Human Rights Assignment

Topic: Human Rights in context to Fundamental

Rights

Submitted to: Submitted by:

Dr. Noor Jahan Momin Shimran Zaman
B.A.LL.B (Hons.) S/F
5th sem
Roll No.- 54
Introduction
The concept of Human rights relates in its immemorial antiquity from the time of inception of
the Human being .Human rights advocacy is not an encroachment upon the national sovereignty
but is an ultimate aim of state craft .The rights of men are assets to humanity and a liability of the
State. Man has created the concept of state to preserve his natural rights. The concept of
fundamental law and fundamental rights are the of spring of the natural rights . This stands above
the positive Las created by the political sovereign .The philosophical foundation of Human
Rights has got tremendous power and vigour . Human Rights are legitimacy of democratic
political order which is enshrined in most of the constitution of different countries. Rene cassin
at Colloguim has defined Human rights as “the science of human rights relates in the light of
human dignity for the full advancement and development of personality of human being .Thus
the human rights are such written instructions which starts from Magna-Charta -1215, Petition of
rights -1688. The French declaration of rights of citizens -1989 proclaim the natural and
imperceptible rights of Man’s liberty, property, security and resistance to oppression.

India is one of the few countries that protect Human Rights through its Constitution. The civil
and political rights guaranteed as Fundamental Rights are enforceable through the Courts of law.
The economic, social and cultural rights, though not enforceable, under Directive Principles, the
States are mandated to promote them for equitable social order and betterment of quality of life
for all sections of society. In addition, we have a strong and independent judiciary, which
zealously protect the rights, an active Parliamentary system and a vigilant press. India, being
aware of the growing need to protect Human Rights, to join the international community in its
effort to protect Human Rights , has acceded to various international instruments, chief among
them are the International Covenant on Civil and Political Rights and the International Covenant
on Economic and Social Rights,1966. The Human Rights Law in India can be categorized into
the following three heads:

(i) Human Rights and the Indian Constitution.

(ii) Human Rights under the protection of Human Rights Act 1993.
(iii) Other Measures for the protection of the Human Rights
Human Rights and the Indian Constitution
The Constituent Assembly drafted the Indian Constitution and was adopted on 26th November
1949 and came into force on 26th January 1950. It is an elaborate document comprising 395
Articles divided into 22 parts and 9 Schedules. No Constitution of the world is so wide and
comprehensive as Indian Constitution. It has made elaborate provisions relating to Human Rights
and Fundamental Freedoms in the chapters of Preamble, Fundamental Rights, Directive
Principle of State Policy and Fundamental Duties. These provisions of the Constitution contain
most of the important aspects of Human Rights and Fundamental Freedoms provided in the
Charter of the United Nations and Universal Declaration of Human Rights 1948.

(i). Preamble

The provisions of the preamble to the Constitution have been taken from clauses 1, 5 and 6 of the
Objectives Resolution. The preamble states the aims and objectives laid down in the
Constitution. The expression “we, the people of India” denotes that it is the Constitution of the
people, for the people and by the people of India The Preamble proclaims India as an
independent sovereign Republic. It lays down that sovereignty of the people. The government
and its organs will get power from the people of India. The Preamble declares to secure to the
people justice social, economic and political; liberty of thought, expression, belief, faith and
worship; equality of status and opportunity; and to promote among the people of India fraternity,
assuring the dignity of the individual and the unity and integrity of the nation. R.C. Lahoti C.J in
P.A. Inamdar v. State of Maharashtra1 has highlighted the preamble in the following words. “It
is well accepted by thinkers, philosophers and academicians that if Justice, Liberty, Equality and
Fraternity, including Social, Economic and Political Justice, the golden goals set out in the
preamble to the Constitution, are to be achieved; the Indian polity has to be educated and
educated with excellence. Education is a national wealth which must be distributed equally and
widely, as far as possible, in the interest of creating an egalitarian society, to enable the country
to rise high and face global competition”. The preamble of our Constitution is of extreme
importance and the Constitution should be read and interpreted in the light of the grand and
noble vision expressed in the preamble The objectives specified in the preamble contain the basic
1
2005 6 SCC 537
structure of our Constitution which cannot be amended in exercise of the power under Article
368 of the Constitution The preamble may be invoked to determine the ambit of Fundamental
Rights and Directive Principles of State Policy. The expression social Justice used in the
preamble enable the courts to uphold legislation.2

