UDHR
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This article has been written by Disha Bhati, pursuing LLM from Gautam Buddha University.

Introduction

The horrors created by the Second World War lead to the creation of the adopting of the Universal Declaration of Human rights on 10 December, 1948 and without any dissent. Even though the concept of human rights existed from time immemorial yet, it was for the first time, that the global community acknowledged the importance of the same, on a unanimous note. Even though UDHR does not have any legal enforceability, yet, legal experts have rightly propounded that its principles have attained the force of customary international law over time. Its principles have made their way into a number of other binding international legal instruments such as ICCPR. The reason for it being may be the wide ambit of operation for UDHR, which aims at encompassing anything and everything within its ambit provided the same concerns the subject of human rights.

Although the UDHR is a statement of principles aimed at a better world in future, given its importance it is worth asking whether it sketches a general view of history.[1] The preamble is the natural place to look for such a view, as it clarifies the motives for drafting the UDHR and thus it a part of the context within which it is to be interpreted. One of the positive aspects of the Declaration also being that it frames its references to the past as agelessly as possible.[2]

Similarly, in the paper, an attempt has been to critically analyze some of the important rights envisaged in the Universal Declaration of Human Rights and correlate the same in the Indian context.

Right to Equality in Udhr

In spite of unprecedented progress at the international level in enhancing the Legal protection of individuals and groups of individuals against discrimination, reports from all parts of the world confirm the fact that discriminatory acts and practices are anything but a memory from the past.

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Following the prohibition of discrimination based on race, sex, language and religion in the Charter of the United Nations, the adoption of the Universal Declaration of Human Rights together with the Convention on the Prevention and Punishment of the Crime of Genocide in 1948 became the next important step in the legal consolidation of the principle of equality before the law and the resultant prohibition of discrimination.

Article 1 of the Universal Declaration[3] proclaims that “All human beings are born free and equal in dignity and rights”. Again according to article 2[4] “Everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”

In relation to the right to equality, article 7[5] states that, “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

It is noteworthy that article 2 of the Universal Declaration prohibits “distinctions of any kind”, which could be read as meaning that no differences at all can be legally tolerated. However, as will be seen below, such a restrictive interpretation has not been adopted by the international monitoring bodies. The right to equality and non-discrimination is recognized in Article 2 UDHR and is a cross-cutting issue of concern in different UN human rights instruments, such as Articles 2 and 26 ICCPR,[6]

Article 2(2) ICESCR.[7] In addition, two of the major UN human rights treaties are established explicitly to prohibit discrimination, CERD on the ground of race and CEDAW on the ground of gender. The principle of non-discrimination and equal treatment is also contained in regional instruments, such as Article 2 American Declaration.

Despite the fact that the principle of non-discrimination is contained in all human rights instruments, only a few instruments expressly provide a definition of non-discrimination: Article 1(1) CERD, Article 1 CEDAW, Article 2 CRPD, Article 1(1) ILO 111 and Article 1(1) Convention against Discrimination in Education.

On a wider note, a summation of the different Human rights instruments prohibits discrimination on several grounds. For instance, Article 2 UDHR prohibits discrimination on the following 10 grounds: race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth and other status. The same prohibited grounds are included in Article 2 of ICESCR and Article 2 of  ICCPR. It is important to note that the grounds enumerated in these provisions are merely illustrative and not exhaustive.

Prohibition against slavery in Udhr

Slavery has existed since time immemorial. For instance the 1815 Declaration Relative to the Universal Abolition of the Slave Trade[8] was the first international instrument to condemn it. Furthermore, there has been more than 300 international agreements were formulated between 1815 and 1957, in order to suppress slavery.[9]For the first times in the 23rd session of 1998 Working Group on Contemporary Forms of Slavery, it was decided that a comprehensive review of the existing laws and treaties covering the topic of slavery should be made.[10] After the second world war, the United Nations continued working towards the elimination of slavery and as a result it is now a well established principle of international law that the “prohibition against slavery and slavery-related practices have achieved the level of customary international law and have attained ‘jus cogens’ status”.[11]

Characteristics of Slavery

Ownership is a common theme, which characterizes slavery. However, the wording concerning the same in the Slavery convention is substantially ambiguous as to the extent of the concept of control and whether the same must be absolute.

In the contemporary context, the circumstances of the enslaved person including the : (i) The degree of restriction of the individual’s inherent right to freedom of movement

(ii) The degree of control of the individual’s personal belongings

(iii) The existence of informed consent and a full understanding of the nature of the relationship between the parties.[12]

Instruments prohibiting slavery

The Universal Declaration of Human Rights states that, “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.”[13]  Again the slavery convention and the Supplementary Convention had also been given substantial support  by the International Bill of Human Rights.[14]

Also the International Covenant on Civil and Political Rights consists of prohibition against slavery and also servitude. The same are in line with the corresponding provision in the Universal Declaration of Human Rights. This right has been made a non-derogable right under aticle 4(2).[15]

National authorities possess the primary obligation to protect the human rights of residents, including, of course, the obligation to prohibit slavery and slavery-like practices.[16] The efforts of national authorities are augmented, however, by international human rights norms and procedures for implementing and ensuring compliance with international human rights treaties. For example, the International Covenant on Civil and Political Rights prohibits “slavery and the slavetrade in all their forms” (art. 8) and establishes a Human Rights Committee to monitor compliance. That treaty and international law generally recognize that Governments are obligated “to respect and to ensure to all individuals within its territory and subject to its jurisdiction” the guaranteed rights and “to take the necessary steps, in accordance with its constitutional processes and with the provisions of the [treaty], to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the [treaty]” (art. 2).

