This article is written by Prasoon Shekhar, student of ICFAI Law School, The ICFAI University, Dehradun.
“To deny people their human rights is to challenge their very humanity.”
Table of Contents
Introduction
Human rights are the basic rights available to any human being by virtue of his birth in human race. It is inherent in all human beings irrespective of their nationality, religion, language, sex, colour or any other consideration. The Protection of Human Rights Act, 1993 defines Human Rights as: “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”.
Protection of human rights is essential for the development of the people of the country, which ultimately leads to development of the national as a whole. The Constitution of India guarantees basic human rights to each and every citizen of the country. The framers of the Constitution have put their best efforts in putting down the necessary provisions. However, with continuos developments taking place, the horizon of human rights has also expanded. The parliamentarians are now playing a great role in recognizing the rights of people and passing statues, amending provisions etc. as and when required.
Development of Human Rights
The Human Rights in India originated long time ago. It can easily be recognized from the principles of Buddhism, Jainism. Hindu religious books and religious texts like Gita, Vedas, Arthasatra and Dharmashstra also contained provisions of human rights. Muslim rulers like Akbar and Jahangir were also very much appreciated for his regard for rights and justice. During the early British era, the people suffered a great violation of several rights and this led to the birth of modern Human Rights jurisprudence in India.
On January 24, 1947, Constituent Assembly voted to form an advisory committee on Fundamental Rights with Sardar Patel as the Chairman. Drafted list of rights were prepared by Dr. B. R. Ambedkar, B. N. Rau, K. T. Shah, Harman Singh, K. M. Musnshi and the Congress expert committee. Although there were few amendments proposed, there was almost no disagreement on the principles incorporated. The rights in the Universal Declaration of Human Rights were almost completely covered in the Indian Constitution either in Fundamental Rights or Directive Principles of State Policy. Nineteen fundamental rights were covered in Motilal Nehru Committee Report, 1928 out of which ten appear in the Fundamental Rights whereas three of them appear as Fundamental Duties.
International Human Rights and Fundamental Rights (Part III of COI)
India had signed the Universal Declaration on Human Rights January 01, 1942. Part III of the Constitution India ‘also referred as magna carta’ contains the Fundamental rights. These are the rights which are directly enforceable against the state in case of any violation. Article 13(2) prohibits state from making any law in violation of the Fundamental Rights. It always provides that if a part of law made is against the Fundamental Rights, that part would be declared as void. If the void part cannot be separated from the main act, the whole act may be declared as void.
In the case of Keshvanand Bharti v. State of Kerela, the apex court observed: “The Universal Declaration of Human Rights may not be a legally binding instrument but it shows how India understood the nature of human rights at the time the Constitution was adopted.”
In the case of Chairman, Railway Board & Ors. v. Chandrima Das & Ors., it was observed that UDHR has been recognized as Model code of conduct adopted by United Nations General Assembly. The principles may have to be read if needed in domestic jurisprudence.
Provisions of Universal Declaration of Human Rights along with corresponding provisions in Constitution of India are as follows:
|
Brief Description of Provision |
UDHR |
COI |
| Equality and equal protection before law | Article 7 | Article 14 |
| Remedies for violation of Fundamental Rights | Article 8 | Article 32 |
| Right to Life and personal liberty | Article 9 | Article 21 |
| Protection in respect for conviction of offences | Article 11(2) | Article 20(1) |
| Right to property | Article 17 | Earlier a Fundamental Right under Article 31 |
| Right to freedom of conscience and to practice, profess and propagate any religion | Article 18 | Article 25(1) |
| Freedom of speech | Article 19 | Article 19(1)(a) |
| Equality in opportunity of public service | Article 21(2) | Article 16(1) |
| Protection of minorities | Article 22 | Article 29(1) |
| Right to education | Article 26(1) | Article 21A |
Many of the civil and political rights contained in the International Covenant on Political and Civil Rights, 1966 (ICCPR) are also contained in the Part III of the Constitution of India. India has signed and ratified the ICCPR.
In the case of Jolly George Varghese & Anr. v. Bank of Cochin, J. Krishna Iyer observed that though a provision is present in ICCPR but not in Indian Constitution, does not make the covenant an enforceable part of ‘Corpus Juris’ in India.
Provisions of ICCPR along with corresponding provision of Constitution of India are as follows:
| Brief Description of Provision | ICCPR | COI |
| Right to life and liberty | Article 6(1) & 9(1) | Article 21 |
| Prohibition of trafficking and forced labour | Article 8(3) | Article 23 |
| Protection against detention in certain cases | Article 9(2), (3) and (4) | Article 22 |
| Freedom of movement | Article 12(1) | Article 19(1)(d) |
| Right to equality | Article 14(1) | Article 14 |
| Right not to be compelled to be a witness against own self | Article 14(3)(g) | Article 20(3) |
| Protection against double jeopardy | Article 14(7) | Article 20(2) |
| Protection against ex-post facto law | Article 15(1) | Article 20(1) |
| Right to freedom of conscience and to practice, profess and propagate any religion | Article 18(1) | Article 25(1) & 25(2)(a) |
| Freedom of speech and expression | Article 19(1) & (2) | Article 19(1)(a) |
| Right to assembly peacefully | Article 21 | Article 19(1)(b) |
| Right to form union/ association | Article 22(1) | Article 19(1)(c) |
| Equality in opportunity of public service | Article 25(c) | Article 16(1) |
| Equality and equal protection before law and no discrimination on the basis of any ground such as race, colour, sex, language, religion etc. | Article 26 | Article 14 & 15(1) |
| Protection of interests of minorities | Article 27 | Article 29(1) & 30 |
Some of the rights which were not earlier included in Fundamental Rights but were available in ICCPR. They were considered as Fundamental Rights by various judicial pronouncements. Some of them are Right to fair trial, Right to privacy, Right to legal aid, Right to travel abroad. I will be dealing with them in detail at the later part of this article.