(a) To remove economic inequalities

(b) To provide a decent standard of living to the working people
(c) To protect the interests of the weaker sections of the society

The philosophy of the U.D H.R finds a proud place in the preamble of the Constitution. From the
preamble it is quite clear that the two primary objectives before the Constituent Assembly were:
(1) to constitute India into a Sovereign Democratic Republic and (2) to secure to its citizens the
rights mentioned therein.

(ii). Fundamental Rights (Articles 12 – 35 of the Constitution of India)

The Constitution makers have laid down an elaborate list of Human Rights in the name of
Fundamental Rights under part-III of the Constitution of India. The Fundamental Rights
guaranteed in part-III of the Constitution of India are designed to ensure Human Rights and
Article 13 of the Constitution of India declares that any attempt by the State to curtail or to
infringe them as unconstitutional and void. An eminent scholar V.G. Ramachandran has called
these provisions of the Constitution as the Magna Carta of India.3

The Fundamental Rights guaranteed and enumerated in part-III are mostly inconsonance with
Human Rights enumerated in the Universal Declaration of Human Rights, 1948 and International
Covenant on Civil and Political Rights, 1966 and provide interalia, for the following.

1. Right to Equality (Articles 14 to 18)

2. Right to Freedom (Articles 19 to 22)

2
Kesavananda Bharati vs. state of Kerala AIR 1973 SC 1416
3
V.G. Ramachandran – Fundamental Rights and Constitutional Remedies vol. 1 (1964) p.1.
3. Right against Exploitation (Articles 23 and 24)
4. Right to Freedom of Religion (Articles 25 to 28)
5. Cultural and Educational Rights (Articles 29 and 30)
6. Right to Constitutional Remedies (Articles 32 to 35)

The Constitution (forty-fourth amendment) Act 1978 has abolished the right to property as a
fundamental right as guaranteed by Article 19 (1) (f) and Article 31 of the Constitution and
hence, Article 19 (1) (f) and Article 31 have been omitted.

(a) Right to Equality (Articles 14 to 18)

Article 14 declares that “the state shall not deny to any person equality before the law or the
equal protection of the laws with in the territory of India. The first expression “Equality before
the law” is of English origin and the second expression “Equal protection of laws” has been
taken from the American Constitution. Both these expressions aim to establishing what is called
equality of status as enshrined in the preamble of the Constitution.

Articles 14, 19 and 21 of the Constitution of India are described as “Golden Triangle”. Article 14
is based upon the principles of Natural Justice and also Dicey‟s Rule of Law. The protection of
Article 14 extends to both citizens and non-citizens and to natural persons as well as legal
persons. In Indira Nehru Gandhi vs. Raj Narain 4case Supreme Court held that the Rule of Law
embodied in Article 14 is the basic feature of the Indian Constitution and hence it cannot be
destroyed even by any Constitutional amendment. This Article prohibits unreasonable
discrimination between persons. The succeeding Articles 15, 16, 17 and 18 lay down specific
application of the general rules laid down in Article 14.

(b) Right to Freedom (Articles 19 to 22)

4
AIR 1975 SC 2299.
Article 19 guarantees 1. Freedom of speech and expression. 2. Freedom to assemble peacefully
and without arms. 3. Freedom to form associations or unions. 4. Freedom to move freely
throughout the territory of India. 5. Freedom to practice any profession or to carry on any
occupation, trade or business. These six fundamental freedoms are however not absolute, but are
subject to restrictions under clauses (2) to (6) of Article 19.

