order,
published in the Official Gazette, specify.
(3) Readjustment of the constituencies as provided under section 11 in the successor
Union territory of Jammu and Kashmir into Parliamentary Constituencies, shall be carried by
the Delimitation Commission, to be constituted under the Delimitation Act, 2002 as amended
by this Act, and shall take effect from such date as the Central Government may, by order,
published in the Official Gazette, specify.
Special 63. Notwithstanding anything contained in sections 59 to 61, until the relevant figures
provisions as for the first census taken after the year 2026 have been published, it shall not be necessary
to
readjustment
to readjust the division of successor Union territory of Jammu and Kashmir into Assembly
of Assembly and Parliamentary Constituencies and any reference to the “latest census figures” in this
and Part shall be construed as a reference to the 2011 census figures.
Parliamentary
Constituencies.
Procedure as 64. The procedure as provided in the law made by Parliament, shall apply, in relation to
to the delimitation of Parliamentary and Assembly constituencies under this Part as they apply in
delimitation.
relation to the delimitation of Parliamentary and Assembly constituencies under that law.
PART VI
SCHEDULED CASTES AND SCHEDULED TRIBES
Applicability 65. On and from the appointed day, the Constitution Jammu and Kashmir (Scheduled Jammu and
of Scheduled Kashmir
Castes) Order, 1956, shall stand applied to the Union territory of Jammu and Kashmir and (Scheduled Castes)
Castes Order.
Union territory of Ladakh. Order, 1956.
Applicability 66. On and from the appointed day, the Constitution Jammu and Kashmir (Scheduled Jammu and
of Scheduled Kashmir
Tribes) Order, 1989, shall stand applied to the Union territory of Jammu and Kashmir and (Scheduled Tribes)
Tribes Order.
Union territory of Ladakh. Order, 1989.
PART VII
MISCELLANEOUS AND TRANSITIONAL PROVISIONS
Consolidated 67. (1) On and from the appointed day, all revenues received in the Union territory of
Fund of the Jammu and Kashmir by the Government of India or the Lieutenant Governor of the Union
Union
territory of territory of Jammu and Kashmir in relation to any matter with respect to which the Legislative
Jammu and Assembly of the Union territory of Jammu and Kashmir has power to make laws, and all
Kashmir. grants made and all loans advanced to the Union territory of Jammu and Kashmir from the
Consolidated Fund of India and all loans raised by the Government of India or the Lieutenant
Governor of the Union territory of Jammu and Kashmir upon the security of the Consolidated
Fund of the Union territory of Jammu and Kashmir and all moneys received by the Union
territory of Jammu and Kashmir in repayment of loans shall form one Consolidated Fund to
be entitled “the Consolidated Fund of the Union territory of Jammu and Kashmir”.
(2) No moneys out of such Consolidated Fund shall be appropriated except in
accordance with, and for the purposes and in the manner provided in, this Act.
(3) The custody of such Consolidated Fund, the payment of moneys into such Funds,
the withdrawal of moneys therefrom and all other matters connected with or ancillary to
those matters shall be regulated by rules made by the Lieutenant Governor.
Public 68. (1) On and from the appointed day, all other public moneys received by or on
Account of behalf of the Lieutenant Governor shall be credited to a Public Account entitled “the Public
the Union
Account of the Union territory of Jammu and Kashmir”.
territory of
Jammu and (2) The custody of public moneys, other than those credited to the Consolidated
Kashmir and
Fund of the Union territory or the Contingency Fund of the Union territory of Jammu and
moneys
credited to it. Kashmir, received by or on behalf of the Lieutenant Governor, their payment into the Public
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SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 19

Accounts of the Union territory of Jammu and Kashmir and the withdrawal of moneys from
such account and all other matters connected with or ancillary to the aforesaid matters shall
be regulated by rules made by the Lieutenant Governor on the advice of Council of Ministers.
69. (1) There shall be established a Contingency Fund in the nature of an imprest to be Contingency
entitled “the Contingency Fund of the Union territory of Jammu and Kashmir", into which Fund of Union
territory of
shall be paid from and out of the Consolidated Fund of the Union territory of Jammu and
Jammu and
Kashmir such sums as may, from time to time, be determined by law made by the Legislative Kashmir.
Assembly of the Union territory of Jammu and Kashmir; and the said Fund shall be held by
the Lieutenant Governor to enable advances to be made by him out of such Fund.
(2) No advances shall be made out of the Contingency Fund of the Union territory of
Jammu and Kashmir except for the purposes of meeting unforeseen expenditure pending
authorisation of such expenditure by the Legislative Assembly under appropriations made
by law.
(3) The Lieutenant Governor on the advice of the Council of Ministers may make rules
regulating all matters connected with or ancillary to the custody of, the payment of moneys
into, and the withdrawal of moneys from, the Contingency Fund of the Union territory of
Jammu and Kashmir.
70. (1) The executive power of the Union territory extends to borrowing upon the Borrowing
security of the Consolidated Fund of the Union territory of Jammu and Kashmir within such upon the
security of
limits, if any, as may, from time to time, be fixed by Legislative assembly by law and to the Consolidated
giving of guarantees within such limits, if any, as may be so fixed. Fund of Union
territory of
(2) Any sums required for the purpose of invoking a guarantee shall be charged on Jammu and
the Consolidated Fund of the Union territory of Jammu and Kashmir. Kashmir.

71. The accounts of the Union territory of Jammu and Kashmir shall be kept in such Form of
form as the Lieutenant Governor may, after obtaining advice of the Comptroller and Auditor- accounts of
the Union
General of India, prescribe by rules. territory of
Jammu and
Kashmir.

72. The reports of the Comptroller and Auditor-General of India relating to the accounts Audit reports.
of Union territory of Jammu and Kashmir for any period subsequent to the date referred to in
sub-section (1) of section 67 shall be submitted to the Lieutenant Governor who shall cause
them to be laid before the Legislative Assembly.
73. If the President, on receipt of a report from the Lieutenant Governor of Union Provision in
territory of Jammu and Kashmir, or otherwise, is satisfied,— case of failure
of
(a) that a situation has arisen in which the administration of the Union territory constitutional
of Jammu and Kashmir cannot be carried on in accordance with the provisions of this machinery.
Act, or
(b) that for the proper administration of Union territory of Jammu and Kashmir it
is necessary or expedient so to do,
the President may, by order, suspend the operation of all or any of the provisions of this Act
for such period as he thinks fit and make such incidental and consequential provisions as
may appear to him to be necessary or expedient for administering the Union territory of
Jammu and Kashmir in accordance with the provisions of this Act.
74. Where the Legislative Assembly is dissolved, or its functioning as such Assembly Authorisation
remains suspended, on account of an order under section 73, it shall be competent for the of expenditure
by President.
President to authorize, when the House of the People is not in session, expenditure from the
Consolidated Fund of the Union territory of Jammu and Kashmir pending the sanction of
such expenditure by Parliament.
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20 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

PART VIII
HIGH COURT
High Court of 75. (1) On and from the appointed day,—
Jammu and
Kashmir to be (a) the High Court of Jammu and Kashmir shall be the common High Court for
common High the Union territory of Jammu and Kashmir and Union territory of Ladakh;
Court.
(b) the Judges of the High Court of Jammu and Kashmir for the existing State of
Jammu and Kashmir holding office immediately before the appointed day shall become
on that day the Judges of the common High Court.
(2) The expenditure in respect of salaries and allowances of the Judges of the common
High Court shall be allocated amongst the Union territory of Jammu and Kashmir and Union
territory of Ladakh on the basis of population ratio.
Special 76. (1) On and from the date referred to in sub-section (1) of section 75, in the Advocates
provision 25 of 1961.
Act, 1961, in section 3, in sub-section (1),—
relating to Bar
Council and (a) in clause (a), the words “Jammu and Kashmir” shall be deleted.
advocates.
(b) after clause (f), the following clause shall be inserted, namely—
- (g) - for the Union territory of Jammu and Kashmir and Union territory of
Ladakh, to be known as the Bar Council of Jammu and Kashmir; and Ladakh.
(2) Any person who immediately before the date referred to in sub-section (1) of
section 75 is an advocate on the roll of the Bar Council of the existing State of Jammu and
Kashmir and practising as an advocate in the High Court of Jammu and Kashmir, may
continue to be members of the “Bar council of Jammu and Kashmir; and Ladakh’’,
notwithstanding anything contained in the Advocates Act, 1961 and the rules made
thereunder.
(3) The persons other than the advocates who are entitled immediately before the date
referred to in sub-section (1) of section 75, on and after that date, be recognised as such
persons entitled also to practise in the common High Court of Jammu and Kashmir or any
subordinate court thereof, as the case may be.
(4) The right of audience in the common High Court of Jammu and Kashmir shall be
regulated in accordance with the like principles as immediately before the date referred to in
sub-section (1) of section 75, are in force with respect to the right of audience in the
High Court of Jammu and Kashmir.
Practice and 77. Subject to the provisions of this Part, the law in force immediately before the date
procedure in referred to in sub-section (1) of section 75 with respect to practice and procedure in the
common High
High Court of Jammu and Kashmir shall, with the necessary modifications, apply in
Court of
Jammu and relation to the common High Court of Jammu and Kashmir and accordingly, the common
Kashmir. High Court of Jammu and Kashmir shall have all such powers to make rules and orders with
respect to practice and procedure as are immediately before that date exercisable by the
common High Court of Jammu and Kashmir:
Provided that any rules or orders which are in force immediately before the date
referred to in sub-section (1) of section 75 with respect to practice and procedure in the
High Court of Jammu and Kashmir shall, until varied or revoked by rules or orders made
by the common High Court of Jammu and Kashmir, apply with the necessary modifications
in relation to practice and procedure in the common High Court of Jammu and Kashmir as if
made by that Court.
Savings. 78. Nothing in this Part shall affect the application to the common High Court of
Jammu and Kashmir of any provisions of the Constitution, and this Part shall have effect
subject to any provision that may be made on or after the date referred to in sub-section (1)
of section 75 with respect to the common High Court of Jammu and Kashmir by any Legislature
or other authority having power to make such provision.
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SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 21

PART IX
ADVOCATE-GENERAL OF UNION TERRITORY OF JAMMU AND KASHMIR
79. (1) The Lieutenant Governor shall appoint a person who is qualified to be appointed Advocate
a Judge of the High Court, to be Advocate-General for the Union territory of Jammu and General for
Union
Kashmir. territory of
(2) It shall be the duty of such Advocate - General to give advice to the Government of Jammu and
Kashmir.
such Union territory upon such legal matters and to perform such other duties of a legal
character, as may from time to time be referred or assigned to him by the said Government,
and to discharge the functions conferred on him by or under the Constitution or any other
law for the time being in force.
(3) In the performance of his duties, the Advocate-General shall have the right of
audience in all courts in the Union territory of Jammu and Kashmir.
(4) The Advocate-General shall hold office during the pleasure of the Lieutenant
Governor and receive such remuneration as the Lieutenant Governor may determine.
PART X
AUTHORISATION OF EXPENDITURE AND DISTRIBUTION OF REVENUES
80. The Governor of existing State of Jammu and Kashmir may, at any time before the Authorisation
of expenditure
appointed day, authorise such expenditure from the Consolidated Fund of the Union territory
of Union
of Jammu and Kashmir as he deems necessary for any period not more than six months territory of
beginning with the appointed day pending the sanction of such expenditure by the Legislative Jammu and
Assembly of the Union territory of Jammu and Kashmir: Kashmir.

Provided that the Lieutenant Governor of Union territory of Jammu and Kashmir may,
after the appointed day, authorise such further expenditure as he deems necessary from the
Consolidated Fund of the Union territory of Jammu and Kashmir for any period not extending
beyond the said period of six months.
81. The Governor of existing State of Jammu and Kashmir may, at any time before the Authorisation
appointed day, authorise such expenditure from the Consolidated Fund of Union territory of of expenditure
of Union
Jammu and Kashmir as he deems necessary for any period not more than six months territory of
beginning with the appointed day pending the sanction of such expenditure by the Parliament: Ladakh.
Provided that the President may, after the appointed day, authorise such further
expenditure as he deems necessary from the Consolidated Fund of India for any period not
extending beyond the said period of six months.
82. (1) The reports of the Comptroller and Auditor-General of India referred to in Reports
clause (2) of article 151 relating to the accounts of the existing State of Jammu and Kashmir relating to
accounts of
in respect of any period prior to the appointed day shall be submitted to the Lieutenant Jammu and
Governors of the successor Union territory of Jammu and Kashmir, and Union territory of Kashmir State.
Ladakh.
(2) The Lieutenant Governor of Jammu and Kashmir, thereafter shall cause the reports
to be laid before the Legislature of the Union territory of Jammu and Kashmir.
(3) The Lieutenant Governor of Jammu and Kashmir may by order—
(a) declare any expenditure incurred out of the Consolidated Fund of Jammu and
Kashmir on any service in respect of any period prior to the appointed day during the
financial year or in respect of any earlier financial year in excess of the amount granted for
that service and for that year as disclosed in the reports referred to in sub-section (1) to have
been duly authorised; and
(b) provide for any action to be taken on any matter arising out of the said reports.
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22 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

Distribution of 83. (1) The award made by the Fourteenth Finance Commission to the existing State of
revenue. Jammu and Kashmir shall be apportioned between the successor Union territory of Jammu
and Kashmir; and Union territory of Ladakh by the Central Government on the basis of
population ratio and other parameters:
Provided that on the appointed day, the President shall make a reference to the Union
Tterritories Finance Commission to take into account the resources available to the successor
Union territory of Ladakh and make separate award for the successor Union territory of
Ladakh:
Provided that on the appointed day, the President shall make a reference to the Fifteenth
Finance Commission to include Union territory of Jammu and Kashmir in its Terms of
Reference and make award for the successor Union territory of Jammu and Kashmir.
(2) Notwithstanding anything in sub-section (1), the Central Government may, having
regard to the resources available to the successor Union territory of Ladakh make appropriate
grants and also ensure that adequate benefits and incentives in the form of special
development package are given to the backward areas of this region.
PART XI
APPORTIONMENT OF ASSETS AND LIABILITIES

Application of 84. (1) The provisions of this Part shall apply in relation to the apportionment of the
this Part. assets and liabilities of the existing State of Jammu and Kashmir immediately before the
appointed day, between the successor Union territory of Jammu and Kashmir and successor
Union territory of Ladakh.
(2) The apportionment of the assets and liabilities of the existing State of Jammu and
Kashmir shall be subject to the recommendations of a committee constituted by the Central
Government.
(3) The process of apportionment shall be completed within a period of twelve months
from the appointed day.
PART XII
PROVISIONS AS TO CERTAIN CORPORATIONS AND ANY OTHER MATTERS
Advisory 85. (1) The Central Government may by order, establish one or more Advisory
Committee(s). Committees within a period of 90 days from the appointed day, for the purposes of :
(a) apportionment of assets, rights and liabilities of the companies and
corporations constituted for the existing State of Jammu and Kashmir between Union
territory of Jammu and Kashmir and Union territory of Ladakh;
(b) issues relating to Continuance of arrangements in regard to generation and
supply of electric power and supply of water;
(c) issues related to Jammu and Kashmir State Financial Corporation;
(d) issues related to Companies constituted for the existing state of Jammu and
Kashmir regarding the division of the interests and shares and reconstitution of Board
of Directors;
(e) issues related to facilities in certain State Institutions; and
(f) issues related to any other matters not covered under this section.
(2) The committees so appointed under sub-section (1) of this section, shall
submit their reports within six months to the Lieutenant Governor of Union territory of
Jammu and Kashmir, who shall act on the recommendations of such committees within a
period of 30 days from the date of receiving such reports.
 298

SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 23

59 of 1988. 86. (1) Notwithstanding anything contained in section 88 of the Motor Vehicles Act, Temporary
1988, a permit granted by the State Transport Authority of the existing State of Jammu and provisions as
to
Kashmir or any Regional Transport Authority in that State shall, if such permit was, immediately continuance
before the appointed day, valid and effective in any area in the transferred territory, be of certain
deemed to continue to be valid and effective in that area after that day till its period of existing road
validity subject to the provisions of that Act as for the time being in force in that area; and transport
permits.
it shall not be necessary for any such permit to be countersigned by the Transport Authority
of any of Union territory or any Regional Transport Authority therein for the purpose of
validating it for use in such area:
Provided that the Lieutenant Governor may add to amend or vary the conditions
attached to the permit by the Authority by which the permit was granted.
(2) No tolls, entrance fees or other charges of a like nature shall be levied after the
appointed day in respect of any transport vehicle for its operations in any of the successor
Union Territories under any such permit, if such vehicle was, immediately before that day,
exempt from the payment of any such toll, entrance fees or other charges for its operations
in the transferred territory:
Provided that the Central Government may, after consultation with the
Government of Union territory of Jammu and Kashmir or the administration of Union
territory of Ladakh, as the case may be, authorise the levy of any such toll, entrance
fees or other charges, as the case may be:
Provided further that the provisions of this sub-section shall not be applicable
where any such tolls, entrance fees or other charges of a like nature are leviable for the
use of any road or bridge which is constructed or developed for commercial purpose
by the State Government, an undertaking of the State Government, a joint undertaking
in which the State Government is a shareholder or the private sector.
87. Where the assets, rights and liabilities of any body corporate carrying on business Special
are, under the provisions of this Part, transferred to any other bodies corporate which after provision as
to income-
the transfer carry on the same business, the losses or profits or gains sustained by the body
tax.
corporate first-mentioned which, but for such transfer, would have been allowed to be
carried forward and set off in accordance with the provisions of Chapter VI of the Income-tax
43 of 1961. Act, 1961, shall be apportioned amongst the transferee bodies corporate in accordance with
the rules to be made by the Central Government in this behalf and, upon such apportionment,
the share of loss allotted to each transferee body corporate shall be dealt with in accordance
with the provisions of Chapter VI of the said Act, as if the transferee body corporate had
itself sustained such loss in a business carried on by it in the years in which those losses
were sustained.
PART XIII
PROVISIONS AS TO SERVICES
88. (1) In this section, the expression “State cadre”— Provisions
relating to All-
(a) in relation to the Indian Administrative Service, has the same meaning India Services.
IAS (Cadre) assigned to it in the Indian Administrative Service (Cadre) Rules, 1954;
rules, 1954.
(b) in relation to the Indian Police Service, has the same meaning assigned to it
IPS (Cadre) in the Indian Police Service (Cadre) Rules, 1954; and
rules, 1954.
(c) in relation to the Indian Forest Service, has the same meaning assigned to it
IFS (Cadre) in the Indian Forest Service (Cadre) Rules, 1966.
rules, 1966.
(2) The members of the cadres of Indian Administrative Service, Indian Police Service
and Indian Forest Service for the existing State of Jammu and Kashmir, on and from the
appointed day, shall continue to function on the existing cadres.
(3) The provisional strength, composition and allocation of officers currently borne
on the existing cadre of Jammu and Kashmir to the Union territory of Jammu and Kashmir
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24 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

and Union territory of Ladakh, as referred to in sub-section (2) shall be such as the Lieutenant
Governor of Union territory of Jammu and Kashmir may, by order, determine on or after the
appointed day.
(4) The members of each of the said services, currently borne on the Jammu and
Kashmir cadre immediately before the appointed day shall be finally allocated between the
successor Union territory of Jammu and Kashmir and Union territory of Ladakh, in such
manner and with effect from such date or dates as the Central Government may, by order,
specify on the recommendation of Lieutenant Governors of Union territory of Jammu and
Kashmir; and Union territory of Ladakh.
(5) The Officers so allocated to both the Union Territories shall function within these
Union Teritories, in accordance with the rules framed by the Central Government.
(6) In future, the All India Service officers to be posted to Union territory of Jammu
and Kashmir or Union territory of Ladakh, as the case may be, shall be borne on the Arunachal
Goa Mizoram Union Territory cadre, and necessary modifications in corresponding cadre
allocations rules may be made accordingly, by the Central Government.
Provisions 89. (1) Every person who immediately before the appointed day is serving on
relating to substantive basis in connection with the affairs of the existing State of Jammu and Kashmir
other services.
shall, on and from that day provisionally continue to serve in connection with the affairs of
the Union territory of Jammu and Kashmir and Union territory of Ladakh, by general or
special order of the Lieutenant Governor of Union territory of Jammu and Kashmir:
Provided that every direction under this sub-section issued after the expiry of a period
of one year from the appointed day shall be issued with the consultation of the Government
or Administartion of the successor Union Territories, as the case may be.
(2) As soon as may be after the appointed day, the Lieutenant Governor of Jammu and
Kashmir shall, by general or special order, determine the successor Union territory to which
every person referred to in sub-section (1) shall be finally allotted for service, after
consideration of option received by seeking option from the employees, and the date with
effect from which such allotment shall take effect or be deemed to have taken effect:
Provided that even after the allocation has been made, Lieutenant Governor of
Union territory of Jammu and Kashmir may in order to meet any deficiency in the
service, depute officers from one successor Union territory to the other Union territory.
(3) Every person who is finally allotted under the provisions of sub-section (2) to a
successor Union territory shall, if he is not already serving therein, be made available for
serving in the successor Union territory from such date as may be agreed upon between the
Government of the successor Union territory of Jammu and Kashmir and Administration of
Union territory of Ladakh, or, in default of such agreement, as may be determined by the
Central Government:
Provided that the Central Government shall have the power to review any of its
orders issued under this section.
Other 90. (1) Nothing in this section or in section 89 shall be deemed to affect, on or after the
provisions appointed day, the operation of the provisions of Chapter I of Part XIV of the Constitution
relating to
in relation to determination of the conditions of service of persons serving in connection
services.
with the affairs of the Union or any Union territory:
Provided that the conditions of service applicable immediately before the appointed
day in the case of any person deemed to have been allocated to the Union territory of Jammu
and Kashmir or Union territory of Ladakh under section 89 shall not be varied to his
disadvantage except with the previous approval of the Lieutenant Governor.
(2) All services prior to the appointed day rendered by a person,—
(a) if he is deemed to have been allocated to any Union territory under section 89,
shall be deemed to have been rendered in connection with the affairs of that Union territory;
 300

SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 25

(b) if he is deemed to have been allocated to the Union in connection with the
administration of the successor Union territory, shall be deemed to have been rendered
in connection with the affairs of the Union, for the purposes of the rules regulating his
conditions of service.
(3) The provisions of section 89 shall not apply in relation to members of any All-India
Service.
91. Every person who, immediately before the appointed day, is holding or discharging Provisions as
the duties of any post or office in connection with the affairs of the existing State of Jammu to
continuance
and Kashmir in any area which on that day falls within one of the successor Union territory
of officers in
shall continue to hold the same post or office in that successor Union territory, and shall be same post.
deemed, on and from that day, to have been duly appointed to the post or office by the
Government of, or other appropriate authority in, that successor Union territory:
Provided that nothing in this section shall be deemed to prevent a competent authority,
on and from the appointed day, from passing in relation to such person any order affecting
the continuance in such post or office.
92. On and from the appointed day, the employees of State Public Sector Undertakings, Provision for
corporations and other autonomous bodies shall continue to function in such undertaking, employees of
Public Sector
corporation or autonomous bodies for a period of one year and during this period the
Undertakings,
corporate body concerned shall determine the modalities for distributing the personnel etc.
between the successor Union Territories.
93. (1) The Public Service Commission for the existing State of Jammu and Kashmir Provisions as
shall, on and from the appointed day, be the Public Service Commission for the Union to State Public
Service
territory of Jammu and Kashmir. Commission.
(2) The Union Public Service Commission, with the approval of the President, shall
serve the needs of the Union territory of Ladakh.
(3) The persons holding office immediately before the appointed day as the Chairman
or other member of the Public Service Commission for the existing State of Jammu and
Kashmir shall, as from the appointed day, be the Chairman or, as the case may be, the other
member of the Public Service Commission for the Union territory of Jammu and Kashmir.
(4) Every person who becomes the Chairman or other member of the Public Service
Commission for the Union territory of Jammu and Kashmir on the appointed day under sub-
section (3) shall be entitled to receive from the Government of the Union territory of Jammu
and Kashmir, conditions of service not less favourable than those to which he was entitled
under the provisions applicable to him.
(5) The report of the Jammu and Kashmir Public Service Commission as to the work
done by the Commission in respect of any period prior to the appointed day shall be presented
to the Lieutenant Governor of the State of Jammu and Kashmir, and the Lieutenant Governor
of the Union territory of Jammu and Kashmir shall, on receipt of such report, cause a copy
thereof together with a memorandum explaining as far as possible, as respects the cases, if
any, where the advice of the Commission was not accepted, the reasons for such non-
acceptance to be laid before the Legislature of the Union territory of Jammu and Kashmir.
PART XIV
LEGAL AND MISCELLANEOUS PROVISIONS
94. On and from the appointed day, in section 15 of the States Reorganisation Act, Amendment
1956, in clause (a), for the words “Jammu and Kashmir” the words “Union territory of Jammu of section 15
of Act 37 of
and Kashmir and Union territory of Ladakh” shall be substituted. 1956.

95. (1) All Central laws in Table -1 of the Fifth Schedule to this Act, on and from the Territorial
appointed day, shall apply in the manner as provided therein, to the Union territory of extent of laws.
Jammu and Kashmir and Union territory of Ladakh.
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26 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

(2) All other laws in Fifth Schedule, applicable to existing State of Jammu and Kashmir
immediately before the appointed day, shall apply in the manner as provided therein, to the
Union territory of Jammu and Kashmir and Union territory of Ladakh.
Power to 96. For the purpose of facilitating the application in relation to the successor Union
adapt laws. Territories, of any law made before the appointed day, as detailed in Fifth Schedule, the
Central Government may, before the expiration of one year from that day, by order, make such
adaptations and modifications of the law, whether by way of repeal or amendment, as may be
necessary or expedient, and thereupon every such law shall have effect subject to the
adaptations and modifications so made until altered, repealed or amended by a competent
Legislature or other competent authority.
Power to 97. Notwithstanding that no provision or insufficient provision has been made under
construe laws. section 96 for the adaptation of a law made before the appointed day, any court, tribunal or
authority, required or empowered to enforce such law may, for the purpose of facilitating its
application in relation to the Union territory of Jammu and Kashmir or Union territory of
Ladakh, construe the law in such manner, without affecting the substance, as may be
necessary or proper in regard to the matter before the court, tribunal or authority.
Power to 98. The Lieutenant Governor, as respects the concerned territory may, by notification
name in the Official Gazette, specify the authority, officer or person who, on or after the appointed
authorities,
etc., for
day, shall be competent to exercise such functions exercisable under any law in force on that
exercising day as may be mentioned in that notification and such law shall have effect accordingly.
statutory
functions.

Legal 99. Where, immediately before the appointed day, the existing State of Jammu and
proceedings. Kashmir is a party to any legal proceedings with respect to any property, rights or liabilities
subject to apportionment among the successor Union Territories under this Act, the Union
territory of Jammu and Kashmir or the Union territory of Ladakh which succeeds to, or
acquires a share in, that property or those rights or liabilities by virtue of any provision of
this Act shall be deemed to be substituted for the existing State of Jammu and Kashmir or
added as a party to those proceedings, and the proceedings may continue accordingly.
Transfer of 100. (1) Every proceeding pending immediately before the appointed day before a
pending court (other than High Court), tribunal, authority or officer in any area which on that day falls
proceedings.
within the State of Jammu and Kashmir shall, if it is a proceeding relating exclusively to the
territory, which as from that day are the territories of any Union territory, stand transferred to
the corresponding court, tribunal, authority or officer of that Union territory.
(2) If any question arises as to whether any proceeding should stand transferred
under sub-section (1), it shall be referred to the common High Court of Jammu and Kashmir
and the decision of that High Court shall be final.
(3) In this section—
(a) proceeding includes any suit, case or appeal; and
(b) corresponding court, tribunal authority or officer in any of Union territory
means—
(i) the court, tribunal, authority or officer in which, or before whom, the
proceeding would have laid if it had been instituted after the appointed day; or
(ii) in case of doubt, such court, tribunal, authority, or officer in that
Union territory, as may be determined after the appointed day by the
Government or administration of that Union territory, or the Central
Government, as the case may be, or before the appointed day by the
Government of the existing State of Jammu and Kashmir to be the corresponding
court, tribunal, authority or officer.
 302

SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 27

101. Any person who, immediately before the appointed day, is enrolled as a pleader Right of
entitled to practise in any subordinate court in the existing State of Jammu and Kashmir pleaders to
practise in
shall, for a period of one year from that day, continue to be entitled to practise in those certain cases.
courts, notwithstanding that the whole or any part of the territories within the jurisdiction of
those courts has been transferred to any of the Union Territories.
102. The provisions of this Act shall have effect notwithstanding anything inconsistent Effect of
therewith contained in any other law. provisions of
the Act
inconsistent
with other
laws.
103. (1) If any difficulty arises in giving effect to the provisions of this Act, the Power to
President may, by order do anything not inconsistent with such provisions which appears remove
difficulties.
to him to be necessary or expedient for the purpose of removing the difficulty:
Provided that no such order shall be made after the expiry of a period of five years from
the appointed day.
(2) Every order made under this section shall be laid before each House of Parliament.
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28 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

The First Schedule

(See Section 9)
Union territory of Jammu and Kashmir
Members of Council of State

S.No. Name of the sitting Member Term

1. Fayaz Mir Mohammad 11/02/2015 to 10/02/2021
2. Laway Shri Nazir Ahmed 16/02/2015 to15/02/2021
3. Manhas Shri Shamsher Singh 11/02/2015 to 10/02/2021
4. Ghulam Nabi Azad 16/02/2015 to 15/02/2021
The Second Schedule
[See Section 11(1)]
Amendments to the Delimitation of Parliamentary Constituencies Order, 1976
Union territory of Jammu and Kashmir
Parliamentary Constituencies

S.No. Name of the Constituency Extent of Constituency

1. Baramulla Baramulla District

2. Srinagar Srinagar District
3. Anantnag Anantnag District
4. Udhampur Udhampur, Doda and Kathua Districts
5. Jammu Jammu, Rajouri and Poonch Districts

Union territory of Ladakh

Parliamentary Constituency

S.No. Name of the Constituency Extent of Constituency

1. Ladakh Ladakh District

Note.— (i) Any reference in this Schedule to a district shall be taken to mean the area comprised within that district on the
1st day of August, 1975.
(ii) As per details included in Delimitation of Parliamentary and Assembly Constituencies Order, 1976 under
Articles 81 & 82 of the Constitution of India as applied to the State of Jammu and Kashmir by the Constitution
(Application to J&K) Order, 1954 (C.O. 48).
 304

SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 29

The Third Schedule

[See Section 14(5)]
Amendments to the Delimitation of Assembly Constituencies Order, 1995
Union territory of Jammu and Kashmir
Assembly Constituencies

S. Name of the Assembly Extent

No. Constituency
1 2 3
KUPWARA DISTRICT
1. Karnah All PCs of Tehsil Karnah; PC Keran of Tehsil Kupwara.
2. Kupwara PCs 18-Sulakot, 20-Radabug, 22-Bumhama , 23-Drugmulla, 25-Gushi, 26-Batergam,
27-Dadikoot, 30-Gulgam, 31-Harrai, 32-Hayan, 33-Trehgam, 34-Guglose, 35-Kralpora,
36-Guzeryal, 37-Gundizona-Reshi, 38-Panzgam, 39-Meelyal, 40-Shooloora,
41-Dardihairi-Kharagund, 42-Kupwara and P.C. 55-Manzgam in Tehsil Handwara.
3. Lolab PCs 1-Harduring, 2-Chontiwari, 3-Machil, 4-Kalaroch, 5-Khumrayal, 6-Kanthpora,
7-Wawoora, 8-Maidanpora, 9-Khurhama, 10-Warnow, 11-Krusan, 12-Sogam,
13-Darapora, 14-Lalpora, 15-Chandigam, 16-Tekipora, 17-Dewar Inderbug,
19-Manigah, 29-Haihama, 45-Dardapora in Kupwara Tehsil.
4. Handwara PCs 8-Maidan Chogal, 28-Taratpora, 29-Wilgam, 30-Lilam, 31-Dulipora, 32-Opzawani,
33-Shogapora, 34-Neelipora, 35-Magam, 36-Jagarpora, 39-Behnipora, 40-Rajpora,
41-Zachaldara, 42-Wadder, 43-Turkapora, 44-Chanjimulla, 45-Wadipora, 46-Bhaki
Akhar, 47-Batakoot, 48-Braripora, 49-Waripora Gonipora, 50-Nutanoosa,
51-Kandikhas, 52-Handwara; 53- Dhama, 54-Panchakoot in Tehsil Handwara; and
21-Kegam, 28-Nagrimalpora, 24-Najatpora in Tehsil Kupwara.
5. Langate PCs 1- Langate, 2-Unusu, 3-Pohrupeth, 4-Glura, 5- Martgam, 6-Hanga, 7-Shanoo,
9-Nowgam, 10-Mawar, 11- Qalamchakla, 12- Adura, 13-Haril, 14-Drangsoo-Shah-
Nagri, 15-Udipora, 16- Kralagund, 17-Lokipora, 18-Kichlo Qazipora, 19-Khaipora,
20-Panditpora, 21-Super-Nagam, 22-Ashapora, 23-Safalpora, 24-Kralpora,
25-Deedarpora, 26-Shathgund-Balla, 27-Rawalpora, 37-Wasiakawnar, 38- Lachampora
in Tehsil Handwara.
BARAMULLA DISTRICT
6. Uri All PCs in Tehsil Uri.
7. Rafiabad PCs 11-Chakloo, 12- Nadihal, 13-Shitloo, 15-Biner Kahdoora in Tehsil Baramulla;
and
PCs 5-Nowpora Kalan, 8-Watergam, 9-Fidarpora, 10-Handipora, 11-Yarbug,
12-Riban-Ramhama, 13- Ladora, 14-Rehama, 15-Chijahama, 16- Wanpora, 17-Panzalla-
Gundabal, 18- Sailkoot, 19-Balhama-Thakanpora, 20-Chatoosa, 21-Dangiwacha,
22-Rawacha, 23-Harduchanam, 24-Bakshipora-Batapora, 25-Zithan, 36- Behrampora,
37-Chitlora, 38- Achabal in Tehsil Sopore.
8. Sopore PCs 1-Sopore with NAC, 2- Warapora, 3- Arampora, 4- Dangerpora, 6- Watalab,
32- Seeloo, 33- Botingoo, 34- Mundji, 35- Duroo, 39- Hardu-Shiva, 41- Aadipora-
Bomai, 42-Wadoora, 40-Tujar-Pahlihar, 43- Harwan, 44- Zaloora in Tehsil Sopore.
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30 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

1 2 3
9. Gurez All PCs in Tehsil Gurez.
10. Bandipora All PCs in Tehsil Bandipora; and PC 1- Ajas of Tehsil Sonawari.
11. Sonawari All PCs in Tehsil Sonawari excluding PC 1-Ajas.
12. Sangrama PCs 16-Kreeri, 17-Wizar, 18-Authora, 19-Shalakawara, 20-Nowpora-Jagir,
21-Wagoora, 22-Kachumuqam, 24- Manigam, 25-Kalantara-Balla, 26 - Dandmoh,
27- Sultanpora-Kandi in Tehsil Baramulla; and 7-Tarzoo, 26-Hygam, 27-Seer-Jagir,
28-Bulagam, 29-Sangrama, 30-Krank-Shivan, 31-Wagub in Tehsil Sopore.
13. Baramulla PCs 1- Laridora, 2- Heewan, 30 Malapora, 4-Kich-Hama, 50-Ushkara, 6-Khanpora
with NAC, 7-Khaja-Bagh, 8-Taki-Sultan, 9-Khaitangan, 10-Delina, 14-Kansipora,
23- Chandoosa in Tehsil Baramulla.
14. Gulmarg All PCs in Teshil Gulmarg; and 2-Wailoo Kralpora, 8-Sriwarpora, 9-Chokar,
10- Waripora-Bangil, 12- Malmoh, 13- Nowlari, 16-Yal in Tehsil Pattan.
15. Pattan Tehsil Pattan excluding 2-Wailoo-Kralpora, 8-Sriwarapora, 9-Chokar, 10-Waripora
Bangil, 12- Malmoh, 13-Nowlari and 16-Yal.
SRINAGAR DISTRICT
16. Kangan All PCs of Tehsil Kangan; and PCs -Manigam, 2-Wailoo, 3-Nunar in Tehsil Ganderwal.
17. Ganderbal Tehsil Ganderbal excluding 1-Manigam, 2-Wailoo, 3-Nunar and P.C. Haran in Srinagar
Tehsil.
18. Hazratbal Ward 16 in Srinagar Municipality (excluding Municipal areas not falling in Srinagar
Tehsil but falling in Ganderbal Tehsil) and PC 9-Bachpora in Tehsil Ganderbal and
Wards 17 and 12 except the following Mohallas of Ward 12 ; Mugal Mohalla,
Surateng, Khawjapora, Kocha Nidan, Zindashah and boat population of these
wards.
19. Zadibal Wards 14 and 15 in Srinagar Municipality and boat population of Anchar and of the
ghats of these wards.
20. Idgah Wards 8 and 11 in Srinagar Municipality and P.C. 38-Palpora and 41-Sangam in
Srinagar Tehsil.
21. Khanyar Wards 10-13 of Srinagar Municipality and the following mohallas of Ward
12-Mugal Mohalla, Surateng, Khawjapora, Zindshah and Kocha Nidan and boat
population of these wards.
22. Habbakadal Wards 7 and 9 in Srinagar Municipality and boat population of Wards 6, 7 and 9.
23. Amirakadal Wards 3 and 4 in Srinagar Municipality excluding (i) Natipora (rural), (ii) Rawalpora
(rural), (iii) Hyderpora (rural) ;
and excluding Aramwari, Gund Chandal, Stingoo, Sutho Kirther Bagh in Tehsil
Chadoora and Watdoor, Galwanpora Laloo and Shesgam Bagh in Tehsil Badgam
and boat population of these wards and of Ward 5.
24. Sonawar Wards 1 and 2 in Srinagar Municipality and Badamibagh Cantonment and P.C.
21-Chitrahama, 19-Dara, 29-Khunmu, 30-Balhama, 31-Zewan in Tehsil Sringar and
boat population of ghats in these wards.
25. Batamaloo Wards 5 and 6 in Srinagar Municipality ; and PCs 6-Mujgund, 42-Bachipora Tengpora
in Srinagar Tehsil.
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1 2 3

BUDGAM DISTRICT
26. Chadoora The following Patwar Circles of Tehsil Chadoora, 16-Chadoora, 24-Chattergam,
25-Wagora, 26-Wathura, 27-Khanda, 28-Bugam Batapora, 29-Kralpora, 30-Hayatpora,
31-Pohroo, 32-Rakh Shalina, 33-Bagati Kanipora, 34-Nowgam, 35-Kanihama,
36-Daulatpora, 38-Natipora rural area outside Srinagar Municipal limits in ward
4 and 39-Lasjan and Aramwari, Gund, Chandal Stengoo, Suthoo, Kirtherbagh and
40-Kursu Padshahibagh.
27. Badgam PCs 1-Soibugh, 2-Dhrmana, 3-Wahabpora, 4-Arth, 5-Wadwan, 6-Bemina, 7-Pallar,
8-Garriend Kalan, 9-Sholipra, 10-Nassar-ullah-Pora, 11-Jahama, 12-Water-Wani,
28-Chune, 29-Badgam, 30-Ompora 31-Narkara, 32-Humhama, 35-Karewa Damodar,
36-Gund-Sathu, 37-Ichakoot, 38-Ichgam, 33-Rawalpora (rural), 34-Hyderpora (rural)
in Badgam Tehsil.
28. Beerwah PCs 1-Suzeth-Gooripora, 2-Kawoosa Khalisa, 3-Kawoosa Jagir, 4-Batapora
Kahihama, 5-Sanoor-Kalipora, 6-Hardu Malpora, 7-Bandagam, 8-Utligam, 9-Mula-
Shulla, 10-Sonapah, 12-Gondipora, 21-Shanglipora, 22-Khag, 23-Malpora Khag,
24-Himchipora, 25-Lalpora, 26-Beerwah, 27-Chewdara, 28-Peth Mukahama,
29-Rathusun, 30-Bona Makhama, 31-Nagam, 32-Iskanderpora, 33-Aripanthan,
34-Palpora, 36-Hardua-Shorsh in Tehsil Beerwah.
29. Khansahib PCs 1-Hokhalatri, 13-Phartahn, 14-Kandoora, 15-Drahg, 16-Sitaharan, 17-Zogikharian,
18-Arizal, 19-Qamroo, 20-Rawalpora-Beerwah ; and PC 35- Sail in Tehsil Berwah;
and PCs 13-Waterhail, 14-Jawalapora, 15-Sondipora, 16-Dalipora, 17-Yari Khah,
18-Talapora, 19-Parnawah, 20-Drayagram, 21-Frestwar Khasipora, 22-Arigam,
23-Khan Sahib, 24-Raithan, 25-Kachwari, 26-Gurwait Kalan, 27-Falchall in Tehsil
Budgam.
30. Chrar-i-Sharief PCs 1-Gogji Pathari, 2-Brinjan, 3-Hafroo Batapora, 4-Branawar, 5-Surasyar, 6-Dada-
Ompara, 7-Hanjura, 8-Nowpora, 9-Pakharpora, 10-Hardu Dalwan Futlipora,
11-Teelsarah, 12-Chrar-i-Sharief, 13-Watkaloo, 14-Darawan Nowgam, 15-Chtsesn,
17-Nagam, 18-Badipora, 19-Yarikalan, 20-Ropora Namtihal, 21-Kanir, 22-Ranger,
23-Sogam, 37-Nowhar in Tehsil Chadoora.
PULWAMA DISTRICT
31. Tral All PCs in Tehsil Tral.
32. Pampore All PCs in Tehsil Pampore and Patwar Circles 26-Awantipora, 27-Padgampora,
29-Lilhar, 46-Nihama, 47-Kakapora in Tehsil Pulwama.
33. Pulwama PCs 1-Inder, 2-Gangoo, 5-Pulwama with NAC, 9-Ratnipora, 10-Pahoo, 11-Trich,
12-Koil, 13-Pinglina, 14-Narwa, 17-Litter-Shistar, 18-Nayina, 19-Panzgam,
20-Dogripora, 21-Rishipora, 22-Laderpur, 23-Nownagri, 24-Tokna, 25-Malangpora,
28-Lajoora, 40-Palapora, 45-Newa, 48-Jagir Parigam, 49-Tumchi Nowpora,
50-Hakripora in Tehsil Pulwama.
34. Rajpora PCs 3-Karimabad, 4-Moran, 6-Kangan, 7-Wahibugh, 8-Gosoo, 15-Bonarah,
16-Trichal, 30-Ramoo, 31-Billowdergund, 32-Qasbayar, 33-Drubgam, 34-Mitrigam,
35-Abhama, 36-Trujan, 37-Khaigam, 38-Noorpora Payeen, 39-Arihal, 41-Tahab-
Shadipora, 42-Achan, 43-Chandigam, 44-Rajpora in Tehsil Pulwama.
35. Wachi PCs 8-Kalroo Malikgund, 9-Nadigam, 11-Dangerpora, 12-Turka Wangam,
13-Urapora, 14-Hardu-Handow, 15-Harmain, 16-Chak-Chowand, 17-Kapran,
19-Dangam, 20-Chakora, 21-Pratabpora, 24-Kanji-Ullar, 25-Chitragam,, 26-Darikalpora,
27-Hef, 28-Sugan, 29-Awnera, 30-Wachi, 31-Aglar, 32-Zainapora, and 39-Allowpora-
Sheikhpora in Tehsil Shopian.
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32 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

1 2 3
36. Shopian PCs 1-Saidapora, 2-Meemandar, 3-Arhama, 4-Pinjoora, 5-Ganowpora Arish,
6-Bemnipora, 7-Harapora, 10-Trenz, 18-Vehilchal-Awatoo, 22-Sedew, 23-Ram Nagri,
33-Diyaroo, 34-Barthipora, 35-Daramdoora, 36-Zoora-Baderhama, 37-Narapora,
38-Keegam, 40-Keller Mastpora, 41-Pahlipora, 42-Sindhu-Shrimal, 43-Shopian,
44-Devipora (forest block) in Tehsil Shopian.
ANANTNAG DISTRICT
37. Noorabad. PCs 5-Malwan, 6- Pahloo, 7-Akhal, 23- Gudder, 34-Brinal Lamber, 46-Damhal-
Hanjipora, 47- Ahmada-Abad, 48- Yaroo, 49 - Hardu-Mandagori, 51- Manzgam,
52-Asnoor, 53-Wattoo, 54-Avil, 55-Khuri-Batapora, 56-Nagam, 57-Danow-Kandimarg,
58-Bdi-Jehalan, 59-Chimar, 60-Qasba Khul, 61-Nandimarg in Tehsil Kulgam.
38. Kulgam PCs 1-Kulgam with NAC, 2-Hanad-Chawalgam, 3-Amnoo, 4-Chamabagund,
11-Ashmuji, 19-Mirhama, 20-Akey, 21-Pariwan, 22-Chehla, 24-Areh, 25-Bihibagh,
26-Gopalpora, 38-Bugam, 39-Tarigam-Devsar, 43-Yamroch, 44-Munand-Guffan,
45-Katersoo, 50-Largurhama in Tehsil Kulgam.
39. Home-Shalibugh PCs 8-Uranhal, 9-Tuli-Nowpora, 10-Kujar, 12-Redwani, 13-Arwani, 14-Frisal,
15-Jablipora, 16-Wanpora, 17-Hassanpora Tavela, 18-Khandi-Phari, 40-Tarigam-
Devibugh, 41-Matibugh, 42-Homshalibugh in Tehsil Kulgam.
40. Anantnag PCs 1-Qasba Bhagat, 2-Khanabal, 3-Roohoo, 4-Kamar, 5-Anchidoora, 6-Hardu-
Chichan, 10-Ranbirpora in Tehsil Anantnag.
41. Devsar PCs 27-Devsar, 28-Bona Devsar, 29-Kilam-Buzgam, 30-Hablishi, 31-Nipora, 32-Laram-
Ganipora, 33-Chowgam, 35-Razloo, 36-Waitengu, 37-Sopat Tengpora, 62-Oral in
Tehsil Kulgam ; and
PCs 18-Vesoo, 19-Nasoo-Badargund, 20-Panzeth, 21-Kurigam, 23- Qazigund with
NAC in Doru Tehsil.
42. Doru PCs 1- Doru, 2-Bragam, 3-Oibamdooth, 4-Mantpora, 5-Larkipora, 6-Hakura, -
Badasgam, 7-Batgund, 8-Verinag, 9-Sadiwara, 10-Mundah, 11-Hiller, 12-Nowgam
Shahabad, 13-Rain-Chowgund, 14-Thamankoot, 15-Qamar, 16-Halsidar, 17-Kapron,
22- Wangund in Tehsil Doru.
43. Kokernag PCs 28-Saagam, 29-Bider-Hayatpora, 30-Bhai, 31-Akingam, 32-Nagam, 33-Soof-Shali,
34-Panzgam, 35-Bindo-Zulangam, 36-Devalgam, 37-Nalla-Sund-Brari, 38-Lohar-Sanzi,
39-Ahlan-Gadol, 40-Kharatti, 41-Desoo, 42-Kharapora, 43-Qasba-Nowbugh, 44-Mati
Hundoo, 45-Larnoo, 46-Kokernag NAC, 47-Achabal NAC in Tehsil Anantnag.
44. Shangus PCs 13-Sahibabad, 14-Nowgam, 15-Imoh, 16- Brakapora, 17-Shangus, 18-Uttarsoo,
19-Kreri, 20-Chatergul, 21-Ghikalpora, 22-Ranipora, 23-Detho-Nagnarian,
24-Gopalpora, 25-Telwani, 26-Kwarigam, 27-Ahupaisan in Tehsil Anantnag.
45. Bijbehara All PCs in Tehsil Bijbehara and PCs 7-Macha Bawan, 11-Nanilang, 12-Akora in
Tehsil Anantnag.
46. Pahalgam All PCs in Tehsil Pahalgam and PCs 8-Seer-Kanligund, 9-Salia in Tehsil Anantnag.
DODA DISTRICT
47. Kishtwar PCs 1-Marghi, 2-Inshan, 3-Yerudu, 4-Renai, 5-Nowpachi, 6-Chanjer, 7-Qaderana,
8-Deharana, 9-Lopara, 10-Loharna, 11-Soundhar, 19-Palmar, 30-Trigam, 31-Kishtwar,
32-Matta, 33-Poochal, 34-Dool, 35-Bhagnah, 36-Galarbahta, 37-Atholi, 38-Sohal,
39-Ishtiari, 40-Gulabgarh, 41-Massu, 42-Kishtwar NAC, 43-Forest Block in Tehsil
Kishtwar.
48. Inderwal PCs 12-Chingam, 13-Inderwal, 14-Chatroo, 15-Sigdi, 16-Moolchhiter, 17-Drubeel,
18-Kochal, 20-Filler, 21-Pakhalan, 22-Keshwan, 23-Shandri, 24-Sangna, 25-Patnazi,
 308

SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 33

1 2 3
26-Jawalapur, 27-Loundri, 28-Badhat and 29-Karool in Tehsil Kishtwar ; PCs
1-Jakyas in Tehsil Bhalesa (Gandoh) and following PCs of Tehsil Thathri :--
1-Jangalwar, 3-Malanoo, 4-Kansu, 10-Kandote.
49. Doda All PCs of Tehsil Doda except 8-Dessa, 9-Dhandal, 10-Kastigarh, 11-Shamti,
12-Chaka Kundi, 13-Assar, 14-Charrota.
50. Bhaderwah All PCs of Tehsil Bhaderwah and PCs 2-Budhli, 3-Chilli, 4-Drawani, 5-Kahal Jugasar,
6-Budwar, 7-Chanisar, 8-Kilotran, 9-Kharangal, 10-Gandoh in Tehsil Bhalesa ; and
PCs 2-Jora, 5-Bhaja, 6-Bhalla, 7-Jagiti, 8-Bhallari, 9-Rokali, 11-Pamshayee in Tehsil
Thathri.
51. Ramban (SC) All PCs of Tehsil Ramban except 5-Sarbagni and PCs of 8-Dessa, 9-Dhandhal,
10-Kastigarh, 11-Shamti, 12-Chaka, 13-Assar, 14-Charrota of Tehsil Doda.
52. Banihal All PCs of Tehsil Banihal and 5-Sarbagni in Tehsil Ramban.
UDHAMPUR DISTRICT
53. Gulabgarh PCs 2-Mahore, 2-Sarh, 3-Dewal, 4-Gulabgarh, 5-Chasote, 6-Bagankote, 7-Shergarhi,
8-Shikari, 9-Kanthi, 10-Tulibana, 13-Shajroo in Tehsil Gulabgarh and PC 16-Jij in
Tehsil Reasi.
54. Reasi Tehsil Reasi except following PCs:—
1.Salal, 15-Chinkah, 16-Jij, 17-Thakrakote and following PCs of Tehsil Udhampur:—
13-Panjar, 14-Lali, 15-Ladah, 17-Dhandu, 18-Jhandawa, 32-Badhota and 19-Suhal.
55. Gool Arnas Following PCs of Tehsil Gool Gulabgarh:—
11-Thuru, 12-Bhudhan, 14-Kanthan, 15-Judda, 16-Dhanow, 17-Kali Masta, 18-Gool,
19-Thatharka, 20-Sangaldan, 21-Forest Block ; and 1-Salal, 15-Chinkah, 17-Thakrakote
in Tehsil Reasi.
56. Udhampur All PCs of Tehsil Udhampur except the following PCs :—
13-Panjar, 14-Lali, 15-Ladha, 17-Dhandu, 18-Jhandawa, 19-Suhal, 20-Ludha, 21-Balian,
27-Sunal, 29-Meer, 30-Kathi, 32-Badhota.
57. Chenani (SC) All PCs of Tehsil Chenani and following PCs of Tehsil Udhampur :—
20-Ladha, 21-Balian, 27-Sunal, 29-Meer, 30-Kathi and following PCs of Tehsil
Ramnagar.
10-Dudu, 11-Latti, 31-Ghordi, 33-Hartarian, 34-Dandal, 35-Barmeen, 36-Nalla Ghoran.
58. Ramnagar All PCs of Tehsil Ramnagar except the following :—
10-Dudu, 11-Latti, 31-Ghordi, 33-Hartarian, 34-Dhandal, 35-Barmeen, 36-Nala Ghoran.
KATHUA DISTRICT
59. Bani PCs 14-Bani, 15-Banjal, 16-Fatehpur, 17-Sandroon, 18-Rolka, 19-Buggah, 20-Lowang,
21-Kanthal, 22-Surjan, 23-Dhanggar, 24-Koti, 25-Forest Block in Tehsil Basohli and
9-Godu Flal, 10-Bdnota, 11-Machadi, 20-Malhar in Tehsil Billawar.
60. Basohli PCs 1-Thein, 2-Basantpur, 3-Lakhanpur, 4-Hatli, 7-Tridwan, 36-Lakhanpur NAC,
29-Berthian and 30-Sorlian in Tehsil Kathua and PCs 1-Basohli, 1-a-Basohli NAC,
2-Sandhar, 3-Hutt, 4-Bhoond, 5-Saman, 6-Dhar Jankar, 7-Dhar Mahanpur, 8-Plahi,
9-Prita, 10- Saber, 11-Patti, 12-Athalith, 13-Mahanpur in Tehsil Basohli and PCs
21-Dhar Digno, 22-Huttar, 23-Dambra in Tehsil Billawar.
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34 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

1 2 3
61. Kathua PCs 5-Dilwan, 6-Maha, 8-Kharote, 9-Taraf Manjili, 10-Taraf Tajwal, 11-Karian,
12-Taraf Bajwal, 13-Changran, 14-Govindsar, 15-Chak Soon Noopa, 16-Khakhyal,
17-Mirpur Ram, 18-Taraf Balla, 20-Katharian, 21-Janglote, 22-Loagate, 23-Jakhbar,
24-Airwan, 26-Chak Sakta, 27-Budhi, 28-Nanan, 31-Barwal, 32-Jherhere, 33-Kathua
Forest Block, 34-Kathua NAC , 35-Perlain and 25-Folote in Tehsil Kathua.
62. Billawar PCs 11-Katli, 17-Bhaya, 21-Denga Amb, 23-Dhamal, 25-Mangloor, 26-Chelakh,
27-Salain in Tehsil Hiranagar and PCs 1-Ramkot, 2-Makwal, 3-Salora, 4-Rajwlta,
5-Danjisdhar, 6-Thara Kalwal, 7-Kalyal, 8-Thanthoo, 12-Kohag, 13-Malti, 14-Durang,
15-Dharan Kote, 16-Bhaddu, 17-Billawar, 18-Billawar NAC, 19-Buggan, 24-Parnala,
25-Pallan in Tehsil Billawar and PC 19-Juthana in Tehsil Kathua.
63. Hiranagar (SC) 1-Jatwal, 2-Nonath, 3-Ghagwal, 4-Sarath, 5-Bhatyari Kotlan, 6-Sanoora, 7-Mawa,
8-Nohran, 9-Chachwal, 10-Sarti Kalan, 12-Chak Dulma, 13-Jondi, 14-Londi, 15-Rajpura,
16-Kootah, 18-Gurah Mathian, 19-Bavia, 20-Katal Brahmana, 24-Hamirpur, 28-Chhan
Rorian, 29-Marheen, 22-Saiswan, 30-Khanpur, 31-Hiranagar, 32-Hiranagar NAC,
33-Pansar, 34-Kore Punu, 35-Chak Deva, 36-Chak Bhagwana, 37-Chak Kahna,
38-Chadwal, 39-Forest Block in Tehsil Hiranagar.
JAMMU DISTRICT
64. Samba (SC) PCs 1-NAC Samba, 2-Samba Khas, 3-Taloor, 4-Amli, 5-Durin, 6-Katli, 7-Ram Nagar,
8-Pingdore, 11-Sunian, 10-Sarna, 12-Bhartgarh, 13-Suran, 14-Goran, 15-Balhter,
17-Katwalta, 18-Kharah Madena, 21-Baghore, 22-Purmandal, 24-Mohar Garh,
25-Badhari, 26-Kard in Tehsil Samba and PC 28-Chaudi in Jammu Tehsil.
65. Vijaypur PCs 9-Khanpur, 20-Vijaypur, 23-Gurah Salathian, 28-Harmander, 29-Chak Salarian,
30-Nanga, 31-Logwal, 32-Keso Manhasan, 33-Ramgarh, 34-Gho-Brahmana, 35 Chak
Chataka, 36-Chann Fatwal, 37-Abtal, 38-Swankha, 39-Mahal Shan, 40-Rari,
41-Smailpur, 27-Birpur, 42-Tarore, 43-Bagla, 44-Gandwal in Tehsil Samba.
66. Nagrota PCs 39-Ranjan, 40-Sarote, 41-Jandial, 42-Gorda, 44-Nagrota, 45-Dansal, 46-Jhajar
Kotli, 47-Thara, 48-Bamyal, 49-Katal Batal, 50-Shiba, 51-Jagti, 52-Jindrah, 53-Kanyala,
54-Kothar, 55-Kharte, 56-Dhan, 57-Songoon, 58-Ponthal, 59-Surinsar in Tehsil Jammu
and PCs 16-Bain Bajalta, 19-Aitham in Tehsil Samba.
67. Gandhinagar Ward-16 (Gandhinagar), Ward-17 (Naibasti), Ward-22 (Chhani Rama), Ward-23
(Bahu), 24-Digiana, 26-Bahu, 27-Sunjwan, 29-Gadigarh, 30-Satwari in Tehsil Jammu.
68. Jammu East Wards 1 to 6, 9, 10, 12 and 15.
69. Jammu West Wards 7, 8, 11, 13, 14, 18, 19, 20 and 21.
70. Bishnah All PCs in Tehsil Bishnah and 25-Naugran in Tehsil Jammu.
71. R. S. Pura (SC) PCs 1-Salhar, 2-Rathana, 3-Kandlihar, 4-Khour, 5-Kalyana, 14-R. S. Pura with NAC,
15-Khas Gigian, 16-Chohalla, 19-Kirpind, 20-Kotli Shah Dula, 25-Marlia, 24-Darsopur,
35-Gondla in Tehsil R. S. Pura.
72. Suchetgarh PCs 6-Dablihar, 7-Magowali, 8-Parlah, 9-Chak Baza, 10-Nekowal, 11-Jevroh, 12-Saie
Kalan, 13-Chak Mulo, 17-Badyal Brahmana, 18-Jssore, 21-Chak Agra, 22-Fatehpur
Brahmana, 25-Samka, 26-Baspur, 27-Rangpur Malana, 28-Suchetgarh, 29-Chandu
Chak, 30-Satowali, 31-Grarana, 32-Badyal Qazian, 33-Abdal, 34-Chakroi in Tehsil
R. S. Pura.
73. Marh PCs 60-Prahaladpur, 61-Mandal, 62-Sum, 65-Gho Manhasan, 66-Sohanjana, 67-Thub,
68-Sahran, 69-Rathua, 70-Chanore, 71-Makwal, 72-Gool, 74-Gajansoo, 75-Kalyanpur,
76-Kahnachak, 77-Marh, 78-Gangoo Chak, 79-Kalrup, 80-Dhateryal, 31-Flora
Nagbani in Tehsil Jammu.
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SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 35

1 2 3
74. Raipur Domana (SC) PCs 31-Paloura, 32-Muthi, 33-Barn, 34-Siri Panditan, 35-Gharota, 36-Raipur Domana,
37-Kot Bhalwal, 38-Amb, 43-Kaink, 63-Hakkal, 64-Khandwal, 73-Bhadora, 82-Panjore
in Tehsil Jammu.
75. Akhnoor PCs 1-Chowki, 2-Choura, 3-Kathar, 4-Mandarian, 8-Narri, 6-Ambaran, 7-Barui,
9-Ganderwan, 10-Manda, 11-Akhnoor Khas, 12-Sungal, 13-Pangairi, 14-Devipur,
15-Chak Kirpalpur, 16-Jadh, 17-Muthi Maira, 18-Rakh Dhoke, 19-Saliote, 20-Ghar
Majoor, 21-Mawa Brahmana, 22-Leherian in Tehsil Akhnoor.
76. Chhamb (SC) PCs 8-Mattoo, 24-Gurah Manhasan, 25-Sarwal, 23-Pargwal, 26-Bhalwal Malu,
27-Hamirpur, 28-Bakore, 29-Chak Malal, 30-Derian, 31-Sainth, 32-Gigarial, 33-Khour,
34-Kot Mera, 35-Palanwala, 36-Kharah, 37-Nathal, 38- Doori, 39-Chhani Dewanoo,
40-Samuan, 41-Chakla in Tehsil Akhnoor.
RAJOURI DISTRICT
77. Nowshera All PCs of Tehsil Nowshara except 11-Narian and all PCs of Tehsil Sunderbani.
78. Darhal All PCs of Tehsil Budhal except 3-Khawas, 6-Kote Chalwal and following PCs of
Tehsil Thanamandi :—
5-Darhal, 6-Chowdian, 7-Nadian, 8-Ujhan ; and PC 4-Nagrota in Tehsil Rajouri.
79. Rajouri Following PCs of Tehsil Rajouri :—
1-Gambir Muglan, 2-Dani-Dhar, 7-Bathooni, 8-Sarola, 9-Sohana, 10-Doongi
Brahmana, 11-Katarmal, 12-Deri Delote, 13-Panj Grain, 14-Galhoti, 15-Fatehpur,
17-Bagla, 19-Rampur with NAC Rajouri with following PCs of Thanamandi Tehsil:—
1-Dodasan Balla, 2-Saaj, 3-Shahdara Sharief, 4-Hosplote, 10-Thanamandi with NAC
and 9-Bharote.
80. Kalakote All PCs of Tehsil Kalakote and following PCs of Tehsil Rajouri :—
2-Dalhari, 3-Dhangri, 6-Potha Grlana, 16-Khanpur Chingus, 18-Bhadoon and PC
11-Narian of Tehsil Nowshera ; and
3-Khaskote Chalwal of Budhal Tehsil.
POONCH DISTRICT
81. Surankote All PCs in Surankote Tehsil and PCs 12-Rajpur, 21-Shindra, 22-Seri-Khawja in Poonch
Tehsil.
82. Mendhar All PCs of Tehsil Mendhar.
83. Poonch Haveli All PCs of Tehsil Poonch except 12-Rajpur, 21-Shindra, 22-Sheri Khawja.
Note.—Any reference in this table to a Tehsil, Patwar Circle (P.C.), Ward or N.A.C. (Notified Area Committee) shall be taken
to mean the area comprised within that Tehsil, Patwar Circle, Notified Area Committee or Ward as on 1-4-1995.
 311

36 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

The Fourth Schedule

(See Sections 16, 24 and 54)
FORMS OF OATHS OR AFFIRMATIONS
I
FORM OF OATH OR AFFIRMATION TO BE MADE BY A CANDIDATE FOR ELECTION TO THE LEGISLATIVE
ASSEMBLY OF THE UNION TERRITORY OF JAMMU AND KASHMIR
"I, A.B., having been nominated as a candidate to fill a seat in the Legislative Assembly of _________________do
swear in the name of God/ solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law
established and that I will uphold the sovereignty and integrity of India."
II
FORM OF OATH OR AFFIRMATION TO BE MADE BY A MEMBER OF THE LEGISLATIVE ASSEMBLY OF THE
UNION TERRITORY OF JAMMU AND KASHMIR
"I, A.B., having been elected (or nominated) a member of the Legislative Assembly of ______________ do swear in
the name of God/ solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established,
that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about
to enter."
III
FORM OF OATH OF OFFICE FOR A MEMBER OF THE COUNCIL OF MINISTERS OF THE UNION TERRITORY OF
JAMMU AND KASHMIR
"I, A.B., ______________ do swear in the name of God/ solemnly affirm that I will bear true faith and allegiance to the
Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will faithfully and
conscientiously discharge my duties as a Minister for the Union territory of ______________, and that I will do right to all
manner of people in accordance with the Constitution and the law without fear and favour, affection or ill-will."
IV
FORM OF OATH OF SECRECY FOR A MEMBER OF THE COUNCIL OF MINISTERS OF THE UNION TERRITORY OF
JAMMU AND KASHMIR
"I, A.B., ______________ do swear in the name of God/ solemnly affirm that I will not directly or indirectly communicate
or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me
as a Minister for the Union territory of ______________, except as may be required for the due discharge of my duties as
such Minister."
 312

SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 37

The Fifth Schedule

(See Sections 95 and 96)
TABLE - 1
CENTRAL LAWS MADE APPLICABLE TO THE UNION TERRITORY OF JAMMU AND KASHMIR; AND
UNION TERRITORY OF LADAKH
S.No. Name of the Act Section/Amendments
1. The Aadhar (Targeted Delivery of In sub-section (2) of section 1, words, "except the State
Financial and other subsidies, benefits of Jammu and Kashmir" shall be omitted.
and services) Act, 2016.
2. The Administrative Tribunal Act, 1985. Clause (b) of sub-section (2) of section 1 shall be omitted.
3. The Anand Marriage Act, 1951. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
4. The Arbitration and Conciliation Act, 1996. Proviso to sub-section (2) of section 1 shall be omitted.
5. The Benami Transactions (Prohibition) Act, 1988. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
6. The Charitable Endowment Act, 1890. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
7. The Chit Funds Act, 1982. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
8. The Code of Civil Procedure, 1908. Clause (a) of sub-section (3) of section 1 shall be omitted.
9. The Code of Criminal Procedure, 1973. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
10. The Commercial Courts Act, 2015. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
11. The Commission for Protection of In sub-section (2) of section 1, words, "except the State
Child's Rights Act, 2006. of Jammu and Kashmir" shall be omitted.
12. The Commission of Inquiry Act, 1952. Proviso to sub-section (2) of section 1 shall be omitted.
13. The Consumer Protection Act, 1986. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
14. The Contempt of Courts Act, 1971. Proviso to sub-section (2) of section 1 shall be omitted.
15. The Delimitation Act, 2002. Section 2(f) shall be omitted.
16. The Dissolution of Muslim Marriage Act, 1939. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
17. The Disturbed Areas (Special Courts) Act, 1976. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
18. The Dowry Prohibition Act, 1961. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
19. The Drugs and Magic Remedies (Objectionable In sub-section (2) of section 1, words, "except the State
Advertisement) Act, 1954. of Jammu and Kashmir" shall be omitted.
20. The Easements Act, 1891. Extended as whole.
 313

38 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

S.No. Name of the Act Section/Amendments

21. The Electricity Act, 2003. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
22. The Employees Provident Funds and In sub-section (2) of section 1, words, "except the State
Miscellaneous Provisions Act, 1952. of Jammu and Kashmir" shall be omitted.
23. The Employment of Manual Scavengers and Extended as whole.
Construction of Dry Latrines (Prohibition)
Act, 1993.
24. The Enemy Property Act, 1968. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
25. The Energy Conservation Act, 2001. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
26. The Family Courts Act, 1984. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
27. The Fatal Accidents Act, 1855. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
28. The Forest (Conservation) Act, 1980. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
29. The General Clauses Act, 1897. Extended as whole.
30. The Governors (Emoluments, Allowances & In sub-section (2) of section 1, words, "except the State
Privileges) Act, 1982. of Jammu and Kashmir" shall be omitted.
31. The Gram Nyayalayas Act, 2009. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
32. The Guardian & Wards Act, 1890. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
33. The Hindu Adoptions and Maintenance In sub-section (2) of section 1, words, "except the State
Act, 1956. of Jammu and Kashmir" shall be omitted.
34. The Hindu Disposition of Property Act, 1960. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
35. The Hindu Marriage Act, 1955. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
36. The Hindu Minority & Guardianship Act, 1956. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
37. The Hindu Succession Act, 1956. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
38. The Identification of Prisoners Act, 1920. Extended as whole.
39. The Indecent Representation of Women In sub-section (2) of section 1, words, "except the State
(Prohibition) Act, 1986. of Jammu and Kashmir" shall be omitted.
40. The Indian Boilers Act, 1923. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
41. The Indian Christian Marriage Act, 1872. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
42. The Indian Contract Act, 1872. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
 314

SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 39

S.No. Name of the Act Section/Amendments

43. The Indian Easements Act, 1882. Extended as whole.
44. The Indian Evidence Act, 1872. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
45. The Indian Forest Act, 1927. Extended as whole.
46. The Indian Nursing Council Act, 1947. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
47. The Indian Partnership Act, 1932. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
48. The Indian Penal Code, 1860. In section 1, words, "except the State of Jammu and
Kashmir" shall be omitted.
49. The Indian Stamp Act, 1899. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
50. The Indian Succession Act, 1925. Extended as whole.
51. The Indian Trust Act, 1882. In section 1, words, "except the State of Jammu and
Kashmir" shall be omitted.
52. The Indian Veterinary Council Act, 1984. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
53. The Judges (Protection) Act, 1985. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
54. The Judicial Officers (Protection) Act, 1850. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
55. The Juvenile Justice (Care & Protection of In sub-section (2) of section 1, words, "except the State
Children) Act, 2015. of Jammu and Kashmir" shall be omitted.
56. The Legal Services Authorities Act, 1987. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
57. The Limitation Act, 1963. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
58. The Maintenance and Welfare of Parents and In sub-section (2) of section 1, words, "except the State
Senior Citizens Act, 2007. of Jammu and Kashmir" shall be omitted.
59. The Majority Act, 1875. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
60. The Medical Termination of Pregnancy In sub-section (2) of section 1, words, "except the State
Act, 1971. of Jammu and Kashmir" shall be omitted.
61. The Muslim Personal Law (Shariet) Application In sub-section (2) of section 1, words, "except the State
Act, 1937. of Jammu and Kashmir" shall be omitted.
62. The Muslim Women (Protection of Rights on In sub-section (2) of section 1, words, "except the State
Divorce) Act, 1986. of Jammu and Kashmir" shall be omitted.
63. The National Commission for Minorities Act, 1992. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
64. The National Commission for Minority In sub-section (2) of section 1, words, "except the State
Educational Institutes Act, 2005. of Jammu and Kashmir" shall be omitted.
65. The National Commission for Safaikaramcharis In sub-section (2) of section 1, words, "except the State
Act, 1993. of Jammu and Kashmir" shall be omitted.
 315

40 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

S.No. Name of the Act Section/Amendments

66. The National Commission for Women Act, 1990. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
67. The National Council for Teacher Education In sub-section (2) of section 1, words, "except the State
Act, 1993. of Jammu and Kashmir" shall be omitted.
67-A National Security Act, 1980 In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
68. The National Trust for Welfare of Persons with In sub-section (2) of section 1, words, "except the State
Autism, Cerebral Palsy, Mental Retardation and of Jammu and Kashmir" shall be omitted.
Multiple Disabilities Act, 1999.
69. The Oaths Act, 1969. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
70. The Partition Act, 1893. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
71. The Pharmacy Act, 1948. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
72. The Powers of Attorney Act, 1882. In section 1, words, "except the State of Jammu and
Kashmir" shall be omitted.
73. The Preconception and Pre-natal Diagnostic In sub-section (2) of section 1, words, "except the State
Techniques (Prohibition of Sex Selection) of Jammu and Kashmir" shall be omitted.
Act, 1994.
74. The Prevention of Blackmarketing & In sub-section (2) of section 1, words, "except the State
Maintenance of Supplies of Essential of Jammu and Kashmir" shall be omitted.
Commodities Act, 1980.
75. The Prevention of Corruption Act, 1988. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
76. The Prevention of cruelty to animals Act, 1960. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
77. The Prevention of Damage to Public Property In sub-section (2) of section 1, words, "except the State
Act, 1984. of Jammu and Kashmir" shall be omitted.
78. The Prisoners Act, 1900. Extended as whole.
79. The Prisons Act, 1894. Extended as whole.
80. The Private Security Agencies (Regulation) In sub-section (2) of section 1, words, "except the State
Act, 2005. of Jammu and Kashmir" shall be omitted.
81. The Prize Chits and Money Circulation Scheme In sub-section (2) of section 1, words, "except the State
(Banning) Act, 1978. of Jammu and Kashmir" shall be omitted.
82. The Probation of Offenders Act, 1958. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
83. The Prohibition of Child Marriage Act, 2007. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
84. The Prohibition of Employment as Manual In sub-section (2) of section 1, words, "except the State
Scavengers and their Rehabilitation Act, 2013. of Jammu and Kashmir" shall be omitted.
85. The Protection of Children From Sexual Offences In sub-section (2) of section 1, words, "except the State
Act, 2012. of Jammu and Kashmir" shall be omitted.
 316

SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 41

S.No. Name of the Act Section/Amendments

86. The Protection of Human Rights Act, 1994. Proviso to sub-section (2) of section 1 shall be omitted.
87. The Protection of Women from Domestic In sub-section (2) of section 1, words, "except the State
Violence Act, 2005. of Jammu and Kashmir" shall be omitted.
88. The Public Gambling Act, 1867. Extended as whole.
89. The Public Records Act, 1993. Extended as whole.
90. The Registration Act, 1908. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
91. The Religious Endowments Act, 1863. Extended as whole.
92. The Religious Institutions (Prevention of In sub-section (2) of section 1, words, "except the State
Misuse) Act, 1988. of Jammu and Kashmir" shall be omitted.
93. The Right of Children to Free and Compulsory In sub-section (2) of section 1, words, "except the State
Education Act, 2009. of Jammu and Kashmir" shall be omitted.
94. The Right to Fair Compensation and In sub-section (2) of section 1, words, "except the State
Transparency in Land Acquisition, of Jammu and Kashmir" shall be omitted.
Rehabilitation and Resettlement Act, 2013.
94A. The Representation of People Act, 1951. In Section (2),
(i) In sub-section (1) Clause (d) the words "other than
the State of Jammu and Kashmir" shall be omitted; and
(ii) Sub-section (5) shall be omitted.
95. The Right to Information Act, 2005. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
96. The Sale of Goods Act, 1930. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
97. The Scheduled Tribes and Other Traditional In sub-section (2) of section 1, words, "except the State
Forest Dwellers (Recognition of Forests Rights) of Jammu and Kashmir" shall be omitted.
Act, 2007.
98. The Scheduled Caste and the Scheduled Tribes In sub-section (2) of section 1, words, "except the State
(Prevention of Atrocities) Act, 1989. of Jammu and Kashmir" shall be omitted.
99. The Special Marriage Act, 1954. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
100. The Specific Relief Act, 1963. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
101. The Suits Valuation Act, 1887. Extended as whole.
102. The Transfer of Property Act, 1882. Extended as whole.
103. The Transplantation of Human Organs and Extended as whole.
Tissues Act, 1994.
104. The Wakf Act, 1995. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
105. The Whistle Blowers Protection Act, 2014. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
106. The Wild Life (Protection) Act, 1972. In sub-section (2) of section 1, words, "except the State
of Jammu and Kashmir" shall be omitted.
 317

42 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

TABLE - 2
STATE LAWS WHICH SHALL BE APPLICABLE TO THE UNION TERRITORY OF JAMMU AND KASHMIR
AND UNION TERRITORY OF LADAKH WITH AMENDMENTS

S.No. Year No. Short title Amendments

1 2 3 4 5
1. Svt 1977 XLII The Transfer of Property Act Section 139 and section 140 shall be omitted.
(1920 AD)
2. Svt 1995 V The Jammu and Kashmir Section 4 and section 4-A shall be omitted;
(1938 AD) Alienation of Land Act
3. Svt 2007 XVII The Jammu and Kashmir Big Section 20-A shall be omitted.
(1950 AD) Landed Estates Abolition Act
4. 1960 XXXVIII The Jammu and Kashmir Land A. Provisos to sub-section 1 of section 4 shall be
Grants Act omitted; and
B. Clause (i) of sub-section 2 of section 4 shall be
omitted.
5. 1976 XVII The Jammu and Kashmir Section 17 shall be omitted.
Agrarian Reforms Act
6. 1989 X The Jammu and Kashmir Sub-Clause (ii) of clause (a) of sub-section (1) of
Cooperative Societies Act section 17 shall be omitted.
7. 2004 XIV The Jammu and Kashmir A. In section 2 after clause (g), the following clause
Reservation Act shall be inserted namely:—
"(ga) "economically weaker sections" means such
categories as may be notified by the Government
from time to time, on the basis of family income and
other indicators of economic disadvantage, other
than the classes or categories defined in clauses (m),
(n) and (o)";
B. In section 3, in sub-section (1),—
(i) in clause (a), the word "and" occurring at the
end shall be omitted;
(ii) in clause (b), for the words "backward classes:",
the words "backward classes; and" shall be
substituted;
(iii) after clause (b), the following clause shall be
inserted, namely:—
"(c) economically weaker sections:";
(iv) in the first proviso, for the words "the total
percentage of reservation", the words, brackets and
letters "the total percentage of reservation provided
in clauses (a) and (b)" shall be substituted;
(v) in the second proviso, for the words "Provided
further that", the following shall be substituted,
namely:—
 318

SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 43

1 2 3 4 5

"Provided further that the reservation in

appointments in favour of the persons belonging to
economically weaker sections shall be in addition to
the existing reservation as provided in this sub-
section and shall be subject to a maximum of ten per
cent. of the posts in each category:
Provided also that".
C. In section 9, in sub-section (1),—
(i) for the portion beginning with "shall reserve"
and ending with "from time to time;", the following
shall be substituted, namely:—
"shall reserve seats in the Professional Institutions
for candidates belonging to,—
(a) reserved categories and such other
classes or categories as may be notified from
time to time; and
(b) economically weaker sections:";
(ii) in the proviso, for the words "the total
percentage of reservation", the words, brackets and
letter "the total percentage of reservation provided
in clause (a)" shall be substituted;
(iii) after the proviso, the following proviso shall
be inserted, namely:—
"Provided further that the reservation in the
Professional Institutions in favour of the
persons belonging to economically weaker
sections shall be in addition to the existing
reservation as provided in this sub-section and
shall be subject to a maximum of ten per cent.
of the seats in each category.".
 319

44 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

TABLE - 3
STATE LAWS INCLUDING GOVERNOR'S ACTS WHICH ARE REPEALED IN UNION TERRITORY OF
JAMMU AND KASHMIR; AND UNION TERRITORY OF LADAKH

S.No. Name of the Act Act/Ordinance No.

1. The Jammu and Kashmir Accountability Commission Act, 2002. XXXVIII of 2002
2. The Jammu and Kashmir Advocates Welfare Fund Act, 1997. XXVI of 1997
3. The Jammu and Kashmir Agricultural Income Tax Act, 1962. XXI of 1962
4. The Jammu and Kashmir [State] Agricultural Produce Marketing Regulation XXXVI of 1997
Act, 1997.
5. The Jammu and Kashmir Anand Marriage Act, 1954. IX of 2011
6. The Jammu and Kashmir Animal Diseases (Control) Act, 1949. XV of 2006
7. The Jammu and Kashmir Apartment Ownership Act, 1989. I of 1989
8. The Jammu and Kashmir Arbitration and Conciliation Act, 1997. XXXV of 1997
9. The Jammu and Kashmir Arya Samajist Marriages (Validation) Act, 1942. III of Svt. 1999
10. The Jammu and Kashmir Ayurvedic and Unani Practitioners Act, 1959. XXVI of 1959
11. The Jammu and Kashmir Banker's Books Evidence Act, 1920. VI of 1977
12. The Jammu and Kashmir Benami Transactions (Prohibition) Act, 2010. V of 2010
13. The Jammu and Kashmir Boilers Act, Samvat, 1991. IV of Svt.1991
14. Buddhists Polyandrous Marriages Prohibition Act, 1941. II of 1998
15. The Jammu and Kashmir Cattle Trespass Act, 1920. VII of 1977
16. The Jammu and Kashmir Charitable Endowments Act, 1989. XIV of 1989
17. The Jammu and Kashmir Chit Funds Act, 2016. XI of 2016
18. The Jammu and Kashmir Christian Marriage and Divorce Act, 1957. III of 1957
19. The Jammu and Kashmir Cinematograph Act, 1933. XXIV of 1989
20. Code of Civil Procedure, Samvat 1977. X of Svt. 1977
21. Code of Criminal Procedure, Samvat 1989. XXIII of Svt. 1989
22. The Jammu and Kashmir Collection of Statistics Act, 2010. XVIII of 2010
23. The Jammu and Kashmir [State] Commission for Women Act, 1999. V of 1999
24. The Jammu and Kashmir Commission of Inquiry Act, 1962. XXXII of 1962
25. The Jammu and Kashmir Consumer Protection Act, 1987. XIVI of 1987
26. The Jammu and Kashmir Contempt of Courts Act, 1997. XXV of 1997
27. The Jammu and Kashmir Contingency Fund Act, 1957. XXIV of 1957
28. The Jammu and Kashmir Contract Act, Samvat 1977. IX of Svt.1977
29. The Jammu and Kashmir Court Fees Act, Samvat 1977. VII of Svt. 1977
30. The Jammu and Kashmir Court of Wards Act, Samvat 1977. LII of Svt. 1977
 320

SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 45

S.No. Name of the Act Act/Ordinance No.

31. The Jammu and Kashmir Criminal Law Amendment Act, Svt 1993. I of Svt. 1993
32. The Jammu and Kashmir Criminal Law Amendment Act, 1958. III of 1958
33. The Jammu and Kashmir Criminal Law Amendment Act, 1983. X of 1983
34. The Jammu and Kashmir Customs Act, Svt 1958. VIII of Svt.1958
35. The Jammu and Kashmir Dehi Adalats Act, 2013. XV of 2013
36. The Jammu and Kashmir Destruction of Records Act, 1920. XII of 1977
37. The Jammu and Kashmir Displaced Persons (Permanent Settlement) Act, 1971. X of 1971
38. The Jammu and Kashmir Dissolution of Muslim Marriages Act, 1942. X of Svt.1999
39. The Jammu and Kashmir Dowry Restraint Act, 1960. XXXVI of 1960
40. The Jammu and Kashmir Easements Act, 1920. XIV of Svt.1977
41. The Jammu and Kashmir Electricity Act, 2010. XIII of 2010
42. The Jammu and Kashmir Electricity (Duty) Act, 1963. XI of 1963
43. The Jammu and Kashmir Employees Provident Funds (And) Miscellaneous XV of 1961
Provisions Act, 1961.
44. The Jammu and Kashmir Employment of Manual Scavengers and Construction of
Dry Latrines (Prohibition) Act, 2010. XIX of 2010
45. The Jammu and Kashmir Energy Conservation Act, 2011. XIV of 2011
46. The Jammu and Kashmir Epidemic Diseases Act, 1920. XVI of 1977
47. (State) Evacuees (Administration of Property) (Validation of Orders, Proceedings IV of 1958
and Acts) Act, 1958.
48. The Jammu and Kashmir Evidence Act, Samvat 1977 (1920 A.D). XIII of Svt.1977
49. The Jammu and Kashmir Fatal Accidents Act, Samvat 1977. XVII of Svt.1977
50. The Jammu and Kashmir Forest Act, Samvat 1987. II of Svt.1987
51. The Jammu and Kashmir Forest (Conservation) Act, 1997. XXX of 1997
52. The Jammu and Kashmir Forest (Sale of Timber) Act, Samvat 1987. III of Svt.1987
53. The Jammu and Kashmir General Clauses Act, Samvat 1977. XX of Svt. 1977
54. The Jammu and Kashmir Good Conduct Prisoners (Temporary Release) Act, 1978. VII of 1978
55. Government Servants (Held in Detention) Act, 1956. XV of 1956
56. The Jammu and Kashmir Grant of Permit for Resettlement in (or Permanent X of 1982
Return to) the State Act, 1982.
57. The Jammu and Kashmir Guardians and Wards Act, Samvat 1977. XIX of Svt.1977
58. The Jammu and Kashmir Hindu Adoptions and Maintenance Act, 1960. II of 1960
59. The Jammu and Kashmir Hindu Disposition of Property Act, Samvat 1997. XVI of Svt. 1997
60. The Jammu and Kashmir Hindu Inheritance (Removal of Disabilities) Act, XVIII of Svt. 1997
Samvat 1997.
61. The Jammu and Kashmir Hindu Marriage Act, 1980. IV of 1980
62. The Jammu and Kashmir Hindu Marriage (Validation of Proceedings) Act, 1963. XVI of 1963
 321

46 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

S.No. Name of the Act Act/Ordinance No.

63. The Jammu and Kashmir Hindu Minority and Guardianship Act, 1957. VII of 1957
64. The Jammu and Kashmir Hindu Succession Act, 1956. XXXVIII of 1956
65. The Jammu and Kashmir Hindu Widows Remarriage and Property Act, Samvat 1989. XXIX of Svt. 1989
66. The Jammu and Kashmir Homeopathic Practitioner Act, 2003. VIII of 2003
67. The Jammu and Kashmir Identification of Prisoners Act, Samvat 1994. IV of Svt. 1994
68. The Jammu and Kashmir Infant Marriages Prevention Act, Samvat 1985. I of Svt. 1985
69. Instruments (Control of Noises) Act, 1959. VII of 1959
70. Judicial Officers Protection Act, 1971.
71. The Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013. VII of 2013
72. The Jammu and Kashmir Juvenile Smoking Act, Samvat 1986. II of Svt. 1986
73. Land Acquisition Act, Samvat 1990. X of Svt. 1990
74. Legal Practitioners (Fees) Act, Samvat 1988. VII of Svt. 1988
75. The Jammu and Kashmir Legal Representatives Suits Act, Samvat 1977. XXII of Svt. 1977
76. The Jammu and Kashmir Legal Services Authorities Act, 1997. XXXIII of 1997
77. The Jammu and Kashmir Limitation Act, Samvat 1995. IX of Svt. 1995
78. The Jammu and Kashmir Livestock Improvement Act, Samvat 1996. XXIII of Svt.1996
79. The Jammu and Kashmir Local Authorities Loans Act, Samvat 1997. VI of Svt. 1997
80. The Jammu and Kashmir Lunacy Act, Samvat 1977. XXV of Svt. 1997
81. The Jammu and Kashmir Maintenance and Welfare of Parents and XVI of 2014
Senior Citizens Act, 2014.
82. The Jammu and Kashmir Majority Act, Samvat 1977. XXVI of Svt. 1977
83. The Jammu and Kashmir Medical Registration Act, Samvat 1998. IV of Svt. 1998
84. The Jammu and Kashmir Medical Termination of Pregnancy Act, 1974. XXIII of 1974
85. The Jammu and Kashmir Muslim Dower Act, Samvat 1977. XLIV of Svt. 1977
86. The Jammu and Kashmir Muslim Personal Law (Shariat) Application Act, 2007. IV of 2007
87. The Jammu and Kashmir Muslim Specified Wakafs and Specified Wakaf VIII of 2004
Properties (Management and Regulation) Act, 2004.
88. The Jammu and Kashmir Nationalization of Forest Working Act, 1987. VII of 1987
89. (State) Newspapers (Incitements to Offences) Act, Svt 1971. VIV of Svt. 1971
90. The Jammu and Kashmir Nursing Council Act, 2012. IV of 2012
91. The Jammu and Kashmir Nursing Homes and Clinical Establishments XXXIX of 1963
(Registration and Licensing) Act, 1963.
92. Official Secrets Act, Samvat 1977. XLIII of Svt.1977
93. Opium Smoking Act, Samvat 2011. XXXII of Svt. 2011
94. Essential Services (Maintenance) Ordinance, Samvat 2001. IX of Svt. 2001
95. Hoarding and Profiteering Prevention Ordinance, Samvat 2000. XIX of Svt. 2000
 322

SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 47

S.No. Name of the Act Act/Ordinance No.

96. Police Enhanced Penalties Ordinance, Samvat 2005. III of Svt. 2005
97. Prevention of Corruption Ordinance, 2001. IV of Svt. 2001
98. The Jammu and Kashmir Public Servants Transfer of Immovable Property XXX of Svt.2004
(Restriction) Ordinance, 2004.
99. The Jammu and Kashmir Partition Act, Samvat 1977. XXX of Svt. 1977
100. The Jammu and Kashmir Partnership Act, Samvat 1996. V of Svt. 1996
101. The Jammu and Kashmir Permanent Residents Certificate (Procedure) Act, 1963. XIII of 1963
102. The Jammu and Kashmir Pharmacy Act, Samvat 2011. LIII of Svt. 2011
103. The Jammu and Kashmir Poisons Act, Samvat 1977. XXXIV of Svt. 1977
104. The Jammu and Kashmir Preconception and Prenatal Sex Selection XXXI of 2002
(Prohibition and Regulation) Act, 2002.
105. (State) Press and Publications Act, Svt 1989. I of Svt. 1989
106. The Jammu and Kashmir Prevention of Black Marketing and Maintenance XXV of 1988
of Supplies of Essential Commodities Act, 1988.
107. The Jammu and Kashmir Prevention of Corruption Act, Samvat 2006. XIII of Svt. 2006
108. The Jammu and Kashmir Prevention of Cruelty to Animals Act, Samvat 1990. XIII of Svt. 1990
109. The Jammu and Kashmir Prevention of Defacement of Property Act, 1985. XIX of 1985
110. The Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and XXIII of 1988
Psychotropic Substances Act, 1988.
111. The Jammu and Kashmir Prevention of Insult to State Honour Act, 1979. X of 1979
112. The Jammu and Kashmir Prisoners Act, Svt 1977. XXXIII of Svt. 1977
113. The Jammu and Kashmir Prisons Act, Svt 1977. XXXI of Svt. 1977
114. The Jammu and Kashmir Private Security Agencies (Regulation) Act, 2015. IX of 2015
115. The Jammu and Kashmir Prize Competition Act, 1956. XII of 1956
116. The Jammu and Kashmir Probation of Offenders Act, 1966. XXXVII of 1966
117. The Jammu and Kashmir Protection of Human Rights Act, 1997. XV of 1997
118. The Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010. XI of 2010
119. The Jammu and Kashmir Provident Funds Act, Svt 1998. XXII of Svt. 1998
120. The Jammu and Kashmir Public Gambling Act, Svt 1977. XVIII of Svt. 1977
121. The Jammu and Kashmir Public Property (Prevention of Damage) Act, 1985. XX of 1985
122. The Jammu and Kashmir Public Servants (Inquiries) Act, Svt 1977. XXVIII of Svt. 1977
123. (State) Ranbir Penal Code, Samvat 1989. XII of Svt. 1989
124. The Jammu and Kashmir Registration Act, Svt. 1977. XXXV of Svt. 1977
125. The Jammu and Kashmir Registration (Amendment and Validation of VI of 1955
Transfers of property) Act, 1955.
126. Registration of Deeds (Validating) Act, Samvat 2008. VI of Svt. 2008
127. Registration of Deeds (Validation) Act, 1956. XXI of 1956
 323

48 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

S.No. Name of the Act Act/Ordinance No.

128. Registration of Deeds (Validating) Act, 1968. XXXIII of 1968

129. Registration of Deeds (Validation) Act, 1976. I of 1976
130. Registration of Deeds (Validation) Act, 1985. IX of 1985
131. The Jammu and Kashmir Religious Endowments Act, Svt 1977. L of Svt.1977
132. The Jammu and Kashmir Representation of the People Act, 1957. IV of 1957
133. The Jammu and Kashmir Requisitioning and Acquisition of Immovable XXXV of 1968
Property Act, 1968.
134. The Jammu and Kashmir Right to Information Act, 2009. VIII of 2009
135. The Jammu and Kashmir Sale of Goods Act, Svt 1996. II of 1996
136. Separation of Judicial and Executive Functions Act, 1966. XL of 1966
137. The Jammu and Kashmir Small Causes Court Act, Svt 1968.
138. Societies Registration Act, Svt 1998. VI of Svt. 1998
139. The Jammu and Kashmir Specific Relief Act, Svt 1977. XXXVIIIof Svt.1977
140. The Jammu and Kashmir Standards of Weights and Measures (Enforcement) XXXVII of 1997
Act, 1997.
141. The Jammu and Kashmir Succession Certificate Act, Svt 1977. XXXIX of Svt. 1977
142. Succession (Property Protection) Act, Svt 1977. XXXVI of Svt. 1977
143. The Jammu and Kashmir Suits Valuation Act, Svt 1977. XXXVII of Svt.1977
144. The Jammu and Kashmir Suppression of Indecent Advertisements Act, Svt 2003. IX of Svt. 2003
145. The Jammu and Kashmir Transfer of Property Act, Svt 1977. XLII of Svt. 1977
146. The Jammu and Kashmir Transplantation of Human Organs Act, 1997. III of 1997
147. The Jammu and Kashmir Trusts Act, Svt 1977. XLI of Svt. 1977
148. The Jammu and Kashmir Venereal Diseases Act, Svt 2000. XXI of Svt. 2000
149. Veterinary Council Act, 2001. XXI of 2001
150. The Jammu and Kashmir [State] Village and Town Patrol Act, 1959. XXIV of 1959
151. The Jammu and Kashmir Village Sanitation Act, Svt. 1990. V of Svt. 1990
152. The Jammu and Kashmir Wakafs Act, 2001. III of 2001
153. The Jammu and Kashmir Wildlife (Protection) Act, 1978. VIII of 1978
 324

SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 49

S.No. Name of the Governor's Act Governor's Act No.

1. The Jammu and Kashmir State Trust for Welfare of Persons with Autism Cerebral VI of 2018
Palsy, Mental Retardation and Multiple Disabilities Act, 2018.
2. The Jammu and Kashmir Drugs and Magic Remedies (Objectionable VIII of 2018
Advertisements) Act, 2018.
3. The Jammu and Kashmir Single Window (Industrial Investment and X of 2018
Business Facilitation) Act, 2018.
4. The Jammu and Kashmir Commercial Courts Act, 2018. XIII of 2018
5. The Jammu and Kashmir Family Courts Act, 2018. XXIV of 2018
6. The Jammu and Kashmir Aadhar (Targeted Delivery of Financial and other XXXIV of 2018
Subsidies, Benefits and Services) Act, 2018.
7. The Jammu and Kashmir Protection of Children From Sexual Violence Act, 2018. II of 2018
8. The Jammu and Kashmir Rights of Persons with Disabilities Act, 2018. XL of 2018
9. The Jammu and Kashmir Prohibition of Benami Property Transactions Act, 2018. XLIII of 2018
10. The Jammu and Kashmir State Commission for Protection of Women and XLVI of 2018
Child Rights Act, 2018.
11. The Jammu and Kashmir Real Estate (Regulation and Development) Act, 2018. LIII of 2018
 325

50 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

TABLE - 4
STATE ACTS INCLUDING GOVERNOR'S ACTS THAT SHALL REMAIN IN FORCE IN
UNION TERRITORY OF JAMMU AND KASHMIR; AND UNION TERRITORY OF LADAKH

S.No. Name of the Act Act/Ordinance No.

1. The Jammu and Kashmir Aerial Ropeways Act, 2002 XII of 2002
2. The Jammu and Kashmir Agrarian Reforms Act, 1976 XVII of 1976
3. Agriculturists' Relief Act, Svt. 1983 I of Svt. 1983
4. The Jammu and Kashmir Government Aid to Agriculturists and Land Improvement VII of Svt. 1993
Act, Svt. 1993
5. The Jammu and Kashmir State Aid to Industries Act 1961 XXII of 1961
6. The Jammu and Kashmir Alienation of Land Act, Svt. 1995 V of Svt. 1995
7. The Jammu and Kashmir Anatomy Act, 1959 XXII of 1959
8. The Jammu and Kashmir Ancient Monuments Preservation Act, Svt. 1977 V of Svt 1977
9. The Jammu and Kashmir Baba Ghulam Shah Badshah University Act, 2002 XVI of 2002
10. The Jammu and Kashmir Big Landed Estates Abolition Act, Svt. 2007 XVII of Svt. 2007
11. The Jammu and Kashmir Board of Professional Entrance Examination Act, 2002 XXV of 2002
12. The Jammu and Kashmir Board of School Education Act, 1975 XXVIII of 1975
13. The Jammu and Kashmir State Board of Technical Education Act, 2002 XXIV of 2002
14. The Jammu and Kashmir Brick Kilns (Regulation) Act, 2010 XV II of 2010
15. Camping and Mooring Sites Act, Svt. 2004 XII of Svt.2004
16. The Jammu and Kashmir Chowkidari Act, 1956 XXXVII of 1956
17. The Jammu and Kashmir Civic Laws (Special Provisions) Act, 2014 III of 2014
18. The Jammu and Kashmir Civil Courts Act, Svt. 1977 XLVI of Svt.1977
19. The Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010 XVI of 2010
20. The Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 XIV of 2010
21. The Srinagar and Jammu Cluster Universities Act, 2016. III of 2016
22. The Jammu and Kashmir State Commission for Backward Classes Act, 1997 XII of 1997
23. The Jammu and Kashmir Common Lands (Regulation) Act, 1956 XXIV of 1956
24. The Jammu and Kashmir Consolidation of Holdings Act, 1962 V of 1962
25. The Jammu and Kashmir Control of Building Operations Act, 1988 XV of 1988
26. The Jammu and Kashmir Cooperative Societies Act, 1989. X of 1989
27. The Jammu and Kashmir Debtors Relief Act, 1976 XV of 1976
28. The Jammu and Kashmir Delivery of Books and Newspapers (Public Libraries) XIII of 1961
Act, 1961
29. The Jammu and Kashmir Deputy Ministers' Salaries and Allowances Act, 1957 VI of 1957
 326

SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 51

S.No. Name of the Act Act/Ordinance No.