The primary responsibility of national authorities to protect human rights is underlined by the general rule of international law that all available domestic remedies must be exhausted before resorting to international settlement procedures.[17]

There are therefore important links between national and international monitoring methods that cannot be overlooked, although the focus of this section is on international mechanisms. International human rights law has evolved a number of mechanisms for ensuring implementation and monitoring. Since the adoption of the International Covenant on Civil and Political Rights in 1966, all major human rights treaties have provided for an expert body, such as the Human Rights Committee under the International Covenant on Civil and Political Rights, to oversee implementation of the relevant multilateral conventions by receiving and reviewing periodic reports from the Governments that have ratified them. Most of the treaty bodies issue conclusions and recommendations after reviewing each State party’s report.

Treaty bodies also occasionally issue general comments or recommendations that authoritatively construe provisions of their treaties and summarize their experience in reviewing States parties’ reports. Further, four of the treaty bodies – the Human Rights Committee, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, and the Committee against Torture – may receive communications from individuals complaining about violations of those treaties and issue adjudicative decisions interpreting and applying treaty provisions.[18]

Under the authority of the Charter of the United Nations rather than on the basis of a specific human rights treaty, the United Nations Commission on Human Rights has developed several additional mechanisms for human rights monitoring. One of the most visible measures that the Commission has taken with respect to a violating Government is to authorize a special rapporteur, a special representative or a working group to investigate and publish a report on the situation. The Commission has also established thematic special rapporteurs and working groups to deal with particular kinds of violations, for example the sale of children.[19]

Prohibition against torture In Udhr

Article 5 of the UDHR, 1948[20] proclaims that “No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment.” Essentially, Article 5  incorporated the right to protection against torture and the same has been sought to be achieved through Declaration of Fifth United Nations Congress held in 1975. 

Again, Article 7 of the ICCPR[21] provides that no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experiment. The first sentence of Article 7 of ICCPR reproduces Article 5 of UDHR. Furthermore, article 7 cannot be derogated from in any circumstances not even during public emergency.[22] This section shows the concern of the international community to defend and preserve the physical and moral integrity of human beings. The purpose of this article is to protect the integrity and dignity of the individuals. It is the responsibility of the Human Rights Committee under Article 40(4) of ICCPR for implementation of these rights.

Legal codification against torture

The process of legal codification against torture eventually culminated in The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment (CAT).[23] The objective of this Convention is to prevent acts of torture and other acts prohibited under this convention. Article 1 of the Convention defines “torture”.The Covention requires state parties to take effective measures to prevent acts of torture in any territory under their jurisdiction. Article 2 of the Convention says that torture cannot be justified even during war or public emergency.

Again, article 3 of the Convention forbids State parties to expel, or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. The Convention also requires States to ensure that all acts of torture, attempts to commit torture or participation in torture are offence punishable under criminal law of their states (provided in Art 4 of the Convention). It also provides for prosecution or extradition of persons alleged to have committed acts of torture.

The implementation of the Convention is monitored by a “Committee against Torture”, consisting of 10 experts, elected by the States parties to the Convention and serving in their personal capacity. State parties to the Convention are required to report regularly to the Committee on measures they have taken to give effect to the provisions of the Convention. The Committee considers such reports, makes general comments and inform the other state parties and General Assembly of its activity. The Committee also allows for individual complaints under Art 22, provided state has made declaration accepting the treaty bodies’ competence to accept complaints and local remedies have been exhausted. It has to be noted that, even though India has signed the Convention against torture but is yet to ratify it. Also India has made reservations against Art 20 & Art 22 of the Convention.

Common terminologies

Degrading Treatment”– The Commission considered degrading treatment as: ‘treatment or punishment of an individual is degrading if it grossly humiliates him before others or drives him to act against his will or conscience.’[24] This definition was followed and expanded later by the Commission in East African Asians v. Uniked Kingdom[25] where it said that degrading treatment was a conduct of certain level of severity which lowers victim in rank, position, reputation or character whether in his own or eyes of others. These definitions have been explained by the Court in Tyrer v. the United Kingdom,[26] in which Court observed that the first element of serious humiliation was whether the conduct was degrading. In Campbell and Cosans case[27], the Court observed that a threat directed to an exceptionally insensitive person may have no significant effect on him but nevertheless be incontrovertibly degrading; and conversely an exceptionally sensitive person might be deeply affected by a threat that could be described as degrading only by ordinary and unusual meaning of the word.

