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HUMAN RIGHTS, REFUGEE LAW AND

INTERNATIONAL HUMANITARIAN LAW

RIGHT TO DEVELOPMENT

Submitted To:

Submitted By:

PROF. GHULAM YAZDANI SIR

MOHD. AADIL KHAN

FACULTY OF LAW

III YEAR

BA LLB (H)

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TABLE OF CONTENT

INTRODUCTION

RIGHT TO DEVELOPMENT AS A HUMAN RIGHT

WHAT IS THE RIGHT TO DEVELOPMENT?

UNITED NATIONS MECHANISMS DEALING WITH THE RIGHT TO


DEVELOPMENT

WHAT IS THE ADDED VALUE OF THE RIGHT TO DEVELOPMENT?

HOW CAN THE RIGHT TO DEVELOPMENT BE OPERATIONALIZED


IN PRACTICAL TERMS?

THE DECLARATION ON THE RIGHT TO DEVELOPMENT

CENTRE/STATE ACTS AND RULES ON RIGHT TO DEVELOPMENT

BIBLIOGRAPHY

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ACKNOWLEDGEMENT

I express my deepest sense of gratitude to my reverend guide Ghulam Yazdani sir ,


Professor ,Jamia Millia Islamia , New Delhi for his countenance advice, adherent
interest and pain taking nature.
He spent no pains in correcting and expertly evaluating my project work. It is
pleasant opportunity to pay my regards and sincere thanks to Sir for his valuable
support, guidance and immediate help whenever I approached him.
Finally, I wish to thanks my parents and colleagues for their pleasant cooperation,
support and encouragement.
MOHD. AADIL KHAN
III YEAR
BA LLB (H)

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INTRODUCTION
The discourse on rights in India predates the formation of the modern Indian state.
1) Providing an important basis to the nationalist discourse on freedom and
numerous other subaltern struggles, rights have formed an integral part of the
Indian polity. Representing claims made upon the State, the notion of rights has
played an important role in defining certain fundamental precepts of the
obligations and duties that the Indian State has towards its citizens.
2) The Constitution of India, drafted roughly around the same period as the
Universal Declaration of Human Rights provides for a separate chapter on the
protection and promotion of Fundamental Rights.
3) However, unlike the Universal Declaration that does not distinguish between
sets of rights (civil, political, economic, social and cultural), the Indian
Constitution makes a fundamental distinction between justiciable and nonjusticiable rights.
4) While the protection and promotion of civil and political rights is legally binding
upon the State, the responsibilities of promoting economic, social and cultural
rights are relatively less explicit.
Enlisted as Directive Principles of State Policy, these do not enjoy the justiciable
status of fundamental rights, but are nevertheless important as they embody policy
guidelines that are to be progressively realised and observed by the State in good
faith. The present study on the implementation of the right to development, builds
on the normative and legal foundations for linking rights with development in the
Indian context. While India is an official signatory to the UN Declaration on the
Right to Development, discussions on the specifics of the right to development at
the formal level have been limited.

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Although there is recognition of the need to institutionalise more democratic norms