30. The Jammu and Kashmir Deputy Speaker's and Deputy Chairman's (Emoluments) XXII of 1956
Act, 1956
31. The Jammu and Kashmir Development Act, 1970 XIX of 1970
32. The Jammu and Kashmir Egress and Internal Movement (Control) Ordinance, V of Svt.2005
Svt.2005.
33. The Jammu and Kashmir Enemy Agents Ordinance, Svt.2005. VIII of Svt.2005
34. The Jammu and Kashmir State Emergency Relief Fund Act, 1960 XIII of 1960
35. The Jammu and Kashmir Excise Act, Samvat 1958 --
36. The Jammu and Kashmir Extraction of Resin Act, 1988. IX of 1988
37. The Jammu and Kashmir State Evacuees (Administration of Property) Act, VI of Svt. 2006
Samvat 2006 (1949 A.D).
38. The Jammu and Kashmir Ferry Boats Control Act, 1971. XVIII of 1971
39. The Jammu and Kashmir State Finance Commission Act, 2006 XVIII of 2006
40. The Jammu and Kashmir Finance Commission for Panchayats and Municipalities XVI of 2011
Act, 2011
41. The Jammu and Kashmir Fire Force Act, 1967. XXII of 1967
42. The Jammu and Kashmir Fiscal Responsibility and Budget Management Act, 2006. XII of 2006
43. The Jammu and Kashmir Fisheries Act, 2018. XVI of 2018
44. The Jammu and Kashmir Flood Plain Zones (Regulation and Development) Act, 2005. XVII of 2005
45. The Jammu and Kashmir State Forest Corporation Act, 1978. XII of 1978
46. The Jammu and Kashmir Forest (Protection) Force Act, 2001. VI of 2001
47. The Jammu and Kashmir Fruit Nurseries (Licensing) Act, 1987. XXII of 1987
48. The Jammu and Kashmir Gift Goods (Unlawful Possession) Act, 1963. XL of 1963
49. The Jammu and Kashmir Golf Development and Management Authority Act, 2013. VIII of 2013
50. The Jammu and Kashmir Goods and Services Tax Act, 2017. V of 2017
51. The Jammu and Kashmir Government Gazette Act, Svt. 1945. XII of Svt. 1945
52. The Jammu and Kashmir Governor's Special Security Force Act, 2018 Governors Act
No.XLII of 2018
53. The Jammu and Kashmir Habitual Offenders (Control and Reform) Act, 1956. XI of 1956
54. The Jammu and Kashmir Handicrafts (Quality Control) Act, 1978. IV of 1978
55. The Jammu and Kashmir Heritage Conservation and Preservation Act, 2010. XV of 2010
56. The Jammu and Kashmir Highways Act, Svt. 2007. XXVII of Svt. 2007
57. The Jammu and Kashmir Home Guards Act, Svt. 2006. III of Svt. 2006
58. The Jammu and Kashmir Housing Board Act, 1976. VII of 1976
59. The Jammu and Kashmir Industrial Establishments (National and Festival) XIII of 1974
Holidays Act, 1974.
60. The Jammu and Kashmir Inspector General of Prisons (Change in Designation) XIII of 2001
Act, 2001.
 327

52 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

S.No. Name of the Act Act/Ordinance No.

61. The Jammu and Kashmir Islamic University of Science and Technology Kashmir XVIII of 2005
Act, 2005.
62. The Jammu and Kashmir Kahcharai Act, Svt. 2011. XVIII of Svt. 2011
63. Kashmir and Jammu Universities Act, 1969. XXIV of 1969
64. Kashmir Silk Protection Act, 1964.
65. The Jammu and Kashmir Khadi and Village Industries Board Act, 1965. XVI of 1965
66. Ladakh Autonomous Hill Development Council Act, 1997. XXXI of 1997
67. Ladakh Budhists Succession to Property Act, Svt. 2000. XVIII of Svt. 2000
68. The Jammu and Kashmir Lambardari Act, 1972. X of 1972
69. The Jammu and Kashmir Land Grants Act, 1960. XXXVIII of 1960
70. The Jammu and Kashmir Land Improvement Schemes Act, 1972. XXIV of 1972
71. The Jammu and Kashmir Land Revenue Act, Svt. 1996. XII of Svt. 1996
72. The Jammu and Kashmir Legislative Assembly Speaker's Emoluments Act, 1956. IV of 1956
73. The Jammu and Kashmir Legislative Council Chairman's (Emoluments) Act, 1962. XXVIII of 1962
74. The Jammu and Kashmir State Legislature Members' Pension Act, 1984. II of 1984
75. The Jammu and Kashmir Legislature (Prevention of Disqualification) Act, 1962. XVI of 1962
76. The Jammu and Kashmir State Legislature Proceedings (Protection of Publication) XXXVII of 1960
Act, 1960.
77. Levy of Tolls Act, Svt.1995. VIII of Svt. 1995
78. The Jammu and Kashmir Migrant Immovable Property (Preservation, Protection XVI of 1997
and Restraint on Distress Sales) Act, 1997.
79. The Jammu and Kashmir Migrants (Stay of Proceedings) Act, 1997. XVII of 1997
80. The Jammu and Kashmir Ministers and Ministers of State Salaries Act, 1956. VI of 1956
81. The Jammu and Kashmir Ministers and Presiding Officers Medical Facilities XXII of 1975
Act, 1975.
82. The Jammu and Kashmir Money Lenders and Accredited Loan Providers Act, 2010. XXIII of 2010
83. The Jammu and Kashmir Motor Spirit and Diesel Oil (Taxation of Sales) Act, Svt. 2005. V of Svt. 2005
84. The Jammu and Kashmir Motor Vehicles Taxation Act, 1957. XXVI of 1957
85. The Jammu and Kashmir Mulberry Protection Act, Svt. 2006. X of Svt. 2006
86. The Jammu and Kashmir Municipal Act, 2000. XX of 2000
87. The Jammu and Kashmir Municipal Corporation Act, 2000. XXI of 2000
88. The Jammu and Kashmir Municipal Ombudsman Act, 2010. XX of 2010
89. The Jammu and Kashmir Municipalities Public Disclosure Act, 2010. XXIV of 2010
90. The Jammu and Kashmir Muslim Marriages Registration Act, 1981. XXII of 1981
91. The Jammu and Kashmir Namdha Quality Control Act, Svt. 2010. VI of Svt. 2010
92. National Defence Fund Donation of Immovable Property (Exemption from V of 1963
Stamp Duty and Registration) Act, 1963.
 328

SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 53

S.No. Name of the Act Act/Ordinance No.

93. The Jammu and Kashmir Natural Calamities Destroyed Areas Improvement Act, XXXVIIIof Svt.2011
Svt. 2011.
94. The Jammu and Kashmir Non-Biodegradable Material (Management) Handling XII of 2007
and Disposal Act, 2007.
95. The Jammu and Kashmir Obsolete Laws (Repeal) Act, 2010. XXVII of 2010
96. The Jammu and Kashmir Ombudsman for Panchayats Act, 2014. V of 2014
97. The Jammu and Kashmir Panchayati Raj Act, 1989. IX of 1989
98. The Jammu and Kashmir Paramedical Council Act, 2014. VII of 2014
99. The Jammu and Kashmir Passengers Taxation Act, 1963. XII of 1963
100. The Jammu and Kashmir Plant Disease and Pests Act, 1973. XIV of 1973
101. Plyboard Industries (Acquisition of Shares and of the Industrial Undertakings) VI of 1987
Act, 1987.
102. Police Act, Svt. 1983. II of Svt. 1983
103. The Jammu and Kashmir Preservation of Specified Trees Act, 1969 V of 1969
104. The Jammu and Kashmir Prevention of Beggary Act, 1960. XL of 1960
105. The Jammu and Kashmir Prevention of Fragmentation of Agricultural Holdings XXV of 1960
Act, 1960.
106. Prevention of Ribbon Development Act, Svt. 2007. XXVI of Svt. 2007
107. Prevention of Rum Rasum Act, Svt. 1997. I of Svt. 1997
108. The Jammu and Kashmir Prevention and Suppression of Sabotages Activities XXII of 1965
Act, 1965.
109. The Jammu and Kashmir Prevention of Unfair Means Examination Act, 1987. XX of 1987
110. The Jammu and Kashmir Private Colleges (Regulation and Control) Act, 2002 XXII of 2002
111. Probate and Administration Act, Svt. 1977. XXIX of Svt. 1977
112. The Jammu and Kashmir Professions, Trades, Callings and Employment Tax IX of 2005
Act, 2005.
113. The Jammu and Kashmir Prohibition on Conversion of Land and Alienation of VIII of 1975
Orchards Act, 1975.
114. The Jammu and Kashmir Prohibition on Manufacture of Specified Copper XIII of 2006
Utensils (By Machine) Act, 2006.
115. The Jammu and Kashmir Prohibition of Ragging Act, 2011. VI of 2011
116. The Jammu and Kashmir State Prohibition of Smoking (Cinema and XVIII of Svt.2009
Theatre Halls) Act, Svt. 2009.
117. The Jammu and Kashmir Prohibition of Smoking and Non-Smokers Health XX of 1997
Protection in Public Service Vehicles Act, 1997.
118. The Jammu and Kashmir Property Rights to Slum Dwellers Act, 2012. XI of 2012
119. The Jammu and Kashmir Property Tax Board Act, 2013. XI of 2013
120. The Jammu and Kashmir Protection of Interest of Depositors (in Financial XIII of 2018
Establishments) Act, 2018.
 329

54 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

S.No. Name of the Act Act/Ordinance No.

121. The Jammu and Kashmir Public Men and Public Servants Declaration of V of 1983
Assets and Other Provisions Act, 1983.
122. The Jammu and Kashmir Public Premises (Eviction of Un-authorised XVII of 1988
Occupants) Act, 1988.
123. The Jammu and Kashmir Public Safety Act, 1978. VI of 1978
124. The Jammu and Kashmir Public Services Guarantee Act, 2011. IX of 2011
125. The Jammu and Kashmir Registration of Contractors Act, 1956. XVI of 1956
126. The Jammu and Kashmir Registration of Tourist Trade Act, 1978. IX of 1978
127. The Jammu and Kashmir Regulation of Accounts Act, Svt. 2001. XIV of Svt. 2001
128. The Jammu and Kashmir Reservation Act, 2004. XIV of 2004
129. The Jammu and Kashmir Residential and Commercial Tenancy Act, 2012. V of 2012
130. The Jammu and Kashmir Restitution of Mortgaged Properties Act, 1976. XIV of 1976
131. The Jammu and Kashmir Right of Prior Purchase Act, Svt. 1993. II of Svt. 1993
132. The Jammu and Kashmir Road Safety Council Act, 2018. V of 2018
133. The Jammu and Kashmir Saffron Act, 2007. V of 2007
134. Salaries and Allowances of Members of Jammu and Kashmir State Legislature XIX of 1960
Act, 1960.
135. Salaries and Allowances of Leader of Opposition in the State Legislature Act, 1985. XVI of 1985
136. The Sapphire Act, Svt. 1989. XVI of Svt. 1989
137. The Jammu and Kashmir School Education Act, 2002. XXI of 2002
138. The Jammu and Kashmir Self-Reliant Cooperatives Act, 1999. X of 1999
139. The Jammu and Kashmir State Sheep and Sheep Products Development Board IX of 1979
Act, 1979.
140. Sher-i-Kashmir University of Agricultural Sciences and Technology Act, 1982. VII of 1982
141. Sher-i-Kashmir Institute of Medical Sciences (Grant of Degrees) Act, 1983. XII of 1983
142. The Jammu and Kashmir Shri Amarnath Ji Shrine Act, 2000. XVIII of 2000
143. The Jammu and Kashmir Shri Mata Sukhrala Devi Ji and Shri Mata Bala Sundari III of 2013
Shrine Act, 2013.
144. The Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988. XVI of 1988
145. The Jammu and Kashmir Shri Mata Vaishno Devi University Act, 1999. XII of 1999
146. The Jammu and Kashmir Shri Shiv Khori Shrine Act, 2008. IV of 2008
147. The Jammu and Kashmir Sikh Gurdwaras and Religious Endowments Act, 1973. XV of 1973
148. The Jammu and Kashmir Silk (Development and Protection) Act, 1988. XXVIII of 1988
149. The Jammu and Kashmir Special Security Group Act, 2000. VI of 2000
150. The Jammu and Kashmir Special Tribunal Act, 1988. XIX of 1988
151. Stamp Act, Svt. 1977. XL of Svt. 1977
152. The Jammu and Kashmir Tenancy Act, Svt. 1980. II of Svt. 1980
 330

SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 55

S.No. Name of the Act Act/Ordinance No.

153. The Jammu and Kashmir Tenancy (Stay of Ejectment Proceedings) Act, 1966. XXXIII of 1966
154. The Jammu and Kashmir State Town Planning Act, 1963. XX of 1963
155. The Jammu and Kashmir Treasure Trove Act, Svt. 1954. ---
156. The Jammu and Kashmir Underground Public Utilities (Acquisition of Rights of IV of 2014
User in Land) Act, 2014.
157. Urban Immovable Property Tax (Repeal and Saving) Act, 2002. XXVIII of 2002
158. The University of Ladakh Act, 2018. Governor's Act No.
LVI of 2018
159. The Jammu and Kashmir Urban Property (Ceiling) Act, 1971. XII of 1971
160. Usurious Loans Act, Svt. 1977. XLVII of Svt. 1977
161. The Jammu and Kashmir Utilization of Lands Act, Svt. 2010. IX of Svt. 2010
162. The Jammu and Kashmir Vaccination Act, 1967. XXI of 1967
163. The Jammu and Kashmir Vegetable Seeds Act, Svt. 2009. XII of Svt. 2009
164. The Jammu and Kashmir State Vigilance Commission Act, 2011. I of 2011
165. The Jammu and Kashmir Water Resources (Regulation and Management) Act, 2010. XXI of 2010
166. The Jammu and Kashmir Willow (Prohibition on Export and Movement) Act, 2000. XVI of 2000

————

DR. G. NARAYANA RAJU,

Secretary to the Govt. of India.

UPLOADED BY THE MANAGER, GOVERNMENT OF INDIA PRESS, MINTO ROAD, NEW DELHI–110002
AND PUBLISHED BY THE CONTROLLER OF PUBLICATIONS, DELHI–110054.
MGIPMRND—2601GI(S3)—09-08-2019.
 331

ANNEXURE P-5(COLLY)/ 7

THE PROTECTION OF HUMAN RIGHTS ACT, 1993

_________
ARRANGEMENT OF SECTIONS
__________

CHAPTER I
PRELIMINARY
SECTIONS
1. Short title, extent and commencement.
2. Definitions.

CHAPTER II
THE NATIONAL HUMAN RIGHTS COMMISSION
3. Constitution of a National Human Rights Commission.
4. Appointment of Chairperson and other Members.
5. Resignation and removal of Chairperson and Members.
6. Term of office of Chairperson and Members.
7. Member to act as Chairperson or to discharge his functions in certain circumstances.
8. Terms and conditions of service of Chairperson and Members.
9. Vacancies, etc., not to invalidate the proceedings of the Commission.
10. Procedure to be regulated by the Commission.
11. Officers and other staff of the Commission.

CHAPTER III
FUNCTIONS AND POWERS OF THE COMMISSION
12. Functions of the Commission.
13. Powers relating to inquiries.
14. Investigation.
15. Statement made by persons to the Commission.
16. Persons likely to be prejudicially affected to be heard.

CHAPTER IV
PROCEDURE
17. Inquiry into complaints.
18. Steps during and after inquiry.
19. Procedure with respect to armed forces.
20. Annual and special reports of the Commission.

CHAPTER V
STATE HUMAN RIGHTS COMMISSIONS
21. Constitution of State Human Rights Commissions.
22. Appointment of Chairperson and other Members of State Commission.
23. Resignation and Removal of a Chairperson or a Member of the State Commission.
24. Term of office of Chairperson and Members of the State Commission.

1
 332

SECTIONS
25. Member to act as Chairperson or to discharge his functions in certain circumstances.
26. Terms and conditions of service of Chairperson and Members of State Commission.
27. Officers and other staff of the State Commission.
28. Annual and special reports of State Commission.
29. Application of certain provisions relating to National Human Rights Commission to State
Commissions.

CHAPTER VI
HUMAN RIGHTS COURTS
30. Human Rights Courts.
31. Special Public Prosecutor.
CHAPTER VII
FINANCE, ACCOUNTS AND AUDIT
32. Grants by the Central Government.
33. Grants by the State Government.
34. Accounts and audit.
35. Accounts and audit of State Commission.

CHAPTER VIII
MISCELLANEOUS
36. Matters not subject to jurisdiction of the Commission.
37. Constitution of special investigation teams.
38. Protection of action taken in good faith.
39. Members and officers to be public servants.
40. Power of Central Government to make rules.
40A. Power to make rules retrospectively.
40B. Power of Commission to make regulations.
41. Power of State Government to make rules.
42. Power to remove difficulties.
43. Repeal and savings.

2
 333

THE PROTECTION OF HUMAN RIGHTS ACT, 1993

ACT NO. 10 OF 1994
[8th January, 1994.]
An Act to provide for the constitution of a National Human Rights Commission, State Human
Rights Commissions in States and Human Rights Courts for better protection of human
rights and for matters connected therewith or incidental thereto.
BE it enacted by Parliament in the Forty-fourth Year of the Republic of India as follows:—
CHAPTER I
PRELIMINARY
1. Short title, extent and commencement.—(1) This Act may be called the Protection of Human
Rights Act, 1993.
(2) It extends to the whole of India:
1
* * * * *
(3) It shall be deemed to have come into force on the 28th day of September, 1993.
2. Definitions.—(1) In this Act, unless the context otherwise requires,—
(a) “armed forces” means the naval, military and air forces and includes any other armed forces
of the Union;
(b) “Chairperson” means the Chairperson of the Commission or of the State Commission, as the
case may be;
[(ba) “Chief Commissioner” means the Chief Commissioner for Persons with Disabilities
2

referred to in sub-section (1) of section 74 of the Rights of Persons with Disabilities Act, 2016 (49 of
2016);]
(c) “Commission” means the National Human Rights Commission constituted under section 3;
(d) “Human Rights” means the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or embodied in the International Covenants and
enforceable by courts in India;
(e) “Human Rights Court” means the Human Rights Court specified under section 30;
[(f) “International Covenants” means the International Covenant on Civil and Political Rights
3

and the International Covenant on Economic, Social and Cultural Rights adopted by the General
Assembly of the United Nations on the 16th December, 1966 and such other Covenant or Convention
adopted by the General Assembly of the United Nations as the Central Government may, by
notification, specify;]
[(g) “Member” means a Member of the Commission or of the State Commission, as the case
4

may be;]
[(ga) “National Commission for Backward Classes” means the National Commission for
2

Backward Classes constituted under section 3 of the National Commission for Backward Classes Act,
1993 (27 of 1993);]
(h) “National Commission for Minorities” means the National Commission for Minorities
constituted under section 3 of the National Commission for Minorities Act, 1992 (19 of 1992);

1. The proviso omitted by Act 34 of 2019, s. 95 and the Fifth Schedule (w.e.f. 31-10-2019).
2. Ins. by Act 19 of 2019, s. 2 (w.e.f. 2-8-2019).
3. Subs. by Act 43 of 2006, s. 2, for clause (f) (w.e.f. 23-11-2006).
4. Subs. by s. 2, ibid., for clause (g) (w.e.f. 23-11-2006).

3
 334

1
[(ha) “National Commission for Protection of Child Rights” means the National Commission for
Protection of Child Rights constituted under section 3 of the Commissions for Protection of Child
Rights Act, 2005 (4 of 2006);]
[(i) “National Commission for the Scheduled Castes” means the National Commission for the
2

Scheduled Castes referred to in article 338 of the Constitution;

(ia) “National Commission for the Scheduled Tribes” means the National Commission for the
Scheduled Tribes referred to in article 338A of the Constitution;]
(j) “National Commission for Women” means the National Commission for Women constituted
under section 3 of the National Commission for Women Act, 1990 (20 of 1990);
(k) “notification” means a notification published in the Official Gazette;
(l) “prescribed” means prescribed by rules made under this Act;
(m) “public servant” shall have the meaning assigned to it in section 21 of the Indian Penal Code
(45 of 1860);
(n) “State Commission” means a State Human Rights Commission constituted under section 21.
(2) Any reference in this Act to a law, which is not in force in the State of Jammu and Kashmir,
shall, in relation to that State, be construed as a reference to a corresponding law, if any, in force in that
State.
STATE AMENDMENT
Ladakh (UT).—
Section 2.—Omit sub-section (2).
[Vide Union Territory of Ladakh Reorganisation (Adaptation of Central Laws) Order, 2020, notification
No. S.O. 3774(E), dated (23-10-2020).]

CHAPTER II
THE NATIONAL HUMAN RIGHTS COMMISSION
3. Constitution of a National Human Rights Commission.—(1) The Central Government shall
constitute a body to be known as the National Human Rights Commission to exercise the powers
conferred upon, and to perform the functions assigned to, it under this Act.
(2) The Commission shall consist of—
(a) a Chairperson who has been a 3[Chief Justice of India or a Judge] of the Supreme Court;
(b) one Member who is, or has been, a Judge of the Supreme Court;
(c) one Member who is, or has been, the Chief Justice of a High Court;
(d) 4[three Members out of which at least one shall be a woman] to be appointed from amongst
persons having knowledge of, or practical experience in, matters relating to human rights.
(3) The Chairpersons of the 5[the National Commission for Backward Classes, the National
Commission for Minorities, the National Commission for Protection of Child Rights], 6[the National
Commission for the Scheduled Castes, the National Commission for the Scheduled Tribes] and the 7[the
National Commission for Women and the Chief Commissioner for Persons with Disabilities] shall be
deemed to be Members of the Commission for the discharge of functions specified in clauses (b) to (j) of
section 12.

1. Ins. by Act 19 of 2019, s. 2 (w.e.f. 2-8-2019).

2. Subs. by Act 43 of 2006, s. 2, for clause (i) (w.e.f. 23-11-2006).
3. Subs. by Act 19 of 2019, s. 3, for “Chief Justice” (w.e.f. 2-8-2019).
4. Subs. by s. 3, ibid., for “two Members” (w.e.f. 2-8-2019).
5. Subs. by s. 3, ibid., for “National Commission for Minorities” (w.e.f. 2-8-2019).
6. Subs. by Act 43 of 2006, s. 3, for “the National Commission for the Scheduled Castes and Scheduled Tribes”
(w.e.f. 23-11-2006).
7. Subs. by Act 19 of 2019, s. 3, for “National Commission for Women” (w.e.f. 2-8-2019).

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(4) There shall be a Secretary-General who shall be the Chief Executive Officer of the Commission
and 1[shall, subject to control of the Chairperson, exercise all administrative and financial powers (except
judicial functions and the power to make regulations under section 40B)].
(5) The headquarters of the Commission shall be at Delhi and the Commission may, with the
previous approval of the Central Government, establish offices at other places in India.
4. Appointment of Chairperson and other Members.—(1) The Chairperson and 2[the Members]
shall be appointed by the President by warrant under his hand and seal:
Provided that every appointment under this sub-section shall be made after obtaining the
recommendations of a Committee consisting of—

(a) the Prime Minister —chairperson;

(b) Speaker of the House of the People —member;
(c) Minister in-charge of the Ministry of Home —member;
Affairs in the Government of India
(d) Leader of the Opposition in the House of —member;
the People
(e) Leader of the Opposition in the Council of —member;
States
(f) Deputy Chairman of the Council of States —member:

Provided further that no sitting Judge of the Supreme Court or sitting Chief Justice of a High Court
shall be appointed except after consultation with the Chief Justice of India.
(2) No appointment of a Chairperson or a Member shall be invalid merely by reason of any
3
[vacancy of any member in the Committee referred to in the first proviso to sub-section (1)].
4
[5. Resignation and removal of Chairperson and Members.—(1) The Chairperson or any
Member may, by notice in writing under his hand addressed to the President of India, resign his office.
(2) Subject to the provisions of sub-section (3), the Chairperson or any Member shall only be
removed from his office by order of the President of India on the ground of proved misbehaviour or
incapacity after the Supreme Court, on reference being made to it by the President, has, on inquiry held in
accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the
Chairperson or the Member, as the case may be, ought on any such ground to be removed.
(3) Notwithstanding anything in sub-section (2), the President may, by order, remove from office the
Chairperson or any Member if the Chairperson or such Member, as the case may be,—
(a) is adjudged an insolvent; or
(b) engages during his term of office in any paid employment outside the duties of his
office; or
(c) is unfit to continue in office by reason of infirmity of mind or body; or
(d) is of unsound mind and stands so declared by a competent court; or
(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the
President involves moral turpitude.]

1. Subs. by Act 19 of 2019, s. 3, for certain words (w.e.f. 2-8-2019).

2. Subs. by Act 43 of 2006, s. 4, for “other Members” (w.e.f. 23-11-2006).
3. Subs. by s. 4, ibid., for “vacancy in the Committee” (w.e.f. 23-11-2006).
4. Subs. by s. 5, ibid., for section 5 (w.e.f. 23-11-2006).

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1
[6. Term of office of Chairperson and Members.—(1) A person appointed as Chairperson shall
hold office for a term of 2[three years] from the date on which he enters upon his office or until he attains
the age of seventy years, whichever is earlier 3[and shall be eligible for re-appointment].
(2) A person appointed as a Member shall hold office for a term of 2[three years] from the date on
which he enters upon his office and shall be eligible for re-appointment 4***:
Provided that no Member shall hold office after he has attained the age of seventy years.
(3) On ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment
under the Government of India or under the Government of any State.]
7. Member to act as Chairperson or to discharge his functions in certain circumstances.—(1) In
the event of the occurrence of any vacancy in the office of the Chairperson by reason of his death,
resignation or otherwise, the President may, by notification, authorise one of the Members to act as the
Chairperson until the appointment of a new Chairperson to fill such vacancy.
(2) When the Chairperson is unable to discharge his functions owing to absence on leave or
otherwise, such one of the Members as the President may, by notification, authorise in this behalf, shall
discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties.
5
[8. Terms and conditions of service of Chairperson and Members.—The salaries and allowances
payable to, and the other terms and conditions of service of, the Chairperson and Members shall be such
as may be prescribed:
Provided that neither the salary and allowances nor the other terms and conditions of service of the
Chairperson or a Member shall be varied to his disadvantage after his appointment.]
9. Vacancies, etc., not to invalidate the proceedings of the Commission.—No act or
proceedings of the Commission shall be questioned or shall be invalidated merely on the ground of
existence of any vacancy or defect in the constitution of the Commission.
10. Procedure to be regulated by the Commission.—(1) The Commission shall meet at such
time and place as the Chairperson may think fit.
6
[(2) Subject to the provisions of this Act and the rules made thereunder, the Commission shall have
the power to lay down by regulations its own procedure.]
(3) All orders and decisions of the Commission shall be authenticated by the
Secretary-General or any other officer of the Commission duly authorised by the Chairperson in this
behalf.
11. Officers and other staff of the Commission.—(1) The Central Government shall make
available to the Commission—
(a) an officer of the rank of the Secretary to the Government of India who shall be the
Secretary-General of the Commission; and
(b) such police and investigative staff under an officer not below the rank of a Director
General of Police and such other officers and staff as may be necessary for the efficient
performance of the functions of the Commission.
(2) Subject to such rules as may be made by the Central Government in this behalf, the
Commission may appoint such other administrative, technical and scientific staff as it may consider
necessary.

1. Subs. by Act 43 of 2006 s. 6, for section 6 (w.e.f. 23-11-2006).

2. Subs. by Act 19 of 2019, s. 4, for “five years” (w.e.f. 2-8-2019).
3. Ins. by s. 4, ibid (w.e.f. 2-8-2019).
4. The words “for another term of five years” omitted by Act 19 of 2019, s. 4 (w.e.f. 2-8-2019).
5. Subs. by Act 43 of 2006, s. 7, for section (8) (w.e.f. 23-11-2006).
6. Subs. by s. 8, ibid., for sub-section (2) (w.e.f. 23-11-2006).

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(3) The salaries, allowances and conditions of service of the officers and other staff appointed under
sub-section (2) shall be such as may be prescribed.
CHAPTER III
FUNCTIONS AND POWERS OF THE COMMISSION
12. Functions of the Commission.—The Commission shall perform all or any of the following
functions, namely:—
(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf 1[or
on a direction or order of any court], into complaint of—
(i) violation of human rights or abetment thereof; or
(ii) negligence in the prevention of such violation, by a public servant;
(b) intervene in any proceeding involving any allegation of violation of human rights pending
before a court with the approval of such court;
2
[(c) visit, notwithstanding anything contained in any other law for the time being in force, any
jail or other institution under the control of the State Government, where persons are detained or
lodged for purposes of treatment, reformation or protection, for the study of the living conditions of
the inmates thereof and make recommendations thereon to the Government;]
(d) review the safeguards provided by or under the Constitution or any law for the time
being in force for the protection of human rights and recommend measures for their effective
implementation;
(e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights
and recommend appropriate remedial measures;
(f) study treaties and other international instruments on human rights and make
recommendations for their effective implementation;
(g) undertake and promote research in the field of human rights;
(h) spread human rights literacy among various sections of society and promote awareness of the
safeguards available for the protection of these rights through publications, the media, seminars
and other available means;
(i) encourage the efforts of non-governmental organisations and institutions working in the field
of human rights;
(j) such other functions as it may consider necessary for the promotion of human rights.
13. Powers relating to inquiries.—(1) The Commission shall, while inquiring into complaints
under this Act, have all the powers of a civil court trying a suit under the Code of Civil Procedure,
1908 (5 of 1908), and in particular in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of witnesses and examining them on oath;
(b) discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses or documents;
(f) any other matter which may be prescribed.
(2) The Commission shall have power to require any person, subject to any privilege which may be
claimed by that person under any law for the time being in force, to furnish information on such points or

1. Ins. by Act 43 of 2006, s. 9 (w.e.f. 23-11-2006).

2. Subs. by s. 9, ibid., for clause (c) (w.e.f. 23-11-2006).

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matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject matter of the
inquiry and any person so required shall be deemed to be legally bound to furnish such
information within the meaning of section 176 and section 177 of the Indian Penal Code (45 of 1860).
(3) The Commission or any other officer, not below the rank of a Gazetted Officer, specially
authorised in this behalf by the Commission may enter any building or place where the Commission
has reason to believe that any document relating to the subject matter of the inquiry may be found, and
may seize any such document or take extracts or copies therefrom subject to the provisions of section
100 of the Code of Criminal Procedure, 1973 (2 of 1974), in so far as it may be applicable.
(4) The Commission shall be deemed to be a civil court and when any offence as is described in
section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code
(45 of 1860) is committed in the view or presence of the Commission, the Commission may, after
recording the facts constituting the offence and the statement of the accused as provided for in the
Code of Criminal Procedure, 1973 (2 of 1974), forward the case to a Magistrate having jurisdiction to
try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint
against the accused as if the case has been forwarded to him under section 346 of the Code of Criminal
Procedure, 1973.
(5) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the
meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code
(45 of 1860), and the Commission shall be deemed to be a civil court for all the purposes of section 195
and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
1
[(6) Where the Commission considers it necessary or expedient so to do, it may, by order, transfer
any complaint filed or pending before it to the State Commission of the State from which the complaint
arises, for disposal in accordance with the provisions of this Act:
Provided that no such complaint shall be transferred unless the same is one respecting which the State
Commission has jurisdiction to entertain the same.
(7) Every complaint transferred under sub-section (6) shall be dealt with and disposed of by the State
Commission as if it were a complaint initially filed before it.]
14. Investigation.—(1) The Commission may, for the purpose of conducting any investigation
pertaining to the inquiry, utilise the services of any officer or investigation agency of the Central
Government or any State Government with the concurrence of the Central Government or the State
Government, as the case may be.
(2) For the purpose of investigating into any matter pertaining to the inquiry, any officer or agency
whose services are utilised under sub-section (1) may, subject to the direction and control of the
Commission,—
(a) summon and enforce the attendance of any person and examine him;
(b) require the discovery and production of any document; and
(c) requisition any public record or copy thereof from any office.
(3) The provisions of section 15 shall apply in relation to any statement made by a person before any
officer or agency whose services are utilised under sub-section (1) as they apply in relation to any
statement made by a person in the course of giving evidence before the Commission.
(4) The officer or agency whose services are utilised under sub-section (1) shall investigate into any
matter pertaining to the inquiry and submit a report thereon to the Commission within such period as
may be specified by the Commission in this behalf.
(5) The Commission shall satisfy itself about the correctness of the facts stated and the conclusion, if
any, arrived at in the report submitted to it under sub-section (4) and for this purpose the

1. Ins. by Act 43 of 2006, s.10 (w.e.f. 23-11-2006).

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Commission may make such inquiry (including the examination of the person or persons who
conducted or assisted in the investigation) as it thinks fit.
15. Statement made by persons to the Commission.—No statement made by a person in the
course of giving evidence before the Commission shall subject him to, or be used against him in, any
civil or criminal proceeding except a prosecution for giving false evidence by such statement:
Provided that the statement—
(a) is made in reply to the question which he is required by the Commission to answer; or
(b) is relevant to the subject matter of the inquiry.
16. Persons likely to be prejudicially affected to be heard.—If, at any stage of the inquiry, the
Commission—
(a) considers it necessary to inquire into the conduct of any person; or
(b) is of the opinion that the reputation of any person is likely to be prejudicially affected by the
inquiry,
it shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence
in his defence:
Provided that nothing in this section shall apply where the credit of a witness is being impeached.
CHAPTER IV
PROCEDURE
17. Inquiry into complaints.—The Commission while inquiring into the complaints of violations of
human rights may—
(i) call for information or report from the Central Government or any State Government or
any other authority or organisation subordinate thereto within such time as may be specified by it:
Provided that—
(a) if the information or report is not received within the time stipulated by the
Commission, it may proceed to inquire into the complaint on its own;
(b) if, on receipt of information or report, the Commission is satisfied either that no
further inquiry is required or that the required action has been initiated or taken by the
concerned Government or authority, it may not proceed with the complaint and inform the
complainant accordingly;
(ii) without prejudice to anything contained in clause (i), if it considers necessary, having regard
to the nature of the complaint, initiate an inquiry.
1
[18. Steps during and after inquiry.—The Commission may take any of the following steps during
or upon the completion of an inquiry held under this Act, namely:—
(a) where the inquiry discloses the commission of violation of human rights or negligence in the
prevention of violation of human rights or abetment thereof by a public servant, it may recommend to
the concerned Government or authority—
(i) to make payment of compensation or damages to the complainant or to the victim or the
members of his family as the Commission may consider necessary;
(ii) to initiate proceedings for prosecution or such other suitable action as the Commission
may deem fit against the concerned person or persons;
(iii) to take such further action as it may think fit;
(b) approach the Supreme Court or the High Court concerned for such directions, orders or writs
as that Court may deem necessary;

1. Subs. by Act 43 of 2006, s. 11, for section 18 (w.e.f. 23-11-2006).

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(c) recommend to the concerned Government or authority at any stage of the inquiry for the grant
of such immediate interim relief to the victim or the members of his family as the Commission may
consider necessary;
(d) subject to the provisions of clause (e), provide a copy of the inquiry report to the petitioner or
his representative;
(e) the Commission shall send a copy of its inquiry report together with its recommendations to
the concerned Government or authority and the concerned Government or authority shall, within a
period of one month, or such further time as the Commission may allow, forward its comments on the
report, including the action taken or proposed to be taken thereon, to the Commission;
(f) the Commission shall publish its inquiry report together with the comments of the concerned
Government or authority, if any, and the action taken or proposed to be taken by the concerned
Government or authority on the recommendations of the Commission.]
19. Procedure with respect to armed forces.—(1) Notwithstanding anything contained in this
Act, while dealing with complaints of violation of human rights by members of the armed forces,
the Commission shall adopt the following procedure, namely:—
(a) it may, either on its own motion or on receipt of a petition, seek a report from the Central
Government;
(b) after the receipt of the report, it may, either not proceed with the complaint or, as the case
may be, make its recommendations to that Government.
(2) The Central Government shall inform the Commission of the action taken on the
recommendations within three months or such further time as the Commission may allow.
(3) The Commission shall publish its report together with its recommendations made to the Central
Government and the action taken by that Government on such recommendations.
(4) The Commission shall provide a copy of the report published under sub-section (3) to the
petitioner or his representative.
20. Annual and special reports of the Commission.—(1) The Commission shall submit an
annual report to the Central Government and to the State Government concerned and may at any time
submit special reports on any matter which, in its opinion, is of such urgency or importance that it
should not be deferred till submission of the annual report.
(2) The Central Government and the State Government, as the case may be, shall cause the annual
and special reports of the Commission to be laid before each House of Parliament or the State Legislature
respectively, as the case may be, along with a memorandum of action taken or proposed to be taken on
the recommendations of the Commission and the reasons for non-acceptance of the recommendations, if
any.
CHAPTER V
STATE HUMAN RIGHTS COMMISSIONS
21. Constitution of State Human Rights Commission.—(1) A State Government may constitute a
body to be known as the..................(name of the State) Human Rights Commission to exercise the
powers conferred upon, and to perform the functions assigned to, a State Commission under this
Chapter.
1
[(2) The State Commission shall, with effect from such date as the State Government may by
notification specify, consist of—
(a) a Chairperson who has been a 2[Chief Justice or a Judge] of a High Court;
(b) one Member who is, or has been, a Judge of a High Court or District Judge in the State with a
minimum of seven years experience as District Judge;

1. Subs. by Act 43 of 2006, s. 12, for sub-section (2) (w.e.f. 23-11-2006).

2. Subs. by Act 19 of 2019, s. 5, for “Chief Justice” (w.e.f. 2-8-2019).

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(c) one Member to be appointed from among persons having knowledge of or practical
experience in matters relating to human rights.]
(3) There shall be a Secretary who shall be the Chief Executive Officer of the State Commission and
1
[shall, subject to control of the Chairperson, exercise all administrative and financial powers of the State
Commission].
(4) The headquarters of the State Commission shall be at such place as the State Government may,
by notification, specify.
(5) A State Commission may inquire into violation of human rights only in respect of matters
relatable to any of the entries enumerated in List II and List III in the Seventh Schedule to the
Constitution:
Provided that if any such matter is already being inquired into by the Commission or any other
Commission duly constituted under any law for the time being in force, the State Commission shall not
inquire into the said matter:
2
* * * * *
3
[(6) Two or more State Governments may, with the consent of a Chairperson or Member of a State
Commission, appoint such Chairperson or, as the case may be, such Member of another State
Commission simultaneously if such Chairperson or Member consents to such appointment:
Provided that every appointment made under this sub-section shall be made after obtaining the
recommendations of the Committee referred to in sub-section (1) of section 22 in respect of the State for
which a common Chairperson or Member, or both, as the case may be, is to be appointed.]
4
[(7) Subject to the provisions of section 12, the Central Government may, by order, confer upon the
State Commission the functions relating to human rights being discharged by the Union territories, 5[other
than Union territory of Delhi, Union territory of Jammu and Kashmir and Union territory of Ladakh].
(8) The functions relating to human rights in case of 6[Union territory of Delhi, Union territory of
Jammu and Kashmir and Union territory of Ladakh] shall be dealt with by the Commission.]
22. Appointment of Chairperson and 7[Members] of State Commission.—(1) The Chairperson
and 7[Members] shall be appointed by the Governor by warrant under his hand and seal:
Provided that every appointment under this sub-section shall be made after obtaining the
recommendation of a Committee consisting of—

(a) the Chief Minister —chairperson;

(b) Speaker of the Legislative Assembly —member;
(c) Minister in-charge of the Department —member;
of Home in that State

(d) Leader of the Opposition in the —member:

Legislative Assembly

1. Subs. by Act 19 of 2019, s. 5, for “shall exercise such powers and discharge such functions of the State Commission as it may
delegate to him” (w.e.f. 2-8-2019).
2. The second proviso omitted by the Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Order, 2020,
vide notification No. S.O. 1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation (Adaptation of
Central Laws) Order, 2020, notification No. S.O. 3774(E), dated (23-10-2020).
3. Ins. by Act 43 of 2006, s. 12 (w.e.f. 23-11-2006).
4. Ins. by Act 19 of 2019, s. 5 (w.e.f. 2-8-2019).
5. Subs. by the Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Order, 2020, vide notification No. S.O.
1123(E), for “other than Union territory of Delhi” dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation
(Adaptation of Central Laws) Order, 2020, notification No. S.O. 3774(E), dated (23-10-2020).
6. Subs. by the Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Order, 2020, vide notification No. S.O.
1123(E), for “Union territory of Delhi” and vide Union Territory of Ladakh Reorganisation (Adaptation of Central Laws)
Order, 2020, notification No. S.O. 3774(E), dated (23-10-2020).
7. Subs. by Act 43 of 2006, s. 13, for “other Members” (w.e.f. 23-11-2006).

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Provided further that where there is a Legislative Council in a State, the Chairman of that Council and
the Leader of the Opposition in that Council shall also be members of the Committee:
Provided also that no sitting Judge of a High Court or a sitting district judge shall be appointed except
after consultation with the Chief Justice of the High Court of the concerned State.
(2) No appointment of a Chairperson or a Member of the State Commission shall be invalid merely
by reason of 1[any vacancy of any Member in the Committee referred to in sub-section (1)].
2
[23. Resignation and Removal of Chairperson or a Member of the State Commission].—3[(1)
The Chairperson or a Member of a State Commission may, by notice in writing under his hand addressed
to the Governor, resign his office.
(1A) Subject to the provisions of sub-section (2), the Chairperson or any Member of the State
Commission shall only be removed from his office by order of the President on the ground of proved
misbehaviour or incapacity after the Supreme Court, on a reference being made to it by the President, has,
on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported
that the Chairperson or such Member, as the case may be, ought on any such ground to be removed.]
(2) Notwithstanding anything in 4[sub-section (1A)] the President may by order remove from office
the Chairperson or any 5[Member] if the Chairperson or such 5[Member], as the case may be,—
(a) is adjudged an insolvent; or
(b) engages during his term of office in any paid employment outside the duties of his office; or
(c) is unfit to continue in office by reason of infirmity of mind or body; or
(d) is of unsound mind and stands so declared by a competent court; or
(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the
President involves moral turpitude.
6
[24. Term of office of Chairperson and Members of the State Commission.—(1) A person
appointed as Chairperson shall hold office for a term of 7[three years] from the date on which he enters
upon his office or until he attains the age of seventy years, whichever is earlier 8[and shall be eligible for
re-appointment].
(2) A person appointed as a Member shall hold office for a term of 7[three years] from the date on
which he enters upon his office and shall be eligible for re-appointment 9***:
Provided that no Member shall hold office after he has attained the age of seventy years.
(3) On ceasing to hold office, a Chairperson or a Member shall be ineligible for furthe r employment
under the Government of a State or under the Government of India.]
25. Member to act as Chairperson or to discharge his functions in certain circumstances.—(1)
In the event of the occurrence of any vacancy in the office of the Chairperson by reason of his death,
resignation or otherwise, the Governor may, by notification, authorise one of the Members to act as the
Chairperson until the appointment of a new Chairperson to fill such vacancy.

1. Subs. by Act 43 of 2006, s. 13, for “any vacancy in the Committee” (w.e.f. 23-11-2006).
2. Subs. by s. 14, ibid., for “Removal of a Member of the State Commission” (w.e.f. 23-11-2006).
3. Subs. by s. 14, ibid., for sub-section (1) (w.e.f. 23-11-2006).
4. Subs. by s. 14, ibid., for “sub-section (1)” (w.e.f. 23-11-2006).
5. Subs. by s. 14, ibid., for “other Member” (w.e.f. 23-11-2006).
6. Subs. by Act 43 of 2006, s. 15, for section 24 (w.e.f. 23-11-2006).
7. Subs. by Act 19 of 2019, s. 6, for “five years” (w.e.f. 2-8-2019).
8. Ins. by s. 6, ibid. (w.e.f. 2-8-2019).
9. The words “for another term of five years” omitted by Act 19 of 2019, s. 6 (w.e.f. 2-8-2019).

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(2) When the Chairperson is unable to discharge his functions owing to absence on leave or
otherwise, such one of the Members as the Governor may, by notification, authorise in this behalf, shall
discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties.
1
[26. Terms and conditions of service of Chairperson and Members of State Commission.— The
salaries and allowances payable to, and other terms and conditions of service of, the Chairperson and
Members shall be such as may be prescribed by the State Government:
Provided that neither the salary and allowances nor the other terms and conditions of service of the
Chairperson or a Member shall be varied to his disadvantage after his appointment.]
27. Officers and other staff of the State Commission.—(1) The State Government shall make
available to the Commission—
(a) an officer not below the rank of a Secretary to the State Government who shall be the
Secretary of the State Commission; and
(b) such police and investigative staff under an officer not below the rank of an Inspector
General of Police and such other officers and staff as may be necessary for the efficient
performance of the functions of the State Commission.
(2) Subject to such rules as may be made by the State Government in this behalf, the State
Commission may appoint such other administrative, technical and scientific staff as it may consider
necessary.
(3) The salaries, allowances and conditions of service of the officers and other staff appointed under
sub-section (2) shall be such as may be prescribed by the State Government.
28. Annual and special reports of State Commission.—(1) The State Commission shall submit an
annual report to the State Government and may at any time submit special reports on any matter which,
in its opinion, is of such urgency or importance that it should not be deferred till submission of the
annual report.
(2) The State Government shall cause the annual and special reports of the State Commission to
be laid before each House of State Legislature where it consists of two Houses, or where such Legislature
consists of one House, before that House along with a memorandum of action taken or proposed to be
taken on the recommendations of the State Commission and the reasons for non-acceptance of the
recommendations, if any.
29. Application of certain provisions relating to National Human Rights Commission to State
Commissions.—The provisions of sections 9, 10, 12, 13, 14, 15, 16, 17 and 18 shall apply to a State
Commission and shall have effect, subject to the following modifications, namely:—
(a) references to “Commission” shall be construed as references to “State Commission”;
(b) in section 10, in sub-section (3), for the word “Secretary-General”, the word
“Secretary” shall be substituted;
(c) in section 12, clause (f) shall be omitted;
(d) in section 17, in clause (i), the words “Central Government or any” shall be omitted.
CHAPTER VI
HUMAN RIGHTS COURTS
30. Human Rights Courts.—For the purpose of providing speedy trial of offences arising out of
violation of human rights, the State Government may, with the concurrence of the Chief Justice of the
High Court, by notification, specify for each district a Court of Session to be a Human Rights Court to
try the said offences:

1. Subs. by Act 43 of 2006, s.16, for section 26 (w.e.f. 23-11-2006).

13
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Provided that nothing in this section shall apply if—

(a) a Court of Session is already specified as a special court; or
(b) a special court is already constituted,
for such offences under any other law for the time being in force.
31. Special Public Prosecutor.—For every Human Rights Court, the State Government shall, by
notification, specify a Public Prosecutor or appoint an advocate who has been in practice as an advocate
for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in
that Court.
CHAPTER VII
FINANCE, ACCOUNTS AND AUDIT
32. Grants by the Central Government.—(1) The Central Government shall, after due
appropriation made by Parliament by law in this behalf, pay to the Commission by way of grants such
sums of money as the Central Government may think fit for being utilised for the purposes of this Act.
(2) The Commission may spend such sums as it thinks fit for performing the functions under this
Act, and such sums shall be treated as expenditure payable out of the grants referred to in
sub-section (1).
33. Grants by the State Government.—(1) The State Government shall, after due, appropriation
made by Legislature by law in this behalf, pay to the State Commission by way of grants such sums
of money as the State Government may think fit for being utilised for the purposes of this Act.
(2) The State Commission may spend such sums as it thinks fit for performing the functions under
Chapter V, and such sums shall be treated as expenditure payable out of the grants referred to in
sub-section (1).
34. Accounts and audit.—(1) The Commission shall maintain proper accounts and other relevant
records and prepare an annual statement of accounts in such form as may be prescribed by the Central
Government in consultation with the Comptroller and Auditor-General of India.
(2) The accounts of the Commission shall be audited by the Comptroller and Auditor-General at
such intervals as may be specified by him and any expenditure incurred in connection with such audit
shall be payable by the Commission to the Comptroller and Auditor-General.
(3) The Comptroller and Auditor-General and any person appointed by him in connection with the
audit of the accounts of the Commission under this Act shall have the same rights and privileges and the
authority in connection with such audit as the Comptroller and Auditor-General generally has in
connection with the audit of Government accounts and, in particular, shall have the right to demand
the production of books, accounts, connected vouchers and other documents and papers and to
inspect any of the offices of the Commission.
(4) The accounts of the Commission, as certified by the Comptroller and Auditor-General or
any other person appointed by him in this behalf, together with the audit report thereon shall be
forwarded annually to the Central Government by the Commission and the Central Government shall
cause the audit report to be laid, as soon as may be after it is received, before each House of Parliament.
35. Accounts and audit of State Commission.—(1) The State Commission shall maintain
proper accounts and other relevant records and prepare an annual statement of accounts in such form as
may be prescribed by the State Government in consultation with the Comptroller and
Auditor-General of India.
(2) The accounts of the State Commission shall be audited by the Comptroller and Auditor-General
at such intervals as may be specified by him and any expenditure incurred in connection with such
audit shall be payable by the State Commission to the Comptroller and Auditor-General.
(3) The Comptroller and Auditor-General and any person appointed by him in connection with the
audit of the accounts of the State Commission under this Act shall have the same rights and privileges

14
 345

and the authority in connection with such audit as the Comptroller and Auditor-General generally has
in connection with the audit of Government accounts and, in particular, shall have the right to demand
the production of books, accounts, connected vouchers and other documents and papers and to inspect
any of the offices of the State Commission.
(4) The accounts of the State Commission, as certified by the Comptroller and Auditor-General or
any other person appointed by him in this behalf, together with the audit report thereon, shall be
forwarded annually to the State Government by the State Commission and the State Government shall
cause the audit report to be laid, as soon as may be after it is received, before the State Legislature.
CHAPTER VIII
MISCELLANEOUS
36. Matters not subject to jurisdiction of the Commission.—(1) The Commission shall not
inquire into any matter which is pending before a State Commission or any other Commission duly
constituted under any law for the time being in force.
(2) The Commission or the State Commission shall not inquire into any matter after the expiry of
one year from the date on which the act constituting violation of human rights is alleged to have been
committed.
37. Constitution of special investigation teams.—Notwithstanding anything contained in any other
law for the time being in force, where the Government considers it necessary so to do, it may constitute
one or more special investigation teams, consisting of such police officers as it thinks necessary for
purposes of investigation and prosecution of offences arising out of violations of human rights.
38. Protection of action taken in good faith.—No suit or other legal proceeding shall lie against
the Central Government, State Government, Commission, the State Commission or any Member thereof
or any person acting under the direction either of the Central Government, State Government,
Commission or the State Commission in respect of anything which is in good faith done or intended to
be done in pursuance of this Act or of any rules or any order made thereunder or in respect of the
publication by or under the authority of the Central Government, State Government, Commission or
the State Commission of any report, paper or proceedings.
39. Members and officers to be public servants.—Every Member of the Commission, State
Commission and every officer appointed or authorised by the Commission or the State Commission
to exercise functions under this Act shall be deemed to be a public servant within the meaning of
section 21 of the Indian Penal Code (45 of 1860).
40. Power of Central Government to make rules.—(1) The Central Government may, by
notification, make rules to carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, namely:—
(a) the salaries and allowances and other terms and conditions of service of the 1[Chairperson
and Members] under section 8;
(b) the conditions subject to which other administrative, technical and scientific staff may be
appointed by the Commission and the salaries and allowances of officers and other staff under
sub-section (3) of section 11;
(c) any other power of a civil court required to be prescribed under clause (f) of
sub-section (1) of section 13;
(d) the form in which the annual statement of accounts is to be prepared by the Commission
under sub-section (1) of section 34; and
(e) any other matter which has to be, or may be, prescribed.