RIGHT TO PRIVACY

Introduction

Privacy is perhaps the most difficult to define and circumscribe among all the human rights,[28] as the definitions vary widely according to context and environment. Historically, privacy has been most closely associated with the right to solitude. However, lack of a single definition by no ways undermines its importance. In one sense, all rights are aspects of the right to privacy.[29]

Privacy can be defined as a fundamental, though not an absolute human right. The modern privacy international benchmark of privacy is found in the Universal Declaration of Human Rights, which specifically protects territorial and communications privacy.

Article 12 states:

No-one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honour or reputation. Everyone has the right to the protection of the law against such interferences or attacks.

The exact wordings have been adopted by the International Covenant on Civil and Political Rights, the UN Convention on Migrant Workers[30] and the UN Convention on Protection of the Child.[31] Privacy underpins human dignity along with other values such as freedom of association, freedom of speech, autonomy, spirituality, trust, and liberty, thereby becoming one of the most important human rights issues of the modern age.

In the modern day scenario, the concept has been fused with Data Protection, dealing with the management of personal information. Protection of privacy lays the limit as to how far the society can intrude into a person’s affairs.[32] It can be classified into-

  1. Information Privacy– This involves the laying down of rules for collection and handling of data of a personal nature, like credit information and medical records.
  2. Bodily Privacy– This protects a person’s physical self against invasive procedures, like drug testing and cavity searches.
  3. Privacy of Communications-This includes the security and privacy of mails, telephones, emails, etc.
  4. Territorial Privacy– This sets the limit on intrusion into the domestic and other environments, including work spaces.

Most of the countries recognize the right to privacy in their Constitution. In certain countries, where the Constitution makes no express reference to the right, the courts tend to find the right in other provisions.[33] Certain other countries have adopted International Agreements recognising this right into their laws.

Privacy Breach

Concern over privacy violations is now greater than at any time in recent history.[34] The major factors contributing to the breach of privacy are:- [35]

  1. Globalisation– Globalisation has led to the removal of geographical limitations to data flow. Development of internet is an example of global technology.
  2. Convergence– This results in the elimination of technological barriers between systems. The modern information systems can interoperate with other systems, mutually exchanging and processing different forms of data.
  3. Multi-Media– It fuses many forms of transmission and expression of data and images, resulting in easy translation of collected data into another form.

Major Violators of Privacy

  1. Technology– In contemporary times, technology has emerged as the source of many privacy concerns. The major offender to have emerged out is the surveillance technology. Though usually seen as autonomous, ignoring human accountability from the system of surveillance is not desirable.[36] While technology is not a pre-requisite for privacy invasion, its ability to amplify, routinize and sublimate surveillance has been the major concern relating to privacy protection. 
  2. Government- Often, most serious breaches of privacy are caused by the government. The major problem is that once schemes which hamper privacy are established, citizens are more often than not bound to comply. Schemes like compelled identification, drug testing, physically searching one’s home or person, database profiling, polygraph tests, etc are few of such procedure that severely undermines the right of privacy of persons. The issue of national security has emerged as a major justification for a majority of actions resulting in breach of privacy.
  3. Corporations– Corporations exert control over workers through monitoring and surveillance practices, including monitoring of calls, data usage, drug testing, etc. They also threaten privacy in the marketplace by extracting commercial value from consumers in their personally identified transactions, which are subsequently used by the corporations for future purposes. This is called the ‘commodification of identity.’[37]

Protection Of Privacy

There is an urgent need to address the question of privacy protection and to take measures to ensure that the private domain of individuals is not breached. Some of the steps are as follows-

  1. Reaffirming support for fundamental legal instruments seeking to preserve privacy in the information society like the UDHR, the OECD Guidelines, the UN Convention, etc.[38]
  2. Asserting the applicability of legal norms across national borders.
  3. Developing technology for the protection of privacy.
  4. Encouraging citizens to participate in decision-making.

RIGHT TO FAIR TRIAL

The origins of this right can be traced back to the ‘The Law of the Twelve Tables’ of the Roman Republic from around 455 B.C., which contained the right to have all parties present at a hearing[39] and also prohibited bribery for judicial officials.[40] The signing of the Magna Carta was another important event in the development of the right. It proclaimed that, “No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed nor will we go upon or send upon him save by the lawful judgment of his peers or by the law of the land.[41] The Treaty of Arbroath of 1320 was another major development, whose principles were later adopted by several democratic countries.[42]

Article 10 and 11 of the Universal Declaration of Human Rights lays down the various aspects of the right to fair trial.

Article 10- 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.