of governance, linkages to the right to development have not been sufficiently
explored.
At the policy level, while certain elements of a rights-based approach have been
institutionalised, the progress made in adopting a holistic and comprehensive
approach that characterises the right to development has been slow. The possibility
of the implementation of the right to development in India remains as yet a largely
untested proposition. Keeping in mind the constraints political, social, economic,
and cultural that typically inhibit development efforts in low and middle-income
countries, as well as the contradictions and challenges confronting development
within the country, there exists a strong case for exploring how the right to
development approach may be adopted in the Indian context. The term
development has been open to several conflicting interpretations. As an activity,
development has come to signify different things to different classes and groups of
people. The amazingly fast growth of consumerism in the contemporary period, its
coexistence with abominable conditions of poverty and deprivation, and the
absence of analysis regarding the distribution of benefits is a relevant illustration of
the problems of finding appropriate definitions of development. Whereas for some
people development is synonymous with economic growth, for others it is the
positive outcomes that flow from growth such as fulfilment of basic needs, human
development, opportunities and freedoms that qualify as development.
5) The conceptualisation of development as a process that consciously focuses on
the realisation of the human rights and fundamental freedoms. That form the
central proposition of the right to development provides a fresh and innovative
interpretation of development. Coined by the Senegalese jurist, Keba Mbaye, in
1972, the right to development has been amongst the most controversial issues in
contemporary international relations.
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In the last few years, there has been a significant re-examination of the concept and
value attached to adopting a rights-based approach to development, especially in
reducing the levels of poverty and deprivation prevalent across large areas of the
globe. At the policy level, the main discussion has been in the United Nations
forum, where the adoption of the Declaration on the Right to Development has
provided a rallying point around which academics, policy-makers and civil society
may formulate concrete proposals identifying the main parameters of the right. The
current resurgence of interest in the right to development amongst policy makers
and academia comes at a time when concerns are being expressed about the
contradictions and biases of the process of globalisation, especially its effects on
the lives of the poor in the developing world. The present study is part of a larger
research project undertaken by the Franois-Xavier Bagnoud Center for Health and
Human Rights of the Harvard School of Public Health. The Centre for
Development and Human Rights (New Delhi) has attempted to document the
prospects and challenges confronting the implementation of the right to
development; thus this report focuses on the meaningful applications of the right to
development in the realisation of basic needs and rights in India. The report is
based on preliminary research undertaken by the Centre concerning the application
of a rights-based framework in the areas of food, health and education.
The report has five main sections. Section I lays down the basic precepts of the
right to development approach that differentiates it from other approaches to
development. Section II presents an historical overview of the process of
development in India encompassing a review of the goals, policies, approaches
and structures influencing the formulation and implementation of development
programmes. Section III reviews the possibilities and implications of adopting the
rights approach in fulfilling the basic needs related to food, health and education in
development.
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Section IV outlines the role of international cooperation in realising the right to


development. The last section, Section V, presents the conclusions and main
findings of their search. The interpretations of development in human rights
language undoubtedly raise certain questions.
For example, how does the claim to a right to development actually help
individuals? To whom does the right belong and who are the duty bearers? What is
the scope of the right, or the range of specific cases or instances to which the right
applies? While the actual content and meaning of the right may still not be in a
final form, the importance of assimilating rights with development cannot be
discounted. For example, while a country may not consciously follow the right to
development model, it is still possible to identify the linkages between
development and rights and the extent to which the rights framework is interwoven
with the realisation of development. The section below takes a look at the basic
precepts of the right to development, before undertaking a larger discussion on the
relevance of the right to the Indian context.
The right to development can be rooted in the provisions of the Charter of the
United Nations, the Universal Declaration on Human Rights and the two
International Human Rights Covenants.
Through the United Nations Charter, Member States undertook to "promote social
progress and better standards of life in larger freedom" and "to achieve
international cooperation in solving international problems of an economic, social,
cultural or humanitarian character, and in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to race,
sex, language or religion."

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The Universal Declaration on Human Rights contains a number of elements that


became central to the international community's understanding of the right to
development. It attaches importance, for example, to the promotion of social
progress and better standards of life and recognizes the right to non-discrimination,
the right to participate in public affairs and the right to an adequate standard of
living. It also contains everyone's entitlement to a social and international order in
which the rights and freedoms set forth in the Declaration can be fully realized.
An important step towards the recognition of the right to development was UN
General Assembly resolution 1161 (XII). In this resolution, the General Assembly
expressed the view "that a balanced and integrated economic and social
development would contribute towards the promotion and maintenance of peace
and security, social progress and better standards of living, and the observance of
and respect for human rights and fundamental freedoms."
This theme was taken up at the International Conference on Human Rights, held in
Tehran, Islamic Republic of Iran, from 22 April to 13 May 1968. The Conference
expressed its belief "that the enjoyment of economic and social rights is inherently
linked with any meaningful and profound interconnection between the realization
of human rights and economic development." It recognized "the collective
responsibility of the international community to ensure the attainment of the
minimum standard of living necessary for the enjoyment of human rights and
fundamental freedoms by all persons throughout the world."
In 1969, the General Assembly, in its resolution 2542 (XXIV), adopted the
Declaration on Social Progress and Development, which states that "social
progress and development shall aim at the continuous raising of the material and

