Constitutional Imperatives with Respect to National Human Rights: An Analysis

 

1. ABSTRACT

Human rights are necessary for the general improvement of people. The Constitution of India makes arrangements for equal essential rights otherwise called Fundamental Rights for its residents just as for outsiders. A distinction is made between Specific Fundamental Rights and Unspecified Fundamental Rights. The rights revered in the Constitution likewise on occasion are at standard with the International Covenant on Civil and Political Right (ICCPR) which is an international treaty. The ICCPR is material to States as opposed to person. Consequently, rights cherished in that become the commitment of a state just when they have been fused in the State's inner law. After the Universal Declaration of Human Rights by the UN General Assembly on December 10, 1948, the idea of Human Rights accepted a centrality however sooner than this, International Labour Organization in 1920 additionally started the Conventions on the privileges of labourers to shape associations and associations, cancelation of constrained work and right to aggregate haggling.

The UN Charter in 1945 insisted confidence in the key basic freedoms and designated a Commission on Human Rights under Mrs. E. Roosevelt. This affirmation was the result of the last considerations A.A. Said suitably commented ‘The idea of Human Rights might be hard to characterize however difficult to overlook’. The Human Rights are concerned about the individual’s degree of confidence that makes sure about self-esteem and advances human community. Human rights are rights characteristic to every single individual, whatever maybe one’s identity, sex, public or ethnic root, race, religion, language, or other status. We are on the whole similarly qualified for our human rights without discrimination. These rights are completely interrelated, associated and indissoluble. All-inclusive, Human rights are frequently communicated and ensured by law, in various treaties, international customary law, general standards and different wellsprings of International Law. International treaties set down commitments of Governments to act unquestionably or to abstain from specific acts, to advance and ensure human rights and fundamental freedoms of people or groups.

The Constitution of the Republic of India which came into Force on 26th January 1950 with 395 Articles and 8 Schedules, is perhaps the most intricate Fundamental Laws ever embraced. The Preamble to the Constitution declares India to be a Sovereign, Socialist, Secular and Democratic Republic. The term Democratic signifies that the Government gets its Authority from the Will of the People. It gives an inclination that they all are equivalent regardless of the race, religion, language, sex and culture. The Preamble to the Constitution Pledges Justice, Social, Economic and Political, Liberty of Thought, Expression, faith worship, equality of status and of chance and society guaranteeing the dignity of the individual and the solidarity and trustworthiness of the Nation to help its residents.

2. INTRODUCTION

2.1 WHAT ARE HUMAN RIGHTS?

Human rights are those undeniable rights which each Individual should have against the State or other Public Authority by uprightness of his being a 'individual from the human family', independent of some other thought. The idea of Human rights is as old as the old precept of 'natural rights' established on natural law, the articulation 'human rights' is of ongoing source, rising out of (post-Second World War) International Charters and Conventions. It would, subsequently, be logical to begin with the idea of natural rights, which at last prompted the detailing of 'human rights'. At the outset, the privilege of man as a lawful or moral idea emerged up as natural rights. The natural rights were gotten from the nature of man for these are innate in the nature of man and structure part of his inherent nature. It implies there exist in the idea of universe certain target moral standards which can be seen by the man by the use of his application and self-assurance. There are such countless hypotheses round the corner about the nature, which means and idea of natural rights, which eventually finished into the possibility that an individual has directly upon society or against society which the general public should perceive as human rights. This idea of human rights can be named as refreshed form of the conventional eighteenth Century idea of the freedom of man. The articulation human right is of ongoing inception arising after the finish of the Second World War. The result of the Second Universal War had offered ascend to the genuine worry towards mankind because Humanity endured a lot in this period, and as an outcome gigantic advancement have been made in the field of human rights. Universal Declaration of Human Rights (UDHR) was received by the United Nations General Assembly in 1948 and therefore enormous number of International Human rights instruments and covenants appeared like:

1. The U. N. Charter, 1945.
2. Universal Declaration of Human Rights, 1948.
3. International Covenants of 1966 for example Common and Political Rights and, Economic, Social and Cultural Rights.
4. European convention for protection of Human Rights, 1953

2.2 EVOLUTION OF HUMAN RIGHTS IN INDIA

“.... It is essential if man is not to be compelled to have recourse, as a last resort to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”[1]