Article 11-

  • Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.
  • No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Principles Of A Fair Trial

  1. Adversary Trial System– Under this, the responsibility of proving the guilt of the accused is placed on the prosecution, with the judge acting as a neutral referee. The State prosecutes the wrongdoer, who can take recourse to counsels to counter the evidence of the prosecution.
  2. Presumption of Innocence– The criminal trial must begin with the presumption that the accused is innocent. The prosecution has the burden of proving the guilt and the court cannot find the accused guilty, until the prosecution has relieved itself of the burden. All the interested parties must refrain themselves from pre-judging the trial outcome.
  3. Independent, Impartial and Competent Judges– It is of extreme importance that the judiciary is free of any executive influence and control, whether direct or indirect. The major burden of ensuring a fair and impartial trial lies upon the judge. The judge should stay neutral, should not be influenced by popular perception, should ignore personal bias and should render his judgement only after giving due weightage to all relevant facts and evidence presented before him during the trial. 
  4. Autrefois Acquit and Autrefois Convict:As per this doctrine, if a person is tried and acquitted or convicted of an offence, he cannot be tried again for the same offence or on another offence on the same facts. This is also referred to have the prohibition of ‘double jeopardy’.

Classification Of Rights

A trial starts from when a person is detained with respect to a particular complaint or for an offence, as defined in the criminal code till the execution of sentence, appeal, revision, etc. The rights accorded to the accused can be classified into Pre-Trial and Post-Trial rights. 

PRE-TRIAL RIGHTS

  1. The accused has to be informed about the accusations against him. This is absolutely necessary to accord him adequate opportunity to defend himself.
  2. The accused has a right to a public hearing in an open court. Public hearing means a hearing is done orally and publicly.
  3. The accused has to be granted the opportunity to secure his own counsel and in case he is unable to do so, the State should provide him a counsel to adequately represent himself.
  4. The accused has a right to a speedy trial. The right to speedy trial begins with actual restraint imposed by arrest and consequent incarceration, and continues at all stages namely, the stage of investigation, inquiry, trial, appeal and revision.
  5. Every accused has a protection against illegal arrest. Whenever a person is arrested without a warrant, he should be immediately informed of the grounds of his arrest. Time and procedure of arresting different categories of accused should also be kept in mind.
  6. As far is possible, the proceedings should be conducted in the presence of the accused.
  7. An accused has a right to be granted bail in bailable offences.
  8. An accused has a right against self-incrimination. This is based on the principle that no man is bound to accuse himself.[43]

POST-TRIAL RIGHTS

  1. The punishment imposed should be lawful. A person can only be held guilty of an offence if the act is punishable by the law.
  2. The accused has a right to human treatment. The prison system must be reformative in nature. Rights other than right to liberty remain with a person even after he is convicted.
  3. The accused has a right to file appeal.
  4. The sentences should be executed in a proper and lawful manner, keeping the principles of human rights and justice in mind.

RIGHT TO PROPERTY

The right to property is without a doubt the most controversial human right. Article 17 of the UDHR states that, “Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property.” However, there were substantial differences in this regard even among the States that drafted the UDHR.[44]

The first draft of the UDHR only referred to the right to ‘own personal property’, laying more importance to collective ownership. The final draft included the Western objections. However, despite finding a place in UDHR, right of property has not been included in the legally enforceable International Covenant on Civil and Political Rights (ICCPR). The controversy surrounding this right reflected the ideological divide of the Cold war.

Conflicting Viewpoints

WESTERN IDEOLOGY

  1. The body and mind are the first and most immediate property of persons.[45] The Right to Property is an inviolable and sacred right.
  2. It entails a negative obligation, i.e. the property of a person should not be subjected to unjustified acquisition, encroachment, seizure, etc.
  3. Since right to property entails the means of survival of a person, it is closely related to the realisation of all other human rights.

SOCIALISTIC IDEOLOGY

  1. Human Rights are in their most basic sense, inalienable. However, property can be alienated through sale, gift, transfer, etc. Therefore, right to property cannot be a human right.
  2. All that the right to property provides is an entitlement to property, which will be provided by the State, through re-distribution.

Right To Property Currently

The right to property doesn’t lay down a positive obligation to fulfil the right by compulsorily transferring the property from one person to another. It provides opportunities and agency, but does not guarantee result. A positive duty for the fulfilment to the right would make its application arbitrary and incompatible.[46] However, the individual right to property can sometimes be undermined by the State for the greater public good. However, this cannot be done in an arbitrary manner and proper compensation should be given the person whose right is being infringed.

Positive Effects Of Private Property

In modern times, it has been observed that the right to property and freedom and prosperity go hand in hand. Historically, not respecting private property has resulted in series of unfavourable consequences. For example, the forced collectivisation of land in 1930s Soviet Union and the Chinese Great Leap, resulted in massive famines claiming lives in millions.[47]

In economies with well defined property rights, dependence on the government for satisfying basic needs is minimal. It also ensures choice, quality and affordability for the citizens. The lack of property rights as a factor in civil armed conflict around the world.

UDHR AS CUSTOMARY INTERNATIONAL LAW

The Universal Declaration on Human rights and principles enshrined therein has provided the basis to several of the human rights codified post 1945. The international legal system is hence composed of global and regional treaties which are as a matter of fact founded upon the provisions provided under Universal Declaration on Human Rights. Therefore, it can be safely implied that an instrument which initially was thought as being limited to providing a “common standard of achievements for all peoples and nations” has now been a major source of moral, political and legal influence for he international as well as national legal system.