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spiritual standards of living of all members of society, with respect for and in
compliance with human rights and fundamental freedoms."
In its resolution 4 (XXXIII) of 21 February 1977, the UN Commission on Human
Rights decided to pay special attention to consideration of the obstacles impeding
the full realization of economic, social and cultural rights, particularly in
developing countries, and of national and international action to secure the
enjoyment of those rights. Recognizing the right to development as a human right,
the Commission requested the UN Secretary-General to undertake a study on "the
international dimensions of the right to development as a human right in relation
with other human rights based on international cooperation, including the right to
peace, taking into account the requirements of the New International Economic
Order and fundamental human needs." The study was submitted and considered by
the Commission on Human Rights at its thirty-fifth session in 1979.
The Commission subsequently, by its resolution 36 (XXXVII) of 11 March 1981,
established a working group of 15 governmental experts to study the scope and
contents of the right to development and the most effective means to ensure the
realization, in all countries, of the economic, social and cultural rights enshrined in
various international instruments, paying particular attention to the obstacles
encountered by developing countries in their efforts to secure the enjoyment of
human rights. It also requested the Working Group to submit a report with concrete
proposals for implementation of the right to development and for a draft
international instrument on this subject.
The right to development was proclaimed by the United Nations in 1986 in the
"Declaration on the Right to Development" which was adopted by the United
Nations General Assembly resolution 41/128.
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Right to Development as a Human Right


The existence of a right to development was first asserted in 1977. Following
many years of debate, that was centred on the conceptual differences
regarding the right and the political differences of states that reflected the cold war
tensions, the General Assembly adopted the Declaration on the Right to
Development (DRD) in 1986, proclaiming that: The right to development is an
inalienable human right by virtue of which every human person and all peoples are
entitled to participate in, contribute to, and enjoy economic, social, cultural and
political development, in which all human rights and fundamental freedoms can be
fully realized.
And in 1993, it was declared that the right to development is a universal and
inalienable right and an integral part of fundamental human rights. And
nowadays, references to the right to development are seen in all major UN
documents. The right includes: full sovereignty over natural resources, selfdetermination, popular participation in development, equality of opportunity and
the creation of favourable conditions for the enjoyment of other civil, political,
economic, social and cultural rights.

The right to development, by incorporating all human rights and recognizing that
all rights and freedoms are indivisible and interdependent, is presented as a fusion
of all human rights and fundamental freedoms. It is these rights and freedoms that
protect our dignity as human beings, and the enjoyment of all human rights is
facilitated through the right to development. There is universal consensus that
development is important to humanity as it would enable every person in the
world to enjoy their rights and freedoms c i v i l a n d p o l i t i c a l , e c o n o mi c ,
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s o c i a l a n d cultural as well as other specified rights and to pursue what


they value.
This idea is not only appealing, but is the primary objective and the
means of development. When the fundamental freedoms are ensured,
people are empowered, through their human rights, to resist torture,
arbitrary incarceration and racial discrimination to demanding an end to
hunger and starvation, and to medical neglect across the globe. Freedom
is essential to the realisation of these rights as to be free is to be
unrestrained by others in the pursuit of one sends, and freedom is
valuable because it provides opportunities to pursue our objectives and
things that we value. It also ensures that one is not forced into something
because of constraints imposed by others. Consider a person in a least
developed nation who wants to pursue her dream of becoming a doctor,
but have to give up on that dream because she is denied even the basic
education, due to the lack of schools in her village. When she grows up
she is forced to resorting to prostitution as a means of survival. While
this may (or may not) bring in money, the lack of choice and opportunity
through the lack of freedom is humiliating and takes away her human
dignity. There is the lack of opportunity to get oneself educated, to seek
medical help when infected with HIV, the lack of choice of work, or to
escape the freedom of starvation. To develop therefore, means the
removal of this lack of freedom that leave people with little choice
and little opportunity of exercising their reasoned agency. The removal
of substantive un freedomsis constitutive of development.