1. Subs. by Act 43 of 2006, s.17, for “Members” (w.e.f. 23-11-2006).

15
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(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each
House of Parliament, while it is in session, for a total period of thirty days which may be comprised in
one session or in two or more successive sessions, and if, before the expiry of the session immediately
following the session or the successive sessions aforesaid, both Houses agree in making any modification
in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only
in such modified form or be of no effect, as the case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of anything previously done under that rule.
1
[40A. Power to make rules retrospectively.—The power to make rules under clause (b) of
sub-section (2) of section 40 shall include the power to make such rules or any of them retrospectively
from a date not earlier than the date on which this Act received the assent of the President, but no such
retrospective effect shall be given to any such rule so as to prejudicially affect the interests of any person
to whom such rule may be applicable.]
2
[40B. Power of Commission to make regulations.—(1) Subject to the provisions of this Act and
the rules made thereunder, the Commission may, with the previous approval of the Central Government,
by notification, make regulations to carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may
provide for all or any of the following matters, namely:—
(a) the procedure to be followed by the Commission under sub-section (2) of section 10;
(b) the returns and statistics to be furnished by the State Commissions;
(c) any other matter which has to be, or may be, specified by regulations.
(3) Every regulation made by the Commission under this Act shall be laid, as soon as may be after it
is made, before each House of Parliament, while it is in session, for a total period of thirty days which
may be comprised in one session or in two or more successive sessions, and if, before the expiry of the
session or the successive sessions aforesaid, both Houses agree in making any modification in the
regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter
have effect only in such modified form or be of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity of anything previously done under
that regulation.]
41. Power of State Government to make rules.—(1) The State Government may, by
notification, make rules to carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, namely:—
(a) the salaries and allowances and other terms and conditions of service of 3[the
Chairperson and Members] under section 26;
(b) the conditions subject to which other administrative, technical and scientific staff may be
appointed by the State Commission and the salaries and allowances of officers and other staff
under sub-section (3) of section 27;
(c) the form in which the annual statement of accounts is to be prepared under sub-section (1) of
section 35.
(3) Every rule made by the State Government under this section shall be laid, as soon as may be after
it is made, before each House of the State Legislature where it consists of two Houses, or where such
Legislature consists of one House, before that House.
42. Power to remove difficulties.—(1) If any difficulty arises in giving effect to the provisions of
this Act, the Central Government may, by order published in the Official Gazette, make such provisions,

1. Ins. by Act 49 of 2000, s. 2 (w.e.f. 11-12-2000).

2. Ins. by Act 43 of 2006, s. 18 (w.e.f. 23-11-2006).
3. Subs. by s. 19, ibid., for “the Members” (w.e.f. 23-11-2006).

16
 347

not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing
the difficulty:
Provided that no such order shall be made after the expiry of the period of two years from the date of
commencement of this Act.
(2) Every order made under this section shall, as soon as may be after it is made, be laid before each
House of Parliament.
43. Repeal and savings.—(1) The Protection of Human Rights Ordinance, 1993 (Ord. 30 of 1993) is
hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance,
shall be deemed to have been done or taken under the corresponding provisions of this Act.

17
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ANNEXURE P-6

UNITED A
NATIONS

General Assembly

Distr.
GENERAL

A/RES/48/134
4 March 1994

Forty-eighth session
Agenda item 114 (b)

RESOLUTION ADOPTED BY THE GENERAL ASSEMBLY

[on the report of the Third Committee (A/48/632/Add.2)]

48/134. National institutions for the promotion and protection

of human rights

The General Assembly,

Recalling the relevant resolutions concerning national institutions for

the protection and promotion of human rights, notably its resolutions 41/129
of 4 December 1986 and 46/124 of 17 December 1991 and Commission on Human
Rights resolutions 1987/40 of 10 March 1987, 1/ 1988/72 of 10 March 1988, 2/
1989/52 of 7 March 1989, 3/ 1990/73 of 7 March 1990, 4/ 1991/27 of 5 March
1991 5/ and 1992/54 of 3 March 1992, 6/ and taking note of Commission
resolution 1993/55 of 9 March 1993, 7/

__________

1/ See Official Records of the Economic and Social Council, 1987,

Supplement No. 5 and corrigenda (E/1987/18 and Corr.1 and 2), chap. II, sect.
A.

2/ Ibid., 1988, Supplement No. 2 and corrigendum (E/1988/12 and

Corr.1), chap. II, sect. A.

3/ Ibid., 1989, Supplement No. 2 (E/1989/20), chap. II, sect. A.

4/ Ibid., 1990, Supplement No. 2 and corrigendum (E/1990/22 and

Corr.1), chap. II, sect. A.

5/ Ibid., 1991, Supplement No. 2 (E/1991/22), chap. II, sect. A.

6/ Ibid., 1992, Supplement No. 2 (E/1992/22), chap. II, sect. A.

7/ Ibid., 1993, Supplement No. 3 (E/1993/23), chap. II, sect. A.

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A/RES/48/134
Page 2

Emphasizing the importance of the Universal Declaration of Human Rights,

8/ the International Covenants on Human Rights 9/ and other international
instruments for promoting respect for and observance of human rights and
fundamental freedoms,

Affirming that priority should be accorded to the development of

appropriate arrangements at the national level to ensure the effective
implementation of international human rights standards,

Convinced of the significant role that institutions at the national

level can play in promoting and protecting human rights and fundamental
freedoms and in developing and enhancing public awareness of those rights and
freedoms,

Recognizing that the United Nations can play a catalytic role in

assisting the development of national institutions by acting as a clearing-
house for the exchange of information and experience,

Mindful in this regard of the guidelines on the structure and

functioning of national and local institutions for the promotion and
protection of human rights endorsed by the General Assembly in its resolution
33/46 of 14 December 1978,

Welcoming the growing interest shown worldwide in the creation and

strengthening of national institutions, expressed during the Regional Meeting
for Africa of the World Conference on Human Rights, held at Tunis from 2 to 6
November 1992, the Regional Meeting for Latin America and the Caribbean, held
at San José from 18 to 22 January 1993, the Regional Meeting for Asia, held at
Bangkok from 29 March to 2 April 1993, the Commonwealth Workshop on National
Human Rights Institutions, held at Ottawa from 30 September to 2 October 1992
and the Workshop for the Asia and Pacific Region on Human Rights Issues, held
at Jakarta from 26 to 28 January 1993, and manifested in the decisions
announced recently by several Member States to establish national institutions
for the promotion and protection of human rights,

Bearing in mind the Vienna Declaration and Programme of Action, 10/ in

which the World Conference on Human Rights reaffirmed the important and
constructive role played by national institutions for the promotion and
protection of human rights, in particular in their advisory capacity to the
competent authorities, their role in remedying human rights violations, in the
dissemination of human rights information and in education in human rights,

__________

8/ Resolution 217 A (III).

9/ Resolution 2200 A (XXI), annex.

10/ A/CONF.157/24 (Part I), chap. III.

/...
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A/RES/48/134
Page 3

Noting the diverse approaches adopted throughout the world for the
promotion and protection of human rights at the national level, emphasizing
the universality, indivisibility and interdependence of all human rights, and
emphasizing and recognizing the value of such approaches to promoting
universal respect for and observance of human rights and fundamental freedoms,

1. Takes note with satisfaction of the updated report of the

Secretary-General, 11/ prepared in accordance with General Assembly resolution
46/124 of 17 December 1991;

2. Reaffirms the importance of developing, in accordance with

national legislation, effective national institutions for the promotion and
protection of human rights and of ensuring the pluralism of their membership
and their independence;

3. Encourages Member States to establish or, where they already

exist, to strengthen national institutions for the promotion and protection of
human rights and to incorporate those elements in national development plans;

4. Encourages national institutions for the promotion and protection

of human rights established by Member States to prevent and combat all
violations of human rights as enumerated in the Vienna Declaration and
Programme of Action and relevant international instruments;

5. Requests the Centre for Human Rights of the Secretariat to

continue its efforts to enhance cooperation between the United Nations and
national institutions, particularly in the field of advisory services and
technical assistance and of information and education, including within the
framework of the World Public Information Campaign for Human Rights;

6. Also requests the Centre for Human Rights to establish, upon the
request of States concerned, United Nations centres for human rights
documentation and training and to do so on the basis of established procedures
for the use of available resources within the United Nations Voluntary Fund
for Advisory Services and Technical Assistance in the Field of Human Rights;

7. Requests the Secretary-General to respond favourably to requests

from Member States for assistance in the establishment and strengthening of
national institutions for the promotion and protection of human rights as part
of the programme of advisory services and technical cooperation in the field
of human rights, as well as national centres for human rights documentation
and training;

8. Encourages all Member States to take appropriate steps to promote

the exchange of information and experience concerning the establishment and
effective operation of such national institutions;

9. Affirms the role of national institutions as agencies for the

dissemination of human rights materials and for other public information
activities, prepared or organized under the auspices of the United Nations;

__________

11/ A/48/340.

/...
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A/RES/48/134
Page 4

10. Welcomes the organization under the auspices of the Centre for
Human Rights of a follow-up meeting at Tunis in December 1993 with a view, in
particular, to examining ways and means of promoting technical assistance for
the cooperation and strengthening of national institutions and to continuing
to examine all issues relating to the question of national institutions;

11. Welcomes also the Principles relating to the status of national

institutions, annexed to the present resolution;

12. Encourages the establishment and strengthening of national

institutions having regard to those principles and recognizing that it is the
right of each State to choose the framework that is best suited to its
particular needs at the national level;

13. Requests the Secretary-General to report to the General Assembly

at its fiftieth session on the implementation of the present resolution.

85th plenary meeting

20 December 1993

ANNEX

Principles relating to the status of national institutions

A. Competence and responsibilities

1. A national institution shall be vested with competence to promote and
protect human rights.

2. A national institution shall be given as broad a mandate as possible,

which shall be clearly set forth in a constitutional or legislative text,
specifying its composition and its sphere of competence.

3. A national institution shall, inter alia, have the following

responsibilities:

(a) To submit to the Government, Parliament and any other competent

body, on an advisory basis either at the request of the authorities concerned
or through the exercise of its power to hear a matter without higher referral,
opinions, recommendations, proposals and reports on any matters concerning the
promotion and protection of human rights; the national institution may decide
to publicize them; these opinions, recommendations, proposals and reports, as
well as any prerogative of the national institution, shall relate to the
following areas:

(i) Any legislative or administrative provisions, as well as

provisions relating to judicial organizations, intended to
preserve and extend the protection of human rights; in that
connection, the national institution shall examine the legislation
and administrative provisions in force, as well as bills and
proposals, and shall make such recommendations as it deems
appropriate in order to ensure that these provisions conform to
the fundamental principles of human rights; it shall, if

/...
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A/RES/48/134
Page 5

necessary, recommend the adoption of new legislation, the

amendment of legislation in force and the adoption or amendment of
administrative measures;

(ii) Any situation of violation of human rights which it decides to

take up;

(iii) The preparation of reports on the national situation with regard

to human rights in general, and on more specific matters;

(iv) Drawing the attention of the Government to situations in any part

of the country where human rights are violated and making
proposals to it for initiatives to put an end to such situations
and, where necessary, expressing an opinion on the positions and
reactions of the Government;

(b) To promote and ensure the harmonization of national legislation

regulations and practices with the international human rights instruments to
which the State is a party, and their effective implementation;

(c) To encourage ratification of the above-mentioned instruments or

accession to those instruments, and to ensure their implementation;

(d) To contribute to the reports which States are required to submit

to United Nations bodies and committees, and to regional institutions,
pursuant to their treaty obligations and, where necessary, to express an
opinion on the subject, with due respect for their independence;

(e) To cooperate with the United Nations and any other organization in
the United Nations system, the regional institutions and the national
institutions of other countries that are competent in the areas of the
promotion and protection of human rights;

(f) To assist in the formulation of programmes for the teaching of,

and research into, human rights and to take part in their execution in
schools, universities and professional circles;

(g) To publicize human rights and efforts to combat all forms of

discrimination, in particular racial discrimination, by increasing public
awareness, especially through information and education and by making use of
all press organs.

B. Composition and guarantees of independence and pluralism

1. The composition of the national institution and the appointment of its
members, whether by means of an election or otherwise, shall be established in
accordance with a procedure which affords all necessary guarantees to ensure
the pluralist representation of the social forces (of civilian society)
involved in the promotion and protection of human rights, particularly by
powers which will enable effective cooperation to be established with, or
through the presence of, representatives of:

(a) Non-governmental organizations responsible for human rights and

efforts to combat racial discrimination, trade unions, concerned social and

/...
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A/RES/48/134
Page 6

professional organizations, for example, associations of lawyers, doctors,

journalists and eminent scientists;

(b) Trends in philosophical or religious thought;

(c) Universities and qualified experts;

(d) Parliament;

(e) Government departments (if these are included, their

representatives should participate in the deliberations only in an advisory
capacity).

2. The national institution shall have an infrastructure which is suited to

the smooth conduct of its activities, in particular adequate funding. The
purpose of this funding should be to enable it to have its own staff and
premises, in order to be independent of the Government and not be subject to
financial control which might affect its independence.

3. In order to ensure a stable mandate for the members of the national

institution, without which there can be no real independence, their
appointment shall be effected by an official act which shall establish the
specific duration of the mandate. This mandate may be renewable, provided
that the pluralism of the institution’s membership is ensured.

C. Methods of operation
Within the framework of its operation, the national institution shall:

(a) Freely consider any questions falling within its competence,

whether they are submitted by the Government or taken up by it without
referral to a higher authority, on the proposal of its members or of any
petitioner;

(b) Hear any person and obtain any information and any documents
necessary for assessing situations falling within its competence;

(c) Address public opinion directly or through any press organ,

particularly in order to publicize its opinions and recommendations;

(d) Meet on a regular basis and whenever necessary in the presence of

all its members after they have been duly convened;

(e) Establish working groups from among its members as necessary, and
set up local or regional sections to assist it in discharging its functions;

(f) Maintain consultation with the other bodies, whether

jurisdictional or otherwise, responsible for the promotion and protection of
human rights (in particular ombudsmen, mediators and similar institutions);

(g) In view of the fundamental role played by the non-governmental

organizations in expanding the work of the national institutions, develop
relations with the non-governmental organizations devoted to promoting and
protecting human rights, to economic and social development, to combating
racism, to protecting particularly vulnerable groups (especially children,

/...
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A/RES/48/134
Page 7

migrant workers, refugees, physically and mentally disabled persons) or to

specialized areas.

D. Additional principles concerning the status of commissions

with quasi-jurisdictional competence

A national institution may be authorized to hear and consider complaints

and petitions concerning individual situations. Cases may be brought before
it by individuals, their representatives, third parties, non-governmental
organizations, associations of trade unions or any other representative
organizations. In such circumstances, and without prejudice to the principles
stated above concerning the other powers of the commissions, the functions
entrusted to them may be based on the following principles:

(a) Seeking an amicable settlement through conciliation or, within the

limits prescribed by the law, through binding decisions or, where necessary,
on the basis of confidentiality;

(b) Informing the party who filed the petition of his rights, in
particular the remedies available to him, and promoting his access to them;

(c) Hearing any complaints or petitions or transmitting them to any

other competent authority within the limits prescribed by the law;

(d) Making recommendations to the competent authorities, especially by

proposing amendments or reforms of the laws, regulations and administrative
practices, especially if they have created the difficulties encountered by the
persons filing the petitions in order to assert their rights.
 355

ANNEXURE P-7

Responsibility of States for Internationally Wrongful Acts

2001

Text adopted by the Commission at its fifty-third session, in 2001, and submitted to the
General Assembly as a part of the Commission’s report covering the work of that session. The
report, which also contains commentaries on the draft articles, appears in Yearbook of the
International Law Commission, 2001, vol. II (Part Two). Text reproduced as it appears in the
annex to General Assembly resolution 56/83 of 12 December 2001, and corrected by document
A/56/49(Vol. I)/Corr.4.

Copyright © United Nations

2005
 356

Responsibility of States for Internationally Wrongful Acts

PART ONE
THE INTERNATIONALLY WRONGFUL ACT OF A STATE

CHAPTER I
G ENERAL PRINCIPLES

Article l
Responsibility of a State for its internationally wrongful acts

Every internationally wrongful act of a State entails the international responsibility of that State.

Article 2
Elements of an internationally wrongful act of a State

There is an internationally wrongful act of a State when conduct consisting of an action or

omission:

(a) is attributable to the State under international law; and

(b) constitutes a breach of an international obligation of the State.

Article 3
Characterization of an act of a State as internationally wrongful

The characterization of an act of a State as internationally wrongful is governed by international

law. Such characterization is not affected by the characterization of the same act as lawful by internal
law.

CHAPTER II
ATTRIBUTION OF CONDUCT TO A STATE

Article 4
Conduct of organs of a State

1. The conduct of any State organ shall be considered an act of that State under international law,
whether the organ exercises legislative, executive, judicial or any other functions, whatever position it
holds in the organization of the State, and whatever its character as an organ of the central Government
or of a territorial unit of the State.

2. An organ includes any person or entity which has that status in accordance with the internal law
of the State.
 357

Article 5
Conduct of persons or entities exercising elements
of governmental authority

The conduct of a person or entity which is not an organ of the State under article 4 but which is
empowered by the law of that State to exercise elements of the governmental authority shall be
considered an act of the State under international law, provided the person or entity is acting in that
capacity in the particular instance.

Article 6
Conduct of organs placed at the disposal of a State
by another State

The conduct of an organ placed at the disposal of a State by another State shall be considered an
act of the former State under international law if the organ is acting in the exercise of elements of the
governmental authority of the State at whose disposal it is placed.

Article 7
Excess of authority or contravention of instructions

The conduct of an organ of a State or of a person or entity empowered to exercise elements of the
governmental authority shall be considered an act of the State under international law if the organ,
person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.

Article 8
Conduct directed or controlled by a State

The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact acting on the instructions of, or under the
direction or control of, that State in carrying out the conduct.

Article 9
Conduct carried out in the absence or default
of the official authorities

The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact exercising elements of the governmental
authority in the absence or default of the official authorities and in circumstances such as to call for the
exercise of those elements of authority.

Article 10
Conduct of an insurrectional or other movement

1. The conduct of an insurrectional movement which becomes the new Government of a State
shall be considered an act of that State under international law.
 358

2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State
in part of the territory of a pre-existing State or in a territory under its administration shall be considered
an act of the new State under international law.

3. This article is without prejudice to the attribution to a State of any conduct, however related to
that of the movement concerned, which is to be considered an act of that State by virtue of articles 4
to 9.

Article 11
Conduct acknowledged and adopted by a State as its own

Conduct which is not attributable to a State under the preceding articles shall nevertheless be
considered an act of that State under international law if and to the extent that the State acknowledges
and adopts the conduct in question as its own.

CHAPTER III
BREACH OF AN INTERNATIONAL OBLIGATION

Article 12
Existence of a breach of an international obligation

There is a breach of an international obligation by a State when an act of that State is not in
conformity with what is required of it by that obligation, regardless of its origin or character.

Article 13
International obligation in force for a State

An act of a State does not constitute a breach of an international obligation unless the State is
bound by the obligation in question at the time the act occurs.

Article 14
Extension in time of the breach of an international obligation

1. The breach of an international obligation by an act of a State not having a continuing character
occurs at the moment when the act is performed, even if its effects continue.

2. The breach of an international obligation by an act of a State having a continuing character

extends over the entire period during which the act continues and remains not in conformity with the
international obligation.

3. The breach of an international obligation requiring a State to prevent a given event occurs when
the event occurs and extends over the entire period during which the event continues and remains not in
conformity with that obligation.
 359

Article 15
Breach consisting of a composite act

1. The breach of an international obligation by a State through a series of actions or omissions

defined in aggregate as wrongful occurs when the action or omission occurs which, taken with the other
actions or omissions, is sufficient to constitute the wrongful act.

2. In such a case, the breach extends over the entire period starting with the first of the actions or
omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in
conformity with the international obligation.

CHAPTER IV
RESPONSIBILITY OF A STATE IN CONNECTION WITH THE
ACT OF ANOTHER S TATE

Article 16
Aid or assistance in the commission of an
internationally wrongful act

A State which aids or assists another State in the commission of an internationally wrongful act by
the latter is internationally responsible for doing so if:

(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) the act would be internationally wrongful if committed by that State.

Article 17
Direction and control exercised over the commission
of an internationally wrongful act

A State which directs and controls another State in the commission of an internationally wrongful
act by the latter is internationally responsible for that act if:

(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) the act would be internationally wrongful if committed by that State.

Article 18
Coercion of another State

A State which coerces another State to commit an act is internationally responsible for that act if:

(a) the act would, but for the coercion, be an internationally wrongful act of the coerced State; and

(b) the coercing State does so with knowledge of the circumstances of the act.
 360

Article 19
Effect of this chapter

This chapter is without prejudice to the international responsibility, under other provisions of
these articles, of the State which commits the act in question, or of any other State.

CHAPTER V
CIRCUMSTANCES PRECLUDING WRONGFULNESS

Article 20
Consent

Valid consent by a State to the commission of a given act by another State precludes the
wrongfulness of that act in relation to the former State to the extent that the act remains within the limits
of that consent.

Article 21
Self-defence

The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-
defence taken in conformity with the Charter of the United Nations.

Article 22
Countermeasures in respect of an internationally
wrongful act

The wrongfulness of an act of a State not in conformity with an international obligation towards
another State is precluded if and to the extent that the act constitutes a countermeasure taken against the
latter State in accordance with chapter II of part three.

Article 23
Force majeure

1. The wrongfulness of an act of a State not in conformity with an international obligation of that
State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an
unforeseen event, beyond the control of the State, making it materially impossible in the circumstances
to perform the obligation.

2. Paragraph 1 does not apply if:

(a) the situation of force majeure is due, either alone or in combination with other factors, to the
conduct of the State invoking it; or

(b) the State has assumed the risk of that situation occurring.
 361

Article 24
Distress

1. The wrongfulness of an act of a State not in conformity with an international obligation of that
State is precluded if the author of the act in question has no other reasonable way, in a situation of
distress, of saving the author’s life or the lives of other persons entrusted to the author’s care.

2. Paragraph 1 does not apply if:

(a) the situation of distress is due, either alone or in combination with other factors, to the conduct of
the State invoking it; or

(b) the act in question is likely to create a comparable or greater peril.

Article 25
Necessity

1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act
not in conformity with an international obligation of that State unless the act:

(a) is the only way for the State to safeguard an essential interest against a grave and imminent peril;
and

(b) does not seriously impair an essential interest of the State or States towards which the obligation
exists, or of the international community as a whole.

2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness
if:

(a) the international obligation in question excludes the possibility of invoking necessity; or

(b) the State has contributed to the situation of necessity.

Article 26
Compliance with peremptory norms

Nothing in this chapter precludes the wrongfulness of any act of a State which is not in
conformity with an obligation arising under a peremptory norm of general international law.

Article 27
Consequences of invoking a circumstance
precluding wrongfulness

The invocation of a circumstance precluding wrongfulness in accordance with this chapter is

without prejudice to:
 362

(a) compliance with the obligation in question, if and to the extent that the circumstance precluding
wrongfulness no longer exists;

(b) the question of compensation for any material loss caused by the act in question.

PART TWO
CONTENT OF THE INTERNATIONAL RESPONSIBILITY OF A STATE

CHAPTER I
G ENERAL PRINCIPLES

Article 28
Legal consequences of an internationally wrongful act

The international responsibility of a State which is entailed by an internationally wrongful act in

accordance with the provisions of part one involves legal consequences as set out in this part.

Article 29
Continued duty of performance

The legal consequences of an internationally wrongful act under this part do not affect the
continued duty of the responsible State to perform the obligation breached.

Article 30
Cessation and non-repetition

The State responsible for the internationally wrongful act is under an obligation:

(a) to cease that act, if it is continuing;

(b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.

Article 31
Reparation

1. The responsible State is under an obligation to make full reparation for the injury caused by the
internationally wrongful act.

2. Injury includes any damage, whether material or moral, caused by the internationally wrongful
act of a State.

Article 32
Irrelevance of internal law

The responsible State may not rely on the provisions of its internal law as justification for failure
to comply with its obligations under this part.
 363

Article 33
Scope of international obligations set out in this part

1. The obligations of the responsible State set out in this part may be owed to another State, to
several States, or to the international community as a whole, depending in particular on the character and
content of the international obligation and on the circumstances of the breach.

2. This part is without prejudice to any right, arising from the international responsibility of a
State, which may accrue directly to any person or entity other than a State.

CHAPTER II
REPARATION FOR INJURY

Article 34
Forms of reparation

Full reparation for the injury caused by the internationally wrongful act shall take the form of
restitution, compensation and satisfaction, either singly or in combination, in accordance with the
provisions of this chapter.

Article 35
Restitution

A State responsible for an internationally wrongful act is under an obligation to make restitution,
that is, to re-establish the situation which existed before the wrongful act was committed, provided and
to the extent that restitution:

(a) is not materially impossible;

(b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of
compensation.

Article 36
Compensation

1. The State responsible for an internationally wrongful act is under an obligation to compensate
for the damage caused thereby, insofar as such damage is not made good by restitution.

2. The compensation shall cover any financially assessable damage including loss of profits
insofar as it is established.

Article 37
Satisfaction
 364

1. The State responsible for an internationally wrongful act is under an obligation to give
satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or
compensation.

2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a

formal apology or another appropriate modality.

3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to
the responsible State.

Article 38
Interest

1. Interest on any principal sum due under this chapter shall be payable when necessary in order
to ensure full reparation. The interest rate and mode of calculation shall be set so as to achieve that
result.

2. Interest runs from the date when the principal sum should have been paid until the date the
obligation to pay is fulfilled.

Article 39
Contribution to the injury

In the determination of reparation, account shall be taken of the contribution to the injury by
wilful or negligent action or omission of the injured State or any person or entity in relation to whom
reparation is sought.

CHAPTER III
SERIOUS BREACHES OF OBLIGATIONS UNDER PEREMPTORY
NORMS OF GENERAL INTERNATIONAL LAW

Article 40
Application of this chapter

1. This chapter applies to the international responsibility which is entailed by a serious breach by
a State of an obligation arising under a peremptory norm of general international law.

2. A breach of such an obligation is serious if it involves a gross or systematic failure by the

responsible State to fulfil the obligation.

Article 41
Particular consequences of a serious breach
of an obligation under this chapter

1. States shall cooperate to bring to an end through lawful means any serious breach within the
meaning of article 40.
 365

2. No State shall recognize as lawful a situation created by a serious breach within the meaning of
article 40, nor render aid or assistance in maintaining that situation.

3. This article is without prejudice to the other consequences referred to in this part and to such
further consequences that a breach to which this chapter applies may entail under international law.

PART THREE
THE IMPLEMENTATION OF THE INTERNATIONAL
RESPONSIBILITY OF A STATE

CHAPTER I
INVOCATION OF THE RESPONSIBILITY OF A STATE

Article 42
Invocation of responsibility by an injured State

A State is entitled as an injured State to invoke the responsibility of another State if the obligation
breached is owed to:

(a) that State individually; or

(b) a group of States including that State, or the international community as a whole, and the breach
of the obligation:

(i) specially affects that State; or

(ii) is of such a character as radically to change the position of all the other States to which the
obligation is owed with respect to the further performance of the obligation.

Article 43
Notice of claim by an injured State

1. An injured State which invokes the responsibility of another State shall give notice of its claim
to that State.

2. The injured State may specify in particular:

(a) the conduct that the responsible State should take in order to cease the wrongful act, if it is
continuing;

(b) what form reparation should take in accordance with the provisions of part two.

Article 44
Admissibility of claims

The responsibility of a State may not be invoked if:

 366

(a) the claim is not brought in accordance with any applicable rule relating to the nationality of
claims;

(b) the claim is one to which the rule of exhaustion of local remedies applies and any available and
effective local remedy has not been exhausted.

Article 45
Loss of the right to invoke responsibility

The responsibility of a State may not be invoked if:

(a) the injured State has validly waived the claim;

(b) the injured State is to be considered as having, by reason of its conduct, validly acquiesced in the
lapse of the claim.

Article 46
Plurality of injured States

Where several States are injured by the same internationally wrongful act, each injured State may
separately invoke the responsibility of the State which has committed the internationally wrongful act.

Article 47
Plurality of responsible States

1. Where several States are responsible for the same internationally wrongful act, the
responsibility of each State may be invoked in relation to that act.

2. Paragraph 1:

(a) does not permit any injured State to recover, by way of compensation, more than the damage it
has suffered;

(b) is without prejudice to any right of recourse against the other responsible States.

Article 48
Invocation of responsibility by a State other
than an injured State

1. Any State other than an injured State is entitled to invoke the responsibility of another State in
accordance with paragraph 2 if:

(a) the obligation breached is owed to a group of States including that State, and is established for the
protection of a collective interest of the group; or

(b) the obligation breached is owed to the international community as a whole.

 367

2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible
State:

(a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in
accordance with article 30; and

(b) performance of the obligation of reparation in accordance with the preceding articles, in the
interest of the injured State or of the beneficiaries of the obligation breached.

3. The requirements for the invocation of responsibility by an injured State under articles 43, 44
and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1.

CHAPTER II
COUNTERMEASURES

Article 49
Object and limits of countermeasures

1. An injured State may only take countermeasures against a State which is responsible for an
internationally wrongful act in order to induce that State to comply with its obligations under part two.

2. Countermeasures are limited to the non-performance for the time being of international
obligations of the State taking the measures towards the responsible State.

3. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of
performance of the obligations in question.

Article 50
Obligations not affected by countermeasures

1. Countermeasures shall not affect:

(a) the obligation to refrain from the threat or use of force as embodied in the Charter of the United
Nations;

(b) obligations for the protection of fundamental human rights;

(c) obligations of a humanitarian character prohibiting reprisals;

(d) other obligations under peremptory norms of general international law.

2. A State taking countermeasures is not relieved from fulfilling its obligations:

(a) under any dispute settlement procedure applicable between it and the responsible State;
 368

(b) to respect the inviolability of diplomatic or consular agents, premises, archives and documents.

Article 51
Proportionality

Countermeasures must be commensurate with the injury suffered, taking into account the gravity
of the internationally wrongful act and the rights in question.

Article 52
Conditions relating to resort to countermeasures

1. Before taking countermeasures, an injured State shall:

(a) call upon the responsible State, in accordance with article 43, to fulfil its obligations under part
two;

(b) notify the responsible State of any decision to take countermeasures and offer to negotiate with
that State.

2. Notwithstanding paragraph 1 (b), the injured State may take such urgent countermeasures as
are necessary to preserve its rights.

3. Countermeasures may not be taken, and if already taken must be suspended without undue
delay if:

(a) the internationally wrongful act has ceased; and

(b) the dispute is pending before a court or tribunal which has the authority to make decisions binding
on the parties.

4. Paragraph 3 does not apply if the responsible State fails to implement the dispute settlement
procedures in good faith.

Article 53
Termination of countermeasures

Countermeasures shall be terminated as soon as the responsible State has complied with its
obligations under part two in relation to the internationally wrongful act.

Article 54
Measures taken by States other than an injured State

This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to
invoke the responsibility of another State, to take lawful measures against that State to ensure cessation
of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation
breached.
 369

PART FOUR
G ENERAL PROVISIONS

Article 55
Lex specialis

These articles do not apply where and to the extent that the conditions for the existence of an
internationally wrongful act or the content or implementation of the international responsibility of a
State are governed by special rules of international law.

Article 56
Questions of State responsibility not regulated
by these articles

The applicable rules of international law continue to govern questions concerning the
responsibility of a State for an internationally wrongful act to the extent that they are not regulated by
these articles.

Article 57
Responsibility of an international organization

These articles are without prejudice to any question of the responsibility under international law
of an international organization, or of any State for the conduct of an international organization.

Article 58
Individual responsibility

These articles are without prejudice to any question of the individual responsibility under
international law of any person acting on behalf of a State.

Article 59
Charter of the United Nations

These articles are without prejudice to the Charter of the United Nations.

_____________
 ANNEXURE P-8 370
EXTRACTS FROM UNITED NATIONS HUMAN RIGHTS MANUAL NO. 9 FOR
JUDGES, PROSECUTORS AND LAWYERS, 2003
OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS
IN COOPERATION WITH THE
INTERNATIONAL BAR ASSOCIATION

PROFESSIONAL TRAINING SERIES No. 9

HUMAN RIGHTS IN THE

ADMINISTRATION OF JUSTICE:
A Manual on Human Rights
for Judges, Prosecutors and Lawyers

UNITED NATIONS
New York and Geneva, 2003
 371

CONTENTS

Foreword by the Office of the

United Nations High Commissioner for Human Rights.................................xxvii
Foreword by the International Bar Association .................................................xxix
Acknowledgements.................................................................................................xxxi
Addendum – Major Recent Developments (2002 – March 2003) .................xxxii
Abbreviations.........................................................................................................xxxiv

Chapter 1
International Human Rights Law and the Role
of the Legal Professions: A General Introduction ................1
Learning Objectives .....................................................................................................1
Questions.......................................................................................................................1
1. Introduction ..........................................................................................................2
2. Origin, Meaning and Scope of International Human Rights Law................2
2.1 The Charter of the United Nations and the Universal
Declaration of Human Rights ............................................................................2
2.2 The ethical dimension of human rights ............................................................4
2.3 Human rights and their impact on national and international peace,
security and development....................................................................................5
2.4 The sources of law................................................................................................6
2.4.1 International treaties.....................................................................................7
2.4.2 International customary law..........................................................................8
2.4.3 General principles of law recognized by the community of nations .................11
2.4.4 Subsidiary means for the determination of rules of law.................................11
2.5 International human rights law and international humanitarian law:
common concerns and basic differences........................................................12
2.6 Reservations and interpretative declarations to international
human rights treaties..........................................................................................13
2.7 Limitations on the exercise of rights ...............................................................15
2.8 Derogations from international legal obligations ..........................................16
2.9 International State responsibility for human rights violations ....................17
3. Business Corporations and Human Rights ....................................................19
4. International Human Rights Law at the Domestic Level ............................20
4.1 Incorporating international law into domestic legal systems.......................20

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Contents

4.2 The application of international human rights law in domestic

courts: some practical examples.......................................................................22
5. The Role of the Legal Professions in the Implementation of
Human Rights.....................................................................................................25
6. Concluding Remarks..........................................................................................25

Chapter 2
The Major Universal Human Rights Instruments and
the Mechanisms for Their Implementation.......................27
Learning Objectives ...................................................................................................27
Questions.....................................................................................................................27
1. Introduction ........................................................................................................28
1.1 Scope of the chapter ..........................................................................................28
1.2 The international treaty-based control mechanisms .....................................28
1.3 Civil and political rights, and economic, social and cultural rights.............30
2. The Major United Nations Human Rights Treaties and their
Implementation ..................................................................................................31
2.1 The International Covenant on Civil and Political Rights, 1966,
and its two Protocols, 1966 and 1989 .............................................................31
2.1.1 The undertakings of the States parties.........................................................31
2.1.2 The rights recognized ..................................................................................32
2.1.3 Permissible limitations on the exercise of rights............................................34
2.1.4 Permissible derogations from legal obligations ..............................................36
2.1.5 The implementation mechanisms .................................................................38
2.2 The International Covenant on Economic, Social and Cultural
Rights, 1966.........................................................................................................39
2.2.1 The undertakings of the States parties.........................................................40
2.2.2 The rights recognized ..................................................................................40
2.2.3 Permissible limitations on rights..................................................................41
2.2.4 The implementation mechanism ..................................................................42
2.3 The Convention on the Rights of the Child, 1989 and its two
Optional Protocols, 2000 ..................................................................................43
2.3.1 The undertakings of the States parties.........................................................43
2.3.2 The rights recognized ..................................................................................44
2.3.3 Permissible limitations on the exercise of rights............................................46
2.3.4 The implementation mechanism ..................................................................47
2.4 The Convention on the Prevention and Punishment of the Crime
of Genocide, 1948..............................................................................................47
2.4.1 The undertakings of the States parties.........................................................48
2.4.2 The legal scope of the Convention ................................................................48
2.4.3 International crimes: recent legal developments .............................................49

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2.5 The International Convention on the Elimination of All Forms

of Racial Discrimination, 1965 .........................................................................50
2.5.1 The undertakings of the States parties.........................................................50
2.5.2 The field of non-discrimination protected......................................................51
2.5.3 The implementation mechanism ..................................................................53
2.6 The Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 1984...................................................54
2.6.1 The undertakings of the States parties.........................................................54
2.6.2 The legal scope of the Convention ................................................................55
2.6.3 The implementation mechanism ..................................................................56
2.7 The Convention on the Elimination of All Forms of Discrimination
against Women, 1979, and its Protocol, 1999................................................58
2.7.1 The undertakings of the States parties.........................................................58
2.7.2 The specific legal scope of the Convention .....................................................59
2.7.3 The implementation mechanisms .................................................................60
3. Other Instruments Adopted by the United Nations General
Assembly..............................................................................................................61
3.1 The Declaration on the Elimination of All Forms of Intolerance
and of Discrimination Based on Religion or Belief, 1981............................62
3.2 The Basic Principles for the Treatment of Prisoners, 1990.........................62
3.3 The Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment, 1988 ..........................................63
3.4 The United Nations Rules for the Protection of Juveniles
Deprived of their Liberty, 1990 .......................................................................63
3.5 The Principles of Medical Ethics relevant to the Role of Health
Personnel, particularly Physicians, in the Protection of Prisoners
and Detainees against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 1982...................................................63
3.6 The Code of Conduct for Law Enforcement Officials, 1979 .....................64
3.7 The United Nations Standard Minimum Rules for Non-custodial
Measures (The Tokyo Rules), 1990 .................................................................64
3.8 The United Nations Guidelines for the Prevention of Juvenile
Delinquency (The Riyadh Guidelines), 1990 .................................................65
3.9 The United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (The Beijing Rules), 1985 .....................65
3.10 The Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power, 1985....................................................................65
3.11 The Declaration on the Protection of All Persons from Enforced
Disappearance, 1992 ..........................................................................................66
3.12 The Declaration on the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Freedoms, 1998..................66
4. Instruments adopted by the United Nations Congress on the
Prevention of Crime and the Treatment of Offenders ................................67

Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers v
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5. United Nations Extra-Conventional Mechanisms for Human

Rights Monitoring ..............................................................................................67
5.1 Special procedures I: Thematic and country mandates ................................68
5.2 Special procedures II: The 1503 complaints procedure ...............................69
6. Concluding Remarks..........................................................................................70

Chapter 3
The Major Regional Human Rights Instruments and
the Mechanisms for Their Implementation.......................71
Learning Objectives ...................................................................................................71
Questions.....................................................................................................................71
1. Introduction ........................................................................................................72
2. African Human Rights Treaties and their Implementation.........................72
2.1. The African Charter on Human and Peoples’ Rights, 1981........................72
2.1.1 The undertakings of the States parties.........................................................73
2.1.2 The individual and collective rights recognized..............................................73
2.1.3 The individual duties..................................................................................74
2.1.4 Permissible limitations on the exercise of rights............................................75
2.1.5 Derogations from legal obligations...............................................................75
2.1.6 The implementation mechanism ..................................................................75
2.2 The African Charter on the Rights and Welfare of the Child, 1990 ..........77
2.2.1 The undertakings of the States parties.........................................................78
2.2.2 The rights recognized ..................................................................................78
2.2.3 The child’s duties........................................................................................79
2.2.4 The implementation mechanism ..................................................................79
3. American Human Rights Treaties and their Implementation.....................80
3.1 The American Convention on Human Rights, 1969, and its
Protocols of 1988 and 1990..............................................................................80
3.1.1 The undertakings of the States parties.........................................................81
3.1.2 The rights recognized ..................................................................................82
3.1.3 Permissible limitations on the exercise of rights............................................84
3.1.4 Permissible derogations from legal obligations ..............................................86
3.1.5 The implementation mechanism ..................................................................87
3.2 The Inter-American Convention to Prevent and Punish
Torture, 1985 ......................................................................................................90
3.2.1 The scope of the Convention ........................................................................90
3.2.2 The undertakings of the States parties.........................................................90
3.2.3 The implementation mechanism ..................................................................91
3.3 The Inter-American Convention on Forced Disappearance
of Persons, 1994 .................................................................................................91
3.3.1 The scope of the Convention ........................................................................91
3.3.2 The undertakings of the States parties.........................................................92

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3.3.3 The implementation mechanism ..................................................................92

3.4 The Inter-American Convention on the Prevention, Punishment
and Eradication of Violence against Women, 1994......................................93
3.4.1 The scope of the Convention ........................................................................93
3.4.2 The undertakings of the States parties.........................................................94
3.4.3 The implementation mechanism ..................................................................94
4. European Human Rights Treaties and Their Implementation ...................95
4.1 The European Convention on Human Rights, 1950, and its
Protocols Nos. 1, 4, 6 and 7 .............................................................................95
4.1.1 The undertakings of the States parties.........................................................95
4.1.2 The rights guaranteed .................................................................................95
4.1.3 Permissible limitations on the exercise of rights............................................97
4.1.4 Permissible derogations from legal obligations ..............................................99
4.1.5 The implementation mechanism ................................................................100
4.2. The European Social Charter, 1961, and its Protocols of 1988,
1991 and 1995...................................................................................................102
4.2.1 The undertakings of the States parties ......................................................102
4.2.2 The rights recognized ................................................................................102
4.2.3 Permissible limitation on the exercise of rights ...........................................103
4.2.4 Permissible derogations from legal obligations ............................................104
4.2.5 The implementation mechanism ................................................................104
4.3 The European Social Charter (revised), 1996 ..............................................106
4.4 The European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment, 1987 ..........................107
4.4.1 The undertakings of the States parties and the monitoring
mechanism ...............................................................................................107
4.5 The Framework Convention for the Protection of National
Minorities, 1995................................................................................................108
4.5.1 The undertakings of the States parties ......................................................109
4.5.2 Permissible limitations on the exercise of rights..........................................110
4.5.3 The implementation mechanism ................................................................110
5. Concluding Remarks .......................................................................................111

Chapter 4
Independence and Impartiality of Judges,
Prosecutors and Lawyers.............................................113
Learning Objectives.................................................................................................113
Questions ..................................................................................................................113
Relevant Legal Instruments....................................................................................114
1. Introduction......................................................................................................115
2. The Role of Judges, Prosecutors and Lawyers in Upholding the
Rule of Law, Including Human Rights Standards ......................................115

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3. Challenges to the Independence and Impartiality of the Legal

Professions ........................................................................................................116
4. International Law and the Independence and Impartiality of the
Judiciary .............................................................................................................117
4.1 Applicable international law ...........................................................................117
4.2 Basic Principles on the Independence of the Judiciary, 1985 ...................119
4.3 The notions of independence and impartiality: links and
basic differences ...............................................................................................119
4.4 The notion of institutional independence ....................................................120
4.4.1 Independence as to administrative matters .................................................120
4.4.2 Independence as to financial matters..........................................................121
4.4.3 Independence as to decision-making...........................................................121
4.4.4 Jurisdictional competence...........................................................................122
4.4.5 The right and duty to ensure fair court proceedings and give
reasoned decisions .....................................................................................122
4.5 The notion of individual independence........................................................123
4.5.1 Appointment............................................................................................123
4.5.2 Security of tenure......................................................................................127
4.5.3 Financial security .....................................................................................128
4.5.4 Promotion ................................................................................................129
4.5.5 Accountability..........................................................................................129
4.5.6 Freedom of expression and association ......................................................132
4.5.7 Training and education ............................................................................133
4.5.8 The right and duty to ensure fair court proceedings and give
reasoned decisions .....................................................................................134
4.6 The notion of impartiality...............................................................................135
4.7 Military and other special courts and tribunals............................................139
5. International Law and the Independence of Prosecutors .........................147
5.1 Guidelines on the Role of Prosecutors, 1990 ..............................................147
5.2 Professional qualifications ..............................................................................147
5.3 Status and conditions of service.....................................................................148
5.4 Freedom of expression and association........................................................148
5.5 The role in criminal proceedings ...................................................................148
5.6 Alternatives to prosecution.............................................................................149
5.7 Accountability ...................................................................................................150
6. International Law and the Independence of Lawyers................................150
6.1 Applicable international law ...........................................................................150
6.2 Duties and responsibilities ..............................................................................151
6.3 Guarantees for the functioning of lawyers...................................................151
6.4 Lawyers and fundamental freedoms .............................................................153
6.4.1 Executive permission to exercise the legal profession...................................153
6.4.2 The right to peaceful assembly...................................................................154
6.4.3 The right to freedom of association ............................................................155
6.4.4 The right to freedom of expression .............................................................156

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6.5 Codes of professional discipline ....................................................................157

7. Concluding Remarks .......................................................................................158

Chapter 5
Human Rights and Arrest, Pre-trial Detention
and Administrative Detention......................................159
Learning Objectives.................................................................................................159
Questions ..................................................................................................................159
Relevant Legal Instruments....................................................................................160
1. Introduction......................................................................................................161
2. Arrests and Detention without Reasonable Cause: a Persistent
Problem .............................................................................................................161
3. The Right to Liberty and Security of the Person: Field of
Applicability of the Legal Protection ............................................................162
3.1 Universal legal responsibility: All States are bound by the law .................162
3.2 The notion of security of person: State responsibility to act.....................162
4. Lawful Arrests and Detentions......................................................................163
4.1 The legal texts ...................................................................................................163
4.2 The notions of lawfulness and arbitrariness: their meaning ......................165
4.2.1 Unacknowledged detentions, abductions and involuntary
disappearances..........................................................................................169
4.3 Detention after conviction..............................................................................172
4.4 Arrest and detention for non-compliance with the lawful order of
a court or in order to secure the fulfilment of any obligation
prescribed by law..............................................................................................173
4.5 Detention on reasonable suspicion of having committed an
offence ...............................................................................................................173
4.5.1 The meaning of “reasonableness” ..............................................................174
4.6 Detention in order to prevent flight..............................................................175
4.7 Administrative detention.................................................................................175
4.7.1 Deprivation of liberty for the purpose of educational supervision .................176
4.7.2 Deprivation of liberty for reasons of mental health .....................................177
4.7.3 Deprivation of liberty of asylum seekers and for purposes of
deportation and extradition ......................................................................179
4.7.4 Preventive detention and detention for reasons of ordre public .................180
4.8 The right to be promptly informed of reasons for arrest and
detention and of any charges against oneself...............................................181
4.9 The right to be promptly brought before a judge or other
judicial officer ...................................................................................................185
4.9.1 The legitimate decision-making organ........................................................189

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5. The Right to Trial within a Reasonable Time or to Release

pending Trial.....................................................................................................190
5.1 The notion of “reasonable time”...................................................................191
5.2 Alternatives to detention on remand: guarantees to appear at trial..........195
6. The Right to Have the Lawfulness of the Detention Decided
Speedily or Without Delay by a Court..........................................................197
6.1 The legal procedures complying with this requirement .............................199
6.2 The notions of “speedily” and “without delay” ..........................................206
7. The Right of Access to and Assistance of a Lawyer...................................208
8. The Right to Compensation in the Event of Unlawful
Deprivation of Liberty ....................................................................................209
9. Incommunicado Detention..................................................................................210
10. Concluding Remarks .......................................................................................211

Chapter 6
The Right to a Fair Trial:
Part I – From Investigation to Trial ..............................213
Learning Objectives.................................................................................................213
Questions ..................................................................................................................213
Relevant Legal Instruments....................................................................................214
1. Introduction......................................................................................................215
2. The Effective Protection of the Right to a Fair Trial:
A Global Challenge..........................................................................................215
3. The Legal Texts................................................................................................216
4. The Right to Equality before the Law and Equal Treatment
by the Law.........................................................................................................217
5. The Right to be Presumed Innocent: the Overall Guarantee from
Suspicion to Conviction or Acquittal............................................................219
6. Human Rights during Criminal Investigations............................................223
6.1 The right to respect for one’s private life, home and
correspondence.................................................................................................223
6.1.1 Wire tapping............................................................................................224
6.1.2 Searches ...................................................................................................227
6.1.3 Interference with correspondence.................................................................228
6.2 The right to be treated with humanity and the right to freedom
from torture.......................................................................................................230
6.3 The right to be notified of the charges in a language one
understands .......................................................................................................232