At the same time it becomes pertinent to recognize the fact that several constitutions, municipal laws, regulations that further the concept of fundamental human rights have taken Universal Declaration as a model for the same. Such domestic provisions manifest themselves by sometimes making direct reference to the Universal Declaration, sometimes incorporating some its provisions in its legal system, sometimes by reflecting the substantive articles of the declaration and also sometimes by making reference to the provisions of universal declaration by the municipal courts while interpreting several of the provisions of their domestic laws.

Subsequent to such large scale appeal of UDHR, several of the universal declaration provisions have been used by the governmental bodies in their international as well as their domestic conduct. Such conduct by formulating state practice to a certain extent consequently go on to formulate international customary practice providing certain provisions of UDHR with a normative content as recognized under article 38(1)(c) of the International court of Justice Statute. In other words, it can be said that several of the provisions under Universal Declaration of Human Rights have been formulated under customary international law, which is general in nature and hence binding on all states. However, it must also at the same time be understood that at the time of its incorporation in the year 1948, the UDHR was unanimously agreed to be a non-legally binding instrument by all states.[48] To make the original status of the Universal Declaration of Human rights clear it becomes pertinent to note the words of Eleanor Roosevelt, Chairman of the U.N. Commission on Human Rights at the time of the drafting of the provisions of the Universal Declaration on Human Rights-

“    In giving our approval to the declaration today, it is of primary importance that we keep clearly in mind the basic character of the document. It is not a treaty; it is not an international agreement. It is not and does not purport to be a statement of law or of legal obligation. It is a declaration of basic principles of human rights and freedoms, to be stamped with the approval of the General Assembly by formal vote of its members, and to serve as a common standard of achievement for all peoples of all nations.”[49]

This status of the instrument has further been described to be a “manifesto with primary moral authority[50] by the United Nations and also stated as the first of “four stages in the generation of the document the General Assembly has called the International Bill of Human Rights.[51]

However, in contrary to the non binding and guiding or hortatory character of the Universal Declaration of Human Rights the subsequent three documents , The International Covenant on Civil and Political Rights, its optional protocol, International Covenant on Economic, Social and Cultural Right, were adopted as legally binding treaties.  However, as has been noted above that with time the declaration has acquired certain legal statues. Certain provisions have over the years developed into customary law of human rights binding on all states.[52]

 At this stage it becomes inevitable for us to decipher the constitutive elements of customary international law to understand the status of the provisions of UDHR. In order to establish the existence of a customary international law norm it is required of us to prove the existence of state practice, which in itself can be identifiable. Such state practice must not be non legal practice and hence there must be in existence simultaneously a belief that the practice so performed was performed out of a legal obligation. To quote the words of the international court of justice “not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinion juris sive necessitatis.”[53]

With respect to observance of state practice and opinion juris, in the field of human rights, it has been observed that the court’s approach, “accords limited significance to state practice, especially to inconsistent or contrary practice, and attributes central normative significance to resolutions both of the United Nations General Assembly and of other international organizations …. The burden of proof to be discharged in establishing custom in the field of human or humanitarian rights is thus less onerous than in other fields of international law.”[54]

It was in the twentieth anniversary of the adoption of the declaration that an international conference of non-governmental organizations proclaimed that the Universal Declaration “constitutes an authoritative interpretation of the Charter of the highest order, and has over the years become part of customary international law.[55] Further, a similar conference was held but this time amongst various governments in which 84 states had been represented, herein it was observer that “the Declaration constitutes an obligation for the Members of the international Community[56]. However, the precise nature of such obligation was not elaborated in this conference.

Further, the International Law Institute had in the year 1969 adopted a declaration wherein it was stated that there is in existence of the obligation upon states to promise to protect various fundamental human rights which flow or derive from the acceptance of human dignity recognized under the UN Charter and in Universal Declaration on Human Rights.[57] 

It was the year 1994 that the International Law Association subsequently observed the Universal Declaration to be “universally regarded as an authoritative elaboration of the human rights provisions of the United Nations Charter” and concluded that”many if not all of the rights elaborated in the … Declaration … are widely recognized as constituting rules of customary international law.[58]

In addition to this there several commentators who believe that the entire instrument of Universal Declaration on Human Rights has passed into customary international law. An instance of such view can be highlighted through the view reflected by one of the drafters as “the Declaration has been invoked so many times both within and without the United Nations that lawyers now are saying that, whatever the intention of its authors may have been, the Declaration is now part of the customary law of nations and therefore is binding on all states. The Declaration has become what some nations wished it to be in 1948: the universally accepted interpretation and definition of the human rights left undefined by the Charter.”[59]

However, there are some states in general which conclude that as a matter of fact some and not all provisions of the Universal Declaration on Human Rights have passed into customary international law. Still, in such cases the precise number of such legally obligatory provision under Universal Declaration on Human Rights has not yet been identified.  