The right to development would therefore ensure the eradication of the


various constraints that lock humans in impoverishment and deprivation, in terms
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of material goods and the ability to exercise their rights. Specic reference to the
cooperation to eliminate the obstacles to development is therefore made in the Vienna
Declaration, and Article 28 of the UDHR which state that Everyone is entitled to a
social International order in which the rights and freedoms set forth in this declaration can
be fully realized could be inferred to imply a right to the removal of the impediments
to development.
Interpreted in this way, the developed community could act not to deny the rights
of those who are unable to realise their rights due to lack of development. The
UDHR reminds that Everyone owes duties to the community and this
community is not only the neighbouring countries, but is also the global community. For
Rawls, a decent society or community is one that honours the basic human rights that
respect the humanity of its members, and these rights includes among others, a minimum
right to the means of subsistence. A decent people does not let its members die of
starvation. The rights to education or health would be less useful as rights that
respect human dignity when there are no ways of realising them through the
availability of schools or hospitals. And the rights to freedom of assembly, speech, and
political participation matter little when daily life is a struggle for survival.
The realization of these rights and a life in dignity then require an adequate standard of
living. A fully human life cannot be achievedif the availability of social goods
is so reduced that life itself becomes nothing more than a struggle to survive. And
development, as a comprehensive economic, social, cultural and political process aims at
the constant improvement of the well-being of the entire population and of all
individuals This improvement would entail a standard of living adequate for the
health and well-being and development would mean improvement in this well-being,
which can be described as the level of realization of the fundamental rights.

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The right to development could then be seen to derive from the inherent dignity of the
human person because it helps to attain both freedom and wellbeing, which is what,
gives the humans their equal worth. As content of the right to development is founded on
the Bill of Human Rights, the legal basis for the right to development can therefore be
derived from the UDHR, the Covenants on Civil and Political Rights and Economic, Social
and Cultural Rights.
However, not everyone is satised with that there is any moral or legal basis for the right
to development. Much in the same manner that human rights have been denied as some
to exist and that belief in them equals belief in witches and unicorns, the right to
development has also been said to be nothing more than a mythical unicorn. Criticism is
levelled at the right to development as it being meaningless, dangerous, and
catastrophic and a total failure, in that states will be unable to fully realize all of its
components. But it is worth noting that something cannot be both equally meaningless
and dangerous because that which is meaningless is unlikely to be dangerous.
As mentioned earlier, the right to development is one of the third generation rights and
Donnelly sees that the use of the term generation is dangerous because it would mean
that the solidarity rights would replace the already established preceding generation of
rights. But this interpretation is erroneous as generations of rights do not make each
other obsolete but add upon each other and the right to development derives its basis from the
interconnected of all the rights and development is needed to realize of these rights. It is
this striking feature of the right to development in asserting the unity of all human
rights that its rejection equates to the rejection of even some of the other basic rights.
Another contention that Donnelly nds to be dangerous is the claim to be developed, as
distinct from a right to pursue development. But the right to development does not assert that
the human individual should be fully developed or that it is the end the right is seeking to
achieve. It asserts that we have a right to pursue development, to the base on which one can
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construct a meaningful life through freedom and well-being. As noted above, it forms the
means as well as the ends. Furthermore, the realisation of rights does not have to be in
full or may end up not being fullled, even in the case of civil and political rights where it
would seem that resources play little role. But no state can afford a police force
adequate enough to secure the right to life of every citizen.
However, the aspect of Donnellys argument that continues as one of the challenges to
the right to development is the difficulty in determining who is to exercise the
right. As with all third generation rights, it is uncertain of its holder and the dutybearer.

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What is the Right to Development?