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6.4 The right to legal assistance ............................................................................235

6.5 The right not to be forced to testify against oneself/
The right to remain silent................................................................................240
6.6 The duty to keep records of interrogation ...................................................243
6.7 The right to adequate time and facilities to prepare one’s defence ..........244
7. Concluding Remarks .......................................................................................248

Chapter 7
The Right to a Fair Trial:
Part II – From Trial to Final Judgement ........................251
Learning Objectives.................................................................................................251
Questions ..................................................................................................................251
Relevant Legal Instruments....................................................................................252
1. Introduction......................................................................................................253
2. The Legal Provisions .......................................................................................253
3. Human Rights during Trial.............................................................................253
3.1 The right to be tried by a competent, independent and impartial
tribunal established by law ..............................................................................253
3.2 The right to a fair hearing ...............................................................................254
3.2.1 The right of access to a court or tribunal....................................................257
3.2.2 The right to equality of arms and adversarial proceedings...........................258
3.2.3 The detention of witnesses .........................................................................261
3.2.4 Judge’s instructions to the jury...................................................................261
3.3 The right to a public hearing ..........................................................................262
3.3.1 The right to a public judgement.................................................................265
3.4 The right to be tried “without undue delay” or
“within a reasonable time”..............................................................................267
3.5 The right to defend oneself in person or through a lawyer of
one’s own choice ..............................................................................................271
3.5.1 The right to effective legal assistance in death penalty cases .........................274
3.5.2 The right to free legal aid ..........................................................................277
3.5.3 The right to privileged communications with one’s lawyer ...........................279
3.6 The right to be present at one’s trial .............................................................280
3.6.1 Trials in absentia.....................................................................................280
3.7 The right not to be compelled to testify against oneself or to
confess guilt.......................................................................................................282
3.7.1 Prohibition on the use of evidence obtained through unlawful
means/treatment ......................................................................................283
3.8 The right to call, examine, or have examined, witnesses ...........................285
3.8.1 Anonymous witnesses ...............................................................................288

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3.9 The right to free assistance of an interpreter ...............................................291

3.10 The right to a reasoned judgement................................................................293
3.10.1 The lack of a reasoned judgement and capital punishment cases .................294
3.11 Freedom from ex post facto laws/The principle of nullum crimen
sine lege.................................................................................................................295
3.12 The principle of ne bis in idem, or prohibition of double jeopardy ............297
4. Limits on Punishment .....................................................................................301
4.1 The right to benefit from a lighter penalty...................................................301
4.2 Consistency with international legal standards ............................................301
4.2.1 Corporal punishment................................................................................302
4.2.2 Capital punishment..................................................................................303
5. The Right of Appeal ........................................................................................305
5.1 The right to full review....................................................................................306
5.2 The availability of a judgement ......................................................................307
5.3 Transcripts of the trial .....................................................................................307
5.4 Preservation of evidence .................................................................................307
5.5 The right to legal aid ........................................................................................308
6. The Right to Compensation in the Event of a Miscarriage of Justice.....309
7. The Right to a Fair Trial and Special Tribunals ..........................................310
8. The Right to a Fair Trial in Public Emergencies.........................................311
9. Concluding Remarks .......................................................................................313

Chapter 8
International Legal Standards for the Protection of
Persons Deprived of Their Liberty ................................315
Learning Objectives.................................................................................................315
Questions ..................................................................................................................315
Relevant Legal Instruments....................................................................................316
1. Introduction......................................................................................................317
1.1 Use of terms......................................................................................................318
2. The Prohibition of Torture and Cruel, Inhuman or Degrading
Treatment or Punishment...............................................................................318
2.1 Introductory remarks.......................................................................................318
2.2 Legal responsibilities of States .......................................................................319
2.3 The notions of torture and cruel, inhuman or degrading treatment
or punishment: definitions and understandings ..........................................323
2.3.1 Rape as torture ........................................................................................325
2.3.2 Treatment of detainees and prisoners.........................................................327

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2.3.3 Corporal punishment................................................................................330

2.3.4 Medical or scientific experimentation.........................................................331
2.4 Torture and law enforcement officials, health personnel and
prosecutors........................................................................................................332
3. Legal Requirements as to Places of Detention and Registration of
Detainees and Prisoners..................................................................................334
3.1 Official recognition of all places of detention .............................................334
3.2 Registration of detainees and prisoners ........................................................335
4. Conditions of Detention and Imprisonment...............................................337
4.1 Basic principles governing detention and imprisonment...........................337
4.2 Accommodation...............................................................................................339
4.2.1 Separation of categories.............................................................................341
4.3 Personal hygiene, food, health and medical services ..................................342
4.4 Religion ..............................................................................................................348
4.5 Recreational activities ......................................................................................349
4.6 Solitary confinement........................................................................................350
4.6.1 Incommunicado detention..........................................................................352
5. Contacts with the Outside World..................................................................356
5.1 Contact with family members and friends: visits and
correspondence.................................................................................................356
5.1.1 The rights of visitors to detainees and prisoners..........................................358
5.2 Contact with lawyers: visits and correspondence........................................360
6. Inspection of Places of Detention and Complaints Procedures ..............365
6.1 Inspection of places of detention ..................................................................365
6.2 Complaints procedures....................................................................................366
7. The Role of Judges, Prosecutors and Lawyers in Preventing and
Remedying Unlawful Treatment of Persons Deprived of their
Liberty................................................................................................................369
8. Concluding Remarks ......................................................................................370

Chapter 9
The Use of Non-Custodial Measures in the
Administration of Justice ............................................371
Learning Objectives.................................................................................................371
Questions ..................................................................................................................371
Relevant Legal Instruments....................................................................................372
1. Introduction......................................................................................................373
1.1 The purpose of non-custodial measures and the Tokyo Rules.................373

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2. Terminology......................................................................................................374
2.1 The term “non-custodial measures” .............................................................374
2.2 The term “offender”........................................................................................374
2.3 The term “competent authority” ...................................................................375
3. General Principles Relating to Non-custodial Measures ...........................375
3.1 The fundamental aims of non-custodial measures .....................................375
3.2 The scope of non-custodial measures...........................................................377
3.2.1 The general scope of non-custodial measures...............................................377
3.2.2 The prohibition of discrimination ..............................................................377
3.2.3 Flexibility in application ..........................................................................378
3.3 Legal safeguards................................................................................................380
3.3.1 The principle of legality.............................................................................380
3.3.2 The criteria for resorting to non-custodial measures and the need for
discretion..................................................................................................380
3.3.3 The requirement of consent........................................................................381
3.3.4 The right to review....................................................................................381
3.3.5 Restrictions on the imposition of non-custodial measures ............................382
4. Non-custodial Options at the Different Stages of the Judicial
Process...............................................................................................................384
4.1 Non-custodial measures at the pre-trial stage..............................................384
4.2 Non-custodial measures at the trial and sentencing stage .........................385
4.3 Non-custodial measures at the post-sentencing stage................................387
5. Implementation of Non-custodial Measures ...............................................389
5.1 The supervision of non-custodial measures.................................................389
5.2 The duration of non-custodial measures......................................................391
5.3 The conditions attached to non-custodial measures ..................................391
5.4 The treatment process .....................................................................................392
5.5 Discipline and breach of conditions..............................................................393
6. The Role of Judges, Prosecutors and Lawyers in Choosing
Alternatives to Imprisonment........................................................................395
7. Concluding Remarks .......................................................................................396

Chapter 10
The Rights of the Child in the Administration of Justice ....397
Learning Objectives.................................................................................................397
Questions ..................................................................................................................397
Relevant Legal Instruments....................................................................................398
1. Introduction......................................................................................................399
1.1 Terminology......................................................................................................400

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2. The Administration of Justice and Children: Persistent Concerns ..........400

3. The Definition of “Child” ..............................................................................401
3.1 The age of majority in general........................................................................401
3.2 The age of criminal responsibility..................................................................401
4. The Rights of the Child in the Administration of Justice:
Some Basic Principles......................................................................................404
4.1 The principle of non-discrimination .............................................................404
4.2 The best interests of the child ........................................................................405
4.3 The child’s right to life, survival and development.....................................406
4.4 The child’s right to be heard...........................................................................407
5. The Aims of Juvenile Justice ..........................................................................408
6. The Duty to Create a Juvenile Justice System .............................................411
7. The Accused Child and the Administration of Justice...............................411
7.1 The right to freedom from torture and from cruel, inhuman or
degrading treatment or punishment ..............................................................412
7.2 General treatment of the child/the child’s best interests...........................413
7.3 Some fundamental procedural rights ............................................................414
7.3.1 The principle of nullum crimen sine lege .............................................414
7.3.2 The right to be presumed innocent .............................................................415
7.3.3 The right to prompt information and the right to legal assistance................415
7.3.4 The right to be tried without delay.............................................................416
7.3.5 The right not to incriminate oneself and the right to examine and
have witnesses...........................................................................................417
7.3.6 The right to review....................................................................................417
7.3.7 The right to free assistance of an interpreter ...............................................418
7.3.8 The right to respect for privacy ..................................................................418
8. The Child and Deprivation of Liberty..........................................................420
8.1 The meaning of deprivation of liberty ..........................................................421
8.2 Deprivation of liberty: a measure of last resort ...........................................421
8.3 The rights of the child deprived of liberty ...................................................422
8.3.1 The right to humane treatment..................................................................422
8.3.2 The right of the child to be separated from adults.......................................423
8.3.3 The right of the child to remain in contact with his or her family ................424
8.3.4 The child’s rights to prompt access to legal assistance and to legal
challenge of detention ................................................................................424
8.3.5 The child and the general conditions of detention........................................425
8.3.6 The rights of the child and disciplinary measures .......................................427
9. The Rights of the Child and Penal Sanctions ..............................................429
10. The Accused Child and the Question of Diversion ...................................430
10.1 The meaning of the term “diversion”...........................................................430
10.2 Diversion and the responsible authorities....................................................431

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10.3 Diversion and consent of the child ...............................................................432

11. The Child as Victim or Witness in Judicial Proceedings............................433
12. The Child and His or Her Parents: When Separation May be
Justified ..............................................................................................................436
12.1 The best interests of the child ........................................................................436
12.2 The grounds justifying separation..................................................................436
12.3 The legal safeguards.........................................................................................437
12.4 The child’s right to remain in contact with his or her parents ..................438
13. The Rights of the Child and Adoption Proceedings ..................................439
14. The Role of Judges, Prosecutors and Lawyers in Guaranteeing the
Rights of the Child in the Course of the Administration of Justice.........442
15. Concluding Remarks .......................................................................................443

Chapter 11
Women’s Rights in the Administration of Justice ............445
Learning Objectives.................................................................................................445
Questions ..................................................................................................................445
Relevant Legal Instruments....................................................................................446
1. Introduction......................................................................................................447
2. Women’s Right to Legal Personality.............................................................449
3. Women’s Right to Equality Before the Law and Equal
Protection of the Law......................................................................................450
3.1 The Charter of the United Nations and the International Bill of
Human Rights...................................................................................................450
3.2 The Convention on the Elimination of All Forms of
Discrimination against Women, 1979...........................................................450
3.3 Regional human rights treaties .......................................................................453
3.4 The meaning of the principle of gender equality and
non-discrimination between women and men ............................................453
3.4.1 The general meaning of equality and non-discrimination ............................454
3.4.2 The meaning of equality between women and men......................................454
4. Women’s Right to Respect for their Life and their Physical and
Mental Integrity ................................................................................................458
4.1 Relevant legal provisions.................................................................................458
4.2 The right to life.................................................................................................461
4.2.1 Abduction and murder.............................................................................461
4.2.2 Dowry violence and “honour” killings.......................................................462
4.2.3 Female genital mutilation .........................................................................463

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4.2.4 Abortion..................................................................................................464
4.2.5 Infant mortality and life expectancy ..........................................................465
4.3 The right to freedom from torture and other cruel, inhuman or
degrading treatment or punishment ..............................................................466
4.3.1 Violence against women deprived of their liberty........................................467
4.3.2 Unlawful punishments .............................................................................469
4.3.3 Violence against women and the girl child in families and the
community in general................................................................................472
4.4 Violence against women as crimes against humanity and
war crimes..........................................................................................................477
5. Women’s Right to Freedom from Slavery, the Slave Trade,
Forced and Compulsory Labour, and Trafficking ......................................478
5.1 Relevant legal provisions.................................................................................478
5.1.1 Slavery, the slave trade and servitude ........................................................478
5.1.2 Forced and compulsory labour...................................................................479
5.1.3 Trafficking...............................................................................................479
5.2 The practice of slavery, forced and compulsory labour, and
trafficking in women........................................................................................481
6. The Right to Equality in respect of Marriage ..............................................484
6.1 The right of intending spouses to marry freely and to found
a family...............................................................................................................484
6.1.1 Polygamous marriages ..............................................................................486
6.1.2 The marriageable age................................................................................487
6.1.3 Other de jure and de facto impediments to the right to marry freely.............488
6.1.4 Restrictions on remarriage.........................................................................489
6.1.5 Registration of marriages ..........................................................................490
6.1.6 Meaning of the right to found a family ......................................................491
6.2 Equality of rights in terms of nationality laws .............................................493
6.3 The equal right to a name ...............................................................................495
6.4 Equal rights and responsibilities of spouses as to marriage,
during marriage and at its dissolution ...........................................................496
6.4.1 Relevant legal provisions ...........................................................................496
6.4.2 General understanding of the principle of equal rights and
responsibilities ..........................................................................................497
6.4.3 Equal right to decision-making.................................................................498
6.4.4 Equal parental rights and responsibilities .................................................498
6.4.5 Equal rights to marital property ...............................................................499
6.4.6 The equal right to a profession and an occupation......................................500
6.4.7 Women living in de facto unions ...............................................................500
6.4.8 Equality with respect to divorce.................................................................501
6.4.9 The equal right of succession between spouses.............................................501
7. The Equal Right to Legal Capacity in Civil Matters ...................................502
7.1 Equal rights to administer property and conclude contracts ....................502
7.2 The equal right to succession in general.......................................................504

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8. The Right to Equal Participation in Public Affairs, including

Elections............................................................................................................505
8.1 Relevant legal provisions.................................................................................505
8.2 The interpretation of article 25 of the International Covenant on
Civil and Political Rights .................................................................................507
8.3 The interpretation of articles 7 and 8 of the Convention on the
Elimination of All Forms of Discrimination against Women...................508
9. Women’s Right to Equal Enjoyment of Other Human Rights ................511
9.1 The right to freedom of movement and residence .....................................511
9.2 The right to privacy..........................................................................................512
9.3 Freedom of thought, conscience, belief, religion, opinion,
expression, association and assembly............................................................513
9.4 The right to education .....................................................................................514
10. Women’s Right to an Effective Remedy, including the Right of
Access to the Courts and Due Process of Law ...........................................516
11. The Role of Judges, Prosecutors and Lawyers in Ensuring
Protection of the Rights of Women..............................................................519
12. Concluding Remarks .......................................................................................520

Chapter 12
Some Other Key Rights: Freedom of Thought,
Conscience, Religion, Opinion, Expression, Association
and Assembly ...........................................................521
Learning Objectives.................................................................................................521
Questions ..................................................................................................................521
Relevant Legal Instruments....................................................................................522
1. Introduction......................................................................................................523
2. The Right to Freedom of Thought, Conscience and Religion..................524
2.1 Relevant legal provisions.................................................................................524
2.2 General meaning of the right to freedom of thought, conscience
and religion........................................................................................................525
2.2.1 Article 18 of the International Covenant on Civil and Political
Rights ......................................................................................................525
2.2.2 Article 8 of the African Charter on Human and Peoples’ Rights..............527
2.2.3 Article 12 of the American Convention on Human Rights .......................527
2.2.4 Article 9 of the European Convention on Human Rights .........................528
2.3 The right to manifest one’s religion or belief...............................................530
2.3.1 Limitations on the right to manifest one’s religion or belief.........................533
2.3.2 Prohibitions on the freedom to manifest one’s religion or belief....................540

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2.4 Freedom of religion and public school instruction.....................................540

2.5 State religion and religious minorities ...........................................................543
2.6 Conscientious objection on religious grounds.............................................544
3. The Right to Freedom of Opinion and Expression ...................................546
3.1 Relevant legal provisions.................................................................................546
3.2 Article 19 of the International Covenant on Civil and Political
Rights .................................................................................................................548
3.2.1 Choice of language in court .......................................................................549
3.2.2 Advertising ..............................................................................................549
3.2.3 Defamation and dissemination of false information ...................................550
3.2.4 Denial of crimes against humanity and advocacy of hatred.........................552
3.2.5 Threats to national security and public order .............................................554
3.2.6 Freedom of the press .................................................................................557
3.2.7 Human rights defenders............................................................................561
3.3 Article 9 of the African Charter on Human and Peoples’ Rights.............561
3.3.1 Freedom of the press .................................................................................562
3.3.2 Freedom to express opinions .....................................................................564
3.3.3 Human rights defenders............................................................................564
3.4 Article 13 of the American Convention on Human Rights.......................565
3.4.1 The individual and collective dimensions of freedom of expression,
including the role of the mass media ..........................................................567
3.4.2 Freedom of expression and the concept of public order in a democratic
society ......................................................................................................570
3.4.3 Restrictions on freedom of expression: Meaning of the term
“necessary to ensure” ................................................................................571
3.4.4 Indirect control of the mass media: The case of
Ivcher Bronstein v. Peru ....................................................................572
3.4.5 Article 13(2) and the Compulsory Licensing of Journalists case ......573
3.5 Article 10 of the European Convention on Human Rights ......................575
3.5.1 Basic interpretative approach to freedom of expression................................576
3.5.2 Freedom of the press .................................................................................579
3.5.3 Freedom of expression of elected members of professional organizations.......589
3.5.4 Freedom of expression of elected politicians ................................................592
3.5.5 Freedom of artistic expression ...................................................................594
4. The Rights to Freedom of Association and Assembly...............................597
4.1 Relevant legal provisions.................................................................................597
4.2 Articles 21 and 22 of the International Covenant on Civil and
Political Rights ..................................................................................................599
4.2.1 Origin and meaning of the “in a democratic society” concept.......................599
4.2.2 Freedom of association..............................................................................601
4.2.3 Freedom of assembly.................................................................................602
4.3. Articles 10 and 11 of the African Charter on Human and
Peoples’ Rights..................................................................................................604
4.3.1 Freedom of association..............................................................................604
4.4 Articles 15 and 16 of the American Convention on Human Rights........606

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4.5 Article 11 of the European Convention on Human Rights ......................608

4.5.1 Freedom of association, trade unions and the closed shop system.................609
4.5.2 Trade unions and collective agreements ......................................................612
4.5.3 Freedom of association and political parties ...............................................614
4.5.4 A lawyer’s right to freedom of assembly.....................................................627
5. The Role of Judges, Prosecutors and Lawyers in Ensuring
Protection of Freedom of Thought, Conscience, Religion, Opinion,
Expression, Association and Assembly ........................................................629
6. Concluding Remarks .......................................................................................630

Chapter 13
The Right to Equality and Non-Discrimination
in the Administration of Justice ...................................631
Learning Objectives.................................................................................................631
Questions ..................................................................................................................631
Relevant Legal Instruments....................................................................................632
1. Introduction......................................................................................................633
1.1 Discrimination: A persistent serious human rights violation ....................633
1.2 The role of judges, prosecutors and lawyers in protecting persons
against discrimination ......................................................................................634
1.3 Glimpses of international legal history .........................................................634
1.4 The purpose and scope of the present chapter ...........................................635
2. Selected Universal Legal Provisions Guaranteeing the Right to
Equality before the Law and the Right to Non-discrimination ................636
2.1 Universal Declaration of Human Rights, 1948............................................636
2.2 Convention on the Prevention and Punishment of the Crime of
Genocide, 1948.................................................................................................637
2.3 International Covenant on Civil and Political Rights, 1966 ......................638
2.4 International Covenant on Economic, Social and Cultural
Rights, 1966.......................................................................................................639
2.5 International Convention on the Elimination of All Forms of
Racial Discrimination, 1965............................................................................639
2.6 Convention on the Rights of the Child, 1989..............................................640
2.7 Convention on the Elimination of All Forms of Discrimination
against Women, 1979.......................................................................................641
2.8 Declaration on the Elimination of All Forms of Intolerance and
of Discrimination Based on Religion or Belief, 1981 .................................642
2.9 Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities, 1992.......................................642

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3. Selected Regional Legal Provisions Guaranteeing the Right to

Equality before the Law and the Right to Non-discrimination ................643
3.1 African Charter on Human and Peoples’ Rights, 1981 ..............................643
3.2 African Charter on the Rights and Welfare of the Child, 1990 ................644
3.3 American Convention on Human Rights, 1969..........................................644
3.4 Additional Protocol to the American Convention on Human
Rights in the Area of Economic, Social and Cultural Rights, 1988..........645
3.5 Inter-American Convention on the Prevention, Punishment, and
Eradication of Violence against Women, 1994 ...........................................645
3.6 Inter-American Convention on the Elimination of All Forms of
Discrimination against Persons with Disabilities, 1999..............................646
3.7 European Convention on Human Rights, 1950..........................................646
3.8 European Social Charter, 1961, and European Social Charter
(revised), 1996...................................................................................................647
3.9 Framework Convention for the Protection of National
Minorities, 1994................................................................................................648
4. The Prohibition of Discrimination and Public Emergencies....................649
5. The General Meaning of Equality and Non-Discrimination ....................651
6. Selected International Case Law and Legal Comments on the
Right to Equality and the Prohibition of Discrimination ..........................656
6.1 Race, colour or ethnic origin ..........................................................................656
6.1.1 Racial slurs..............................................................................................656
6.1.2 The right to freedom of movement and residence .........................................657
6.1.3 Racial and ethnic discrimination in law enforcement ..................................658
6.1.4 Racial discrimination in ensuring economic, social and cultural rights.........658
6.2 Gender ...............................................................................................................659
6.2.1 The right to represent matrimonial property...............................................659
6.2.2 Right to respect for family life....................................................................659
6.2.3 Preferential pension rights.........................................................................661
6.2.4 Social security benefits ..............................................................................662
6.2.5 Contributions to general child-care benefit schemes .....................................662
6.2.6 Parental leave allowance ...........................................................................663
6.2.7 Acquisition of citizenship .........................................................................664
6.3 Language............................................................................................................665
6.4 Religion or belief ..............................................................................................666
6.4.1 Conscientious objection to military service ..................................................666
6.4.2 Duty to wear safety gear at work ..............................................................668
6.4.3 Public funding of religious schools..............................................................669
6.4.4 Lack of public-law status for purposes of bringing court proceedings ...........669
6.5 Property .............................................................................................................670
6.6 Birth or other status.........................................................................................671
6.6.1 Social security benefits for married/unmarried couples ...............................671
6.6.2 Inheritance rights......................................................................................672
6.6.3. Conditions of birth or descent for presidential candidates............................673

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6.7 National origin..................................................................................................674

6.8 Sexual orientation.............................................................................................675
6.9 Minorities...........................................................................................................676
6.9.1 Right to one’s own culture.........................................................................676
6.9.2 Right to reside in an Indian reserve...........................................................677
7. Concluding Remarks .......................................................................................678

Chapter 14
The Role of the Courts in Protecting Economic,
Social and Cultural Rights ...........................................681
Learning Objectives.................................................................................................681
Questions ..................................................................................................................681
Relevant Legal Instruments....................................................................................682
1. Introduction......................................................................................................683
2. History Revisited: Why are there Two International Covenants
on Human Rights? ...........................................................................................683
2.1 A chronological overview ...............................................................................683
2.2. The substance of the debates .........................................................................686
2.2.1 Principal arguments in favour of one covenant ...........................................686
2.2.2 Principal arguments in favour of two covenants..........................................687
2.2.3 Pleadings in favour of a practical solution..................................................689
2.2.4 The question of justiciability .....................................................................690
3. Interdependence and Indivisibility of Human Rights ................................692
4. Universal and Regional Treaties for the Protection of Economic,
Social and Cultural Rights: The Rights Guaranteed ...................................696
4.1 The universal level............................................................................................696
4.1.1 International Covenant on Economic, Social and Cultural
Rights, 1966 ...........................................................................................696
4.2 The regional level .............................................................................................697
4.2.1 African Charter on Human and Peoples’ Rights, 1981 ...........................697
4.2.2 American Convention on Human Rights, 1969, including the Additional
Protocol in the Area of Economic, Social and Cultural Rights, 1988 .............698
4.2.3 European Social Charter, 1961, and European Social Charter
(revised), 1996.........................................................................................699
5. The Legal Obligations of States to Protect Economic, Social
and Cultural Rights ..........................................................................................701
5.1 International Covenant on Economic, Social and Cultural
Rights, 1966.......................................................................................................701
5.1.1 Introductory remarks................................................................................701
5.1.2 The obligation of conduct ..........................................................................702

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5.1.3 The obligation of result .............................................................................703

5.1.4 The obligation to give effect: the provision of domestic remedies ...................704
5.2 African Charter on Human and Peoples’ Rights, 1981 ..............................705
5.3 American Convention on Human Rights, 1969, and
Additional Protocol in the Area of Economic, Social and
Cultural Rights, 1988 .......................................................................................706
5.4 European Social Charter, 1961, and European Social Charter
(revised), 1996...................................................................................................706
6. Economic, Social and Cultural Rights: Are they Justiciable? ....................707
7. Case Study I: The Right to Adequate Housing ...........................................710
7.1 Introductory remarks.......................................................................................710
7.2 International Covenant on Economic, Social and Cultural Rights:
article 11(1)........................................................................................................711
7.2.1 Persons covered by the right.......................................................................712
7.2.2 Interpretative approach, including interdependence of rights ........................713
7.2.3 The concept of adequacy............................................................................713
7.2.4 Immediate legal obligations .......................................................................714
7.2.5 Domestic remedies ....................................................................................715
7.2.6 Forced evictions ........................................................................................716
7.3 Relevant European case law: The Selçuk and Asker case ............................719
7.4 Relevant domestic case law: The example of South Africa .......................721
8. Case Study II: The Right to Health...............................................................730
8.1 International Covenant on Economic, Social and Cultural Rights:
article 12.............................................................................................................730
8.1.1 The normative content of article 12(1) ......................................................731
8.1.2 The meaning of the provisions in article 12(2)...........................................732
8.1.3 The obligations of States parties................................................................734
8.1.4 The core obligations ..................................................................................736
8.1.5 Violations of article 12 ............................................................................737
8.1.6 Implementation at the national level..........................................................738
8.2 Relevant domestic case law I: The example of Canada..............................740
8.3 Relevant domestic case law II: The example of India ................................744
9. The Role of Judges, Prosecutors and Lawyers in the Protection of
Economic, Social and Cultural Rights: Lessons Learned ..........................748
10. Concluding Remarks .......................................................................................748

Chapter 15
Protection and Redress for Victims of Crime and
Human Rights Violations ............................................749
Learning Objectives.................................................................................................749
Questions ..................................................................................................................749

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Relevant Legal Instruments....................................................................................750

1. Introduction......................................................................................................751
2. Protection and Redress for Victims of Crime .............................................753
2.1 Relevant legal provisions.................................................................................753
2.1.1 The universal level....................................................................................753
2.1.2 The regional level......................................................................................754
2.2 The notion of victim........................................................................................756
2.3 Treatment of victims in the administration of justice ................................758
2.3.1 Treatment of victims by the police..............................................................758
2.3.2 Treatment of victims by the prosecution .....................................................761
2.3.3 Questioning of victims during criminal procedures......................................762
2.3.4 Victims and criminal court proceedings .....................................................763
2.3.5 Victims’ right to protection of their private life and their safety ..................764
2.4 Restitution, compensation and assistance to victims of crime..................765
2.4.1 General remarks ......................................................................................765
2.4.2 Restitution ...............................................................................................766
2.4.3 Compensation ..........................................................................................766
2.4.4 Assistance................................................................................................771
3. Protection and Redress for Victims of Human Rights Violations ...........773
3.1 The notion of victim........................................................................................774
3.2 The general legal duty to ensure the effective protection of
human rights .....................................................................................................776
3.2.1 The universal level....................................................................................776
3.2.2 The regional level......................................................................................776
3.3 The duty to prevent human rights violations...............................................780
3.3.1 The universal level....................................................................................780
3.3.2 The regional level......................................................................................781
3.4 The duty to provide domestic remedies .......................................................783
3.4.1 The universal level....................................................................................783
3.4.2 The regional level......................................................................................786
3.5 The duty to investigate, prosecute and punish ............................................792
3.5.1 The universal level....................................................................................793
3.5.2 The regional level......................................................................................796
3.5.3 The role of victims during investigations and court proceedings....................799
3.6 The duty to provide redress for human rights violations ..........................801
3.6.1 Restitution and compensation ...................................................................801
3.6.2 Rehabilitation ..........................................................................................803
3.7 The problem of impunity for human rights violations ..............................805
3.7.1 Impunity from a legal perspective...............................................................805
3.7.2 Justice, impunity and reconciliation ...........................................................808
4. The Role of Judges, Prosecutors and Lawyers in Ensuring Justice
for Victims of Crime and Human Rights Violations..................................809
5. Concluding Remarks .......................................................................................809

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Chapter 16
The Administration of Justice During
States of Emergency ..................................................811
Learning Objectives.................................................................................................811
Questions ..................................................................................................................811
Relevant Legal Instruments....................................................................................812
1. Introduction......................................................................................................813
1.1 General introductory remarks ........................................................................813
1.2 Introductory remarks on limitations and derogations
in the field of human rights ............................................................................814
2. The Notion of Public Emergency in International
Human Rights Law ..........................................................................................815
2.1 Relevant legal provisions.................................................................................815
2.1.1 Derogations and the African Charter on Human and
Peoples’ Rights.........................................................................................816
2.2. Derogations from legal obligations: A dilemma for the drafters..............816
2.3 The interpretation of the international monitoring bodies........................821
2.3.1 Article 4(1) of the International Covenant on Civil and
Political Rights ........................................................................................821
2.3.2 Article 27(1) of the American Convention on Human Rights ..................825
2.3.3 Article 15(1) of the European Convention on Human Rights...................827
3. Non-Derogable Rights and Obligations in International
Human Rights Law ..........................................................................................831
3.1 Introductory remarks.......................................................................................831
3.2 Relevant legal provisions.................................................................................832
3.3 The right to life.................................................................................................833
3.4 The right to freedom from torture and from cruel, inhuman or
degrading treatment or punishment ..............................................................835
3.5 The right to humane treatment......................................................................837
3.6 The right to freedom from slavery and servitude. ......................................838
3.7 The right to freedom from ex post facto laws and the principle
of ne bis in idem...................................................................................................839
3.7.1 The prohibition of ex post facto laws.........................................................839
3.7.2 The principle of ne bis in idem ..............................................................840
3.8 The right to recognition as a legal person ....................................................842
3.9 The right to freedom of thought, conscience and religion........................842
3.10 The right not to be imprisoned merely on the ground of inability
to fulfil a contractual obligation.....................................................................843
3.11 The rights of the family...................................................................................844
3.12 The right to a name..........................................................................................844

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3.13 The rights of the child .....................................................................................845

3.14 The right to a nationality.................................................................................846
3.15 The right to participate in government.........................................................847
3.16 Non-derogable rights and the right to effective procedural and
judicial protection.............................................................................................847
4. Derogable Rights and the Condition of Strict Necessity...........................852
4.1 General interpretative approach ....................................................................853
4.1.1 Article 4(1) of the International Covenant on Civil and
Political Rights ........................................................................................853
4.1.2 Article 27(1) of the American Convention on Human Rights ..................854
4.1.3 Article 15(1) of the European Convention on Human Rights...................855
4.2 The right to effective remedies ......................................................................856
4.3. The right to liberty and special powers of arrest and detention ...............857
4.4 The right to a fair trial and special tribunals ................................................868
5. The Condition of Consistency with Other International
Legal Obligations .............................................................................................877
6. The Condition of Non-Discrimination ........................................................879
7. The Condition of International Notification...............................................881
8. The Role of Judges, Prosecutors and Lawyers in Ensuring the
Effective Protection of Human Rights in Emergency Situations ............884
9. Concluding Remarks .......................................................................................885

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NOTE

The designations employed and the presentation of the material in this publication
do not imply the expression of any opinion whatsoever on the part of the Secretariat of the
United Nations concerning the legal status of any country, territory, city or area, or of its
authorities, or concerning the delimitation of its frontiers or boundaries.

*
* *

Material contained in this series may be freely quoted or reprinted, provided credit is
given and a copy of the publication containing the reprinted material is sent to the Office
of the High Commissioner for Human Rights, United Nations, 1211 Geneva 10,
Switzerland.

HR/P/PT/9

UNITED NATIONS PUBLICATION

Sales No. E.02.XIV.3
ISBN 92-1-154141-7
ISSN 1020-1688
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.........Chapter 1
INTERNATIONAL
HUMAN RIGHTS LAW AND
THE ROLE OF THE LEGAL
PROFESSIONS: A GENERAL
INTRODUCTION ...................

Learning Objectives
l To ensure that participants acquire a basic working knowledge of the origin, purpose
and scope of international human rights law;
l To familiarize participants with the application of international human rights law at
the domestic level and to begin to make them aware of the important role played by the
legal professions in this respect.

Questions
l Why did you want to join the course?
l What is a human right?
l Why are human rights important in general?
l Why are human rights important in the country where you are professionally active?
l How do you, as judges, prosecutors and/or lawyers, see your role as promoters and
protectors of human rights in the exercise of your professional duties?
l What specific problems, if any, do you face with regard to the protection of human
rights in the country/countries where you work?

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Chapter 1 • International Human Rights Law and the Role of the Legal Professions: A General Introduction

1. Introduction
In recent decades, international human rights law has had an ever-growing
impact on domestic legal systems throughout the world, and thereby also on the daily
work of domestic judges, prosecutors and lawyers. This evolving legal situation, the
true dimensions of which could hardly have been foreseen half a century ago, requires
each State concerned, and also the relevant legal professions, carefully to consider ways
in which effective implementation of the State’s legal human rights obligations can best
be secured. This may in many instances constitute a challenge to legal practitioners,
owing to the conflicting requirements of different laws, lack of access to information,
and the need for further training.
The objective of the present Manual is therefore to convey a basic knowledge
of, and skills in, the implementation of international human rights law to judges,
prosecutors and lawyers – legal professions without which there can be no truly
efficient protection of the rights of the individual at the domestic level. To this end, the
present chapter will provide a general introductory survey of the basic notions of
international human rights law, whilst the remaining fifteen chapters will contain more
detailed information and analyses of human rights standards that are of particular
relevance to the administration of justice.

2. Origin, Meaning and Scope of

International Human Rights Law
2.1 The Charter of the United Nations and the
Universal Declaration of Human Rights
Humanity’s yearning for respect, tolerance and equality goes a long way back
in history, but the curious thing to note is that, although our societies have in many
respects made great strides in the technological, political, social and economic fields,
contemporary grievances remain very much the same as they were hundreds, even
thousands of years ago.
As to the protection of the rights and freedoms of the individual at the
international level, work began in the nineteenth century to outlaw slavery and to
improve the situation of the sick and wounded in times of war.1 At the end of the First
World War, several treaties were concluded with the allied or newly created States for
the purpose of providing special protection for minorities.2 At about the same time, in
1919, the International Labour Organization (ILO) was founded for the purpose of
improving the conditions of workers. Although the initial motivation of the ILO was
humanitarian, there were also, inter alia, political reasons for its creation, it being feared

1 A.H. Robertson, Human Rights in the World (Manchester, Manchester University Press, 1972), pp. 15-20.
2 Ibid., pp. 20-22. On the history of human rights, see resource list in Handout No. 1 to Chapter 2 of the Manual.

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Chapter 1 • International Human Rights Law and the Role of the Legal Professions: A General Introduction

that, unless the conditions of the ever-increasing number of workers were improved,
the workers would create social unrest, even revolution, thereby also imperilling the
peace and harmony of the world.3
Following the atrocities committed during the Second World War, the acute
need to maintain peace and justice for humankind precipitated a search for ways of
strengthening international cooperation, including cooperation aimed both at
protecting the human person against the arbitrary exercise of State power and at
improving standards of living. The foundations of a new international legal order based
on certain fundamental purposes and principles were thus laid in San Francisco on 26
June 1945 with the adoption of the Charter of the United Nations. In the Preamble to
the Charter, faith is first reaffirmed “in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and women and of nations large
and small”. Secondly, the Preamble also, inter alia, expresses the determination “to
promote social progress and better standards of life in larger freedom”. Thirdly, one of
the four purposes of the United Nations is, according to Article 1(3) of the Charter,
“2. To achieve international co-operation 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”.

Other Charter provisions containing references to human rights are: Articles

13(1)(b), 55(c), 62(2), 68, and 76(c). It is of particular significance to point out that,
according to Articles 56 and 55(c) read in conjunction, United Nations Member States
have a legal obligation “to take joint and separate action in co-operation with the
Organization for the achievement of” “universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction as to race, sex, language, or
religion”. This important legal duty conditions Member States’ participation
throughout the United Nations human rights programme.
With the adoption by the United Nations General Assembly of the Universal
Declaration of Human Rights on 10 December 1948, the rather terse references to
“human rights and fundamental freedoms” in the Charter acquired an authoritative
interpretation. The Universal Declaration recognizes civil, cultural, economic, political
and social rights, and, although it is not a legally binding document per se, since it was
adopted by a resolution of the General Assembly, the principles contained therein are
now considered to be legally binding on States either as customary international law,
general principles of law, or as fundamental principles of humanity. In its dictum in the
case concerning the hostages in Tehran, the International Court of Justice clearly
invoked “the fundamental principles enunciated in the ... Declaration” as being legally
binding on Iran in particular with regard to the wrongful deprivation of liberty and the
imposition of “physical constraint in conditions of hardship”.4

3 For the history of the ILO, see the ILO web site: www.ilo.org/public/english/about/history.htm.
4 See United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, ICJ Reports 1980, p. 42, para. 91.

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Chapter 1 • International Human Rights Law and the Role of the Legal Professions: A General Introduction

The devastating experiences of the First and Second World Wars

underscored the imperative need both to protect the human person against
the arbitrary exercise of State power and to promote social progress and
better living standards in larger freedom.

2.2 The ethical dimension of human rights

The very specificity of the concept of “human rights” is that they belong to
the individual in his or her quality as a human being, who cannot be deprived of their
substance in any circumstances; these rights are thus intrinsic to the human condition.
The Universal Declaration of Human Rights, the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and Cultural
Rights all give expression to this fundamental ethical basis in their first preambular
paragraphs by recognizing “the inherent dignity and ... the equal and inalienable rights
of all members of the human family”. Here, then, is an expression of the principle of
universality of rights, including the right to equal protection before the law and by the
law, which, as will be seen in Chapter 13, is a fundamental principle conditioning the
entire field of international human rights law.
As to the regional level, the second preambular paragraph to the American
Convention on Human Rights also expressly recognizes “that the essential rights of
man are not derived from one’s being a national of a certain State, but are based upon
attributes of the human personality”. As stated by the Inter-American Court of Human
Rights in its Advisory Opinion on Habeas Corpus in Emergency Situations, the rights
protected by the Convention cannot, per se, be suspended even in emergency
situations, because they are “inherent to man”.5 It follows, in the view of the Court,
that “what may only be suspended or limited” under the Convention is the “full and
effective exercise” of the rights contained therein.6 Finally, the African Charter on
Human and Peoples’ Rights, in its fifth preambular paragraph, also recognizes “that
fundamental human rights stem from the attributes of human beings, which justifies
their national and international protection”.
Consequently, human rights are owed by States to all individuals within their
jurisdiction and in some situations also to groups of individuals. The principle of
universal and inalienable rights of all human beings is thus solidly anchored in international
human rights law.

Human rights are inherent in all members of the human family.

Human rights are thus universal and inalienable rights of all
human beings.

5 See I-A Court HR, Habeas Corpus in Emergency Situations (arts. 27(2), 25(1) and 7(6), Advisory Opinion OC-8/87 of January 30, 1987,
Series A, No. 8, para. 18 at p. 37.
6 Ibid., loc. cit.

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Chapter 1 • International Human Rights Law and the Role of the Legal Professions: A General Introduction

Human beings cannot be deprived of the substance of their rights

(inalienability). Only the exercise of some of these rights can be
limited in certain circumstances.
The fact that human rights originate in the unique nature of the
human being means that they should be subjected to effective legal
protection at the national and international levels.

2.3 Human rights and their impact on national and

international peace, security and development
As already explained, it was the tragedies of the two World Wars that
compelled the international community to create a world organization with the purpose
of furthering peace and justice, inter alia by encouraging the promotion and protection
of human rights and fundamental freedoms. The all-too-evident lesson to be drawn
from the Second World War was that, when a State pursues a deliberate policy of
denying persons within its territory their fundamental rights, not only is the internal
security of that State in jeopardy, but in serious situations there is a spillover effect that
imperils the peace and security of other States as well. This hard-won lesson has been
confirmed on numerous occasions since in every part of the world. Effective
protection of human rights promotes peace and stability at the national level not only
by allowing people to enjoy their basic rights and freedoms, but also by providing a
basic democratic, cultural, economic, political and social framework within which
conflicts can be peacefully resolved. Effective protection of human rights is
consequently also an essential precondition for peace and justice at the international level,
since it has inbuilt safeguards that offer the population ways of easing social tension at the
domestic level before it reaches such proportions as to create a threat on a wider scale.
As a reading of, in particular, Article 1 of the Charter of the United Nations
and the first preambular paragraphs of the Universal Declaration and the two
International Covenants makes clear, the drafters were well aware of the essential fact
that effective human rights protection at the municipal level is the foundation of justice,
peace and social and economic development throughout the world.
More recently, the link between, inter alia, the rule of law, effective human
rights protection and economic progress has been emphasized by the Secretary-
General of the United Nations in his Millennium Report, where he emphasized that
“84. It is now widely accepted that economic success depends in
considerable measure on the quality of governance a country enjoys. Good
governance comprises the rule of law, effective State institutions,
transparency and accountability in the management of public affairs,
respect for human rights, and the participation of all citizens in the
decisions that affect their lives. While there may be debates about the most
appropriate forms they should take, there can be no disputing the
importance of these principles”.7

7 UN doc. A/54/2000, We the Peoples: the Role of the United Nations in the Twenty-First Century, Report of the Secretary-General, para. 84.

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Chapter 1 • International Human Rights Law and the Role of the Legal Professions: A General Introduction

Effective protection of human rights and fundamental freedoms is

conducive to both domestic and international peace and security.
Effective protection of human rights provides a basic democratic culture
enabling conflicts to be resolved peacefully.
Economic progress depends to a large extent on good governance and
effective protection of human rights.

2.4 The sources of law

The third preambular paragraph of the Universal Declaration of Human
Rights states that
“... it is essential, if man is not to be compelled to have recourse, as a last
resort, to rebellion against tyranny and oppression, that human rights
should be protected by the rule of law” (emphasis added).

This means that, in order to enable the human person fully to enjoy his or her
rights, these rights must be effectively protected by domestic legal systems. The
principle of the rule of law can thus also be described as an overarching principle in the
field of human rights protection because, where it does not exist, respect for human
rights becomes illusory. It is interesting in this respect to note that, according to article 3
of the Statute of the Council of Europe, “every Member State ... must accept the
principle of the rule of law”. This fundamental principle is thus legally binding on the 43
Member States of the organization, a fact that has also influenced the case-law of the
European Court of Human Rights.8
Consequently, judges, prosecutors and lawyers have a crucial role to fulfil in
ensuring that human rights are effectively implemented at the domestic level. This
responsibility requires the members of these legal professions to familiarize themselves
adequately with both national and international human rights law. Whilst their access to
domestic legal sources should pose no major problem, the situation is more complex at
the international level, where there are several legal sources and a case-law rich in many
respects.
With some modification, the next section will follow the hierarchy of legal
sources as they appear in article 38 of the Statute of the International Court of Justice.
Although one might disagree with the classification of sources in this provision, it
serves as a useful starting point. According to article 38(1) of the Statute, the sources
are:

8 Eur. Court HR, Golder case, Judgment of 21 February 1975, Series A, No. 18, para. 34 at p. 17. The Court stated that one “reason
why the signatory Governments decided to ‘take the first steps for the collective enforcement of certain of the Rights stated in the
Universal Declaration’ was their profound belief in the rule of law”; it therefore seemed “both natural and in conformity with the
principle of good faith ... to bear in mind this widely proclaimed consideration when interpreting the terms of” article 6(1) of the
European Convention “according to their context and in the light of the object and purpose of the Convention”. Referring
moreover to the references to the rule of law contained in the Statute of the Council of Europe, the Court concluded that “in civil
matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts”. The Council
of Europe had 43 Member States as of 22 April 2002.

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Chapter 1 • International Human Rights Law and the Role of the Legal Professions: A General Introduction

v “international conventions”;
v “international custom, as evidence of a general practice accepted as law”;
v “general principles of law recognized by” the community of nations;9
v “judicial decisions and the teachings of the most highly qualified publicists ... as
subsidiary means for the determination of rules of law”.
Without seeking to be exhaustive, the next section will set forth the essential
characteristics of the main sources of international human rights law. However, it
should be noted at the outset that in international human rights law, judicial decisions,
and also quasi-judicial decisions and general comments adopted by monitoring organs,
take on special relevance in understanding the extent of the legal obligations of States.

Human rights must be effectively protected by domestic legal systems.

Judges, prosecutors and lawyers have a crucial role to fulfil in ensuring
that human rights are effectively protected at the domestic level.
The principal sources of international law are international
conventions, international customary law, and general
principles of law.

2.4.1 International treaties

In the human rights field, the most important tool for judges, prosecutors and
lawyers to consult, apart from existing domestic law, is no doubt the treaty obligations
incumbent on the State within whose jurisdiction they are working. A “treaty” is
generally a legally binding, written agreement concluded between States,10 but can also be an
agreement between, for instance, the United Nations and a State for specific purposes.
Treaties may go by different names, such as convention, covenant, protocol, or pact, but the
legal effects thereof are the same. At the international level, a State establishes its
consent to be bound by a treaty principally through ratification, acceptance, approval, or
accession;11 only exceptionally is the consent to be bound expressed by signature.12
However, the function of signature of a treaty is often that of authenticating the text,
and it creates an obligation on the State concerned “to refrain from acts which would
defeat the object and purpose” of the treaty, at least until the moment it has “made its
intention clear not to become a party” thereto.13
Once a treaty has entered into force and is binding upon the States parties,
these must perform the treaty obligations “in good faith” (pacta sunt servanda).14 This
implies, inter alia, that a State cannot avoid responsibility under international law by
invoking the provisions of its internal laws to justify its failure to perform its
international legal obligations. Moreover, in international human rights law, State

9 Article 38(1)(c) archaically refers to “civilized nations”.

10 Article 2(1)(a) of the Vienna Convention on the Law of Treaties.
11 Ibid., article 2(1)(b).
12 Ibid., article 12.
13 Ibid., article 18(a).
14 Ibid., article 26.

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responsibility is strict in that States are responsible for violations of their treaty
obligations even where they were not intentional.
Human rights treaties are law-making treaties of an objective nature in that
they create general norms that are the same for all States parties. These norms have to
be applied by a State party irrespective of the state of implementation by other States
parties. The traditional principle of reciprocity does not, in other words, apply to human
rights treaties.15
The fact that human rights treaties have been concluded for the purpose of
ensuring effective protection of the rights of the individual takes on particular
importance in the course of the interpretative process. In explaining the meaning of the
provisions of a human rights treaty, it is therefore essential for judges to adopt a
teleological and holistic interpretative approach by searching for an interpretation
that respects the rights and interests of the individual and is also logical in the context of
the treaty as a whole.
Examples of law-making treaties in the human rights field are the two
International Covenants on Civil and Political and on Economic, Social and Cultural
Rights, which will be considered in further detail below. Suffice it to mention in this
regard that the Committees created under the terms of each treaty to monitor its
implementation have by now adopted many views and comments which provide
valuable interpretative guidance to both national and international lawyers.

Obligations incurred by States under international treaties must be

performed in good faith.
In international human rights law State responsibility is strict in that
States are responsible for violations of their treaty obligations even where
they were not intentional.
A human rights treaty must be interpreted on the basis of a teleological
and holistic approach by searching for an interpretation that respects the
rights and interests of the individual and is also logical in the context of
the treaty as a whole.

2.4.2 International customary law

To follow the hierarchy of legal sources in article 38(1) of the Statute of the
International Court of Justice, judges can in the second place apply “international
custom, as evidence of a general practice accepted as law”. International customary
legal obligations binding upon States are thus created when there is evidence of both
v acts amounting to a “settled practice” of States; and
v a “belief that this practice is rendered obligatory by the existence of a rule of law
requiring it” (opinio juris).16

15 Eur. Comm. HR, Application No. 788/60, Austria v. Italy, decision of 11 January 1961 on the admissibility, 4 Yearbook of the European
Convention on Human Rights, p. 140.
16 North Sea Continental Shelf cases, Judgment, ICJ Reports 1969, p. 44, para. 77.