Udhr And India

The drafters of the constitution while drafting the constitution took the help of various provisions enshrined under Universal Declaration on Human Rights. Thus in this manner several provisions of Universal Declaration on Human Rights have been engrained under our constitution. Further, the supreme court has in its interpretation and in its function of protecting the spirit of the constitution expanded the scope of the provisions of UDHR.

The rationale behind borrowing the provisions of the Universal Declaration on Human rights lies not merely in the philosophical status that these provisions hold but also lies in the realization of the fact that the social-political-economical exploitation suffered by India could only be rectified through various constitutional guarantees of human rights. While incorporating these provisions into the spirit of the constitution they made certain fundamental rights such as right to life non-derogable rights, which could never be derogated other than by observing due process of law. Further, in cases such as Kesavananda Bharti case, Maneka case such right of the Right to Life was expanded to encompass “Right to Life with Dignity”.

Following table provides us with a list of rights which can be compared to those provided under UDHR-

UDHR (Article Number)

Indian Constitution

1. All people are entitled to rights without distinction based on race, color, sex, language, religion, opinion, origin, property, birth or residency.

Art. 14 (equality before the law and equal protection of the laws), as limited by Art. 31C.

Art. 16 (1) (equality of public employment), as limited by Art 16(3)-16(5).

2. All Human beings are free and equal in dignity and rights

Art. 15 (on the basis of religion, race, caste, sex, or place of birth), except under Arts. 15(3) and 15(4) (special provisions for women and children, and affirmative action).  Art. 15 applies to all state action, and to private action restricting access to public places and facilities.  Art. 17 (abolition of untouchability); and Art. 16(2) (employment discrimination on the basis of religion, race, caste, sex, descent, place of birth, and residence), as limited by Art 16(3)-16(5). 

3. Right to life, liberty and security of person.

Art. 21 (Right to life with dignity, no extrajudicial executions). Art. 23 (prohibition of traffic in human beings and forced labor); Art. 24 (prohibition of hazardous labor by children under age 14); Art. 17, Abolition of Untouchability

4. Freedom from slavery

Art 17 and Art 23, 24. Specific Act of Parliament exists for abolition of Bonded labour.

5. Freedom from torture

Art 20, 21, 22

6. Right to be treated equally by the law

Art 14

7. Right to equal protection by the law

Art 14, Art 39A

8. Right for all to effective remedy by competent tribunal

Art 14, 20, 21,22

9. Freedom from arbitrary arrest.

Art 22

10. Right to a fair public hearing by independent tribunal

Art 20, 21, 22, 39A

11. Right to presumption of innocence until proven guilty at public trial with all guarantees necessary for defense

Art 20, 21,22, 39A

12. Right to privacy in home, family and correspondence

Though not specific, Art 21 is invoked

13. Freedom of movement in your own country and the right to leave and return to any countries

Though not covered specifically, Art 21 is invoked. Menaka Gnadhi v. UOI is a classical case.

14. Right to political asylum in other countries

N/A

15. Right to nationality

Art. 19(1)(d) as to movement, and (e) at to residence, as limited by Art. 19(5) (reasonable restrictions in the interests of the public or of a “scheduled tribe”).

16. Right to marriage and family and to equal rights of men and women during and after Marriage

Covered by separate Acts, specific to cultures and religions.

17. Right to own property

Art 31

18. Freedom of thought and conscience and religion

Art 19, 25, 26, 27, 28

19. Freedom of opinion and expression and to seek, receive and impart information

Art. 25 (freedom of religion and of conscience, “subject to public order, morality and health”), though under Art. 25(2) any level of government may restrict economic activities related to religion.   Special mention is made of the religious practices of the Sikh religion.   Under Art. 26, all religious orders have limited powers to establish places of worship and teaching, while Art. 28 ensures the separation of religious and state education.

In addition, The Right To Information Act 2005

20. Freedom of Association and assembly

Art. 19(1) (b) (freedom of peaceful assembly), as limited by Art. 19(3) (reasonable restrictions to advance national security).

21. Right to take part in and select government

There are numerous provisions, throughout the text of the Constitution, including those relating to election of the President, local village committees (Panchayats), and detailed rules for elections, eligibility for public service, etc.

22. Right to social security and realization of economic, social and cultural rights

Art 29, 30, 43

23. Right to work, to equal pay for equal work and to form and join trade unions

Art 19, 39, 42

24. Right to reasonable hours of work and paid holidays

Art 42, 43

25. Right to adequate living standard for self and family, including food, housing, clothing, medical care and social security

Art 47, and other Provisions of Part IV of Constitution

26. Right to education

Art 45

27. Right to participate in cultural life and to protect intellectual property rights

Art 29, 30

28. Right to social and international order permitting these freedoms to be realized

Art 38

29. Each person has responsibilities to the community and others as essential for a democratic society

Art 48A, Art 51A

30. Repression in the name of rights is unacceptable.

Art 32, 32 A, 33-35, Art 226

 

Conclusion

The Universal Declaration of Human Rights even though a noble attempt towards making the world a better place for cohabitation, yet the non-biding nature of the declaration in a way hampered its objective. Again the wide ambit provided for each of the essential rights provided in the declaration made sure, that future international and also domestic legislation can include virtually anything and everything under the sun within its scope of operation.