The Preamble of the Declaration on the Right to Development states "development


is a comprehensive economic, social, cultural and political process, which aims at
the constant improvement of the well-being of the entire population and of all
individuals on the basis of their active, free and meaningful participation in
development and in the fair distribution of benefits resulting therefrom."
The right to development is an inalienable human right by virtue of which every
human person and all peoples are entitled to participate in, contribute to, and enjoy
economic, social, cultural and political development, in which all human rights and
fundamental freedoms can be fully realized. (Article 1.1, Declaration on the Right
to Development) The human right to development also implies the full realization
of the right of peoples to self-determination, which includes, subject to the relevant
provisions of both International Covenants on Human Rights, the exercise of their
inalienable right to full sovereignty over all their natural wealth and resources.
(Article 1.2)

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United Nations Mechanisms dealing with the Right to Development

The intergovernmental open-ended Working Group on the Right to Development


was established in 1998. The Working Group meets once a year and reports to the
Human Rights Council (HRC) and the GA. Its mandate is inter alia: (a) to monitor
and review progress made in the promotion and implementation of the right to
development as elaborated in the Declaration, at the national and international
levels, providing recommendations thereon and further analyzing obstacles to its
full enjoyment; (b) to review reports and any other information submitted by
States, United Nations agencies, other relevant international organizations and nongovernmental organizations on the relationship between their activities and the
right to development; and (c) to present for the consideration of the HRC a
sessional report on its deliberations, including advice to the Office of the United
Nations High Commissioner for Human Rights (OHCHR) with regard to the
implementation of the right to development, and suggesting possible programmes
of technical assistance at the request of interested countries with the aim of
promoting the implementation of this right. Until April 2010, the Working Group
was supported by the high-level task force on the implementation of the right to
development, established in 2004 with the composition of five independent
experts, to provide expert advice to the Working Group2. At the request of the
Working Group, the high-level task force proposed a set of criteria and
corresponding operational sub-criteria3 for the implementation of the right to
development.

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What is the added value of the Right to Development?

The right to development provides a comprehensive framework and approach to


the policies and programmes of all relevant actors at the global, regional, subregional and national levels as this right

integrates aspects of both human rights and development theory and


practice;

encompasses all human rights civil, political, economic, social and


cultural;

requires active, free and meaningful participation;

involves

both

national

and

international

dimensions

of

State

responsibilities including in the creation of an enabling environment for


development and favourable conditions for all human rights;

demands comprehensive and human-centred development policy,


participatory development processes, social justice and equity;

embodies the human rights principles of equality, non-discrimination,


participation, transparency, accountability as well as international
cooperation in an integrated manner;

implies the principles of self-determination and full sovereignty over


natural wealth and resources;

facilitates a holistic approach to the issue of poverty by addressing its


systemic and structural causes;

strengthens the basis for pro-poor growth with due attention to the rights
of the most marginalized;

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How can the right to development be operationalized in practical


terms?

With the purpose of translating the right to development from political


commitment to development practice, the criteria proposed by the high-level task
force were designed to serve as an operational tool to:

assess the extent to which States are individually and collectively taking
steps to establish, promote and sustain national and international
arrangements that create an enabling environment for the realization of the
right to development;

serve as a useful tool for stakeholders to assess the current state of the
implementation of the right to development and facilitate its further
realization at the international and national levels;

contribute to mainstreaming the right to development in the policies and


operational activities of relevant actors at the national, regional and
international levels, including multilateral financial, trade and development
institutions; and

evaluate the human rights implications of development and trade policies


and programmes.

The operationalization of the right to development also requires application of the


above-mentioned human rights principles and good governance to the activities of
all relevant stakeholders at both the national and international levels.

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The Declaration on the Right to Development

The Declaration on the Right to Development defines such right as "an inalienable
human right by virtue of which every human person and all peoples are entitled to
participate in, contribute to, and enjoy economic, social, cultural and political
development, in which all human rights and fundamental freedoms can be fully
realized." (Article 1)
The Right to Development includes:

full sovereignty over natural resources

self-determination

popular participation in development

equality of opportunity

the creation of favourable conditions for the enjoyment of other civil,


political, economic, social and cultural rights

The human person is identified as the beneficiary of the right to development, as of


all human rights. The right to development can be invoked both by individuals and
by peoples. It imposes obligations both on individual States - to ensure equal and
adequate access to essential resources - and on the international community - to
promote fair development policies and effective international cooperation.