Article 20 prohibits the legislature to make retrospective criminal laws. This Article further
contemplates that no person shall be prosecuted and punished for the same offence more than
once. Article 20 (3) provides that no person accused of any offence shall be compelled to be a
witness against himself.

Article 21 guarantees protection of life and personal liberty. This Article is contemplated among
all Human Rights, the most cherished right is the Right to Life and Personal Liberty protected by
Article 21 of the Constitution5. Initially the Right to Life under Article 21 of the Constitution of
India was restricted to the protection against any arbitrary arrest or to protection of life and
liberty. But, now due to the new dimensions given by the judicial activism the right to Life
includes a variety of rights which are very essential to live with human dignity. Article 21 (A)
provides that the state shall provide free and compulsory education to all children of the age of
six to fourteen years in such manner as the State may, by law determine.6

Article 22 of Constitution of India provides certain safeguards against arbitrary arrest and
detention. This Article deals with two separate matters (1) Persons arrested under ordinary laws
of crime and (2) Persons detained under the law of preventive detention. According to Article 22
(1) and (2) a person who is arrested and detained by police have the following rights:

a. Right to be informed of the grounds of his arrest and detention as possible.

b. Right to consult and to be represented by a lawyer of his own choice
c. Right to be produced before a Magistrate within 24 hours.
d. Right to be detained beyond 24 hours only under an order of a Magistrate.
5

6
Articles 21 provides that no person shall be deprived of his life or personal liberty except according
to procedure established by the law.
(c) Right against Exploitation (Articles 23 and 24)
Article 23 of the Constitution of India prohibits trafficking in human beings and begar and other
similar forms of forced labour and any contravention of this provision shall be an offence in
accordance with the law. Article 24 of the Constitution of India, prohibits the employment of the
Children below 14 years of age in factories and hazardous employment. This provision is
certainly in the interests of public health and safety of life of children.

(d) Right to freedom of Religion (Articles 25 to 28)

The concept of secularism is implicit in the preamble of the Constitution of India. Articles 25 to
28 emphasise on the concept of secularism. In a land mark judgement in S.R. Bommai vs. Union
of India 7the Supreme Court held that secularism is a basic feature of the Constitution and it
cannot be amended even by Constitutional amendment. In Aruna Roy vs. Union of India8 the
Supreme Court has said that secularism has a positive meaning that is developing, understanding
and respect towards different religions.

Article 25 of the Constitution guarantees to every person freedom of Conscience and Right to
Profess, Practice and Propagate Religion. However this Right to Religious Freedom is subject to
public order, morality and health. Article 26 of the Constitution provides that subject to public
order, morality and health every religious denomination or any section thereof shall have the
right a). To establish and maintain institutions for religions and charitable purposes b) To
manage its own affairs in matters of religion c) To own and acquire movable and immovable
property d) To administer such property in accordance with law.

7
AIR 1994 SC 1918.
8
AIR 2003 SC 3176
Article 27 provides no person shall be compelled to pay any tax for the promotion or
maintenance of any particular religion or religious denomination. Article 28 contemplates that no
religious instruction shall be imparted in any educational institution wholly maintained out of
state funds. But this restriction will not apply to any educational institution which is administered
by state but has been established under endowment or trust which requires religious instruction
to be imparted. In case of other institutions recognised and aided by the State religious
instructions may be imparted only with the consent of the individuals.
(e) Cultural and Educational Rights (Articles 29 and 30)
Article 29 guarantees that any section of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its own shall have the right to conserve the
same9. This Article further says that no citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them.
Article 30 contemplates that all minorities whether based on religion or language shall have the
right to establish and administer educational institutions of their choice. Article 30 (1A) 27
provides that if the property of a minority educational institution is acquired, the compensation
paid would be proper and adequate. This Article further contemplates that the State shall not, in
granting aid to the educational institutions, discriminate against any educational institution on the
ground that it is under management of a minority, whether based on religion or language.10

(f) Right to Constitutional Remedies (Articles 32 to 35)