It has to be noted that in spite of all the extensive legislation envisaged with the UDHR at its head, the change in ground zero scenario is far from what the scenario looks like on the theoretical front. Often, instances of human rights violations are reported to be carried out by State actors or also at frequent instances by non-state actors, who are funded by the State. Hence, as long as we keep on propagating our personal interest at the cost of other’s interests, the world can never be a safe place to live in and we will always have to fight for protecting our rights.

In the end, I just have one question to ask all,

What are we leading to in future?”

Endnotes

[1] Johannes Morsink, The Universal Declaration of Human Rights: Origin, Drafting and Intent , Philadelphia: University of Pennsylvania Press, 1999, 329.

[2] Albert Verdoodt, Naissance et signification de law Declaration universelle des driots de l’homme, 303.

[3] Universal Declaration of Human Rights, Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948, United Nations document E/AC.33/5, Art 1.

[4] Universal Declaration of Human Rights, Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948, United Nations document E/AC.33/5, Art 2.

[5] Universal Declaration of Human Rights, Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948, United Nations document E/AC.33/5, Art 7.

[6] International Covenant on Civil and Political Rights, adopted by the General Assembly resolution 2200 A (XXI) of 16 Dec, 1966, United Nations Treaty Series, vol.999, p. 171; entered into force on 23 March 1976, art. 2 & 26.

[7] International Covenant on Economic, Social and Cultural Rights, adopted by the General Assembly resolution 2200 A (XXI) of 16 Dec, 1966, entered into force on 23 March 1976, art. 2(2).

[8] Declaration Relative to the Universal Abolition of the Slave Trade, 8 February 1815, Consolidated Treaty Series vol.63, No.473.

[9] Abolishing Slavery and its Contemporary Forms, David Weissbrodt and Michael Dottridge (Anti-Slavery International), United Nations, New York and Geneva, Office of the United Nations High Commissioner for Human Rights, 2002, HR/PUB/02/4.

[10] Alan Watson, “ A Slave’s Marriage: Dowry or Deposit it,” Journal of Legal History, vol. 12, 1991, p. 132.

[11] M.Cherif Bassiouni, “Enslavement as an International Crime,” New York University Journal of International Law  and Politics, vol. 23, 1991, p.445.

[12] Abolishing Slavery and its Contemporary Forms, David Weissbrodt and Michael Dottridge (Anti-Slavery International), United Nations, New York and Geneva, Office of the United Nations High Commissioner for Human Rights, 2002, HR/PUB/02/4.

[13] Universal Declaration of Human Rights, United Nations document E/AC.33/5, Art.4.

[14] International Bill of Human Rights; Abolishing Slavery and its Contemporary Forms, David Weissbrodt and Michael Dottridge (Anti-Slavery International), United Nations, New York and Geneva, Office of the United Nations High Commissioner for Human Rights, 2002, HR/PUB/02/4.

[15] International Covenant on Civil and Political Rights, adopted by the General Assembly resolution 2200 A (XXI) of 16 Dec, 1966, United Nations Treaty Series, vol.999, p. 171; entered into force on 23 March 1976.

[16] International Covenant on Civil and Political Rights, art.2

[17] International Covenant on Civil and Political Rights, art.41(c).

[18] Abolishing Slavery and its Contemporary Forms, David Weissbrodt and Michael Dottridge (Anti-Slavery International), United Nations, New York and Geneva, Office of the United Nations High Commissioner for Human Rights, 2002, HR/PUB/02/4.

[19] Office of the High Commissioner for Human Rights , United Nations Rights Field Presences, available < www.unhchr.ch/html/menu2/5/field.htm.> (Last accessed on 14th March, 2016).

[20] Universal Declaration of Human Rights, Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948, United Nations document E/AC.33/5, Art 5.

[21] International Covenant on Civil and Political Rights, adopted by the General Assembly resolution 2200 A (XXI) of 16 Dec, 1966, United Nations Treaty Series, vol.999, p. 171; entered into force on 23 March 1976, art. 7.

[22] Divya Vikram, “India’s Response Against The Act of Torture, NNLRJ India, July 22, 2010, available at < https://indialawyers.wordpress.com/2010/07/22/india%E2%80%99s-response-against-the-act-of-torture/> (Last accessed on 15th March, 2016).

[23] The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment (CAT) (resolution 39/46), which was adopted by the UN General Assembly on Dec 10th, 1984.

[24] Divya Vikram, “India’s Response Against The Act of Torture, NNLRJ India, July 22, 2010, available at < https://indialawyers.wordpress.com/2010/07/22/india%E2%80%99s-response-against-the-act-of-torture/> (Last accessed on 15th March, 2016).

