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Report No. 275

ii) Duties of Private Bodies

4.25 Human rights are rights possessed simply by virtue of being a human. They are innate, intrinsic, inalienable and sine qua non to integrity and dignity of a human person. Though they may be most effectively implemented through the domestic legal system, the system cannot be said to be the source of these rights.68 Thus, mere State responsibility in ensuring human rights is an incomplete conception of human rights. For capturing the essence of the fundamental nature of these rights, their application to private entities is also essential.

4.26 The African Charter on Human Rights and Peoples' Rights states that "every individual shall have duties towards his family and society, the State and other legally recognised communities and the international community."69

4.27 The UN Guiding Principles on Business & Human Rights, state that business should "respect" human rights, "avoid infringing on the human rights of others" and "address adverse human rights impacts with which they are involved. This responsibility "exists over and above compliance with national laws and regulations protecting human rights"70

4.28 UN Guiding Principle 15 states that a company's responsibility to respect human rights - whether involved through causing, contributing to, or being directly linked to an impact - should be met by having in place policies and processes, including:71

1. A policy commitment to meet their responsibility to respect human rights;

2. A human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights;

3. Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute.

4.29 In the course of Parliamentary debate on the passage of the Human Rights Act of the United Kingdom, it was clear that private bodies delivering privatised or subcontracted public services were meant to be included within the scope of the Act through the "public function" concept.72 These private individuals and bodies are in a position to breach human rights guarantees and, therefore, should be subject to the same legal constraints as if they were a public entity exercising the power.73

4.30 The Supreme Court in the case of Jeeja Ghosh & Anr. v. Union of India & Ors.,74 held that:

4.31 It is not only the Government agencies which are obligated to respect these rights, but private bodies acting as Government agents or to which public functions are delegated or subcontracted should also be held accountable similarly.75

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