Mere declarations of the Fundamental Rights are meaningless unless there is effective machinery
for the enforcement of these rights. The framers of the Indian Constitution have provided for an
effective remedy for the enforcement of the rights under Article 32 of the Constitution. Article
32 is itself a Fundamental Right. It is the very soul of the Constitution without which the
Constitution would be a nullity. Article 32(1) guarantees the right to move the Supreme Court by
appropriate proceedings for the enforcement of the Fundamental Rights conferred by part-III of
the Constitution. Article 32 (2) confers power on the Supreme Court to issue directions or orders
or writs, including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-warranto
9

10
Article 30 (1) of the Constitution of India.
and Certiorari for the enforcement of any of the rights conferred by part-III of the Constitution.
As per Article 32 (3) Parliament may by law empower any other court to exercise within the
local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under
clause (2). Article 32 (4) further guarantees that the right guaranteed by Article 32 shall not be
suspended except as otherwise provided for by the Constitution. The above stated powers are
also granted to High Courts under Article 226 of the Constitution of India. The difference
between Article 32 and Article 226 is Article 32 itself is a Fundamental Right while Article 226
is not. The power of High Courts, under Article 226 to issue writs cannot be in derogation of
Supreme Courts. In other words an order under Article 32 will supersede the order of High Court
previously passed.

Justice Gajendragadkar assessed Article 32 as “To move this court can be appropriately
described as the corner-stone of the democratic edifice raised by the Constitution”. Article 32 is
considered as the expeditious and inexpensive remedy for the protection of Fundamental Rights
from legislative and executive interference.

The following table will show the comparative position of Civil and Political Rights with
reference to Constitutional Law of India, Universal Declaration of Human Rights and
International Covenant on Civil and Political Rights.

Greater scope of Human Rights in the form of Fundamental Rights.-It is clear from the
above discussion that the scope of human rights in the form of fundamental rights is far greater
than that of Universal Declaration of Human Rights while doubts are express about the binding
nature of rights proclaimed in the Universal Declaration, fundamental rights enshrined in Part III
of the Constitution are not only binding, they are also enforceable Through the law.-They serve
as limitations on the legislative and executive powers of the State. Article 13(1) of the
Constitution provides that all laws in force in the territory of India immediately before the
commencement of this Constitution Part iii shall to the extent of such inconsistency, be void.
Further Article 13(2) provides that the State shall not make any law which takes away or
abridges the rights conferred by Part III and any law made in contravention of this clause shall,
to the extent of the contravention, be void.

As we have seen earlier in the case of fundamental rights, so also in respect of the above rights
absence of express mention does not mean that these rights have not been incorporated in Indian
Constitution. As a matter of fact, the above right are subsumed in existing rights or are part
thereof or have been (f) expressed in a little-different wording and having a little different scope.
For example, Article 39 f charges the State to direct its policy towards searing "the children are
given opportunities and facility to develop in a healthy manner and in condition freedom-and
dignities and that childhood and youth are protected against exploitation and, against moral and
material abandonment; Similarly Article 42 makes "provision for just and humane conditions of
work and-maternity relief". Article 47 provides for the "Duty of the State to raise the level of
nutrition and standard of living and to improve public health."