[24] The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment (CAT) (resolution 39/46), which was adopted by the UN General Assembly on Dec 10th, 1984.

[25] East African Asians v. United Kingdom (4430/70, E.,H.R.R 76).

[26] Tyrer v. The United Kingdom, (1980) 2 EHRR 1.

[27] Campbell and Cosans v. The United Kingdom, (1982) 4 EHRR 293.

[28] James Michael, Privacy and Human Rights, UNESCO 1994 p.1.

[29] Volio, Fernando. Legal personality, privacy and the family in Henkin (ed) The International Bill of Rights, New York : Columbia University Press, 1981

[30] A/RES/45/158 25 February 1991, Article 14.

[31] UNGA Doc A/RES/44/25 (12 December 1989) with Annex, Article 16.

[32] Simon Davies “Big Brother : Britain’s web of surveillance and the new technological order”, Pan, London, 1996 p. 23.

[33] Colin J. Bennet, Regulating Privacy 243 (1st ed. 1992)

[34] . Simon Davies “Re-engineering the right to privacy : how privacy has been transformed from a right to a commodity”, in Agre and Rotenberg (ed) “Technology and Privacy : the new landscape”, MIT Press, 1997 p.143

[35] Alan F Westin, Privacy and Freedom, Atheneum, New York p. 7

[36] Philip E. Agre & Marc Rotenberg, Technology and Privacy: The New Landscape 91 (2nd ed. 1998)

[37] Frank Franzak, Online Relationships and Consumer’s Right to privacy, 18 Journal of Consumer Marketing 631-42, (2001)

[38] Benjamin E. Bratman, Brandeis and Warren’s Right to Privacy and the Birth of Right to Privacy, 69 Tenn. L. Rev. 623, 631 (2002).

[39] The Law of the Twelve Tables, Table 2, Law 1.

[40] Id., Table 9, Law 3

[41] The Magna Carta, ¶ 39 (1215)

[42] Linda Macdonald-Lewis, Warriors And Wordsmiths Of Freedom: The Birth And Growth Of Democracy (1st ed. 2009).

[43] From the maxim, ‘nemo tenetur prodere accussare seipsum.’

[44] C. Krause, and G. Alfredsson, “Article 17”, in G. Alfredsson and A. Eide (eds.), The Universal Declaration of Human Rights: A Common Standard of Achievement, The Hague, Martinus Nijhoff Publishers, 1999 359-378, at 364

[45] W. B. Stoebuck, “A General Theory of Eminent Domain”, 47 Washington Law Review 4, (1972), 553-608.

 

[46] A. Rosas, J.E. Helgesen, D. Goodman, The Strength of Diversity: Human Rights and Pluralist Democracy, The Hague, Martinus Nijhoff Publishers, 1992, 133-158, at 138.

[47] F. Cheneval, “Property Rights as Human Rights”, in H. de Soto and F. Cheneval, Realizing Property Rights, Rueffer & Rub, Swiss Human Rights Book, Vol. I, 2006, at 11

[48] A.J. Hobbins, Rent Cassin and the Daughter of Time: The First Draft of the Universal Declaration of

Human Rights, in FONTANUS II 7 (1989).

[49] 5 MARJORiE M. WHITEMAN, DIGEST OF INTERNATIONAL LAW 243

(Washington, D.C.: Dept. of State Publication # 7873, 1965).

[50] 128 UNITED NATIONs, THE INTERNATIONAL BILL oF HUMAN RIGHTS 1 (New York: U.N.

Dept. of Public Information, 1988).

[51] Id.

[52] Louis HENKIN, THE AGE OF RIGHTS 19 (New York: Columbia University Press,

1990).

[53] North Sea Continental Shelf Cases (FRG/Denmark; FRG/Netherlands), 1969 I.C.J. 3,

44 (Judgment of Feb. 20).

[54] HEODOR MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY LAW

108 (Oxford: Clarendon Press, 1989), p 113.

[55] Montreal Statement of the [Nongovernmental] Assembly for Human Rights (1968),

reprinted in 9 J. INT’L COMM. JURISTS Rev. 94 (1968).

[56] Declaration of Tehran, Final Act of the International Conference on Human Rights,

U.N. Doc. A/CONF.32/41 (1968), reprinted in UNITED NATIONS, HUMAN RIGHTS, A

COMPILATION OF INTERNATIONAL INSTRUMENTS 43 (1988), U.N. Sales No. E.88.XIV. 1, para.

2.

[57] L’ANNUAIRE DE L’INsTrTUT DE DROIT INTERNATIONAL: RESOLUTIONS 1957-1991,

at 206.

[58] Resolution adopted by the International Law Association, reprinted in INTERNATIONAL

LAW ASSOCIATION, REPORT OF THE SIXTY-SIXTH CONFERENCE, Buenos Aires, Argentina

1994 (forthcoming 1995).

[59] John Humphrey, The International Bill of Rights: Scope and Implementation, 17 WM.

& MARY L. REV. 527, 529 (1976).


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