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The judge will thus have to assess the existence of one objective element
consisting of the general practice, and one subjective element, namely, that there is a
belief among States as to the legally binding nature of this practice.17
With regard to the question of practice, it follows from the ruling of the
International Court of Justice in the North Sea Continental Shelf cases that, at least with
regard to “the formation of a new rule of customary international law on the basis of
what was originally a purely conventional rule”, the passage of time can be relatively
short, although
“an indispensable requirement would be that within the period in question,
short though it might be, State practice, including that of States whose
interests are specially affected, should have been both extensive and
virtually uniform in the sense of the provision invoked; – and should
moreover have occurred in such a way as to show a general recognition
that a rule of law or legal obligation is involved”.18

In the subsequent case of Nicaragua v. the United States of America, the

International Court of Justice appears however to have somewhat softened this rather
strict interpretation of the objective element of State practice, whilst at the same time
placing a correspondingly greater emphasis on the opinio juris in the creation of custom.
In its reasoning, which related to the use of force, the Court held, in particular:
“186. It is not to be expected that in the practice of States the application of
the rules in question should have been perfect, in the sense that States
should have refrained, with complete consistency, from the use of force or
from intervention in each other’s internal affairs. The Court does not
consider that, for a rule to be established as customary, the corresponding
practice must be in absolutely rigorous conformity with the rule. In order
to deduce the existence of customary rules, the Court deems it sufficient
that the conduct of States should, in general, be consistent with such rules,
and that instances of State conduct inconsistent with a given rule should
generally have been treated as breaches of that rule, not as indications of
the recognition of a new rule. If a State acts in a way prima facie
incompatible with a recognized rule, but defends its conduct by appealing
to exceptions or justifications contained within the rule itself, then whether
or not the State’s conduct is in fact justifiable on that basis, the significance
of that attitude is to confirm rather than to weaken the rule”.19

The question now arises as to what legal principles for the protection of the
human person might have been considered to form part of customary international law
by the International Court of Justice.
In its Advisory Opinion of 1951 on Reservations to the Convention on Genocide, the
Court importantly held that “the principles underlying the Convention are principles
which are recognized ... as binding on States, even without any conventional
obligation”.20 Furthermore, it followed from the Preamble to the Convention that it

17 Ibid., loc. cit.

18 Ibid., p. 43, para. 74.
19 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986,
p. 98, para. 186.
20 Reservations to the Convention on Genocide, Advisory Opinion, ICJ Reports 1951, p. 23.

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was of “universal character” both with regard to “the condemnation of genocide and ...
the co-operation required ‘in order to liberate mankind from such an odious
scourge’”.21 Finally, the Court noted that the Convention had been approved by a
resolution which was unanimously adopted by the States.22 It is thus beyond doubt that
in 1951 the crime of genocide was already part of customary international law, applicable to
all States.
Later, in the Barcelona Traction case, the International Court of Justice
significantly made “an essential distinction” between “the obligations of a State
towards the international community as a whole, and those arising vis-à-vis another
State in the field of diplomatic protection”.23 It added that by “their very nature the
former are the concern of all States”, and, in “view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they are
obligations erga omnes”.24 In the view of the Court, such “obligations derive, for
example, in contemporary international law, from the outlawing of acts of aggression,
and of genocide, as also from the principles and rules concerning the basic rights of the
human person, including protection from slavery and racial discrimination”.25 It added
that whilst some “of the corresponding rights of protection have entered into the body
of general international law ... ; others are conferred by international instruments of a
universal or quasi-universal character”.26
Finally, and as already noted above, in its dictum in the hostages in Tehran case,
the Court stated that:
“Wrongfully to deprive human beings of their freedom and to subject
them to physical constraint in conditions of hardship is in itself manifestly
incompatible with the principles of the Charter of the United Nations, as
well as with the fundamental principles enunciated in the Universal
Declaration of Human Rights”.27

It is thus beyond doubt that basic human rights obligations form part of
customary international law. Whilst the International Court of Justice has expressly
mentioned the crimes of genocide and aggression, as well as the prohibition of racial
discrimination, slavery, arbitrary detention and physical hardship as forming part of a
universally binding corpus of law, it has not limited the scope of the law to these
elements.
v General Assembly resolutions: It may not be an easy task to identify international
custom, but resolutions adopted by the United Nations General Assembly can in
certain circumstances be regarded as having legal value, albeit not legally binding per
se. This is, for instance, the case with the Universal Declaration of Human Rights.
Thus, although not a source of law in the strict sense, they can provide evidence of
customary law. However, this will to a large extent depend on their contents, such as

21 Ibid., loc. cit.

22 Ibid.
23 Barcelona Traction, Light and Power Company, Limited, Judgment, ICJ Reports 1970, p. 32, para. 33.
24 Ibid., loc. cit.
25 Ibid., p. 32, para. 34.
26 Ibid., loc. cit.
27 ICJ Reports 1980, p. 42, para. 91.

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the degree of precision of the norms and undertakings defined therein, and the means foreseen for the
control of their application; it will also depend on the number of countries having voted in favour
thereof, and the circumstances of their adoption.28 A particularly relevant question in this
respect would be whether the resolution concerned has been adopted in isolation or whether it
forms part of a series of resolutions on the same subject with a consistent and universal content.
v Peremptory norms (jus cogens): It should finally be noted that some legal norms,
such as the prohibition of slavery, may be considered to be so fundamental that they
are called peremptory norms of international law. According to article 53 of the Vienna
Convention on the Law of Treaties, a treaty is simply “void if, at the time of its
conclusion, it conflicts with a peremptory norm of international law”. According to
the same article, such a norm is described as “a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general
international law having the same character”. However, whenever the notion of
peremptory norm is being discussed, disputes arise as to its exact contents, and
consequently it will not be further dealt with in this Manual.

2.4.3 General principles of law recognized by the community

of nations
This third source of law cited by the Statute of the International Court of
Justice helps ensure that, in cases where international treaties and customary law might
provide an insufficient basis for the Court to take a decision, it will be able to draw on
other resources.
A general principle of law, as a source of international human rights law, is a
legal proposition so fundamental that it can be found in all major legal systems
throughout the world. If there is evidence that, in their domestic law, States adhere to a
particular legal principle which provides for a human right or which is essential to the
protection thereof, then this illustrates the existence of a legally binding principle under
international human rights law. Judges and lawyers can thus look to other legal systems
to determine whether a particular human rights principle is so often accepted that it can
be considered to have become a general principle of international law. Domestic law
analogies have thus, for instance, been used in the field of principles governing the
judicial process, such as the question of evidence.29

2.4.4 Subsidiary means for the determination of rules of law

As subsidiary means for the determination of rules of law, article 38 of the
Statute mentions “judicial decisions and the teachings of the most highly qualified
publicists”. As previously mentioned, in the human rights field, judicial decisions are
particularly important for a full understanding of the law, and the wealth of
international case-law that now exists in this field must be regarded as authoritative
evidence of the state of the law. However, neither the International Court of Justice nor

28 For some of these elements, see e.g. Les résolutions dans la formation du droit international du développement, Colloque des 20 et 21
novembre 1970, L’Institut universitaire de hautes études internationales, Genève, 1971 (Études et travaux, No. 13), pp. 9, 30-31
(intervention by Professor Virally).
29 Ian Brownlie, Principles of Public International Law (Oxford, Clarendon Press, 1979), 3rd edn., 1979, p. 18.

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the international monitoring organs in the human rights field are obliged to follow
previous judicial decisions.30 Although this is usually done, it is particularly important
for the monitoring organs in the human rights field to retain the flexibility required to
adjust earlier decisions to ever-changing social needs, which, at the international level,
cannot easily be met through legislation.31 Suffice it to add in this context that the
reference to “judicial decisions” can also mean judicial decisions taken by domestic
courts, and that the higher the court, the greater weight the decision will have.
However, when international monitoring organs interpret human rights law, they are
likely to do so independently of domestic laws.
As to “the teachings of the most highly qualified publicists”, it must be
remembered that article 38 was drafted at a time when international jurisprudence on
human rights law was non-existent. Whilst the interpretation and application of this law
must principally be based on the legal texts and relevant case-law, writings of “the most
highly qualified publicists” can of course in some situations contribute to an improved
understanding of the law and its practical implementation. Yet it is advisable to exercise
considerable care before relying on legal articles and principles and comments adopted
by private bodies outside the framework of the officially established treaty organs, since
they may not in all respects correctly reflect the status of the law to be interpreted and
applied.

2.5 International human rights law and international

humanitarian law: common concerns and basic
differences
Although this Manual is aimed at conveying knowledge and skills in human
rights law, rather than in international humanitarian law, it is important to say a few
words about the relationship between these two closely linked fields of law.
Whilst both human rights law and international humanitarian law are aimed at
protecting the individual, international human rights law provides non-discriminatory
treatment to everybody at all times, whether in peacetime or in times of war or
other upheaval. International humanitarian law, on the other hand, is aimed at
ensuring a minimum of protection to victims of armed conflicts, such as the sick,
injured, shipwrecked and prisoners of war, by outlawing excessive human suffering
and material destruction in the light of military necessity.32 Although the 1949
Geneva Conventions and the two Protocols Additional thereto adopted in 1977
guarantee certain fundamental rights to the individual in the specifically defined
situations of international and internal armed conflicts, neither the personal, temporal
nor material fields of applicability of international humanitarian law are as wide as

30 As to the International Court of Justice, see article 59 of the Statute.

31 See e.g. the case in which the European Commission of Human Rights reversed its own earlier decision according to which
a legal person, such as a church, could not bring a case under article 9(1) of the European Convention on Human Rights claiming
a violation of “the right to freedom of thought, conscience and religion”, Eur. Comm. HR, Application No. 7805/77, X. and Church
of Scientology v. Sweden, decision of 5 May 1979 on the admissibility of the application, 16 DR, p. 70.
32 Seguridad del Estado, Derecho Humanitario y Derechos Humanos, Informe Final, San José, Costa Rica, Comité Internacional de la
Cruz Roja/Instituto Interamericano de Derechos Humanos, 1984, p. 7.

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those afforded by international human rights law.33 In that sense, humanitarian law is
also less egalitarian in nature, although the principle of non-discrimination is
guaranteed with regard to the enjoyment of the rights afforded by this law.34
What it is of primordial importance to stress at this stage is that, in
international and non-international armed conflicts, international human rights law and
humanitarian law will apply simultaneously. As to the modifications to the
implementation of human rights guarantees that might be authorized in what is
generally called public emergencies threatening the life of the nation, these will be briefly referred
to in section 2.8 below and in more detail in Chapter 16.

International human rights law is applicable at all times, that is, both in
times of peace and in times of turmoil, including armed conflicts, whether
of an internal or international character.
This means that there will be situations when international human rights
law and international humanitarian law will be applicable
simultaneously.

2.6 Reservations and interpretative declarations to

international human rights treaties
In assessing the exact extent of a given State’s legal obligations under a human
rights treaty, it is necessary to ascertain whether the State has made a reservation, or,
possibly, an interpretative declaration at the time of ratification or accession. The major
human rights treaties dealt with in this Manual allow for reservations to be made,
although they have somewhat different ways of regulating the subject. In deciding
whether a State party has actually made a true reservation, rather than a mere
declaration as to its own understanding of the interpretation of a provision or a
statement of policy, the Human Rights Committee set up to monitor the
implementation of the International Covenant on Civil and Political Rights has stated,
in its General Comment No. 24, that it will have regard “to the intention of the State,
rather than the form of the instrument”.35 Whilst this Covenant contains no specific
article regulating the question of reservations, the Human Rights Committee has stated
that the “absence of a prohibition on reservations does not mean that any reservation is
permitted”, but that the matter “is governed by international law”.36 Basing itself on
article 19(3) of the Vienna Convention on the Law of Treaties, the Committee stated

33 J. Patrnogic and B. Jakovljevic, International Humanitarian Law in the Contemporary World, Sanremo, Italy, International Institute
of Humanitarian Law (Collection of Publications 10), 1991, p. 28.
34 See e.g. article 3 common to the Four Geneva Conventions of 12 August 1949; article 75 of Protocol Additional to the
Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I);
and article 2(1) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims
of Non-International Armed Conflicts (Protocol II).
35 See General Comment No. 24, in UN doc. HRI/GEN/1/Rev.5, Compilation of General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies (hereinafter referred to as United Nations Compilation of General Comments), p. 150, para. 3;
emphasis added.
36 Ibid., p. 151, para. 6.

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that “the matter of interpretation and acceptability of reservations” is governed by the

“object and purpose test”.37 This means, for instance, that reservations “must be
specific and transparent, so that the Committee, those under the jurisdiction of the
reserving State and other States parties may be clear as to what obligations of human
rights compliance have or have not been undertaken”; similarly a resolution must “not
be general, but must refer to a particular provision of the Covenant and indicate in
precise terms its scope in relation thereto”.38
The American Convention on Human Rights expressly stipulates in its article
75, that it “shall be subject to reservations only in conformity with the provisions of the
Vienna Convention on the Law of Treaties”. In its Advisory Opinion on The Effect of
Reservations, the Inter-American Court of Human Rights stated that article 75 “makes
sense” only if understood as enabling “States to make whatever reservations they deem
appropriate”, provided that they “are not incompatible with the object and purpose of
the treaty”.39 In its Advisory Opinion on Restrictions to the Death Penalty it further noted
with regard to the rights that cannot be suspended in any circumstances under article
27(2) of the Convention that it “would follow therefrom that a reservation which was
designed to enable a State to suspend any of the non-derogable fundamental rights
must be deemed to be incompatible with the object and purpose of the Convention
and, consequently, not permitted by it”.40 The Court accepted, however, that the
“situation would be different if the reservation sought merely to restrict certain aspects
of a non-derogable right without depriving the right as a whole of its basic purpose”.41
Like the International Covenant on Civil and Political Rights, the African
Charter on Human and Peoples’ Rights is silent on the question of reservations.
However, article 64 of the European Convention on Human Rights expressly outlaws
reservations of “a general character”, whilst permitting reservations “in respect of any
particular provision of the Convention to the extent that any law” in force in the
territory of the State at the time of signature or ratification “is not in conformity with
the provision” concerned.
In interpreting and applying international treaties, domestic judges,
prosecutors and lawyers may thus also have to consider the relevant State’s legal
obligations in the light of reservations or interpretative declarations.

The scope of a State’s legal obligations under an international human

rights treaty may have to be considered in the light of any existing
reservations or interpretative declarations.

37 Ibid., loc. cit.

38 Ibid., p. 155, para. 19.
39 I-A Court HR, The Effect of Reservations on the Entry Into Force of the American Convention on Human Rights (Arts. 74 and 75),
Advisory Opinion OC-2/82 of September 24, 1982, Series A, No.2, p. 18, para. 35.
40 I-A Court HR, Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion
OC-3/83 of September 8, 1983, Series A, No. 3, p. 83, para. 61.
41 Ibid., at p. 84.

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Under the International Covenant on Civil and Political Rights and

the American Convention on Human Rights, reservations must be
compatible with the object and purpose of the treaty.
The European Convention on Human Rights forbids reservations of a
general character. Reservations must relate to a specific provision of the
Convention.

2.7 Limitations on the exercise of rights

The exercise – albeit not the substance per se – of certain rights, such as the
right to freedom of expression, the right to freedom of association and assembly, the
right to freedom of movement and the right to respect for one’s private and family life
and correspondence, is generally accompanied by certain limitations that can be
imposed, for instance, in order to protect the rights and freedoms of others, national
security, and public health or morals.42 These limitations are the result of carefully
weighed interests. What they show is the balance struck between, on the one hand,
individuals’ interest in maximizing the enjoyment of the right that belongs to them,
and, on the other hand, the interest of society in general, that is, the general interest, in
imposing certain restrictions on the exercise of this right, provided that they are taken
in accordance with the law and are necessary in a democratic society for certain
specific legitimate purposes. In interpreting and applying these limitations in any
given case, it will therefore be necessary to make a careful examination of the
proportionality of the restrictive measure or measures concerned both in general
and as applied in the individual case. Chapter 12 of this Manual provides numerous
examples of how these limitations have been applied in specific cases.

Limitations on the exercise of human rights are the result of a careful

balance between the individual’s interest and the general interest, and
must, in order to be lawful:
l be defined by law;

l be imposed for one or more specific legitimate purposes;

l be necessary for one or more of these purposes in a democratic society

(proportionality).
In order to be necessary the limitation, both in general and as applied in
the individual case, must respond to a clearly established social need. It is
not sufficient that the limitation is desirable or simply does not harm the
functioning of the democratic constitutional order.

42 See e.g. articles 12(3), 13, 18(3), 19(3), 21, 22(2) of the International Covenant on Civil and Political Rights; articles 11 and
12(2) of the African Charter on Human and Peoples’ Rights; articles 11(2), 12(3), 13(2), 15 and 16(2) of the American Convention
on Human Rights; and articles 8(2)-11(2) of the European Convention on Human Rights.

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2.8 Derogations from international legal obligations

In interpreting and applying the terms of the three main general human rights
treaties in particularly severe crisis situations when the life of the nation is imperilled, domestic
judges, prosecutors and lawyers will also have to consider the possibility that the State
concerned has modified the extent of its international legal obligations by resorting to
temporary derogations. The question of the administration of criminal justice during
states of exception will be dealt with in Chapter 16, and it will therefore suffice in this
context to point out that the International Covenant on Civil and Political Rights (art.
4), the American Convention on Human Rights (art. 27) and the European Convention
on Human Rights (art. 15) all provide for the possibility for the States parties to resort
to derogations in particularly serious emergency situations. However, the African
Charter on Human and Peoples’ Rights has no corresponding emergency provision,
and the absence thereof is seen by the African Commission on Human and Peoples’
Rights “as an expression of the principle that the restriction of human rights is not a
solution to national difficulties”, and that “the legitimate exercise of human rights does
not pose dangers to a democratic State governed by the rule of law”.43
In the treaties where it exists, the right to derogate is subjected to strict
formal and substantive requirements, and was never intended to provide
Governments with unlimited powers to avoid their treaty obligations. In particular, a
qualified principle of proportionality applies in that, according to all the
aforementioned treaties, the limitations resorted to must be “strictly required by the
exigencies of the situation”. It is noteworthy, furthermore, that some rights, such as the
right to life and the right to freedom from torture, may not in any circumstances be
derogated from, and that the list of non-derogable rights found in the second
paragraphs of the aforesaid articles is not exhaustive. In other words, one cannot argue a
contrario that, because a right is not expressly listed as non-derogable, the States parties
can proceed to extraordinary limitations on its enjoyment.
Since the derogation articles provide for extraordinary limitations on the
exercise of human rights, judges, both national and international, have to be conscious
of their obligation to interpret these articles by construing them strictly so that
individuals’ rights are not sapped of their substance. By at all times maximizing the
enjoyment of human rights, States are more likely than not to overcome their crisis
situations in a positive, constructive and sustainable manner.

Under the International Covenant on Civil and Political Rights and the
American and European Conventions on Human Rights, States parties
have the right in certain particularly difficult situations to derogate from
some of their legal obligations.
The right to derogate is subjected to strict formal and substantive legal
requirements.

43 See undated decision: ACHPR, Cases of Amnesty International, Comité Loosli Bachelard, Lawyers Committee for Human Rights,
Association of Members of the Episcopal Conference of East Africa v. Sudan, No. 48/90, 50/91, 52/91 and 89/93, para. 79; the text used is
that found at the following web site: http://www1.umn.edu/humanrts/africa/comcases/48-90_50-91_52-91_89-93.html.

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Some fundamental rights may never in any circumstances be derogated

from.
The right to derogate must be construed so as not to sap the individual
rights of their substance.
Derogations are not permitted under the African Charter on Human
and Peoples’ Rights.

2.9 International State responsibility for human rights

violations
Under international law, States will incur responsibility for not complying
with their legal obligations to respect and ensure, that is, to guarantee, the effective
enjoyment of the human rights recognized either in a treaty binding on the State
concerned or in any other source of law. As explained by the Inter-American Court of
Human Rights in the Velásquez case, an “impairment of those rights which can be
attributed under the rules of international law to the action or omission of any public
authority constitutes an act imputable to the State, which assumes responsibility in the
terms provided by” the legal source concerned.44 Whilst the Court was in this Judgment
explaining the meaning of article 1(1) of the American Convention on Human Rights, it
indeed merely stated a general rule of law applicable to international human rights law
as a whole.
Agents for whom a State is responsible include such groups and individuals as
ministerial civil servants, judges, police officers, prison officials, customs officials,
teachers, government-controlled business and other similar groups. This means that
States are under an obligation to prevent, investigate, punish, and, whenever
possible, restore rights that have been violated and/or to provide compensation.45
International human rights law also sometimes has an important third-party
effect in that States may be responsible for not having taken reasonable action to
prevent private individuals or groups from carrying out acts that violate human
rights, or to provide adequate protection against such violations under domestic
law.46 As held by the European Court of Human Rights with regard to the right to
respect for one’s private and family life in article 8 of the European Convention on
Human Rights, for instance, this provision

44 I-A Court HR, Velásquez Rodríguez case, Judgment of July 29, 1988, Series C, No. 4, p. 151, para. 164.
45 See e.g. ibid., p. 152, para. 166. As to obligations to provide effective protection of the right to life under article 6 of the
International Covenant on Civil and Political Rights, see e.g. General Comment No. 6, in United Nations Compilation of General
Comments, pp. 114-116.
46 See as to the American Convention on Human Rights, I-A Court HR, Velásquez Rodríguez Case, Judgment of July 29, 1988,
Series C, No. 4, pp. 155-156, paras. 176-177; and as to the International Covenant on Civil and Political Rights, UN doc. GAOR,
A/47/40, Report HRC, p. 201, para. 2. At the European level, see e.g. Eur. Court HR, Case of A. v. the United Kingdom,Judgment of
23 September 1998, Reports 1998-VI, at p. 2692 et seq.

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“is essentially that of protecting the individual against arbitrary interference

by the public authorities, it does not merely compel the State to abstain
from such interference: in addition to this primarily negative undertaking,
there may be positive obligations inherent in an effective respect for
private or family life (...). These obligations may involve the adoption of
measures designed to secure respect for private life even in the sphere of
the relations of individuals between themselves.”47

The States parties to the European Convention will thus have to provide
“practical and effective protection” in their domestic law “where fundamental values
and essential aspects of private life are at stake”, such as, for instance, in order to
protect persons against sexual abuse,48 or in cases of corporal punishment by family
members that constitutes a violation of article 3 of the Convention.49
With regard to the duty to secure for everyone within its jurisdiction the right
to life, the European Court has held that it “involves a primary duty” to put “in place
effective criminal-law provisions to deter the commission of offences against the
person backed up by law-enforcement machinery for the prevention, suppression and
punishment of such provisions”, and, further, that this duty
“also extends in appropriate circumstances to a positive obligation on the
authorities to take preventive operational measures to protect an individual
or individuals whose life is at risk from the criminal acts of another
individual(...)”.50

These rulings are significant in that they extend the scope of States’
international legal obligations beyond the strict public sphere into the field of private
life, thereby allowing for a more adequate and effective protection against various
forms of human rights violations, such as physical and mental abuse of children,
women and the mentally handicapped.

*****
A State will however only incur international responsibility for a human rights
violation if it has failed to provide the alleged victim with an adequate and effective
remedy through the workings of its own courts or administrative authorities. The
requirement at the international level that all effective domestic remedies must have been
exhausted before an alleged victim’s complaints can be considered by an international
monitoring body of a judicial or quasi-judicial character has been introduced precisely
in order to allow the State itself to remedy the wrongs committed. This also means that
the establishment of the various international machineries for the protection of the
human person is in fact “subsidiary” to the available domestic systems for safeguarding
the individual, since they “become involved only through contentious proceedings and
once all domestic remedies have been exhausted”.51

47 Eur. Court HR, Case of X. and Y. v. the Netherlands, Judgment of 26 September 1985, Series A, No. 91, p. 11, para. 23.
48 Ibid., p. 14, para. 30 and p. 13, para. 27.
49 Eur. Court HR, Case of A. v. the United Kingdom, Judgment of 23 September 1998, Reports 1998-VI, concerning the responsibility
of the United Kingdom for beating of child by stepfather.
50 Eur. Court HR, Case of Mahmut Kaya v. Turkey, Judgment of 28 March 2000, para. 85. The text used is that found on the Court’s
web site: http://hudoc.echr.coe.int/hudoc/
51 Statement with regard to the European Convention on Human Rights, Eur. Court HR, Case of Handyside, Judgment of 7
December 1976, Series A, Vol. 24, p. 22, para. 48.

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States’ responsibility to provide protection and redress for victims of abuses

of power will be dealt with in some detail in Chapter 15 of this Manual.

Whenever bound by international human rights law, States have a

strict legal obligation to guarantee the effective protection of human
rights to all persons within their jurisdiction.
States’ legal duty to protect human rights implies an obligation to
prevent, investigate and punish human rights violations, as well
as to restore rights whenever possible or provide compensation.
States may also have a legal duty not only to provide protection against
human rights violations committed by public authorities, but also to
ensure the existence of adequate protection in their domestic law against
human rights violations committed between private individuals.

3. Business Corporations and

Human Rights
In recent years there has been wide discussion of the question whether, and to
what extent, entities other than States, such as business corporations, could and should
be held legally responsible for not complying with rules of international human rights
law in the exercise of their various activities. Whilst it is clear from the preceding
sub-section that States themselves may have a duty to ensure that their domestic law
also offers adequate remedies against serious human rights violations that may be
committed by private individuals, this reasoning would appear to be equally applicable
to the activities of business corporations. However, this is not, of course, the same as
saying that these corporations are themselves incurring international legal responsibility
for any wrongful acts.
The discussion at the international level on the legal responsibility of business
corporations to guarantee human rights offers a wealth of ideas concerning, inter alia,
standards to protect workers from abuses or the environment from unnecessary
damage and destruction. However, the development of the law in this important area is
still very much in its infancy, and the arguments put forward at this stage belong
primarily to the field of lex ferenda.
Since the aim of this Manual is to explain the legal duties of States themselves
under international law, no further consideration will be devoted to the possible legal
responsibilities of business corporations to protect human rights. However, judges,
prosecutors and lawyers may well be confronted with these problems in the exercise of
their professional duties at the domestic level. In addition to any duties business
corporations may have to protect individual rights and the environment under
domestic law, it might therefore be useful for members of the legal professions to be
aware of the fact that discussions are taking place at the international level and that

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there is, as a minimum, an ethical duty under international law for corporations to run
their businesses in such a manner as to respect basic human rights.52

States may have an international legal obligation to ensure adequate

protection in their domestic law against human rights violations
committed by business corporations.
Business corporations may themselves have legal obligations in the field of
human rights derived from domestic law.
At the international level business corporations are considered to have, as
a minimum, an ethical responsibility to respect fundamental human
rights.

4. International Human Rights Law

at the Domestic Level
4.1 Incorporating international law into domestic
legal systems
As previously noted, and as provided in article 27 of the Vienna Convention
on the Law of Treaties, a State “may not invoke the provisions of its internal law as
justification for its failure to perform a treaty”. On the other hand, States are free to
choose their own modalities for effectively implementing their international legal
obligations, and for bringing national law into compliance with these obligations. Since
domestic legal systems differ considerably in this respect, albeit also having some
similarities, it will be for each domestic judge, prosecutor and lawyer concerned to keep
himself or herself informed as to the manner of incorporation of the State’s
international legal obligations into national law. Below, a mere general account will be
given of the various ways in which a State can modify its municipal law so as to bring it
into conformity with its international legal obligations.
v First, according to the monist theory, of which there are in fact several divergent
versions,53 international law and domestic law can in general terms be described as
forming one legal system. This means that once a State has ratified a treaty for the
protection of the human person, for instance, the terms of that treaty automatically
become binding rules of domestic law.

52 Suggested reading on the question of business corporations and human rights: Michael Addo, Human Rights Standards and the
Responsibility of Transnational Corporations (The Hague, Kluwer Law International, 1999); and Alan Dignam and David Allen,
Company Law and the Human Rights Act 1998 (London, Butterworth, 2000).
53 See Ian Brownlie, Principles of Public International Law (Oxford, Clarendon Press, 3rd edn., 1979), p. 34.

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v Secondly, according to the dualist theory, municipal law and international law are
different legal systems. Municipal law is supreme, and for municipal judges to be
competent to apply international treaty rules, for instance, these have to be specifically
adopted or transposed into domestic law. It follows that a human rights treaty ratified by
the State concerned cannot in principle be invoked by local judges unless the treaty
is incorporated into municipal law, a process which normally requires an Act of
Parliament.
However, these theories have been criticized for not reflecting the conduct of
national and international organs, and they are gradually losing ground. For legal
practitioners it is therefore more important to emphasize practice rather than theory.54
Changes in the role and in domestic perception and understanding of international law
in general, and of international human rights law in particular, have led to an increased
use of such law in domestic courts. One of the purposes of this Manual is therefore to
prepare judges, prosecutors and lawyers to adapt and contribute to these fundamental
changes. The following is a list of some of the principal means through which
international human rights norms can be contained in municipal law or otherwise
applied by domestic courts and other competent authorities:
v Constitutions: Many constitutions actually contain numerous human rights
provisions, which may follow the text of, for instance, the Universal Declaration of
Human Rights, the International Covenant on Civil and Political Rights or the
regional human rights conventions. The use of such common language enables
judges, prosecutors and lawyers to draw upon the jurisprudence of, in particular,
international courts and other monitoring organs in interpreting the meaning of
their own constitutional or other provisions;
v Other national legislation: Many States adopt specific legislation either to clarify
or elaborate on their constitutional provisions, or in order to adapt their domestic
laws to their international legal obligations. When transforming international law
into municipal law, the same legal terms are often used, thus allowing the legal
professions to draw inspiration from international jurisprudence or the
jurisprudence of other States;
v Incorporation: It is also common for States to incorporate international human
rights treaties into their domestic law by enacting a national law. This is for instance
the case with the European Convention on Human Rights in the United Kingdom,
where that Convention was incorporated into British law by virtue of the Human
Rights Act 1998, which entered into force on 2 October 2000;
v Automatic applicability: In some States treaties take precedence over domestic
law and are thus automatically applicable in domestic courts as soon as they have
been ratified by the State concerned;
v Interpretation of common law: In interpreting common-law principles, judges
may be governed by international human rights law and international jurisprudence
interpreting that law;

54 As to monism and dualism Higgins states that of “course, whichever view you take, there is still the problem of which
system prevails when there is a clash between the two”; and that “in the real world the answer often depends upon the tribunal
answering it (whether it is a tribunal of international or domestic law) and upon the question asked”; in her view different “courts
do address that problem differently”, see Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford,
Clarendon Press, 1994), p. 205.

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v When there is a legal vacuum: In some countries there may be an absence of

national legislation with regard, inter alia, to human rights; but, depending on the
circumstances, judges and lawyers may be able to rely on international human rights
law as well as relevant international case-law – or domestic case-law from other
countries – in order to apply some basic legal principles for the protection of the
human person.
Numerous efforts have been made in recent years – both through the
technical assistance programmes of the United Nations, and through various training
programmes provided by regional organizations such as the Organization of American
States, the Council of Europe and the Organization for Security and Cooperation in
Europe – to help States adjust their laws to their international legal obligations, and also
to train the legal professions so as to enable them to make human rights a living reality
within their specific jurisdictions. Numerous independent human rights institutes and
non-governmental organizations (NGOs) also have extensive training programmes for
the various legal professions.

States may not invoke their internal law to justify violations of

international law, but are free to choose the modalities for implementing
that law.

4.2 The application of international human rights law

in domestic courts: some practical examples
A growing number of domestic courts in both common-law and civil-law
countries now regularly interpret and apply international human rights standards. The
following cases show how such standards can influence decisions taken by domestic
courts.
Germany: In a case involving an American pianist belonging to the Church of
Scientology and the Government of Baden-Württemberg, the Administrative Court of
Appeal of Baden-Württemberg considered the grounds of appeal of the plaintiff in the
light not only of the German Basic Law but also of article 9 of the European
Convention on Human Rights and articles 18 and 26 of the International Covenant on
Civil and Political Rights.
The complaint originated in negotiations between an agent acting on behalf of
the Government and the pianist, regarding the latter’s participation in a concert to be
held in connection with the presentation to the public of the framework programme for
the World Athletics Championship. The negotiations were broken off when it became
known that the pianist concerned was a member of the Church of Scientology. In a
written reply to a question put by the Parliament of Baden-Württemberg, the Ministry
of Culture and Sport, acting in concertation with the Ministry of the Family, Women,
Education and Art, explained that the promotion by the State of cultural events must be
questioned when the persons performing are active and self-avowed members of the
Church of Scientology or other similar groups; for this reason they had declined to
engage the pianist as originally envisaged. The pianist argued that his right to freedom

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of religion had been violated by the written reply from the Ministries. However, the
Administrative Court of Appeal concluded that the protection afforded by article 9 of
the European Convention and article 18 of the International Covenant had not been
infringed. As to the alleged violation of article 26 of the International Covenant, the
Court likewise found that it had not been violated, since the ministerial reply did not
result in discriminatory treatment of the pianist on the basis of his beliefs or religious
convictions, the reply being limited to the announcement of a specific procedure to be
followed in the future with regard to the allocation of grants made available for the
organization of events by third persons/agents. For this reason, and considering that
the plaintiff in this case was not himself a recipient of any grant, it was not necessary to
clarify whether he could base himself inter alia on the protection afforded by article 26
of the International Covenant, were an application for a grant to be rejected on the
abovementioned ground.55
New Zealand: The 1994 Simpson v. Attorney General case, one of the most famous
human rights cases in New Zealand, originated in an allegedly unreasonable search of
the plaintiff’s home which, it was claimed, violated the New Zealand Bill of Rights Act
1990. In its decision, the Court of Appeal emphasized that the purposes of the Bill of
Rights were to
“affirm, protect, and promote human rights and fundamental freedoms in
New Zealand and to affirm New Zealand’s commitment to the
International Covenant on Civil and Political Rights. From these purposes,
it was implicit that effective remedies should be available to any person
whose Bill of Rights guarantees were alleged to have been violated”.56

When there had “been an infringement of the rights of an innocent person”,

“monetary compensation was”, in the view of the Court, “an appropriate and proper,
indeed the only effective, remedy”.57 As observed by the Court, that “was consistent
with a rights-centred approach to the Bill of Rights and international jurisprudence on
remedies for human rights violations”, and reference was in this respect, inter alia,
made to the jurisprudence on remedies of both the Human Rights Committee and the
Inter-American Court of Human Rights.58
United Kingdom: The most prominent case decided in recent years in which
international human rights law played an important role is the case of Pinochet, which
was decided by the House of Lords on 24 March 1999, and which originated in a
request that the Chilean Senator – and former Head of the Chilean State – be extradited
from the United Kingdom to Spain to be tried for crimes of torture and conspiracy to
torture, hostage-taking and conspiracy to take hostages, as well as conspiracy to commit
murder – acts committed whilst he was still in power. The obligations to which the 1984
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment gave rise, were incorporated into United Kingdom law by Section 134 of
the Criminal Justice Act 1988, which entered into force on 29 September 1988. The

55 Urteil vom 15. Oktober 1996, Verwaltungsgerichtshof Baden-Württemberg, 10 S 1765/96, in particular, pp. 11-16: as to
article 26 of the International Covenant, see p. 16.
56 Simpson v. Attorney General (1994) 1 HRNZ at 42-43.
57 Ibid., at 43.
58 Ibid., loc. cit.

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Convention against Torture as such was ratified on 8 December 1988. By virtue of

these changes, torture, wherever it takes place in the world, became a triable criminal
offence in the United Kingdom. The question before the House of Lords on second
appeal turned on whether there were any extraditable offences and, in the affirmative,
whether Senator Pinochet was immune from trial for committing those crimes.59 The
question of double criminality became an important issue, with a majority of the Lords
being of the view that Senator Pinochet could be extradited only on charges concerning
acts which were criminal in the United Kingdom when they took place. A majority of the
law Lords concluded that State immunity in respect of torture had been excluded by the
Convention against Torture, and that the offences of torture and conspiracy to torture
committed after 8 December 1988 were extraditable, with a minority of the House of
Lords holding that English courts had extraterritorial jurisdiction as from 29 September
1988 when Section 134 of the Criminal Justice Act 1988 entered into force.
This decision allowed the United Kingdom Home Secretary to go ahead with
the proceedings relating to the relevant parts of the Spanish request for Senator
Pinochet’s extradition. However, on 2 March 2000, after medical experts had
concluded that the former Head of State of Chile was unfit to stand trial, the Home
Secretary decided that he would not be extradited to Spain but was free to leave Britain.
In spite of its final outcome, this case is a landmark in the international law of human
rights in that it confirmed the erosion of the notion of State immunity for international
crimes as a result of the entry into force of the Convention against Torture.
South Africa: The example of South Africa is significant in that, after the
collapse of the apartheid regime, it drafted a constitution which was heavily influenced
by international human rights standards and which contains, in its Chapter 2, a detailed
Bill of Rights, which includes a wide range of rights, such as the right to equality, the
right to freedom and security of the person, the freedoms of expression, assembly and
association, political rights, environmental rights, the right to property, the right of
access to adequate housing, the right to health care services, sufficient food and water,
social security, the rights of the child, the right to basic education, the right of access to
courts and the rights of arrested, detained and accused persons.

International human rights law has had a considerable impact on the

development of law at the domestic level and is now frequently invoked
and applied by domestic courts.

59 See definition of question by Lord Brown Wilkinson, House of Lords, Judgment of 24 March 1999 – Regina v. Bartle and the
Commissioner of Police for the Metropolis and Others Ex Parte Pinochet; Regina v. Evans and Another and the Commissioner of Police for the
Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen’s Bench Division); this Judgment is found on the
following web site: http://www.publications.parliament.uk.

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5. The Role of the Legal Professions

in the Implementation of Human
Rights
As a consequence of legal developments over the last few decades, human
rights have ceased to be a “fringe activity”, instead becoming “an area of law which is
fundamental to everyone and which permeates all legal activity, economic and social, in
public law and in private”.60 In a particularly interesting recent development, the
“pervasive importance of human rights law” to corporations and business lawyers has
also been recognized.61 Yet, whilst the influence of international human rights law on
many dimensions of domestic law is thus steadily gaining ground, its true potential still
remains to be explored.62
It is the professional role and duty of judges, prosecutors and lawyers
throughout the world to explore this potential, and at all times to use their respective
competences to ensure that a just rule of law prevails, including respect for the rights
of the individual. Whilst this entire Manual focuses on providing knowledge and
guidance to the legal professions in their daily work, Chapter 4 will focus on the specific
rules and principles conditioning the work of judges, prosecutors and lawyers. These
rules and principles have to be consistently and meticulously applied, since judges,
prosecutors and lawyers perhaps have the single most important role to play in applying
national and international human rights law. Their work constitutes the chief pillar of
the effective legal protection of human rights, without which the noble principles
aimed at protecting the individual against the abuse of power are likely to be sapped of
much or even all of their significance.

6. Concluding Remarks
The present chapter has provided a synopsis of the modern development of
the international protection of the human person, which originated in a devastated
world’s yearning for peaceful, secure and just domestic and international legal orders.
Further, it has explained some of the basic legal notions relevant to international human
rights law and offered a description, however general, of the role to be played by the
legal professions within their respective fields of competence in order to be able
effectively to use the legal tools available to protect the human person against abuses of
power. We shall now turn to a succinct examination of the terms and functioning of the
major existing universal and regional human rights conventions.

60 See editorial of Lord Goldsmith QC and Nicholas R. Cowdery QC, “The Role of the Lawyer in Human Rights”, in HRI
News (Newsletter of the IBA Human Rights Institute), vol. 4, No. 2, 1999, p. 1.
61 Ibid., loc. cit. See also Nicholas R. Cowdery QC, “Human Rights in Commercial Practice – an IBA Perspective”, ibid., pp.
16-18, and Stephen Bottomley, “Corporations and Human Rights”, ibid., pp. 19-22.
62 See reference to speech of Justice Kirby, ibid., p. 10.

Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 25
429
430
431
432
433
 434

.........Chapter 4
INDEPENDENCE AND
IMPARTIALITY OF
JUDGES, PROSECUTORS
AND LAWYERS......................

Learning Objectives
l To consolidate knowledge and understanding of the importance of an independent
and impartial Judiciary, independent and impartial prosecutors and an independent
legal profession in order to ensure the rule of law and effective protection of the
fundamental rights and freedoms of the human person.
l To familiarize participants with the existing international and regional legal rules
and principles governing the functioning of the Judiciary, prosecutors and lawyers,
including the relevant jurisprudence.

Questions
l How do you, as judges, prosecutors and lawyers, perceive the role of the principle of
separation of powers?
l How is this principle ensured in your country?
l How are the independence and impartiality of the Judiciary and the independence of
lawyers guaranteed in the country where you carry out your work?
l Have you ever experienced any difficulties in performing your professional duties in
an independent and impartial manner?
l If so, what were those difficulties, and how did you deal with them?
l More specifically, have you, as judges, prosecutors and lawyers, ever been confronted
with attempts to corrupt you?
l If so, how did you deal with such propositions?

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Chapter 4 • Independence and Impartiality of Judges, Prosecutors and Lawyers

Questions (cont.d)
l For those participants who are women jurists, have you, in the course of your work,
experienced any specific problems, difficulties or harassment that may be attributable
to your gender?
l If so, how did you confront the problems, difficulties, or harassment?
l If you have had to deal with any of the above situations, were you aware of the
existence of international legal standards aimed at strengthening the role of the
Judiciary and the legal professions in general that might have been conducive to
strengthening your position vis-à-vis the Executive, Legislature or other groups or
persons acting with or without the connivance of the State?
l Lastly, in your country, would there be any room for you, as judges, to soften the effect
of repressive laws by means of interpretation?

Relevant Legal Instruments

Universal Instruments
l The International Covenant on Civil and Political Rights, 1966
*****
l Basic Principles on the Independence of the Judiciary, 1985
l Guidelines on the Role of Prosecutors, 1990
l Basic Principles on the Role of Lawyers, 1990
Regional Instruments
l The African Charter on Human and Peoples’ Rights, 1981
l The American Convention on Human Rights, 1969
l The European Convention on Human Rights, 1950
*****
l Council of Europe Recommendation No. R (94) 12 of the Committee
of Ministers to Member States on the independence, efficiency and role
of judges.1

1 In addition to these binding and non-binding legal sources, ethical standards have been adopted by professional associations
such as judges’, prosecutors’ and lawyers’ associations. Such standards may provide useful guidance to the legal professions. See e.g.
the following standards adopted by the International Bar Association (IBA): IBA Minimum Standards of Judicial Independence, 1982;
IBA Standards for the Independence of the Legal Profession, 1990. See also the IBA statement of General Principles for Ethics of
Lawyers, IBA Resolution on Non-Discrimination in Legal Practice, as well as the IBA paper Judicial Corruption Identification, Prevention
and Cure of 14 April 2000. These documents can be found at the IBA web site: http://www.ibanet.org.

114 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
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Chapter 4 • Independence and Impartiality of Judges, Prosecutors and Lawyers

1. Introduction
This chapter will deal with two of the fundamental pillars of a democratic
society respectful of the rule of law and the effective protection of human rights,
namely, the independence and impartiality of the judiciary and prosecutors, and
the independence of lawyers. It will first describe the role played by judges,
prosecutors and lawyers in this regard; and secondly, will focus on the various legal
limitations on, and de facto threats to, the ability of judges, prosecutors and lawyers to
exercise their professional responsibilities in an independent and impartial manner.
Finally, this chapter will analyse the existing international legal standards relating to the
functioning of the legal professions and selected relevant case-law.

2. The Role of Judges, Prosecutors

and Lawyers in Upholding the
Rule of Law, Including Human
Rights Standards
In the modern constitutional State, the principle of an independent Judiciary
has its origin in the theory of separation of powers, whereby the Executive, Legislature
and Judiciary form three separate branches of government, which, in particular,
constitute a system of mutual checks and balances aimed at preventing abuses of power
to the detriment of a free society. This independence means that both the Judiciary as
an institution and also the individual judges deciding particular cases must be able to
exercise their professional responsibilities without being influenced by the Executive,
the Legislature or any other inappropriate sources.
Only an independent Judiciary is able to render justice impartially on the
basis of law, thereby also protecting the human rights and fundamental freedoms of the
individual. For this essential task to be fulfilled efficiently, the public must have full
confidence in the ability of the Judiciary to carry out its functions in this independent
and impartial manner. Whenever this confidence begins to be eroded, neither the
Judiciary as an institution nor individual judges will be able fully to perform this
important task, or at least will not easily be seen to do so.
Consequently, the principle of independence of judges was not invented for
the personal benefit of the judges themselves, but was created to protect human beings
against abuses of power. It follows that judges cannot act arbitrarily in any way by
deciding cases according to their own personal preferences, but that their duty is and
remains to apply the law. In the field of protecting the individual, this also means that
judges have a responsibility to apply, whenever relevant, domestic and international
human rights law.

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A legal system based on respect for the rule of law also needs strong,
independent and impartial prosecutors willing resolutely to investigate and prosecute
suspected crimes committed against human beings even if these crimes have been
committed by persons acting in an official capacity.
Unless judges and prosecutors play their respective key roles to the full in
maintaining justice in society, there is a serious risk that a culture of impunity will take
root, thereby widening the gap between the population in general and the authorities. If
people encounter problems in securing justice for themselves, they may be driven to
take the law into their own hands, resulting in a further deterioration in the
administration of justice and, possibly, new outbreaks of violence.2
Lastly, this legal system would not be complete without independent lawyers
who are able to pursue their work freely and without fear of reprisals. Indeed,
independent lawyers play a key role in defending human rights and fundamental
freedoms at all times, a role which, together with that played by independent and
impartial judges and prosecutors, is indispensable for ensuring that the rule of law
prevails, and that individual rights are protected effectively.
In this regard it has been pointed out that all special rapporteurs of the United
Nations Commission on Human Rights have emphasized the close relationship that
exists between the greater or lesser respect for the due process guarantees of article 10
of the Universal Declaration of Human Rights and the greater or lesser gravity of the
violations established.3 Human rights and fundamental freedoms are, in other words,
“all the better safeguarded to the extent that the judiciary and the legal professions are
protected from interference and pressure”.4

3. Challenges to the Independence

and Impartiality of the Legal
Professions
In spite of the need for judges, prosecutors and lawyers to exercise their
professional responsibilities in true independence, experience shows that they are often
subjected to pressures of various kinds aimed at compromising their ability to do so.
For instance, although the way in which judges are appointed varies from
country to country, there may be a danger to their independence where they are
appointed exclusively by the Executive or Legislature, or even where they are elected. A
further threat to their independence is posed by lack of security of tenure, as arises in
countries where judges are generally employed on temporary contracts. Such insecurity
may make judges more susceptible to inappropriate outside pressure. Inadequate

2 See e.g. UN doc. E/CN.4/2000/3, Report of the Special Rapporteur of the Commission on Human Rights on extrajudicial, summary or
arbitrary executions, para. 87.
3 UN doc. E/CN.4/Sub.2/1993/25, Report on the independence of the judiciary and the protection of practising lawyers, para. 1.
4 Ibid., loc. cit.

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remuneration may also constitute a threat to the independence of judges in that it may
for instance make them more amenable to corruption.
Furthermore, the independence of judges, prosecutors and lawyers is
frequently threatened by the refusal of the Executive to allow them to organize freely in
professional associations. For instance, where the Executive issues licences to lawyers
and obliges them to exercise their profession as members of State-run professional
organizations, they cannot carry out their work independently.
However, judges, prosecutors and lawyers are frequently also subjected to
other kinds of persecution. Such acts may involve public criticism by either the
Executive or Legislature aimed at intimidating the legal professions, but they also often
take the form of arbitrary detentions and direct threats to their lives, including killings
and disappearances.5 In some countries the fact of being a woman lawyer further adds
to the precariousness of the profession. Because of their willingness to take up the
defence of cases involving the sensitive issue of women’s rights, these lawyers face
intimidation and violence, sometimes resulting in death.
The threats and attacks described above are not only perpetrated by State
authorities, but are frequently also carried out by private individuals, either
independently or in connivance with bodies such as criminal organizations and drugs
cartels.
Clearly, unless judges, prosecutors and lawyers are able to exercise their
professional duties freely, independently and impartially, and unless the Executive and
the Legislature are likewise always prepared to ensure this independence, the rule of law
will slowly but steadily be eroded, and with it effective protection of the rights of the
individual. As can be seen, it is the entire structure of a free and democratic
constitutional order that is upheld by an independent and impartial Judiciary,
independent and impartial prosecutors and independent lawyers.

4. International Law and the

Independence and Impartiality
of the Judiciary
4.1 Applicable international law
All general universal and regional human rights instruments guarantee the
right to a fair hearing in civil and criminal proceedings before an independent and
impartial court or tribunal, and the purpose of this section is to analyse the meaning of
the terms “independent” and “impartial” in the light of the case-law of the competent
international monitoring organs. While these treaties as interpreted do not solve all the

5 See e.g. UN doc. E/CN.4/2000/61, Report of the Special Rapporteur on the independence of judges and lawyers, 74 pp.; and Attacks on
Justice – The Harassment and Persecution of Judges and Lawyers (Centre for the Independence of Judges and Lawyers (CIJL), Geneva),
10th edn., January 1999-February 2000, 499 pp.