The crude Societies had likely no origination of Human Rights even after beginning of Human Civilization the possibility of Human Rights as some fundamental Natural Rights, goes to the organizer of the Natural Law Theory. The Natural Law Theory advanced that man is invested by birth with certain Inalienable Rights of which Right to life, freedom and property are Paramount. As Dr. Paras Diwan has brought up in any case, soon it was understood that human Rights were for all intents and purposes advantages of the rich and the incredible and that the helpless monitors Human Rights stayed just elaborate pieces in the type of a couple of articles in some composed constitution. At the point when neediness denies an individual of a good human life all the basic freedoms are delivered useless and unimportant. The development for making sure about basic freedoms, in any case, proceeded also, picked up strength after the Second World War. The General Assembly of the United Nations embraced and broadcasted the Universal Declaration of Human Rights not long after the development of the United Nations in December 1948. There after two international covenants, one on Economic, Social and Cultural Rights and the other on Civil and Political Rights were enforced by the Central Assembly on December 16, 1976.

2.3 HUMAN RIGHTS UNDER THE CONSTITUTION OF INDIA

Our nation was one of the first signatories to the International Covenant on Civil and Political Rights and hence the composers of Indian Constitution were affected by the idea of Human Right and perceived just as ensured the vast majority of the Human Rights which were hence epitomized in the International Covenant[2]. The Preamble of the Indian Constitution reflects the rousing beliefs with the particular notice of “dignity of the person” The Constitution of free India came into power on 26th January. The effect of the Universal Declaration of Human Rights on drafting[3] of the Constitution is obvious. India has agreed to the Universal Declaration of Human Rights just as to the resulting International Covenants of Economic, Social and Social rights and Civil and Political Rights enforced by the General Assembly of the United Nations.

Fundamental Rights revered in Part III of the Constitution have risen up out of the regulation of natural rights. Major Rights are the cutting-edge name for what have been customarily known as Natural Rights. The Natural Rights changed into fundamental rights work as a protected constraint or a limitation on the forces of the organs set up by the Constitution or the State activity. Legal Review, Justiciability or Enforcement turned into an indivisible attendant of key rights. As no privilege of opportunity can be supreme, impediments have been forced to every major right in light of a legitimate concern for making sure about social equity. Requirement of Fundamental rights can even be suspended or forestalled in emergency. Directive Principles revered in Part IV of the Constitution encapsulate the beliefs, goals the opinions, the statutes and the objectives of our whole opportunity development. The insight of the progenitors of the Constitution was defended in joining non-justiciable human rights in the solid state of the Directive Principles of State Policy.

2.4 RIGHT TO LIFE AND PERSONAL LIBERTY

Article 21 of our Constitution guarantees right to life and personal liberty. The Article reads as follows:

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The primary draft to the Constituent Assembly of this Article showed up in the accompanying shape:

“No person shall be deprived of his life or personal liberty without due process of law, nor will any individual be denied equality under the steady gaze of law within territories of the country”

The Drafting Committee headed by Dr. B. R. Ambedkar, notwithstanding, subbed the words “except according to procedure established by law” since the previous is more explicit. Our Apex Court has been growing throughout the long term, the components of Article 21 i.e. Right to Life and Personal Liberty. In F. C. Mullin’s case[4] Justice Bhagwati observed:

“We think that the right to life includes the right to live with human dignity and all that goes with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms freely moving about and mixing and mingling with fellow human beings........Every act which offends against or impairs human dignity would constitute deprivation proton to of this right to life and it would have to be in accordance with reasonable, fair and just procedures set up by law which stands the trial of other basic rights.”

The articulation ‘life’ doesn't mean creature presence. Right to life ensured under Article 21 of the Constitution have certain positive angles and as such subject to efficient restriction separated from commitment of the State not to deny an individual of his life with the exception of as per a substantial law.

It is gladdening to take note of that the Supreme Court has now been augmenting the extent of Article 21, however prior in A. K. Gopalan[5], the Supreme Court had taken very narrow view of Article 21.

At first the Supreme Court didn't permit the privilege to right to privacy as a part of Article 21 in Kharak Singh vs. State of U.P.[6]. In this case the petitioner's name was recorded in a history sheet kept up by the police based on allegations and the development of the solicitor was under reconnaissance. Ayyangar J. representing the larger part struck down condition (b) of Regulation 236 of the U. P. Police Regulations approving “domiciliary visits” as violative of Article 21 of the Constitution as the said managerial guidelines were not upheld by power of any enactment and dismissed rest of the test to the above alluded guidelines.