International Covenant on Economic, Social and Cultural Rights (ICESCR) and Directive Principles of State Policy (Part IV of COI)
The ICESCR is a multilateral treaty which mainly focuses on social and cultural rights like food, health, education, shelter etc. India ratified this covenant on April 10, 1979. Most of the provisions in this covenant are found in Part IV (DPSPs) of the Indian Constitution.
Provisions of ICESCR along with corresponding provision of Constitution of India are as follows:
| Brief Description of Provision | ICESCR | COI |
| Right to work | Article 6(1) | Article 41 |
| Equal Pay for equal work | Article 7(a)(i) | Article 39(d) |
| Right to living wage and descent standard for life. | Article 7(a)(ii) & (d) | Article 43 |
| Humane conditions of work and maternity leave. | Article 7(b) and 10(2) | Article 42 |
| Faculties and opportunities to children for prevention against exploitation. | Article 10(3) | Article 39(f) |
| Improving public health and raise level of nutrition and standard of living. | Article 11 | Article 47 |
| Compulsory education for children | Article 13(2)(a) | Article 45 |
| Protection of interests of minorities | Article 27 | Article 29(1) & 30 |
Unremunerated Fundamental Rights
A number of rights that were available in the covenant were not available as fundamental rights at the time of enactment of Constitution. The judicial interpretations have widened the scope of fundamental rights available in the Indian Constitution.
In the court of A.D.M. Jabalpur v. Shivkant Shukla, the apex court had observed that the law of land does not recognize any natural or common law rights other than specifically provided in the Indian Constitution.
Later, in the case of Maneka Gandhi v. Union of India, J. Bhagwati observed; “The expression ’personal liberty’ in article 21 is of the widest amplitude and it covers a variety of rights, which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. No person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him, and the deprivation is effected strictly in accordance with such procedure.”
After the present case, the apex court came up with the “theory of emanation” in order to make fundamental rights active and meaningful. Also, relaxation to the rule of ‘locus standi’ was given by the court. Some of the major judicial interpretations of Fundamental Right are as follows:
| Right | Case Law |
| Right to live with Human Dignity | PUCL & Anr. v. State of Maharstra & Ors. |
| Right to Clean Air | M.C. Mehta (Taj Trapezium Matter) v. Union of India |
| Right to Clean Water | M.C. Mehta v. Union of India & Ors |
| Right to freedom from Noise Pollution | In Re: Noise Pollution |
| Right to Speedy Trial | Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar |
| Right to Free Legal Aid | Khatri And Others v. State of Bihar & Ors. |
| Right to Livelihood | Olga Tellis & Ors. v. Bombay Municipal Corporation |
| Right to Food | Kishen Patnayak v. State of Odisha |
| Right to Medical Care | Pt. Parmanand Katara v. Union of India &Ors. |
| Right to Clean Environment | Rural Litigation And Entitlement Kendra v. State Of U.P. & Ors |
| Right to Privacy | K .S. Puttaswamy & Anr. v. Union of India & Ors |
Conclusion
Human Rights are the basic rights which form the essential part of his/her development as human being. Constitution acts as a protector of those basic rights as Fundamental Rights and DPSPs. More emphasis has been given to the fundamental rights and they are directly enforceable in the court of law. From a deep study of the Part III and Part IV of the Indian Constitution, it is easily evident that almost all of the rights provided in UDHR (Universal Declaration on Human Rights) are covered in these two parts.
Judiciary has also taken great steps such as relaxing rules of ‘locus standi’ and now any other person in place of the ones affected can approach Court. The apex court has interpreted the Fundamental Rights available to a citizen and now rights like right to privacy, right to clear environment, right to free legal aid, right to fair trail etc. also find place in the Fundamental Rights.
References
Saumendra Das and N.Saibabu (2014), “Indian Constitution: An Analysis of the Fundamental Rights and the Directive Principles”, ARS – Journal of Applied Research and Social Sciences, Vol.1, Issue.17, December 2014, ISSN 2350-1472″.
- Dr. Anant Kalse (2016), A brief lecture on “Human Rights in the Constitution of India”, available at: http://mls.org.in/books/H-2537%20Human%20Rights%20in.pdf.’
- Amartish Kaur (2017), “Protection of Human Rights in India – A Review”, Jamia Law Journal, Vol.2.
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