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problems arising with particular regard to the notion of independence of the Judiciary,
they do provide a number of essential clarifications.
Of the most important treaties, the International Covenant on Civil and
Political Rights states in its article 14(1) that “all persons shall be equal before the courts
and tribunals” and further, that “in the determination of any criminal charge against
him, or of his rights and obligations in a suit of law, everyone shall be entitled to a
fair and public hearing by a competent, independent and impartial tribunal
established by law” (emphasis added). The Human Rights Committee has
unambiguously held that “the right to be tried by an independent and impartial tribunal
is an absolute right that may suffer no exception”.6 It is thus a right that is applicable
in all circumstances and to all courts, whether ordinary or special.
Second, article 7(1) of the African Charter on Human and Peoples’ Rights
provides that “every individual shall have the right to have his cause heard”, a right that
comprises, in particular, “(b) the right to be presumed innocent until proved guilty by a
competent court or tribunal”, as well as “(d) the right to be tried within a reasonable
time by an impartial court or tribunal” (emphasis added). Furthermore, according
to article 26 of the Charter, the States parties “shall have the duty to guarantee the
independence of the Courts”. It is the view of the African Commission on Human and
Peoples’ Rights that article 7 “should be considered non-derogable” since it provides
“minimum protection to citizens”.7
Third, article 8(1) of the American Convention on Human Rights provides
that “every person has the right to a hearing, with due guarantees and within a
reasonable time, by a competent, independent, and impartial tribunal, previously
established by law, in the substantiation of any accusation of a criminal nature made
against him or for the determination of his rights and obligations of a civil, labor, fiscal,
or any other nature” (emphasis added).
Lastly, article 6(1) of the European Convention on Human Rights specifies
that “in the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal established by law” (emphasis added).
Although some countries may not yet have ratified or acceded to any of these
human rights treaties, they are still bound by customary rules of international law, as
well as by general principles of law, of which the principle of an independent and
impartial judiciary is generally considered to form part. They are thus also bound by the
fundamental principles laid down in the Universal Declaration of Human Rights, which
provides in its article 10 that “everyone is entitled in full equality to a fair and public
hearing by an independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him”.

6 Communication No. 263/1987, M. Gonzalez del Río v. Peru (Views adopted on 28 October 1992), in UN doc. GAOR, A/48/40
(vol. II), p. 20, para. 5.2; emphasis added.
7 ACHPR, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v. Nigeria, Communication No. 218/98,
decision adopted during the 29th Ordinary session, 23 April – 7 May 2001, p. 3 of the text published on
http://www1.umn.edu/humanrts/africa/comcases/218-98.html; emphasis added.

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4.2 Basic Principles on the Independence of the

Judiciary, 1985
In 1985, the Seventh United Nations Congress on the Prevention of Crime
and the Treatment of Offenders adopted the Basic Principles on the Independence of
the Judiciary, which were subsequently unanimously endorsed by the General
Assembly.8 These principles can therefore be described as being declaratory of
universally accepted views on this matter by the States Members of the United Nations,
and they have become an important yardstick in assessing the independence of the
Judiciary in the work of international monitoring organs and non-governmental
organizations (NGOs).
These principles deal with the following subjects: (i) independence of the
Judiciary; (ii) freedom of expression and association; (iii) qualifications, selection and
training; (iv) conditions of service and tenure; (v) professional secrecy and immunity;
and (vi) discipline, suspension and removal. Without seeking to be in any sense
exhaustive, the present chapter will deal with some of the significant issues relating to
the independence and impartiality of the judiciary.

4.3 The notions of independence and impartiality:

links and basic differences
The notions of “independence” and “impartiality” are closely linked, and in
some instances the international control organs have dealt with them jointly. Yet each
has its specific meaning and requirements, which will be further explained in more
detail below. Suffice it to indicate at this juncture that the concept of “independence” is
an expression of the constitutional value of judicial independence and, as stated by the
Canadian Supreme Court in the case of Valiente v. The Queen, in a passage that conveys
well the general understanding of the notion of independence of the Judiciary not only
under Canadian constitutional law but also under international human rights law, this
notion “connotes not only a state of mind but also a status or relationship to others –
particularly to the executive branch of government – that rests on objective conditions
or guarantees”.9 This status or relationship of independence of the Judiciary “involves
both individual and institutional relationships: the individual independence of a judge
as reflected in such matters as security of tenure and the institutional independence of
the court as reflected in its institutional or administrative relationships to the executive
and legislative branches of government”.10
By contrast, the Supreme Court of Canada described the concept of judicial
“impartiality” as referring to “a state of mind or attitude of the tribunal in relation to the
issues and the parties in a particular case”.11 This view has also been confirmed at the
international level, where, for instance, the Human Rights Committee has held that the

8 See General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.
9 See (1985) 2.S.C.R Valiente v. The Queen 673, to be found at
http://www.lexum.umontreal.ca/csc-scc/en/pub/1985/vol2/html/1985scr2_0673.html, at p. 2.
10 Ibid., loc. cit.
11 Ibid.

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notion of “impartiality” in article 14(1) “implies that judges must not harbour
preconceptions about the matter put before them, and that they must not act in ways
that promote the interests of one of the parties”.12 As to the European Court of Human
Rights, it considers that the notion of impartiality contains both a subjective and an
objective element: not only must the tribunal be impartial, in that “no member of the
tribunal should hold any personal prejudice or bias”, but it must also “be impartial from
an objective viewpoint”, in that “it must offer guarantees to exclude any legitimate
doubt in this respect”.13 The European Court thus adds to the more subjective mental
element of bias the important aspect of availability of guarantees.

4.4 The notion of institutional independence

The notion of institutional independence means that the Judiciary has to be
independent of the other branches of government, namely the Executive and
Parliament. According to Principle 1 of the Basic Principles on the Independence of the
Judiciary:
“The independence of the judiciary shall be guaranteed by the State and
enshrined in the Constitution or the law of the country. It is the duty of all
governmental and other institutions to respect and observe the
independence of the judiciary.”

Furthermore, according to Principle 7 of the Basic Principles,

“It is the duty of each Member State to provide adequate resources to
enable the judiciary to properly perform its functions.”

In order to secure true independence of the Judiciary from the other two
branches of government, it is necessary for this independence to be guaranteed,
preferably by the Constitution; or, failing this, by other legal provisions.

4.4.1 Independence as to administrative matters

Although international law does not provide details as to how this institutional
independence is to be realized in practice, it is clear that, as a minimum, the Judiciary
must be able to handle its own administration and matters that concern its operation in
general. This includes “the assignment of cases to judges within the court to which they
belong”, a matter which, as stated in Principle 14 of the Basic Principles, “is an internal
matter of judicial administration”.

12 Communication No. 387/1989, Arvo O. Karttunen v. Finland (Views adopted on 23 October 1992), in UN doc. GAOR, A/48/40
(vol. II), p. 120, para. 7.2.
13 Eur. Court HR, Case of Daktaras v. Lithuania, judgment of 10 October 2000, para. 30; for the text see the Courts’s web site:
http://echr.coe.int.

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4.4.2 Independence as to financial matters

As supported by Principle 7 of the Basic Principles, the Judiciary must further
be granted sufficient funds to properly perform its functions. Without adequate funds,
the Judiciary will not only be unable to perform its functions efficiently, but may also
become vulnerable to undue outside pressures and corruption. Moreover, there must
logically be some kind of judicial involvement in the preparation of court budgets.
However, when it comes to administrative and financial issues, independence
may not always be total, given that the three branches of government, although in
principle independent of each other, are also by nature in some respects dependent on
each other, for instance with respect to the appropriation of resources. While this
inherent tension is probably inevitable in a system based on the separation of powers, it
is essential that in situations where, for instance, Parliament controls the budget of the
Judiciary, this power is not used to undermine the efficient working of the latter.14

4.4.3 Independence as to decision-making

Next, as follows from Principle 1 of the Basic Principles, the other branches
of government, including “other institutions”, have the duty “to respect and observe
the independence of the judiciary”. This means, more importantly, that the
Executive, the Legislature, as well as other authorities, such as the police, prison,
social and educational authorities, must respect and abide by the judgements
and decisions of the Judiciary, even when they do not agree with them. Such
respect for the judicial authority is indispensable for the maintenance of the rule
of law, including respect for human rights standards, and all branches of
Government and all State institutions have a duty to prevent any erosion of this
independent decision-making authority of the Judiciary.
The condition of the Judiciary’s independence as to decision-making is
further supported by Principle 4 of the Basic Principles, according to which:
“There shall not be any inappropriate or unwarranted interference with the
judicial process, nor shall judicial decisions by the courts be subject to
revision. This principle is without prejudice to judicial review or to
mitigation or commutation by competent authorities of sentences imposed
by the judiciary, in accordance with the law.”15

It is not clear whether executive amnesties and pardons would be contrary to

Principle 4, but Governments must in any event always exercise considerable care in
resorting to such measures, so that any measures of clemency do not subvert the
independent decision-making power of the Judiciary, thereby undermining the rule of
law and true respect for human rights standards.

14 For a discussion of this issue and others, as regards the system in the United States of America, see An Independent Judiciary,
Report of the American Bar Association Commission on Separation of Powers and Judicial Independence, published on:
http://www.abanet.org/govaffairs/judiciary/report.html.
15 Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe on the independence, efficiency and
role of judges provides that “decisions of judges should not be the subject of any revision outside any appeals procedures as provided
for by law” (Principle I.2.a.i.), and that “with the exception of decisions on amnesty, pardon or similar, the Government or the
administration should not be able to take any decision which invalidates judicial decisions retroactively” (Principle I.2.a.iv.)

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4.4.4 Jurisdictional competence

According to Principle 3 of the Basic Principles, the independent
decision-making power of the Judiciary also comprises “jurisdiction over all issues of a
judicial nature and ... exclusive authority to decide whether an issue submitted for its
decision is within its competence as defined by law”.16
This rule of judicial autonomy in the determination of questions of
competence is in fact well established at both national and international levels and can
also be found, for instance, in article 36(6) of the Statute of the International Court of
Justice, and, as regards the European Court of Human Rights, in article 32(2) of the
European Convention on Human Rights.

4.4.5 The right and duty to ensure fair court proceedings and
give reasoned decisions
This issue will be dealt with in subsection 4.5.8 below.

The notion of independence of the Judiciary means, in particular, that:

l the Judiciary must enjoy institutional independence, in that it
must be independent of the other branches of government, namely, the
Executive and Parliament;
l the Judiciary must be independent as to internal matters of
judicial administration, including the assignment of cases
to judges within the court to which they belong;
l the Judiciary must have independence in financial matters and
have sufficient funds to perform their functions efficiently;
l the Judiciary must be independent as to decision-making:
both the Government and other institutions have the duty to respect
and observe the decisions handed down by the Judiciary;
l the Judiciary must have jurisdictional competence, which
means that there must be judicial autonomy in the determination of
questions of competence;
l the Judiciary has both the right and the duty to ensure fair court
proceedings and issue reasoned decisions.

16 Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe provides that “no organ other than
the courts themselves should decide on its own competence, as defined by law” (Principle I.2.a.iii).

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4.5 The notion of individual independence

It is not only the Judiciary per se, as a branch of government, that must be
independent of the Executive and Parliament; the individual judges, too, have a right
to enjoy independence in carrying out their professional duties. This independence
does not mean, of course, that the judges can decide cases on the basis of their own
whims or preferences: it means, as will be shown below, that they have both a right
and a duty to decide the cases before them according to the law, free from fear of
personal criticism or reprisals of any kind, even in situations where they are
obliged to render judgements in difficult and sensitive cases. Unfortunately, judges
are not always allowed to carry out their work in this spirit of true independence, but in
many countries have to suffer undue pressure ranging from inappropriate personal
criticism and transfer or dismissal to violent and even fatal attacks on their person.
The independence of the individual judge must be secured in a number of
ways, the most important of which will be described below.

4.5.1 Appointment
International law does not provide any details as to how judges should be
appointed, and the Basic Principles are neutral with regard to the appointment or
election of judges. However, according to Principle 10 of the Basic Principles:
“Persons selected for judicial office shall be individuals of integrity and
ability with appropriate training or qualifications in law. Any method of
judicial selection shall safeguard against judicial appointments for
improper motives. In the selection of judges, there shall be no
discrimination against a person on the grounds of race, colour, sex,
religion, political or other opinion, national or social origin, property, birth
or status, except that a requirement, that a candidate for judicial office must
be a national of the country concerned, shall not be considered
discriminatory.”

This principle means that, irrespective of the method of selection of

judges, candidates’ professional qualifications and their personal integrity must
constitute the sole criteria for selection. Consequently, judges cannot lawfully be
appointed or elected because of the political views they hold or because, for instance,
they profess certain religious beliefs. Such appointments would seriously undermine
the independence both of the individual judge and of the Judiciary as such, thereby also
undermining public confidence in the administration of justice.

*****

The Human Rights Committee has expressed concern “that in appearance as

well as in fact” the Judiciary in the Sudan was “not truly independent, ... that judges can
be subject to pressure through the supervisory authority dominated by the
Government, and that very few non-Muslims or women occupy judicial positions at all
levels”. It therefore recommended that “measures should be taken to improve the
independence and technical competence of the judiciary, including the appointment of

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qualified judges from among women and members of minorities”.17 The Human
Rights Committee has also recommended to Bolivia that “the nomination of judges be
based on their competence and not their political affiliation”.18
With regard to Zambia, the Human Rights Committee has expressed concern
about “the proposals made by the Constitutional Review Committee in regard to the
appointment of judges of the Supreme Court by the President after their retirement and
the removal of Supreme Court judges by the President, subject only to ratification by
the National Assembly without any safeguard or inquiry by an independent judicial
tribunal”. It concluded that such proposals were “incompatible with the independence
of the judiciary and run counter to article 14 of the Covenant”.19
Consequently, article 14 of the Covenant has not been complied with in cases
where judges are appointed or dismissed by the President without these decisions
having been taken in consultation with some independent legal authority, even where
the President’s decisions must be ratified by Parliament.
Likewise, as regards Slovakia the Committee has noted with concern that the
rules in force “governing the appointment of judges by the Government with approval
of Parliament could have a negative effect on the independence of the judiciary”; it
recommended that “specific measures be adopted as a matter of priority guaranteeing
the independence of the judiciary and protecting judges from any form of political
influence, through the adoption of laws regulating the appointment, remuneration,
tenure, dismissal and disciplining of members of the judiciary”.20
With regard to the Republic of the Congo, the Committee expressed its
“concern at the attacks on the independence of the judiciary in violation of” article
14(1), and drew attention to the fact that such independence was “limited owing to the
lack of any independent mechanism responsible for the recruitment and discipline of
judges, and to the many pressures and influences, including those of the executive
branch, to which the judges [were] subjected”.21 It therefore recommended to the State
party that it should “take the appropriate steps to ensure the independence of the
judiciary, in particular by amending the rules concerning the composition and operation
of the Supreme Council of Justice and its effective establishment”.22
Appointments of judges must, in other words, in themselves constitute a
strong factor for independence and cannot be left to the exclusive discretion of the
Executive and Legislature.
The question of “lack of full independence of the judiciary” has also arisen in
connection with Kyrgyzstan, when the Committee noted, in particular, “that the
applicable certification procedure for judges, the requirement of re-evaluation every
seven years, the low level of salaries and the uncertain tenure of judges may encourage
corruption and bribery”.23

17 UN doc. GAOR, A/53/40 (vol. I), para. 132.

18 UN doc. GAOR, A/52/40 (vol. I), para. 224.
19 UN doc. GAOR, A/51/40, para. 202.
20 UN doc. GAOR, A/52/40 (vol. II), para. 379.
21 UN doc. GAOR, A/55/40 (vol. I), para. 279.
22 Ibid., para. 280.
23 UN doc. GAOR, A/55/40 (vol. I), para. 405.

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As to the election of certain judges in the United States of America, the Human
Rights Committee noted that it was “concerned about the impact which the current
system of election of judges may, in a few states, have on the implementation of the
rights” guaranteed by article 14, and it welcomed “the efforts of a number of states in
the adoption of a merit-selection system”. It also recommended that the system of
“appointment of judges through elections be reconsidered with a view to its
replacement by a system of appointment on merit by an independent body”.24
Accordingly, the election of judges would not seem to be compatible with the
notion of independence as set forth in article 14.25

*****

With regard to the Special Military Tribunal in Nigeria, the African

Commission on Human and Peoples’ Rights held that “the selection of serving military
officers, with little or no knowledge of law as members of the Tribunal” was in
contravention of Principle 10 of the Basic Principles on the Independence of the
Judiciary.26
*****

As to the European Convention on Human Rights, the European Court of

Human Rights has consistently held that
“in order to establish whether a tribunal can be considered ‘independent’
for the purposes of article 6 § 1, regard must be had, inter alia, to the manner
of appointment of its members and their term of office, the existence of
safeguards against outside pressures and the question whether it presents
an appearance of independence”.27

In the case of Lauko, the Court thus held that the applicant’s right to have a
fair hearing by an independent and impartial tribunal under article 6(1) had been
violated. The applicant had been fined for committing a minor offence. This decision
was imposed by the local office and an appeal rejected by the district office; the
Constitutional Court of Slovakia could not deal with the matter since it was a minor
offence falling within the competence of the administrative authorities.28 The Court
noted that the local and district offices were “charged with carrying out local State
administration under the control of the Government”, and that the appointment of the
heads of these bodies was controlled by the Executive and their officers, who had the

24 UN doc. GAOR, A/50/40, paras. 288 and 301; emphasis added.

25 The United Nations Special Rapporteur on the independence of judges and lawyers has emphasized the importance of adhering
to the objective criteria listed in Principle 10 of the United Nations Basic Principles in connection with the election and
appointment of judges; see e.g. UN doc. E/CN.4/2000/61/Add.1, Report of the Special Rapporteur on the independence of judges and lawyers,
Addendum: Report on the mission to Guatemala, paras. 60-64. For concern as to risks that the election of judges, and, in particular re-election,
pose to the independence of judges, see The Rule of Law and Human Rights: Principles and Definitions (Geneva, International Commission
of Jurists, 1966), p. 30, para. 2. As to the use of objective criteria in the selection of judges, see also Principle I.2.c of Council of
Europe Recommendation No. R (94) 12 on the independence, efficiency and role of judges. For general information on the European
judiciaries, see Judicial Organization in Europe (2000), Strasbourg, Council of Europe Publication, 2000, 352 pp.
26 ACHPR, Media Rights v. Nigeria, Communication No. 224/98, decision adopted during the 28th session, 28 October – 6 November 2000,
para. 60 at http://www1.umn.edu/humanrts/africa/comcases/224-98.html.
27 Eur. Court HR, Case of Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1571, para. 65.
28 Eur. Court HR, Case of Lauko v. Slovakia, judgment of 2 September 1998, Reports 1998-VI, pp. 2497-2498, paras.12-17.

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status of salaried employees.29 It followed that “the manner of appointment of the

officers of the local and district offices together with the lack of any guarantees against
outside pressures and any appearance of independence clearly show that those bodies
[could not] be considered to be ‘independent’ of the executive within the meaning of”
article 6(1).30 Although the Court added that it is not inconsistent with the Convention
to entrust “the prosecution and punishment of minor offences to administrative
authorities”, it had “to be stressed that the person concerned must have an opportunity
to challenge any decision made against him before a tribunal that offers the guarantees
of Article 6”.31
Since in the present case the applicant was unable to have the decisions of the
local and district offices reviewed by an independent and impartial tribunal, his rights
under article 6(1)of the Convention had been violated.32
In some situations, however, the notions of independence and impartiality are
closely linked, and, when considering the compatibility with article 6 of the European
Convention of the National Security Courts in Turkey and the courts martial in the
United Kingdom, the Court has, as will be seen in subsection 4.7 below, examined these
notions together. As stated in the case of Incal, for instance, what is of decisive
importance is whether the manner in which the court concerned functioned “infringed
the applicant’s right to a fair trial”:
“In this respect even appearances may be of a certain importance. What is
at stake is the confidence which the courts in a democratic society must
inspire in the public and above all, as far as criminal proceedings are
concerned, in the accused (...). In deciding whether there is a legitimate
reason to fear that a particular court lacks independence or impartiality, the
standpoint of the accused is important without being decisive. What is
decisive is whether his doubts can be held to be objectively justified (...).”33

*****

The Inter-American Commission on Human Rights has recommended that

the member States of the OAS
“take the steps necessary to protect the integrity and independence of
members of the Judiciary in the performance of their judicial functions,
and specifically in relation to the processing of human rights violations; in
particular, judges must be free to decide matters before them without any
influence, inducements, pressures, threats or interferences, direct or
indirect, for any reason or from any quarter”.34

29 Ibid., p. 2506, para. 64.

30 Ibid., loc. cit.
31 Ibid. at p. 2507.
32 Ibid., pp. 2506-2507, paras. 64-65. However, the Court came to a different conclusion in the case of Stallinger and Kuso, where
expert members were included in the Regional and Supreme Land Reform Boards on account of their experience of agronomy,
forestry and agriculture: “the adversarial nature of the proceedings before the boards was unaffected by the participation of the
‘civil-servant experts’”; hence, there was no violation of article 6(1) of the Convention; see Eur. Court HR, Case of Stallinger and Kuso v.
Austria, judgment of 18 March 1997, Reports 1997-II, p. 677, para. 37.
33 Eur. Court HR, Incal judgment of 9 June 1998, Reports 1998-IV, pp. 1572-1573, para. 71.
34 OAS doc. OEA/Ser.L/V/II.95, doc. 7 rev., Annual Report of the Inter-American Commission on Human Rights 1996, p. 761.

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In the Constitutional Court case, the Inter-American Court held that the
independence of any judge presupposes an adequate process of appointment (“un
adecuado proceso de nombramiento”), for a period in the post (“con una duración en el
cargo”) and with guarantees against external pressures (“con una garantía contra
presiones externas”).35

4.5.2 Security of tenure

As indicated above, unless judges have some long-term security of tenure,
there is a serious risk that their independence will be compromised, since they may be
more vulnerable to inappropriate influence in their decision-making. Principle 11 of the
Basic Principles therefore provides that
“The term of office of judges, their independence, security, adequate
remuneration, conditions of service, pensions and the age of retirement
shall be adequately secured by law.”

Principle 12 further specifies that

“Judges, whether appointed or elected, shall have guaranteed tenure until a
mandatory retirement age or the expiry of their term of office, where such
exists.”36

It would consequently be contrary to Principles 11 and 12 to appoint or elect

judges with no guarantee of tenure at all or only a brief period of guaranteed term of
office.37 It is by providing judges with a permanent mandate that their
independence will be maximized, as will public confidence in the Judiciary.

*****

With regard to the situation in Armenia, the Human Rights Committee noted
that the independence of the Judiciary was not fully guaranteed, observing, in particular,
that “the election of judges by popular vote for a fixed maximum term of six years does
not ensure their independence and impartiality”.38
In some countries judges may be obliged to go through a recertification
procedure at certain intervals in order to be authorized to continue in office. Faced with
this practice in Peru, the Human Rights Committee noted “with concern that the judges
retire at the expiration of seven years and require recertification for reappointment”. It
considered this “a practice which tends to affect the independence of the Judiciary by
denying security of tenure”.39 The Committee therefore recommended to the

35 I-A Court HR, Constitutional Court Case (Aguirre Roca, Rey Terry and Revorado Marsano v. Peru), judgment of 31 January 2001,
para. 75 of the Spanish version of the judgment, which can be found on the Court’s web site:
http://www.corteidh.or.cr/serie_c/C_71_ESP.html.
36 Recommendation I.3 of Council of Europe Recommendation No. R (94) 12 is identical to Principle 12.
37 The Special Rapporteur on the independence of judges and lawyers has held that while “fixed-term contracts may not be
objectionable and not inconsistent with the principle of judicial independence, a term of five years is too short for security of tenure”.
In his view “a reasonable term would be 10 years”; UN doc. E/CN.4/2000/61/Add.1, Report on the Mission to Guatemala, para. 169(c).
38 UN doc. GAOR, A/54/40 (vol. I), para. 104.
39 UN doc. GAOR, A/51/40, para. 352.

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Government that “the requirement for judges to be recertified be reviewed and

replaced by a system of secure tenure and independent judicial supervision”.40
The question of review was also at issue with regard to Lithuania, and the
Committee was concerned that, although there were “new provisions aimed at ensuring
the independence of the judiciary, District Court judges must still undergo a review by
the executive after five years of service in order to secure permanent appointment”.
Consequently, it recommended that “any such review process should be concerned
only with judicial competence and should be carried out only by an independent
professional body”.41
It follows that, in the view of the Human Rights Committee, the practice of
executive recertification or review of judges is contrary to article 14(1) of the
International Covenant on Civil and Political Rights.

4.5.3 Financial security

The international and regional treaties do not expressly deal with the question
of financial security for the Judiciary and individual judges, but Principle 11 of the Basic
Principles quoted above provides that judges shall have adequate remuneration and
also pensions.
The question of fair and adequate remuneration is important since it may help
attract qualified persons to the bench and may also make judges less likely to yield to the
temptation of corruption and political or other undue influences. In some countries
judges’ salaries are protected against decreases, although pay increases may depend on
the Executive and Legislature. Where the Executive and Legislature control the
budgets of the Judiciary, there may be a potential threat to the latter’s independence.
In the case of Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice), the
Canadian Supreme Court had to decide “whether and how the guarantee of judicial
independence in s. 11(d) of the Canadian Charter of Rights and Freedoms restricts the
manner by and extent to which provincial governments and legislatures can reduce the
salaries of provincial court judges”.42 As part of its budget deficit reduction plan, the
Province had enacted the Public Sector Pay Reduction Act whereby it reduced the
salaries of Provincial Court judges and others paid from the public purse in the
province. Following these pay reductions, numerous accused persons challenged the
constitutionality of their proceedings in the Provincial Court, alleging that, as a result of
the salary reductions, the court had lost its status as an independent and impartial
tribunal. The Supreme Court concluded that the salary reductions “as part of an overall
public economic measure were consistent with s. 11(d) of the Charter”, as there was “no
evidence that the reductions were introduced in order to influence or manipulate the
judiciary”.43 What constituted a violation of judicial independence was, however, the
refusal of the Manitoba Government to sign a joint recommendation to the Judicial
Compensation Committee, “unless the judges agreed to forgo their legal challenge ”of

40 Ibid., para. 364.

41 See UN doc. GAOR, A/53/40 (vol. 1), para. 173.
42 (1997) 3 S.C.R. Manitoba Provincial Judges Assn. v. Manitoba (Minister of Judges) 3, at
http://www.lexum.umontreal.ca/csc-scc/en/pub/1997/vol3/html/1997scr3_0003.html at p. 5.
43 Ibid., p. 12.

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the law whereby the salary reduction was imposed. The Court considered that the
Government had thereby “placed economic pressure on the judges so that they would
concede the constitutionality of the planned salary changes”.44 In its view, “the financial
security component of judicial independence must include protection of judges’ ability
to challenge legislation implicating their own independence free from the reasonable
perception that the government might penalize them financially for doing so”.45

4.5.4 Promotion
Principle 13 of the Basic Principles provides that “promotion of judges,
wherever such a system exists, should be based on objective factors, in particular ability,
integrity and experience”. Improper factors not linked to the professional merits of the
judges concerned are thus not to be considered for purposes of promotion.46 Such
improper factors might, for instance, include attitudes of discrimination based on
gender, race or ethnicity.47

4.5.5 Accountability
While there is no disagreement about the need for judicial discipline among
judges, the question arises as to how to decide on possible sanctions in cases of
misconduct, who should decide, and what the sanctions should be. It is also imperative
that judges not be subjected to disciplinary action because of opposition to the merits
of the case or cases decided by the judge in question.

*****

With regard to Belarus, the Human Rights Committee noted “with concern
the allegation that two judges were dismissed by the President ... on the ground that in
the discharge of their judicial functions they failed to impose and collect a fine imposed
by the executive”.48 The Committee was also concerned that the Cambodian Supreme
Council of the Magistracy was “not independent of government influence” and that it
had “not yet been able to deal with the allegations of judicial incompetence and
unethical behaviour”. Given its further concern inter alia about the fact that the
Ministry of Justice issued circulars that were binding on judges, the Committee
recommended that the State party “should take urgent measures to strengthen the
judiciary and to guarantee its independence, and to ensure that all allegations of
corruption or undue pressure on the judiciary are dealt with promptly”.49

44 Ibid., loc. cit. The Judicial Compensation Committee was a body created by The Provincial Court Act for the purpose of issuing
reports on judges’ salaries to the legislature.
45 Ibid.
46 Council of Europe Recommendation No. R (94) 12 emphasizes that “all decisions concerning the selection and career of judges
should be based on objective criteria” and that not only the selection of judges but also their career “should be based on merit, having
regard to qualifications, integrity, ability and efficiency”; moreover, decisions regarding the career of judges should be independent of
both the Government and the administration (principle I.2.c.).
47 As to minority representation in the legal profession in the United States, see report by the American Bar Association
Commission on Racial and Ethnic Diversity in the Profession entitled Miles to Go 2000: Progress of Minorities in the Legal Profession.
According to this report, minority representation in the legal profession is significantly lower than in most other professions.
Although mainly devoted to lawyers, the report also contains a subsection on the Judiciary; see www.abanet.org/minorities.
48 UN doc. GAOR, A/53/40 (vol. I), para. 149.
49 UN doc. GAOR, A/54/40 (vol. I), paras. 299-300.

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It would thus appear clear that the Human Rights Committee considers that
the term “independent” in article 14(1) of the Covenant requires that unethical
professional behaviour be dealt with by an organ fully independent of government
influence.
The matter of discipline, suspension and removal of judges is also dealt with in
Principles 17-20 of the United Nations Basic Principles, which read as follows:
“17. A charge or complaint made against a judge in his/her judicial and
professional capacity shall be processed expeditiously and fairly under an
appropriate procedure. The judge shall have the right to a fair hearing. The
examination of the matter at its initial stage shall be kept confidential,
unless otherwise requested by the judge.

18. Judges shall be subject to suspension or removal only for reasons of

incapacity or behaviour that renders them unfit to discharge their duties.

19. All disciplinary, suspension or removal proceedings shall be

determined in accordance with established standards of judicial conduct.

20. Decisions in disciplinary, suspension or removal proceedings

should be subject to an independent review. This principle may not apply
to decisions of the highest court and those of the legislature in
impeachment or similar proceedings.”

It is noteworthy, however, that Principle 17 speaks only of “an appropriate

procedure” and that Principle 20 recommends that decisions in disciplinary and other
procedures “should be subject to an independent review” (emphasis added). It would
thus appear that the interpretation of article 14(1) of the International Covenant on
Civil and Political Rights by the Human Rights Committee goes further than the Basic
Principles in this respect.50

*****

In a case against Burkina Faso, the African Commission on Human and

Peoples’ Rights had to consider the State’s failure to give any legal reasons to justify the
retention of the punishment meted out to two magistrates. The two were among a
number of magistrates who had been suspended, dismissed or forced to retire in 1987.
Many of the persons affected by this measure were subsequently reinstated by virtue of
an amnesty, while many others, including the two magistrates who were the subject of

50 Principle VI of Council of Europe Recommendation No. R (94) 12 also deals with the failure to carry out responsibilities and
disciplinary offences, and, depending on legal principles in force and traditions of the States, disciplinary measures may inter alia
include: 1) withdrawal of cases from the judge; 2) moving the judge to other judicial tasks within the court; 3) economic sanctions
such as a reduction in salary for a temporary period; and 4) suspension (Principle VI.1.). However, appointed “judges may not be
permanently removed from office without valid reasons until mandatory retirement”, reasons that “should be defined in precise terms
by the law”. These reasons could also “apply in countries where the judge is elected for a certain period, or may relate to incapacity to
perform judicial functions, commission of criminal offences or serious infringements of disciplinary rules” (Principle VI.2). Moreover,
where the measures mentioned in Principles VI.1 and 2 “need to be taken, States should consider setting up, by law, a special
competent body which has as its task to apply disciplinary sanctions and measures, where they are not dealt with by a court, and
whose decisions shall be controlled by a superior judicial organ, or which is a superior judicial organ itself” (emphasis added). The law
should also “provide for appropriate procedures to ensure that judges in question are given at least all the due process requirements
[of the European Convention on Human Rights], for instance that the case should be heard within a reasonable time and that they
should have a right to answer any charges” (Principle VI.3).

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the case before the Commission, were not so reinstated.51 In the view of the
Commission, this failure constituted a violation of Principles 18 and 19 of the Basic
Principles on the Independence of the Judiciary.52 As to the refusal by the Supreme
Court to proceed with the two magistrates’ claims for damages, lodged fifteen years
earlier, it constituted a violation of article 7(1)(d) of the African Charter, which
guarantees the right to be tried within a reasonable time by an impartial court or
tribunal.53

*****

The Constitutional Court case dealt with by the Inter-American Court of Human
Rights concerned the impeachment and final removal by legislative decisions of 28 May
1997 of three judges from the bench of the Constitutional Court. These decisions were
a consequence of a complex process that had begun in 1992, when President Fujimori
dissolved both Congress and the Court of Constitutional Guarantees. In 1996 the new
Constitutional Court was called upon to examine the constitutionality of a law that
interpreted article 112 of the Peruvian Constitution regarding presidential re-elections.
After five of the seven members had found that the relevant law was “non-applicable”,
although they did not declare it unconstitutional, the judges forming the majority were
allegedly subjected to a campaign of pressure, intimidation and harassment.54 As noted
by the Inter-American Court, the removal of the three judges was the result of the
application of a sanction by the legislative power within the framework of a political
trial (“juicio político”),55 and the Court concluded unanimously that articles 8 and 25 of
the American Convention on Human Rights had been violated with regard to the three
former constitutional court judges.
As to article 8 of the Convention, it had been violated since the proceedings of
the political trial to which the three judges were subjected did not ensure due process
guarantees and, further, since in this specific case the Legislature did not comply with
the necessary condition of independence and impartiality in conducting the political
trial of the judges.56 As to the lack of impartiality, it was inter alia due to the fact that some
of the 40 members of Congress who had addressed a letter to the Constitutional Court
requesting the Court to decide on the question of the constitutionality of the law on
presidential elections subsequently participated in the various commissions and
sub-commissions appointed during the impeachment proceedings. Furthermore, some
of those members taking part in the vote on the removal of the judges were in fact
expressly prohibited from doing so on the basis of the Rules of Congress.57 With regard
to the violation of the due process guarantees, the three judges in question had not received
complete and adequate information as to the charges laid against them and their access

51 ACHPR, Mouvement Burkinabé des Droits de l’Homme et des Peuples v. Burkina Faso, Communication No. 204/97, decision adopted during the
29th Ordinary session, 23 April – 7th May 2001, para. 38; for the text see http://www1.umn.edu/humanrts/africa/comcases/204-97.html.
52 Ibid., loc. cit.
53 Ibid., para. 40.
54 I-A Court HR, Constitutional Court Case, Competence, judgment of September 24, 1999, in OAS doc. OEA/Ser.L/V/III.47, doc. 6,
Annual Report of the Inter-American Court of Human Rights 1999, para. 2 at pp. 374-378.
55 I-A Court HR, Constitutional Court Case (Aguirre Roca, Rey Terry and Revorado Marsano v. Peru), judgment of 31 January 2001, para. 67 of the
Spanish version of the judgment which can be found on the Court’s web site: http://www.corteidh.or.cr/serie_c/C_71_ESP.html.
56 Ibid., para. 84.
57 Ibid., para.78.

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to the evidence against them was limited. The time available to them for the preparation
of their defence was also “extremely short” (“extremadamente corto”). Lastly, they
were not allowed to question witnesses whose testimony was at the basis of the decision
of the members of Congress to initiate the impeachment proceedings and their
eventual decision to remove the three judges.58
As to the right to judicial protection laid down in article 25 of the American
Convention, that too had been violated. The three judges had in fact filed writs of
amparo against the decisions to remove them, writs which were considered unfounded
by the Superior Court of Justice in Lima; these decisions were subsequently confirmed
by the Constitutional Court.59 According to the Inter-American Court of Human
Rights, the failure of these writs was “due to assessments that were not strictly judicial”
(“se debe a apreciaciones no estrictamente jurídicas”). It had for instance been
established that the judges of the Constitutional Court who considered the writs of
amparo were the same persons who participated, or were otherwise involved, in the
congressional proceedings; consequently, the Constitutional Court did not comply with
the Inter-American Court’s criteria relating to the impartiality of a judge. It followed that
the writs filed by the alleged victims were incapable of producing their intended result
and were doomed to fail, as indeed they did.60

*****

To sum up, the general assertion can be made that, under international law,
judges subjected to disciplinary proceedings must be granted due process before a
competent, independent and impartial organ which must be – or must be controlled
by – an authority independent of the Executive. It would however seem that, at least
under the American Convention on Human Rights, disciplinary proceedings may be
brought against judges of constitutional courts by the Legislature, provided that the
organ determining the charges strictly respects the principles of independence and
impartiality and that the relevant proceedings comply with the due process
guarantees laid down in article 8 of the Convention.

4.5.6 Freedom of expression and association

The rights of judges to freedom of expression and association are essential in a
democratic society respectful of the rule of law and human rights. By being free to form
associations, judges are better able to defend their independence and other professional
interests.
Principle 8 of the Basic Principles provides that:
“In accordance with the Universal Declaration of Human Rights,
members of the judiciary are like other citizens entitled to freedom of
expression, belief, association and assembly; provided, however, that in
exercising such rights, judges shall always conduct themselves in such a

58 Ibid., para. 83.

59 Ibid., paras. 97 and 56.27.
60 Ibid., para. 96.

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manner as to preserve the dignity of their office and the impartiality and
independence of the judiciary”.61

4.5.7 Training and education

The training and continued education of judges in national and international
human rights law is essential if it is to become a meaningful reality at the domestic level.
Without such training, implementation of human rights law will remain illusory. The
Human Rights Committee has on several occasions emphasized the importance of
providing training in human rights law for judges, other legal professions and law
enforcement officers.62
The Committee has further recommended that the Republic of the Congo
should give “particular attention ... to the training of judges and to the system governing
their recruitment and discipline, in order to free them from political, financial and other
pressures, ensure their security of tenure and enable them to render justice promptly
and impartially”; accordingly, it invited the State party “to adopt effective measures to
that end and to take the appropriate steps to ensure that more judges are given adequate
training”.63
Whether educational programmes such as, for instance, “social context
education” should be made mandatory for judges, and, if so, in what way judges would be
accountable for refusing to participate, is, however, an issue which has given rise to
debate in Canada.64
The important point to emphasize in this respect is that it is in any event the
Judiciary itself or the independent associations of judges that must ultimately be
responsible for the promotion of the professional education and/or training concerned
(cf. Principle 9 of the Basic Principles).

4.5.8 The right and duty to ensure fair court proceedings and
give reasoned decisions
The independence of a tribunal is indispensable to fair court proceedings, be
they criminal or civil. As laid down in Principle 6 of the Basic Principles:
“The principle of the independence of the judiciary entitles and requires
the judiciary to ensure that judicial proceedings are conducted fairly and
that the rights of the parties are respected.”

61 Somewhat more laconically, Council of Europe Recommendation No. R (94) 12 provides in Principle IV that judges “should be
free to form associations which, either alone or with another body, have the task of safeguarding their independence and protect their
interest”.
62 See, as to Libyan Arab Jamahiriya, UN doc. GAOR, A/54/40 (vol. 1), para. 134; and as to the Sudan, UN doc. GAOR,
A/53/40 (vol. I), para. 132.
63 UN doc. GAOR, A/55/40 (vol. I), para. 280.
64 See speech given by the Rt. Hon. Antonio Lamer, P.C., Chief Justice of Canada, “The Tension Between Judicial Accountability and
Judicial Independence: A Canadian Perspective” (Singapore Academy of Law Annual Lecture 1996), published at
www.sal.org.sg/lect96.html, discussion at pp. 8-9. Principle V.3.g of the Council of Europe Recommendation provides that judges
should have the responsibility “to undergo any necessary training in order to carry out their duties in an efficient and proper manner”.

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As is made clear in subsequent chapters, and in particular Chapter 7 on The

Right to a Fair Trial and Chapter 16 concerning The Administration of Justice during States of
Emergency, this means that judges have an obligation to decide the cases before them
according to the law, protect individual rights and freedoms, and constantly respect the
various procedural rights that exist under domestic and international law. Further, this
important task has to be carried out without any inappropriate or unwarranted
interference with the judicial process (Principle 4 of the Basic Principles).

*****

The Human Rights Committee expressed concern that the new Judiciary in
Cambodia was susceptible to “bribery and political pressure” and that it was seeking
“the opinions of the Ministry of Justice in regard to the interpretation of laws and that
the Ministry issues circulars which are binding on judges”. Consequently, it
recommended that the State party “should take urgent measures to strengthen the
judiciary and to guarantee its independence, and to ensure that all allegations of
corruption or undue pressure on the judiciary are dealt with promptly”.65
It is further inherent in the notion of a competent, independent and impartial
tribunal that it must give reasons for its decisions. With regard to article 6(1) of the
European Convention on Human Rights, the European Court held in this respect, in
the case of Higgins and Others, that this obligation “cannot be understood as requiring a
detailed answer to every argument”, but that “the extent to which this duty to give
reasons applies may vary according to the nature of the decision and must be
determined in the light of the circumstances of the case”.66 Where the Court of
Cassation had failed in its judgement to give express and specific explanations on a
complaint that the Court of Appeal had not been impartial, the Court found a violation
of article 6(1).67

*****

The Human Rights Committee has examined numerous cases where Jamaican
courts have failed to give reasoned judgements, thereby effectively preventing the
convicted persons from exercising their right to appeal. However, rather than
examining this issue within the framework of the notion of independence and
impartiality in article 14(1) of the Covenant, the Committee has considered it under
article 14(3)(c), which guarantees the right to “be tried without undue delay”, and article
14(5), which safeguards the right of appeal in criminal cases.68

65 UN doc. GAOR, A/54/40 (vol. I), para. 299.

66 Eur. Court HR, Case of Higgins and Others v. France, judgment of 19 February 1998, Reports 1998-I, p. 60, para. 42.
67 Ibid., p. 61, para. 43.
68 See, for example, Communication No. 283/1988, A. Little. v. Jamaica (Views adopted on 1 November 1991, in UN doc. GAOR,
A/47/40, p. 284, para. 9 read in conjunction with p. 283, para. 8.5 (violation of article 14(5) of the Covenant; no reasoned judgement
issued by the Court of Appeal for more than five years after dismissal); and Communication No. 377/1988, A. Currie v. Jamaica (Views
adopted on 29 March), in UN doc. GAOR, A/49/49 (vol. II), p. 77, para. 13.5 (violation of both article 14(3)(c) and (5) for failure of
the Court of Appeal to issue written judgement thirteen years after dismissal of appeal).

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The notion of independence of the Judiciary also means that

l individual judges must enjoy independence in the
performance of their professional duties; individual judges
have a right and a duty to decide cases before them according to law,
free from outside interference including the threat of reprisals and
personal criticism;
l individual judges must be appointed or elected exclusively on the
basis of their professional qualifications and personal
integrity;
l individual judges must enjoy long-term security of tenure;
l individual judges must be adequately remunerated;
l the promotion of individual judges must be based on
objective factors;
l the question of accountability of individual judges for
unethical professional behaviour must be dealt with by a fully
independent and impartial organ ensuring due process of law.

4.6 The notion of impartiality

As previously noted, the concept of impartiality is closely linked to that of
independence and sometimes the two notions are considered together. The
requirement of impartiality is contained in article 14(1) of the International Covenant
on Civil and Political Rights, article 7(1) of the African Charter of Human and Peoples’
Rights, article 8(1) of the American Convention on Human Rights and article 6(1) of
the European Convention on Human Rights.
Principle 2 of the Basic Principles also specifies that
“The judiciary shall decide matters before them impartially, on the basis of
facts and in accordance with the law, without any restrictions, improper
influences, inducements, pressures, threats or interferences, direct or
indirect, from any quarter or for any reason.”

*****

In the case of Arvo O. Karttunen, the Human Rights Committee explained that
“the impartiality of the court and the publicity of proceedings are important aspects of
the right to a fair trial” within the meaning of article 14(1) of the Covenant, adding that
the notion of impartiality “implies that judges must not harbour preconceptions about
the matter put before them, and that they must not act in ways that promote the
interests of one of the parties”.69 It specified that, “where the grounds for
disqualification of a judge are laid down by law, it is incumbent upon the court to

69 Communication No. 387/1989, Arvo O. Karttunen v. Finland (Views adopted on 23 October 1992), in UN doc. GAOR, A/48/40
(vol. II), p. 120, para. 7.2.

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consider ex officio these grounds and to replace members of the court falling under the
disqualification criteria. ... A trial flawed by the participation of a judge who, under
domestic statutes, should have been disqualified cannot normally be considered to be
fair or impartial within the meaning of article 14”.70 In this particular case, the Finnish
Court of Appeal had considered, on the basis of only written evidence, that the verdict
of the District Court “had not been influenced by the presence of lay judge V. S., while
admitting that V. S. manifestly should have been disqualified”.71 The lay judge had
made some allegedly improper remarks during the testimony given by the author’s wife,
remarks that, as admitted by the Government itself, “could very well have influenced
the procurement of evidence and the content of the court’s decision”.72 The
Committee concluded that, in the absence of oral proceedings before the Court of
Appeal, which was the only means of determining “whether the procedural flaw had
indeed affected the verdict of the District Court”, there had been a violation of article
14.73
As further emphasized by the Human Rights Committee, in addressing a
jury, the presiding judge must not give instructions that are either arbitrary, amount to
a denial of justice, or violate his obligations of impartiality.74

*****

In the case concerning the Constitutional Rights Project, the African Commission
on Human and Peoples’ Rights had, inter alia, to consider the compatibility with article
7(1)(d) of the African Charter on Human and Peoples’ Rights of the Civil Disturbances
(Special Tribunal) Act, under the terms of which that tribunal should consist of one
judge and four members of the armed forces. In the view of the Commission, the
tribunal was as such “composed of persons belonging largely to the executive branch of
government, the same branch that passed the Civil Disturbance Act”.75 The
Commission then recalled that article 7(1)(d) of the Charter “requires the court or
tribunal to be impartial”, adding that, “regardless of the character of the individual
members of such tribunals, its composition alone creates the appearance, if not actual
lack, of impartiality”. Consequently, there had been a violation of the said provision in
this case.76

*****

70 Ibid., loc. cit.

71 Ibid., p. 120, para. 7.3.
72 Ibid., p. 117, para. 2.3 and p. 119, para. 6.3 read together.
73 Ibid., p. 120, para. 7.3.
74 Communication No. 731/1996, M. Robinson v. Jamaica (Views adopted on 29 March 2000), in UN doc. GAOR, A/55/40 (vol.
II), para. 9.4 at p. 128; in this particular case there was no evidence “to show that the trial judge’s instructions or the conduct of the
trial suffered from any such defects”.
75 ACHPR, Constitutional Rights Project v. Nigeria, Communication No. 87/93, para. 13; for the text of the judgment, see e.g.
http://www1.umn.edu/humanrts/africa/comcases/87-93.html. See also ACHPR, International Pen, Constitutional Rights Project, Interights on
behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v. Nigeria, Communications Nos. 137/94, 139/94, 154/96 and 161/97, decision of
1 October 1998, para. 86; for the text see http://www1.umn.edu/humanrts/africa/comcases/137-94_139-94_154-96_161-97.html.
76 Ibid., para. 14.

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As to the requirement of impartiality in article 6(1) of the European

Convention on Human Rights, the European Court of Human Rights has consistently
ruled that it has two requirements, namely, one subjective and one objective
requirement. In the first place, “the tribunal must be subjectively impartial”, in that
“no member of the tribunal should hold any personal prejudice or bias”, and this
personal “impartiality is presumed unless there is evidence to the contrary”.77 Secondly,
“the tribunal must also be impartial from an objective viewpoint”, in that “it must offer
guarantees to exclude any legitimate doubt in this respect”.78 With regard to the
objective test, the Court added that it must be determined whether there are
ascertainable facts, which may raise doubts as to the impartiality of the judges, and that,
in this respect, “even appearances may be of a certain importance”, because “what is at
stake is the confidence which the courts in a democratic society must inspire in the
public and above all in the parties to the proceedings”.79
Thus, in the case of Oberschlick, the European Court concluded that article 6(1)
had been violated for lack of impartiality since a judge who had taken part in a decision
quashing an order dismissing criminal proceedings subsequently sat in the hearing of an
appeal against the applicant’s conviction.80 The possibility exists, nevertheless, “that a
higher or the highest tribunal may, in some circumstances, make reparation for an initial
violation of one of the Convention’s provisions”.81 However, this is only possible
where the subsequent control is exercised by a judicial body having “full jurisdiction”
and providing the guarantees foreseen by article 6(1).82 Issues that may be of relevance
to assess the adequacy of the review, on a point of law for instance, may be “the subject
matter of the decision appealed against, the manner in which that decision was arrived
at, and the contents of the dispute, including the desired and actual grounds of
appeal”.83 Where the higher court does not have full jurisdiction to make such review,
the Court has found a violation of article 6(1).84
In the case of Daktaras, the Court concluded that article 6(1) had been violated
because the applicant’s doubts as to the impartiality of the Lithuanian Supreme Court
“may be said to have been objectively justified”.85 In this case, the President of the
Criminal Division of the Supreme Court had lodged a petition for cassation with the
judges of that Division, at the request of the judge at first instance, who was dissatisfied
with the judgement of the Court of Appeal. The President proposed that the appellate
decision be quashed but the same President also appointed the Judge Rapporteur and
constituted the chamber that was to examine the case. The President’s cassation
petition was endorsed at the hearing by the prosecution and finally accepted by the

77 Eur. Court HR, Case of Daktaras v. Lithuania, judgment of 10 October 2000, para. 30; emphasis added.
78 Ibid., loc. cit.
79 Ibid., para. 32.
80 Eur. Court HR, Case of Oberschlick v. Austria (1), judgment of 23 may 1991, Series A, No. 204, p. 13, para. 16 and p. 15 para. 22. For
similar cases, see also Eur. Court HR, Case of Castillo Algar v. Spain, judgment of 28 October 1998, Reports 1998-VIII, p. 3124 ff. and Eur.
Court HR, the Case of de Haan v. the Netherlands, judgment of 26 August 1997, Reports 1997-IV, p. 1379 ff.
81 Eur. Court HR, Case of de Haan v. the Netherlands, judgment of 26 August 1997, Reports 1997-IV, p. 1393, para. 54.
82 Eur. Court HR, Case of Kingsley v. the United Kingdom, judgment of 7 November 2000, para. 51; for the text of the judgment, see
http://www.echr.coe.int/.
83 Eur. Court HR, Case of Bryan v. the United Kingdom, judgment of 22 November 1995, Series A, No. 335-A, p. 17, para. 45.
84 Eur. Court HR, Kingsley v. the United Kingdom, judgment of 7 November 2000, para. 59.
85 Eur. Court HR, Case of Daktaras v. Lithuania, judgment of 10 October 2000, para. 38; emphasis added.