So far as human rights concerning economic, social and cultural aspects are concerned, the 'fact
remains that Directive .Principles of State Policy contained in Part IV of the Constitution are
definitely much more exhaustive than the Universal Declaration. There are a number of
principles and rights contained in part IV of the Constitution which do not find mention, in the
Universal Declaration: Sack rights and principles are : The ownership and control of the .
material so distributed as best to sub-serve the common good [Art 39(b)]; operation of economic
system not to result in the concentration of wealth and means of production to the common
detriment [Art. 39 fell: Equal justice and free legal aid (Art 39-A) of village Panchayat (Art. 40)
of workers in management of industries (Art. 43-AV. Uniform Civil Code,(Art. 44]; Promotion
of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker
sections (Art. 46). Protection and improvement and safeguarding of forests (Art. 48-A) etc. As
the human rights provisions of the U- N.- Charter and the Universal Declaration were influenced
by the historical background especially the large scale violations of human rights and atrocities
perpetrated during the Second World War, so also the concept of human rights in the form of
Fundamental Rights and Directive Principles were influenced by the historical background and
the conditions that prevailed in the sub-continent of India before the adoption of the Constitution.
The Protection of Human Rights under the Protection of Human Rights Act
1993:
Apart from the Constitution, for the protection and observance of Human Rights, enactment of
the protection of Human Rights Act, 1993 (herein after referred to as PHRA 1993), is an
important milestone and should be welcome. The PHRA was enacted by the Govt. of India for a
speedy and fair redressal to the victims of the violation of Human Rights and to discharge its
Constitutional and international obligations. This Act was enacted in the context of International
Covenant on Civil and Political Rights, 1966 and International Covenant on Economic, Social
and Cultural Rights, 1966.
PHRA 1993 extends to the whole of India provided that it shall apply to the state of Jammu and
Kashmir only in so far as it pertains to the matters relatable to any of the entries enumerated in
list I or list III in the seventh schedule in the Constitution as applicable to that state.

PHRA 1993 sets out the legal framework of 1. The National Human Rights Commission. 2. The
State Human Rights Commission and 3. Human Rights Courts. The PHRA 1993 also states that
the Constitution of these institutions is for the better protection of Human Rights and for the
matters incidental thereto. Subsequently PHRA 1993 has been amended in the year 2006 for the
effective enforcement of Human Rights.

The term Human Rights is defined in section 2(d) of the PHRA 1993 which 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. This definition has
been intentionally made expansive enough to accommodate within its ambit, all Human Rights
known, recognized and protected, all over the civilized world. The role of judiciary has been
remarkable to interpret the various enactments and the provisions giving a brighter spectrum and
a new dimension to the various provisions of the Act. Recent landmark verdicts of the Hon’ble
Supreme Court, High Courts and various Commissions and Tribunals have raised the scope of
various provisions of the Act.
Conclusion
Thus the philosophy of Human Rights and Fundamental Freedoms were incorporated in the
Constitution of India in the Preamble and in the chapters of Fundamental Rights, Directive
Principles of State Policy and Fundamental Duties. The Hon’ble Supreme Court on its part has
widened the ambit and the scope of Human Rights and Fundamental Freedoms. It has also
included in its ambit of Human Rights, the right to speedy trail, the right to legal aid, the right to
compensation, the right to education, the right to environment, the right to shelter, the right to
health and many more.
These Human Rights provisions are a complex amalgam of civil and political rights, economic,
social and cultural rights, religious rights, minority rights, educational rights etc. The
classification of civil and political rights and economic social and cultural rights in the name of
the Fundamental Rights and Directive Principles of State Policy under the Constitution is
probably the first attempt in the world history. The makers of the International Covenant on Civil
and Political Rights and International Covenant on Economic, Social and Cultural Rights, 1966
and classification of Human Rights Jurisprudence into two categories connote that they were
influenced by the provisions of the Constitution of India. Moreover Indian Constitution was
amended from time to time for the better promotion and protection of Human Rights and
Fundamental Freedoms.
Pursuant to the direction enshrined in Article 51 of the Constitution and International
commitments, the parliament has passed the protection of Human Rights Act, 1993. It is the
principal legislation for the promotion and protection of Human Rights in India. The Act
provides for the setting of a National Human Rights Commission, State Human Rights
Commission and Human Rights Courts, for the better protection of Human Rights and for
matters incidental thereto. This Act was amended in the year 2006 for effective enforcement of
Human Rights in the context of the present scenario.
The parliament has enacted various legislations which seek to protect and promote the Human
Rights of vulnerable sections of the society like Disabled, Women, Children, Minorities,
Scheduled Castes, Scheduled Tribes and Backward Classes and many more.