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Centre/State Acts and Rules on Right to Development

Following are some of the acts on the right to development in India:-

1. Mahatma Gandhi National Rural Employment Guarantee Act, 2005


Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) refers
to the world's largest welfare program, run by the Government of India.
It is a job guarantee scheme for rural Indians. It was enacted by legislation on 25
August 2005. The scheme provides a legal guarantee for at least 100 days of paid
employment in every financial year to adult members of any household willing to
do unskilled manual work related to public work at the statutory minimum
wage of 120 per day in 2009 prices. If they fail to do so the government has to
pay the salary at their homes. The central government outlay for the scheme was
4000 billion in Financial Year 201011.
This act was introduced with the aim of improving the purchasing power of semior un-skilled rural people of India, irrespective of whether or not they fell below
the poverty line. Around one-third of the stipulated work force is women. The law
was initially called the National Rural Employment Guarantee Act (NREGA) and
was renamed with the prefix "Mahatma Gandhi" on 2 October 2009, Gandhi's birth
anniversary.
In 2011, the program was widely criticized as no more effective than other poverty
reduction programs in India. Despite its best intentions, MGNREGA is beset with
controversy about corrupt officials, deficit financing as the source of funds, poor
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quality of infrastructure built under this program, and unintended counterproductive destructive effects on the rural economy and inflation.

2. Right of Children to Free and Compulsory Education Act, 2009


The Right of Children to Free and Compulsory Education Act or Right to
Education Act (RTE), is an Indian legislation enacted by the Parliament of India on
4 August 2009, which describes the modalities of the importance of free and
compulsory education for children between 6 and 14 in India under Article 21a of
the Indian Constitution. India became one of 135 countries to make education a
fundamental right of every child when the act came into force on 1 April 2010.
Present Act has its history in the drafting of the Indian constitution at the time of
Independence but is more specifically to the Constitutional Amendment that
included the Article 21A in the Indian constitution making Education a
fundamental Right. This amendment, however, specified the need for a legislation
to describe the mode of implementation of the same which necessitated the
drafting of a separate Education Bill.

3. National Food Security Bill, 2013


The Indian National Food Security Bill, 2013 (also Right to Food Bill), was signed
into law September 12, 2013. This law aims to provide subsidized food grains to
approximately two thirds of India's 1.2 billion people. Under the provisions of the
bill, beneficiaries are to be able to purchase 5 kilograms per eligible person per
month of cereals at the following prices:
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rice at 3 per kg

wheat at 2 (3.1 US) per kg

coarse grains (millet) at 1 (1.5 US) per kg.

Pregnant women, lactating mothers, and certain categories of children are eligible
for daily free meals.
This Bill is referred as the "biggest ever experiment in the world for distributing
highly subsidized food by any government through a rights based approach." The
Bill extends coverage of the Targeted Public Distribution System, India's principal
domestic food aid program, to two thirds of the population, or approximately 820
million people.

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Bibliography

Human Rights in India: Issues and Perspectives by S. Mehartaj, 2000


Perspectives on Human Rights by V. K. Gupta, 1996
Human Rights and the Law by Jaswal & Jaswal, 1996
http://www.un.org/en/events/righttodevelopment/pdf/rtd_at_a_glance
http://ssa.nic.in/rte-docs/free%20and%20compulsory
http://nhrc.nic.in/documents/LibDoc/Right_to_Developement_A.
http://www.thehindu.com/multimedia/archive/01404/National_Food_Secu_1
404268
http://nhrc.nic.in/documents/LibDoc/Right_to_Developement_F.
http://nhrc.nic.in/documents/LibDoc/Right_to_Developement_C.
Right to Development, NHRC, India, nhrc.nic.in

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