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Supreme Court. As to the subjective test, there was no evidence of personal bias of
the individual judges of the Supreme Court,86 but, under the objective test, the
conclusion was different. In the view of the Court, the legal opinion given by the
President in submitting a cassation petition could not be regarded as neutral from the
parties’ point of view, since, “by recommending that a particular decision be adopted or
quashed, [he] necessarily becomes the defendant’s ally or opponent”.87 The European
Court added that, “when the President of the Criminal Division not only takes up the
prosecution case but also, in addition to his organisational and managerial functions,
constitutes the court, it cannot be said that, from an objective standpoint, there are
sufficient guarantees to exclude any legitimate doubt as to the absence of inappropriate
pressure”. Further, the fact that the President’s intervention was prompted by the judge
at first instance only aggravated the situation.88
The notion of impartiality is also applicable to jurors, and, in the case of
Sander, the European Court found a violation of article 6(1) after a juror had made racist
remarks and jokes and the judge’s subsequent direction had failed to dispel the
reasonable impression and fear of a lack of impartiality. The Court accepted that,
“although discharging the jury may not always be the only means to achieve a fair trial,
there are certain circumstances where this is required by Article 6 § 1 of the
Convention”.89 In this particular case, “the judge was faced with a serious allegation
that the applicant risked being condemned because of his ethnic origin”, and,
moreover, “one of the jurors indirectly admitted to making racist comments”; given
“the importance attached by all Contracting States to the need to combat racism”, the
Court considered “that the judge should have acted in a more robust manner than
merely seeking vague assurances that the jurors could set aside their prejudices and try
the case solely on the evidence”.90 It concluded that, “by failing to do so, the judge did
not provide sufficient guarantees to exclude any objectively justified or legitimate
doubts as to the impartiality of the court”, which was not, consequently, “impartial
from an objective point of view”.91
In a second case concerning a juror who had allegedly uttered a racist slur, the
Court also emphasized that article 6(1) of the Convention “imposes an obligation on
every national court to check whether, as constituted, it is ‘an impartial tribunal’ within
the meaning of that provision ... [where] this is disputed on a ground that does not
immediately appear to be manifestly devoid of merit”.92 In the case of Remli the court
concerned had not made such a check, and, consequently, the applicant had been
deprived “of the possibility of remedying, if it proved necessary, a situation contrary to
the requirements of the Convention”.93

86 Ibid., para. 31.

87 Ibid., para. 35.
88 Ibid., para. 36.
89 Eur. Court HR, Case of Sander v. the United Kingdom, judgment of 9 May 2000, para. 34; for the text of the judgment, see
http://www.echr.coe.int/.
90 Ibid., loc. cit.
91 Ibid. For other cases involving the notion of impartiality, see e.g., Eur. Court HR, Case of Diennet v. France, judgment of 26 September
1995, Series A, No. 325-A (no violation); and the cases mentioned under the section dealing with “Military and other special courts or
tribunals”.
92 Eur. Court HR, Case of Remli v. France, judgment of 30 March 1996, Reports 1996-II, p. 574, para. 48.
93 Ibid., loc. cit.

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The notion of impartiality of the judiciary is an essential aspect of

the right to a fair trial. It means that all the judges involved must act
objectively and base their decisions on the relevant facts and applicable law,
without personal bias or preconceived ideas on the matter and persons
involved and without promoting the interests of any one of the parties.

4.7 Military and other special courts and tribunals

The creation in special situations of military courts or other courts of special
jurisdiction such as State Security Courts is commonplace and often gives rise to
violations of the right to due process of law. While the international treaties examined
in this Manual do not draw any express distinction between ordinary and special,
including military, tribunals, the Human Rights Committee made it clear in its General
Comment No. 13 that the provisions of article 14 of the Covenant “apply to all courts
and tribunals within the scope of that article whether ordinary or specialized”.94 This
means, for instance, that likewise, military or other special tribunals which try civilians
must comply with the condition of independence and impartiality. The Committee
admitted that this could cause a problem, since “quite often the reason for the
establishment of such courts is to enable exceptional procedures to be applied which do
not comply with normal standards of justice”.95 Yet, “while the Covenant does not
prohibit such categories of courts, nevertheless the conditions which it lays down
clearly indicate that the trying of civilians by such courts should be very exceptional and
take place under conditions which genuinely afford the full guarantees stipulated in
article 14”.96
In the case of R. Espinoza de Polay, the Human Rights Committee further
expressed the view that special tribunals composed of anonymous, so called “faceless”,
judges are not compatible with article 14, because they “fail to guarantee a cardinal
aspect of a fair trial within the meaning of article 14”, namely, “that the tribunal must
be, and be seen to be, independent and impartial”.97 It added that, “in a system of trial
by ‘faceless judges’, neither the independence nor the impartiality of the judges is
guaranteed, since the tribunal, being established ad hoc, may comprise serving
members of the armed forces”.98 The Committee has also severely criticized the system
of trial of civilians by “faceless judges” in a military court during the consideration of
Peru’s periodic reports, since it was the same military force that detained, charged and
tried the persons accused of terrorism, without there being any possibility of review by
a higher independent and impartial court.99 The Committee emphasized “that trials of

94 United Nations Compilation of General Comments, p. 123, para. 4.

95 Ibid., loc. cit.
96 Ibid.
97 Communication No. 577/1994, R. Espinoza de Polay v. Peru (Views adopted on 6 November 1997), in UN doc GAOR, A/53/40
(vol. II), p. 43, para. 8.8.
98 Ibid., loc. cit. In the view of the Committee this system also “fails to safeguard the presumption of innocence as guaranteed by”
article 14(2), ibid. See also Communication No. 688/1996, C. T. Arredondo v. Peru, (Views adopted on 27 July 2000), in UN doc.
GAOR, A/55/40 (vol. II) p. 60, para. 10.5.
99 UN doc. GAOR, A/51/40, p. 62, para. 350; see also p. 64, para. 363.

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non-military persons should be conducted in civilian courts before an independent and

impartial judiciary”.100
The Committee further expressed its concern that the Government of Nigeria
had “not abrogated the decrees establishing special tribunals or those revoking normal
constitutional guarantees of fundamental rights as well as the jurisdiction of the normal
courts”.101 It emphasized that “all decrees revoking or limiting guarantees of
fundamental rights and freedoms should be abrogated”, and that all “courts and
tribunals must comply with all standards of fair trial and guarantees of justice prescribed
by article 14 of the Covenant”.102 Similarly, the Committee has noted with concern that
special courts in Iraq “may impose the death penalty”, although they “do not provide
for all procedural guarantees required by article 14 of the Covenant, and in particular
the right of appeal”. It informed the State party in this respect that “Courts exercising
criminal jurisdiction should not be constituted other than by independent and impartial
judges, in accordance with article 14, paragraph 1, of the Covenant”; and, further, that
“the jurisdiction of such courts should be strictly defined by law and all procedural
safeguards protected by article 14, including the right of appeal, should be fully
respected”.103
The question of military tribunals has also arisen with regard to Cameroon,
with the Committee expressing concern about the jurisdiction of military courts over
civilians and about the extension of that jurisdiction to offences which are not per se of
a military nature, for example all offences involving firearms. The Committee
consequently recommended that the State party “should ensure that the jurisdiction of
military tribunals is limited to military offences committed by military personnel”.104
With regard to Guatemala the Committee noted that “the wide jurisdiction of the
military courts to hear all cases involving the trial of military personnel and their powers
to decide cases that belong to the ordinary courts contribute to the impunity enjoyed by
such personnel and prevent their punishment for serious human rights violations”. The
Committee consequently informed the State party that it should “amend the law to
limit the jurisdiction of the military courts to the trial of military personnel who are
accused of crimes of an exclusively military nature”.105 The same recommendation was
made to Uzbekistan after the Committee had expressed concern about the “broad
jurisdiction” of the military courts, which was “not confined to criminal cases involving
members of the armed forces but also covers civil and criminal cases when, in the
opinion of the executive, the exceptional circumstances of a particular case do not allow
the operation of courts of general jurisdiction”.106 After having also considered with
concern “the broad scope of the jurisdiction of military courts” in Lebanon, the
Committee recommended that the State party “should review the jurisdiction of the
military courts and transfer the competence of [these] courts, in all trials concerning

100 Ibid., p. 62, para. 350.

101 Ibid., p. 51, para. 278.
102 Ibid., p. 53, para. 293.
103 UN doc. GAOR, A/53/40, pp. 20-21, para. 104.
104 UN doc. GAOR, A/55/40 (vol. I), paras. 215-216.
105 UN doc. GAOR, A/56/40 (vol. I), p. 96, para. 20.
106 Ibid., p. 61, para. 15.

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civilians and in all cases concerning the violation of human rights by members of the
military, to the ordinary courts”.107

*****

The African Commission on Human and Peoples’ Rights concluded that,

inter alia, article 7(1)(d) of the African Charter on Human and Peoples’ Rights was
violated in a case concerning special tribunals set up in Nigeria by the Robbery and
Firearms (Special Provisions) Act. These tribunals consisted of three persons, namely,
one judge, one officer of the army, navy or air force and one officer of the police force.
As noted by the African Commission, jurisdiction had “thus been transferred from the
normal courts to a tribunal chiefly composed of persons belonging to the executive
branch of government, the same branch that passed the Robbery and Firearms Decree,
whose members do not necessarily possess any legal expertise”. The Commission then
concluded that such courts violated the condition laid down in article 7(1)(d) of the
African Charter requiring the court or tribunal to be impartial; “regardless of the
character of the individual members of such tribunals, its composition alone creates the
appearance, if not actual lack, of impartiality”.108
The question of the compatibility of purely military tribunals with the African
Charter was at issue in the Media Rights Agenda case concerning the secret trial before a
Special Military Tribunal of Niran Malaolu, editor of an independent Nigerian daily
newspaper, The Diet. The Tribunal sentenced Mr. Malaolu to life imprisonment after
having found him guilty of treason.109 As to its general position on the issue of trials of
civilians by Military Tribunals, the African Commission recalled the terms of its
Resolution on the Right to Fair Trial and Legal Assistance in Africa, where it had held
that:

“‘In many African countries Military Courts and Special Tribunals

exist alongside regular judicial institutions. The purpose of Military
Courts is to determine offences of a purely military nature committed
by military personnel. While exercising this function, Military
Courts are required to respect fair trial standards.’”110

The Commission now added that military courts “should not, in any
circumstances whatsoever, have jurisdiction over civilians. Similarly, Special
Tribunals should not try offences that fall within the jurisdiction of regular
courts”.111 The Commission considered, inter alia, that the creation of the Special
Military Tribunal for the trial of treason and other related offences impinged on the
independence of the judiciary, inasmuch as such offences were being recognized in

107 UN doc. GAOR, A/52/40 (vol. I), p. 55, para. 344.

108 ACHPR, Constitutional Rights Project (in respect of Wahab Akamu, Gbolahan Adeaga and Others) v. Nigeria, Communication No. 60/91,
decision adopted on 3 November 1994, 16th session, paras. 36-37; text can be found at http://www.up.ac.za/chr/; for a similar case, see
ACHPR, Constitutional Rights Project (in respect of Zamani Lekwot and 6 Others) v. Nigeria, Communication No. 87/93, decision adopted during the
16th session, October 1994, paras. 30-31; for the text, see preceding web site.
109 ACHPR, Media Rights Agenda (on behalf of Niran Malaolu) v. Nigeria, Communication No. 224/98, decision adopted during the 28th session,
23 October – 6 November 2000, paras. 6-8; for the text of the decision, see http://www1.umn.edu/humanrts/africa/comcases/224-98.html.
110 Ibid., para. 62; Commission’s own emphasis.
111 Ibid., loc. cit.; emphasis added.

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Nigeria as falling within the jurisdiction of the regular courts; and that the trial before
the Court further violated the right to a fair trial as guaranteed by article 7(1)(d) of the
African Charter and Principle 5 of the Basic Principles on the Independence of the
Judiciary, which provides that
“Everyone shall have the right to be tried by ordinary courts or tribunals
using established legal procedures. Tribunals that do not use the duly
established procedures of the legal process shall not be created to displace
the jurisdiction belonging to the ordinary courts or judicial tribunals.”

Furthermore, the Tribunal also violated article 26 of the Charter, according to

which the States parties “shall have the duty to guarantee the independence of the
Courts”.112
Lastly, in a case concerning a Special Military Tribunal set up under the
Nigerian Military Government, the African Commission had to consider the fairness
of legal proceedings before this court against military officers accused of offences
punishable in terms of military discipline. In this case the Commission stated that it
“... must be clearly understood that the military tribunal here is one under
an undemocratic military regime. In other words, the authority of the
Executive and the Legislature has been subsumed under the military rule.
Far from this suggesting that military rulers have carte blanche to govern at
the whim of a gun, we wish to underscore the fact that the laws of human
rights, justice and fairness must still prevail.”113

It was the view of the Commission, furthermore, that “the provisions of

Article 7 should be considered non-derogable, providing as they do the minimum
protection to citizens and military officers alike, especially under an unaccountable,
undemocratic military regime”. The Commission thereafter referred to General
Comment No. 13 of the Human Rights Committee, as well as the case-law of the
European Commission of Human Rights, according to which “the purpose of
requiring that courts be ‘established by law’ is that the organization of justice must not
depend on the discretion of the Executive, but must be regulated by laws emanating
from parliament”. The African Commission added with regard to military tribunals that
the “critical factor is whether the process is fair, just and impartial”.114 While
considering that “a military tribunal per se is not offensive to the rights in the Charter”
and does not imply “an unfair or unjust process”, the Commission made the point that
“Military Tribunals must be subject to the same requirements of fairness,
openness, and justice, independence, and due process as any other process.
What causes offence is failure to observe basic and fundamental standards
that would ensure fairness.”115

112 Ibid., para. 66.

113 ACHPR, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v. Nigeria, Communication No. 218/98,
decision adopted during the 29th Ordinary session, 23 April – 7 May 2001, at p. 3 of the text published at
http://www1.umn.edu/humanrts/africa/comcases/218-98.html.
114 Ibid., loc. cit.
115 Ibid., p. 6, para. 44.

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Since the military tribunal had in this case already failed the independence test,
the Commission did not find it necessary also to decide whether the fact that the
tribunal was presided over by a military officer was another violation of the Charter.116

*****

In its judgment on the merits of the case of Castillo Petruzzi et al., the
Inter-American Court of Human Rights found that the military tribunals that had tried
the victims for the crimes of treason “did not meet the requirements implicit in the
guarantees of independence and impartiality that Article 8(1) of the American
Convention recognizes as essentials of due process of law”.117 In 1992 a decree-law had
extended the competence of military courts to try civilians accused of treason
“regardless of temporal considerations”, while previously they had been allowed to do
so only when the country was at war abroad. DINCOTE, the National
Counter-Terrorism Bureau, “was given investigative authority, and a summary
proceeding ‘in the theatre of operations’ was conducted, as stipulated in the Code of
Military Justice”.118 The pertinent parts of the Court’s reasoning read as follows:
“128. ... Transferring jurisdiction from civilian courts to military courts,
thus allowing military courts to try civilians accused of treason, means that
the competent, independent and impartial tribunal previously established
by law is precluded from hearing these cases. In effect, military tribunals
are not the tribunals previously established by law for civilians. Having no
military functions or duties, civilians cannot engage in behaviours that
violate military duties. When a military court takes jurisdiction over a
matter that regular courts should hear, the individual’s right to a hearing by
a competent, independent and impartial tribunal previously established by
law and, a fortiori, his right to due process are violated. That right to due
process, in turn, is intimately linked to the very right of access to the courts.

129. A basic principle of the independence of the Judiciary is that every

person has the right to be heard by regular courts, following procedures
previously established by law. States are not to create ‘tribunals that do not
use the duly established procedures of the legal process ... to displace the
jurisdiction belonging to the ordinary courts or judicial tribunals’.119

130. Under article 8(1) of the American Convention, a presiding judge

must be competent, independent and impartial. In the case under study,
the armed forces, fully engaged in the counter-insurgency struggle, are also
prosecuting persons associated with insurgency groups. This considerably
weakens the impartiality that every judge must have. Moreover, under the
Statute of Military Justice, members of the Supreme Court of Military
Justice, the highest body in the military judiciary, are appointed by the
minister of the pertinent sector. Members of the Supreme Court of
Military Justice also decide who among their subordinates will be

116 Ibid., loc. cit.

117 I-A Court HR, Castillo Petruzzi et al. case v. Peru, judgment of May 30, 1999, in OAS doc. OEA/Ser.L/V/III.47, doc. 6, Annual
Report I-A Court HR 1999, Appendix IX, p. 263, para. 132.
118 Ibid., p. 262, para. 127.
119 The Court here quoted the United Nations Basic Principles on the Independence of the Judiciary.

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promoted and what incentives will be offered to whom; they also assign
functions. This alone is enough to call the independence of the military
judges into serious question”.120

With regard to the fact that the presiding judges were “faceless” the Court
said, more specifically, that in such cases “defendants have no way of knowing the
identity of their judge and therefore, of assessing their competence”. An additional
problem was “the fact that the law does not allow these judges to recuse themselves”.121
In the Genie Lacayo case, however, the Court stated that the fact that it involved
a military court did not per se signify that the human rights guaranteed to the accusing
party by the Convention were being violated.122 In this particular case, the applicant had
been “able to participate in the military proceeding, submit evidence, avail himself of
the appropriate remedies and, lastly, apply for judicial review before the Supreme Court
of Justice of Nicaragua”; consequently, he could not claim that the application of the
decrees on military trials had restricted his procedural rights as protected by the
Convention.123 As to the allegation that the decrees concerning military trials violated
the principle of independence and impartiality of the military tribunals, not only
because of their composition, particularly in the second instance where senior army
officials were involved, but also because of the possible use of ideological elements
such as that of “Sandinista juridical conscience” on evaluation of evidence, the Court felt
that
“... although those provisions were in force when the military case was
heard and ... could have impaired the independence and impartiality of the
military tribunals that heard the case, they were not applied in this specific
Case”.124

On the other hand, the Court admitted that in the military court of first
instance the court had, inter alia, invoked a legal provision in which the expression
“Sandinista law” was used; however, this term had “only a superficial ideological
connotation” and it had “not been proven that the invoking [thereof had] either
diminished the impartiality and independence of the tribunals or violated Mr. Raymond
Genie-Peñalba’s procedural rights”.125
In the light of the different reasoning in these two judgments rendered by the
Inter-American Court of Human Rights the question might be raised whether, with
respect to the second case, it would not have been appropriate to apply the principle
that justice must not only be done but also be seen to be done.

120 Ibid., pp. 262-263, paras. 128-130.

121 Ibid., p. 263, para. 133. The Inter-American Commission on Human Rights has also severely criticized the use of “faceless
judges” in Peru; see OAS doc. OEA/Ser.L/V/II.95, doc. 7 rev., Annual Report of the Inter-American Commission on Human Rights 1996,
pp. 736-737.
122 I-A Court HR, Genie Lacayo Case, judgment of January 29, 1997, in OAS doc. OAS/Ser.L/V/III.39, doc. 5, Annual Report I-A Court
HR 1997, p. 54, para. 84.
123 Ibid., p. 54, para. 85.
124 Ibid., p. 54, para. 86.
125 Ibid., para. 87.

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Lastly, the Inter-American Commission on Human Rights has recommended

that all member States of the OAS
“... take the legislative and other measures necessary, pursuant to article 2
of the American Convention, to ensure that civilians charged with criminal
offences of any kind be tried by ordinary courts which offer all the essential
guarantees of independence and impartiality, and that the jurisdiction of
military tribunals be confined to strictly military offences”.126

*****

While the European Court of Human Rights has decided, with respect to
Turkey, that it considers that “its task is not to determine in abstracto the necessity for the
establishment of National Security Courts”, it still has the task of examining whether,
“viewed objectively”, the applicants concerned, being civilians, “had a legitimate reason
to fear that [the court trying them] lacked independence and impartiality”.127 In the
Sürek case, among others, the applicant was prosecuted in the Istanbul National
Security Court for disclosing the identity of officials involved in the fight against
terrorism; the Court concluded that it was understandable that he “should have been
apprehensive about being tried by a bench which included a regular army officer, who
was a member of the Military Legal Service”.128 It followed that
“he could legitimately fear that the Istanbul National Security Court might
allow itself to be unduly influenced by considerations which had nothing to
do with the nature of the case. In other words, the applicant’s fears as to
that court’s lack of independence and impartiality can be regarded as
objectively justified. The proceedings in the Court of Cassation were not
able to dispel these fears since that court did not have full jurisdiction.”129

As to the trial of army officers by courts martial, the European Court of Human
Rights has in numerous cases had to consider whether such courts in the United
Kingdom have been “independent and impartial” within the meaning of article 6(1) of
the European Convention on Human Rights. In the case of Findlay, for instance, it
concluded that a court martial did not comply with these requirements in view in
particular of the central part played in the prosecution by the convening officer, who
“decided which charges should be brought and which type of court martial was most
appropriate”; he further “convened the court martial and appointed its members and
the prosecuting and defending officers”.130 Furthermore, the court members appointed
by the convening officer were of subordinate rank to him, and many of these members,
including the president, “were directly or ultimately under his command”. The

126 OAS doc. OEA/Ser.L/V/II.95, doc. 7 rev., Annual Report of the Inter-American Commission on Human Rights 1996, p. 761.
127 See e.g. Eur. Court HR, Case of Sürek v. Turkey, judgment of 8 July 1999.
128 Ibid., loc. cit.
129 Ibid. For similar cases see e.g. Eur. Court HR, Case of Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1547 ff.; Eur.
Court HR, Case of Çiraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VI, p. 3059 ff.; and Eur. Court HR, Case of Okçuoglu v.
Turkey, judgment of 8 July 1999; for the text of this judgment, see http://www.echr.coe.int.
130 Eur. Court HR, Case of Findlay v. the United Kingdom, judgment of 21 January 1997, Reports 1997-I, p. 281, para. 74.

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convening officer also “had the power, albeit in prescribed circumstances, to dissolve
the court martial either before or during the trial”.131 The European Court concluded
that “in order to maintain confidence in the independence and impartiality of the court,
appearances may be of importance”, and that, since “the members of the court martial
... were subordinate in rank to the convening officer and fell within his chain of
command, Mr. Findlay’s doubts about the tribunal’s independence and impartiality
could be objectively justified”.132
For the European Court of Human Rights it was also of importance that the
convening officer was “confirming officer”, in that “the decision of the court martial
was not effective until ratified by him, and he had the power to vary the sentence
imposed as he saw fit”.133 In the view of the Court this competence was
“... contrary to the well-established principle that the power to give a
binding decision which may not be altered by a non-judicial authority is
inherent in the very notion of ‘tribunal’ and can also be seen as a
component of the ‘independence’ required by Article 6 § 1”.134

The fair trial or due process guarantees in international human rights

law, including the condition of independence and impartiality of the
Judiciary, apply with full force to military and other special courts or
tribunals also when trying civilians.
Under the African Charter on Human and Peoples’ Rights, military
tribunals shall under no circumstances try civilians, and special tribunals
shall not deal with cases falling within the jurisdiction of ordinary courts
of law.
Although the Human Rights Committee has not, as such, held that
trials of civilians by military courts would in all circumstances be
unlawful under article 14 of the International Covenant on Civil and
Political Rights, the clear trend is to recommend that the States parties
transfer the competence of such courts in all cases concerning civilians to
the ordinary courts of law.

131 Ibid., p. 282, para. 75.

132 Ibid., para. 76.
133 Ibid., para. 77.
134 Ibid., loc. cit. For similar cases, see e.g. Eur. Court HR, Case of Coyne v. the United Kingdom, judgment of 24 September 1997,Reports
1997-V, p. 1842 ff., and Eur. Court HR, Case of Cable and Others v. the United Kingdom, judgment of 18 February 1999; see
http://www.echr.coe.int.

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5. International Law and the

Independence of Prosecutors
5.1 Guidelines on the Role of Prosecutors, 1990
The need for strong, independent and impartial prosecutorial authorities for
the effective maintenance of the rule of law and human rights standards has already
been emphasized in this chapter. While the specific professional duties of prosecutors
under international human rights law will be further dealt with whenever relevant in this
Manual, the present section will limit itself to providing an overview of the contents of
the Guidelines on the Role of Prosecutors, which were adopted by the Eighth United
Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990
“to assist Member States in their tasks of securing and promoting the effectiveness,
impartiality and fairness of prosecutors in criminal proceedings” (final preambular
paragraph).
This document provides 24 Guidelines covering the following questions:
qualifications, selection and training; status and conditions of service; freedom of
expression and association; role in criminal proceedings; discretionary functions;
alternatives to prosecution; relations with other government agencies or institutions;
disciplinary proceedings; and observance of the Guidelines.
As noted in the fifth preambular paragraph of the Guidelines as read in
conjunction with the second preambular paragraph, “prosecutors play a crucial role in
the administration of justice, and rules concerning the performance of their important
responsibilities should promote their respect and compliance with ... the principles of
equality before the law, the presumption of innocence and the right to a fair and public
hearing by an independent and impartial tribunal...” for the purpose of “contributing to
fair and equitable criminal justice and the effective protection of citizens against crime”.

5.2 Professional qualifications

Guidelines 1 and 2 provide respectively that “persons selected as prosecutors
shall be individuals of integrity and ability, with appropriate training and qualifications”,
and that States shall ensure that “selection criteria for prosecutors embody safeguards
against appointments based on partiality or prejudice” on various stated grounds,
“except that it shall not be considered discriminatory to require a candidate for
prosecutorial office to be a national of the country concerned”. Further, according to
Guideline 2(b), States shall ensure that “prosecutors have appropriate education and
training and should be made aware of the ideals and ethical duties of their office, of the
constitutional and statutory protections for the rights of the suspect and the victim, and
of human rights and fundamental freedoms recognized by national and international
law”.

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5.3 Status and conditions of service

While prosecutors, “as essential agents of the administration of justice, shall at
all times maintain the honour and dignity of their profession” (Guideline 3), States
shall, for their part, “ensure that prosecutors are able to perform their professional
functions without intimidation, hindrance, harassment, improper interference or
unjustified exposure to civil, penal or other liability” (Guideline 4). Furthermore,
“prosecutors and their families shall be physically protected by the authorities when
their personal safety is threatened as a result of the discharge of prosecutorial
functions” (Guideline 5). The law or published regulations shall, inter alia, set out
“reasonable conditions of service of prosecutors, adequate remuneration”, and,
wherever a system of promotion exists, it “shall be based on objective factors, in
particular professional qualifications, ability, integrity and experience, and decided
upon in accordance with fair and impartial procedures” (Guidelines 6 and 7).
It is noteworthy that, unlike these Guidelines, the Basic Principles on the
Independence of the Judiciary contain no specific provision concerning the duty of
States to protect judges’ personal safety when necessary.

5.4 Freedom of expression and association

“Prosecutors like other citizens are entitled to freedom of expression, belief,
association and assembly”, and they have, in particular, “the right to take part in public
discussion of matters concerning the law, the administration of justice and the
promotion and protection of human rights and to join or form local, national and
international organizations and attend their meetings, without suffering professional
disadvantage by reason of their lawful action or their membership in a lawful
organization.” However, “in exercising these rights, prosecutors shall always conduct
themselves in accordance with the law and the recognized standards and ethics of their
profession” (Guideline 8).

5.5 The role in criminal proceedings

As to its role in criminal proceedings, “the office of prosecutors shall be
strictly separated from judicial functions” (Guideline 10). Furthermore, prosecutors
“shall perform an active role in criminal proceedings, including institution
of prosecution and, where authorized by law or consistent with local
practice, in the investigation or crime, supervision over the legality of these
investigations, supervision of the execution of court decisions and the
exercise of other functions as representatives of the public interest”
(Guideline 11).

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Like judges, prosecutors cannot act according to their own preferences but
are duty-bound to act “in accordance with the law” and to
“perform their duties fairly, consistently and expeditiously, and respect and
protect human dignity and uphold human rights, thus contributing to
ensuring due process and the smooth functioning of the criminal justice
system” (Guideline 12).

In performing their duties, prosecutors shall, inter alia, “carry out their
functions impartially and avoid all political, social, religious, racial, cultural, sexual or
any other kind of discrimination”, and
“shall give due attention to the prosecution of crimes committed by public
officials, particularly corruption, abuse of power, grave violations of
human rights and other crimes recognized by international law and, where
authorized by law or consistent with local practice, the investigation of
such offences” (Guideline 15).

Prosecutors have a special obligation with regard to “evidence against

suspects that they know or believe on reasonable grounds was obtained through
recourse to unlawful methods, which constitute a grave violation of the suspect’s
human rights, especially involving torture or cruel, inhuman or degrading treatment or
punishment, or other abuses of human rights”. In situations of this kind they shall
either “refuse to use such evidence against anyone other than those who used such
methods, or inform the Court accordingly, and shall take all necessary steps to ensure
that those responsible for using such methods are brought to justice” (Guideline 16).
The Human Rights Committee expressed concern with regard to France “at
existing procedures of investigation against the police for human rights abuses” and
also “at the failure or inertia of prosecutors in applying the law to investigating human
rights violations where law enforcement officers are concerned and at the delays and
unreasonably lengthy proceedings in investigation and prosecution of alleged human
rights violations involving law enforcement officers”. It therefore recommended that
the State party “take appropriate measures fully to guarantee that all investigations and
prosecutions are undertaken in full compliance with” the provisions of articles 2(3), 9
and 14 of the Covenant.135

5.6 Alternatives to prosecution

The Guidelines concerning alternatives to prosecution, in particular in cases
where the prosecutors are dealing with juveniles (Guidelines 18 and 19) will be dealt
with in Chapter 10 concerning The Rights of the Child in the Administration of Justice.

135 UN doc. GAOR, A/52/40 (vol. I), para. 402.

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5.7 Accountability
Disciplinary proceedings against prosecutors alleged to have “acted in a
manner clearly out of the range of professional standards shall be processed
expeditiously and fairly under appropriate procedures”. Prosecutors “shall have the
right to a fair hearing”; and, as with respect to judges, the decision “shall be subject to
independent review”, a requirement that eliminates the possibility of undue
interference by the Executive and strengthens the independence of the prosecutors
(Guideline 21).

Prosecutors fulfil an essential function in the administration of justice and

must be strictly separated from the Judiciary and the Executive.
Prosecutors must, in particular:
l be able to perform their professional duties in criminal proceedings in
safety, without hindrance or harassment;
l act objectively and impartially, respect the principles of equality before
the law, the presumption of innocence and due process guarantees;
l give due attention to human rights abuses committed by public
officials, including law enforcement officials;
l not use evidence obtained by unlawful methods which violate human
rights (forced confessions through torture, etc.).

6. International Law and the

Independence of Lawyers
6.1 Applicable international law
In addition to independent and impartial judges and prosecutors, lawyers
constitute the third fundamental pillar for maintaining the rule of law in a democratic
society and ensuring the efficient protection of human rights. As stated in the ninth
preambular paragraph of the Basic Principles on the Role of Lawyers, which were
adopted by the Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders in 1990:
“... adequate protection of the human rights and fundamental freedoms to
which all persons are entitled, be they economic, social and cultural, or civil
and political, requires that all persons have effective access to legal services
provided by an independent legal profession”.

In order to be able to carry out their professional duties effectively, lawyers

must not only be granted all the due process guarantees afforded by domestic and
international law, but must also be free from pressures of the kind previously described

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with regard to judges and prosecutors: in other words, a just and efficient
administration of justice requires that lawyers too should be allowed to work
without being subjected to physical attacks, harassment, corruption, and other
kinds of intimidation.
The various procedural guarantees contained in international law that allow
lawyers to represent the interests of their clients in an independent and efficient manner
in civil and criminal proceedings will be considered in other parts of this Manual. Here,
the analysis will be limited to highlighting some of the main principles contained in the
Basic Principles on the Role of Lawyers, as well as some statements made, and cases
decided by, the international monitoring organs concerning the rights of lawyers.

6.2 Duties and responsibilities

Principle 12 of the Basic Principles provides that “lawyers shall at all times
maintain the honour and dignity of their profession as essential agents of the
administration of justice”, and, according to Principle 13, their duties “shall include:
(a) Advising clients as to their legal rights and obligations, and as to the
working of the legal system in so far as it is relevant to the legal rights and
obligations of the clients;

(b) Assisting clients in every appropriate way, and taking legal action to
protect their interests;

(c) Assisting clients before courts, tribunals or administrative authorities,

where appropriate”.

In “protecting the rights of their clients and in promoting the cause of

justice”, lawyers shall also “seek to uphold human rights and fundamental freedoms
recognized by national and international law and shall at all times act freely and
diligently in accordance with the law and recognized standards and ethics of the legal
profession” (Principle 14). Lastly, “lawyers shall always loyally respect the interests of
their clients” (Principle 15).

6.3. Guarantees for the functioning of lawyers

According to Principle 16 of the Basic Principle on the Role of Lawyers,
“Governments shall ensure that lawyers (a) are able to perform all of their
professional functions without intimidation, hindrance, harassment or
improper interference; (b) are able to travel and to consult with their clients
freely both within their own country and abroad; and (c) shall not suffer, or
be threatened with, prosecution or administrative, economic or other
sanctions for any action taken in accordance with recognized professional
duties, standards and ethics.”

Furthermore, “where the security of lawyers is threatened as a result of

discharging their functions, they shall be adequately safeguarded by the authorities”
(Principle 17).

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As already mentioned, every year many lawyers are killed, threatened,

intimidated or harassed in various ways in order to prevail upon them to relinquish the
defence of clients seeking to claim their rights and freedoms. It is therefore essential
that Governments do their utmost to protect lawyers against this kind of interference in
the exercise of their professional duties.

*****

The African Commission has concluded that the right to defence as

guaranteed by article 7(1)(c) of the African Charter on Human and Peoples’ Rights was
violated in a case where two defence teams had been “harassed into quitting the
defence of the accused persons”.136

*****

Another important rule is laid down in Principle 18, according to which

“lawyers shall not be identified with their clients or their clients’ causes as a result of
discharging their functions”. The question of lawyers’ identification with their clients
has been dealt with by the Special Rapporteur on the independence of judges and
lawyers, who in 1998 for instance stated that he viewed “with some concern the
increased number of complaints concerning Governments’ identification of lawyers
with their clients’ cause”, adding that lawyers “representing accused persons in
politically sensitive cases are often subjected to such accusations”.137 However,
“identifying lawyers with their clients’ causes, unless there is evidence to that effect,
could be construed as intimidating and harassing the lawyers concerned”. According to
the Special Rapporteur, “Governments have an obligation to protect such lawyers from
intimidation and harassment”.138 If Governments have evidence to the effect that
lawyers identify themselves with their clients’ cause, it is, as stressed by the Special
Rapporteur, “incumbent on [them] to refer the complaints to the appropriate
disciplinary bodies of the legal profession”,139 where, as described below, they will be
dealt with in accordance with due process of law.
The question of identification of lawyers with their clients is particularly
relevant when they are called upon to represent human rights defenders. However, here
too lawyers must be given the same guarantees of security enabling them to carry out
their professional duties independently and efficiently without governmental or other
undue interference. Again, any alleged professional misconduct should be referred to
the established independent organs.
With regard to guarantees for the functioning of lawyers, Principle 19 of the
Basic Principles also provides that

136 ACHPR, International Pen, Constitutional Rights Project, Interights (on behalf of Ken Saro-Wiwa Jr. And Civil Liberties Organisation) v.
Nigeria, Communications Nos. 137/94, 139/94, 154/96 and 161/97, decision adopted on 31 October 1998, para. 101; text of the decision to be
found at the following web site: http://www1.umn.edu/humanrts/africa/comcases/137-94_139-94_154-96_161-97.html.
137 UN doc. E/CN.4/1998/39, Report of the Special Rapporteur on the independence of judges and lawyers, para. A.1 of the Conclusions.
138 Ibid., loc. cit.
139 Ibid., para. 2

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“No court or administrative authority before whom the right to counsel is

recognized shall refuse to recognize the right of a lawyer to appear before it
for his or her client unless that lawyer has been disqualified in accordance
with national law and practice and in conformity with these principles.”

Lastly, Principle 20 adds that

“Lawyers shall enjoy civil and penal immunity for relevant statements
made in good faith in written or oral pleadings or in their professional
appearances before a court, tribunal or other legal or administrative
authority.”

6.4 Lawyers and fundamental freedoms

Principle 23 of the Basic Principles on the Role of Lawyers provides that
“Lawyers like other citizens are entitled to freedom of expression, belief,
association and assembly. In particular, they shall have the right to take part
in public discussion of matters concerning the law, the administration of
justice and the promotion and protection of human rights and to join or
form local, national or international organizations and attend their
meetings, without suffering professional restrictions by reason of their
lawful action or their membership in a lawful organization. In exercising
these rights, lawyers shall always conduct themselves in accordance with
the law and the recognized standards and ethics of the legal profession.”

Principle 24 further states that lawyers “shall be entitled to form and join
self-governing professional associations to represent their interests, promote their
continuing education and training and protect their professional integrity”. Moreover,
according to this principle “the executive body of the professional associations shall be
elected by its members and shall exercise its functions without external interference”. It
follows from this principle that these associations shall aim at safeguarding the
professional interests of the lawyers and strengthening the independence of the legal
profession. As pointed out by the Special Rapporteur, Bar Associations shall not,
consequently, be used “to indulge in partisan politics” whereby they would
compromise “the independence of the legal profession”.140

6.4.1 Executive permission to exercise the legal profession

One of the keys to ensuring the independence of lawyers is to allow them to
work freely without being obliged to obtain clearance or permission from the Executive
to carry out their work. This view was confirmed by the Human Rights Committee with
regard to Belarus when it noted with concern “the adoption of the Presidential Decree
on the Activities of Lawyers and Notaries of 3 May 1997, which gives competence to
the Ministry of Justice for licensing lawyers and obliges them, in order to be able to
practise, to be members of a centralized Collegium controlled by the Ministry, thus
undermining the independence of lawyers”. Stressing that “the independence of the
judiciary and the legal profession is essential for a sound administration of justice and

140 UN doc. E/CN.4/1995/39, Report of the Special Rapporteur on the independence and impartiality of the judiciary, jurors and assessors and the
independence of lawyers, para. 72.

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for the maintenance of democracy and the rule of law”, the Committee urged the State
party “to take all appropriate measures, including review of the Constitution and the
laws, in order to ensure that judges and lawyers are independent of any political or other
external pressure”.141 In this respect the Committee drew the attention of the State
party to the Basic Principles on the Independence of the Judiciary as well as the basic
Principles on the Role of Lawyers.142
The Committee has also expressed “serious doubts” both as to the
independence of the Judiciary in the Libyan Arab Jamahiriya and as to “the liberty of
advocates to exercise their profession freely, without being in the employment of the
State, and to provide legal services”; it recommended “that measures be taken to ensure
full compliance with article 14 of the Covenant as well as with United Nations Basic
Principles on the Independence of the Judiciary and the basic Principles on the Role of
Lawyers”.143

*****

It is thus beyond doubt that the obligation in some States for lawyers to be in
government employment runs counter to the fair trial guarantees laid down in article 14 of
the International Covenant on Civil and Political Rights.

6.4.2 The right to peaceful assembly

In the case of Ezelin, the European Court of Human Rights examined the
justifiability of an interference with the entitlement of an avocat in France to exercise his
right to peaceful assembly. In this particular case, the Court examined the complaint
under article 11 of the European Convention on Human Rights, which guarantees the
right to peaceful assembly, as a lex specialis in relation to article 10 of the Convention,
which secures the right to freedom of expression. The lawyer had been reprimanded for
taking part in a demonstration in the course of which some unruly incidents occurred.
He was disciplined for having failed to dissociate himself from these incidents,
although he had not in any way been violent or unruly himself. This conduct was judged
“inconsistent with the obligations of his profession”.144 The Court examined, “in the
light of the case as a whole”, whether the reprimand “was proportionate to the
legitimate aim pursued, having regard to the special importance of freedom of peaceful
assembly and freedom of expression, which are closely linked in this instance”.145 It
concluded that
“the proportionality principle demands that a balance be struck between
the requirements of the purposes listed in Article 11 § 2 and those of the
free expression of opinions by word, gesture or even silence by persons
assembled on the streets or in other public places. The pursuit of a just
balance must not result in avocats being discouraged, for fear of disciplinary
sanctions, from making clear their beliefs on such occasions”.146

141 UN doc. GAOR, A/53/40, para. 150.

142 Ibid., loc. cit.
143 UN doc. GAOR, A/54/40, para. 134.
144 Eur. Court HR, Ezelin v. France judgment of 26 April 1991, Series A, No. 202, p. 20, para. 38.
145 Ibid., p. 23, para. 51.
146 Ibid., para. 52.

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Although “minimal” in this case, the sanction against Mr. Ezelin did “not
appear to have been ‘necessary in a democratic society’” and therefore violated article
11 of the Convention.147 The European Court of Human Rights consequently
construes very strictly the possibilities for the States parties to limit the exercise of the
right to peaceful assembly, even in the case of lawyers.

6.4.3 The right to freedom of association

In a case against Nigeria, the African Commission on Human and Peoples’
Rights had to consider whether the Legal Practitioners (Amendment) Decree, 1993,
was consistent with the terms of the African Charter on Human and Peoples’ Rights.
This decree established a new governing body of the Nigerian Bar Association; of the
total of 128 members of this organ, called the Body of Benchers, only 31 were
nominees of the Bar Association while the other members were nominated by the
Government.148
As pointed out by the Commission, the Body of Benchers was “dominated by
representatives of the government” and had “wide discretionary powers, among them
the disciplining of lawyers”; as “an association of lawyers legally independent of the
government, the Nigerian Bar Association should be able to choose its own governing
body”. The Commission added that “interference with the self-governance of the Bar
Association may limit or negate the reasons for which lawyers desire in the first place to
form an association”.149 The Commission next pointed out that it had
“... resolved several years ago that, where regulation of the right to freedom
of association is necessary, the competent authorities should not enact
provisions which limit the exercise of this freedom or are against
obligations under the Charter. The competent authorities should not
override constitutional provisions or undermine fundamental rights
guaranteed by the constitution and international human rights
instruments”.150

In the present case, the Government intervention in the governing of the

Nigerian Bar Association was “inconsistent with the preamble of the African Charter,
where states reaffirm adherence to the principles of human and peoples’ rights
contained in declarations such as the UN Principles on the Independence of the
judiciary and thereby constitutes a violation of Article 10 of the African Charter”, which
guarantees the right to freedom of association.151

147 Ibid., para. 53.

148 ACHPR, Civil Liberties Organisation v. Nigeria (in respect of the Nigerian Bar Association), Communication No. 101/93, decision adopted
during the 17th Ordinary session, March 1995, para, 1; for the text of the decision, see http://www.up.ac.za/chr/.
149 Ibid., para. 24.
150 Ibid., para. 25; footnote omitted.
151 Ibid., para. 26; footnote omitted.

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6.4.4 The right to freedom of expression

In the case of Schöpfer, the European Court of Human Rights arrived at the
conclusion that there had been no violation of article 10 of the European Convention
on Human Rights when the Lawyers’ Supervisory Board in the Canton of Lucerne,
Switzerland, imposed a fine of 500 Swiss francs on the applicant for breach of
professional ethics after he had called a press conference at which he criticized the
actions of a district prefect and two district clerks in a pending case in which he was
involved. The Court confirmed its previous jurisprudence according to which “the
special status of lawyers gives them a central position in the administration of justice as
intermediaries between the public and the courts”, adding that “such a position
explains the usual restrictions on the conduct of members of the Bar”.152 Considering
that “the courts – the guarantors of justice, whose role is fundamental in a State based
on the rule of law – must enjoy public confidence”, and, having regard, furthermore, to
“the key role of lawyers in this field, it is legitimate to expect them to contribute to the
proper administration of justice, and thus to maintain public confidence therein”.153
Quite significantly, it emphasized that
“It also goes without saying that freedom of expression is secured to
lawyers too, who are certainly entitled to comment in public on the
administration of justice, but their criticism must not overstep certain
bounds. In that connection, account must be taken of the need to strike the
right balance between the various interests involved, which include the
public’s right to receive information about questions arising from judicial
decisions, the requirements of the proper administration of justice and the
dignity of the legal profession... . Because of their direct, continuous
contact with their members, the Bar authorities and a country’s courts are
in a better position than an international court to determine how, at a given
time, the right balance can be struck. That is why they have a certain margin
of appreciation in assessing the necessity of an interference in this area, but
this margin is subject to European supervision as regards both the relevant
rules and the decisions applying them”.154

The Court concluded in this case that, in imposing a fine of “modest amount”,
the authorities had not gone beyond their margin of appreciation in punishing the
lawyer. It noted that the lawyer had in this case “raised in public his complaints on the
subject of criminal proceedings which were at that time pending before a criminal
court”, and, “in addition to the general nature, the seriousness and the tone of the
applicant’s assertions”, he had “first held a press conference, claiming that this was his
last resort, and only afterwards lodged an appeal before the Lucerne Court of Appeal,
which was partly successful”; lastly, he had also failed to apply to the prosecutor’s
office, “whose ineffectiveness he did not attempt to establish except by means of mere
assertions”.155

152 Eur. Court HR, Schöpfer case v. Switzerland, judgment of 20 May 1998, Reports 1998-III, p. 1052, para. 29.
153 Ibid. p. 1053.
154 Ibid., pp. 1053-1054, para. 33.
155 Ibid., p. 1054, para. 34.

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6.5 Codes of professional discipline

With regard to professional discipline, Principle 26 of the Basic Principles
provides that
“Codes of professional conduct for lawyers shall be established by the legal
profession through its appropriate organs, or by legislation, in accordance
with national law and custom and recognized international standards and
norms.”

Complaints against lawyers “shall be processed expeditiously and fairly under

appropriate procedures”, and lawyers “shall have the right to a fair hearing, including
the right to be assisted by a lawyer of their choice” (Principle 27). Furthermore,
“disciplinary proceedings against lawyers shall be brought before an impartial
disciplinary committee established by the legal profession, before an independent
statutory authority, or before a court, and shall be subject to an independent judicial
review” (Principle 28). Finally, all such proceedings “shall be determined in accordance
with the code of professional conduct and other recognized standards and ethics of the
legal profession and in the light of these principles” (Principle 29).
It follows from these principles that any disciplinary proceedings against
lawyers who are accused of having failed to conduct themselves in accordance with the
recognized standards and ethics of their profession must be truly independent of the
Executive and guarantee due process in the course of the proceedings.

Lawyers constitute a fundamental pillar for maintaining the rule of law

and ensuring the effective protection of human rights. In order to be able
to fulfil their professional duties, lawyers must, in particular:
l be able to work in true independence, free from external political or
other pressure, threats and harassment; e.g., they shall not have to
obtain Executive permission to exercise their professional duties;
l be ensured due process guarantees, which include the legal right and
duty to advise and assist their clients in every appropriate way in order
to protect their interests;
l be able to act to uphold nationally and internationally recognized
human rights;
l be allowed to answer for violations of rules of professional conduct
before an independent disciplinary board respecting due process
guarantees.
Lawyers also enjoy the fundamental freedoms of association, assembly
and expression.

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7. Concluding Remarks
As emphasized throughout this chapter, judges, prosecutors and lawyers are
three professional groups that play a crucial role in the administration of justice and in
the prevention of impunity for human rights violations. They are consequently also
essential for the preservation of a democratic society and the maintenance of a just rule
of law. It is therefore indispensable that States assume their international legal duties
derived from the various sources of international law, whereby they must permit
judges, prosecutors and lawyers to carry out their professional responsibilities
independently and impartially without undue interference from the Executive,
Legislature or private groups or individuals. States’ duty to secure the independence and
impartiality of judges and prosecutors and the independence of lawyers is not
necessarily fulfilled by passively allowing these professions to go about their business:
through having a legal obligation to ensure their independence, States may have to take
positive actions to protect judges, lawyers, and prosecutors against violence,
intimidation, hindrance, harassment or other improper interference so as to enable
them to perform all their professional functions effectively.
In situations where judges, prosecutors and lawyers are either unwilling or
unable fully to assume their responsibilities, inter alia of investigation and instituting
criminal proceedings against public officials suspected of corruption and serious
human rights violations, the rule of law cannot be maintained and human rights cannot
be enforced. It is not only individuals who will suffer in such a situation: it is the entire
free and democratic constitutional order of the State concerned that will ultimately be
in jeopardy.

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