As effectively brought up, the right of privacy is anything, but a privilege ensured under our Constitution and consequently the endeavour to determine the developments of a person which isn't simply a way in which protection is attacked isn't an encroachment of a fundamental right ensured by part III The Supreme Court has, however, subsequently modified its views & has now recognised 'right to privacy' as a part of Article. 21 of the constitution of India.[7]

3. REMEDY FOR VIOLATION OF ARTICLE 21

The Indian Judiciary has completely reformed this part of the subject by setting out that the State or the Central Government will be at liable to pay compensation to the survivors of infringement of fundamental rights and such compensation could be granted by the writ court while discarding writ petitions without coordinating the party aggrieved to file a detachable suit.[8]

4. RIGHT TO A CLEAN ENVIRONMENT – A RIGHT TO LIFE

In the Doon Valley Case[9] Article 21 was invoked as to forestall the corruption of the Mussoorie Hills because of the mining tasks there. The Court held that Article 21 remembered for its breadth an option to clean climate and that the lasting resources of the humankind can't be permitted to be depleted in our age. An enterprise engaged in hazardous or inherently dangerous industrial activity posing a potential threat to the health and safety of persons working in the factory and residing in the encompassing territory was under a commitment to pay compensation for the injury caused. It has been clearly stated in many judgements that Right to clean Environment is one of those extraordinary situations where Article 21 may be invoked to serve justice to the people at large as well as the environment. Various Fundamental rights ensured to the people in Part III of the Indian Constitution are like the arrangements of the Universal Declaration of Human Rights.

The accompanying tables make it extremely clear:

Civil and Political Rights in the Universal Declaration of Human Rights in relation to that in the Indian Constitution

ARTICLE	DECLARATION[10]	CONSTITUTION[11]
Equality Before Law	Article 7	Article 14
Prohibition of Discrimination	Article 7	Article 15(1)
Equality of Opportunity	Article 21(2)	Article 16(1)
Freedom of Speech and Expression	Article 19	Article 19(1)(a)
Freedom of peaceful assembly	Article 20 (1)	Article 19(1)(b)
Freedom to form association or unions	Article 23(4)	Article 19(1)(c)
Freedom of movement within border	Article 13(1)	Article 19(1)(d)
Protection in respect of conviction for offences	Article 11(2)	Article 20
Protection of life and personal liberty	Article 3	Article 21
Protection of slavery and forced labour	Article 4	Article 23
Freedom of conscience and religion	Article 18	Article 25(1)
Remedy for enforcement of rights	Article 8	Article 32
Right against arbitrary arrest and detention	Article 9	Article 22

The table below shows that the majority of the economic, social and cultural rights announced in the Universal Declaration of Human Rights have been included to Part IV of the Indian Constitution. Economic, Social and Cultural Rights in the Universal Declaration of Human Rights and in the Indian Constitution.

ARTICLE	DECLARATION	CONSTITUTION
Right to work, to just and favourable condition of work	Article 23(1)	Article 41
Right to equal pay for equal work	Article 23(2)	Article 39(d)
Right to education	Article 26(1)	Article 21(a), 41, 45, 51A(k)
Right to just and favourable remuneration	Article 23(3)	Article 43
Right to rest and leisure	Article 24	Article 43
Right of everyone to an adequate standard of living	Article 25(1)	Article 39(a), 47
Right to proper social order	Article 28	Article 38

 

In Keshavnanda Bharati v. State of Kerala[12], the Supreme Court noticed, The Universal Declaration of Human Rights may not be a lawfully restricting instrument however it shows how India comprehended the idea of Human rights at the time the Constitution was enforced.

In Vishakha v. State of Rajasthan[13] the Supreme Court has announced Sexual harassment of a working lady at her work as adding up to infringement of rights of sexual orientation equity and rights to life and freedom which is away from of Articles 14, 15 and 21 of the Constitution. In the milestone judgment, Supreme Court without authorized law to accommodate successful implementation of fundamental basic rights of sex equity and assurance against inappropriate behaviour set out the accompanying rules.

5. CONCLUSION

To conclude it could be rightly stated that India even before signing the covenant of 1966 has always kept in mind the protection of natural rights as well as the fundamental rights which can be rightly seen in the constitution of India. Our country has always made efforts to ensure is minimised/no infringement of Human rights. The legal structure has always tried complying with all the conditions stated in the treaty by adopting almost all the articles of the UDHR in form of it fundamental rights and Directive Principles of State Policy (DPSP).

References:

[1] Preamble of the universal Declaration of Human Rights

[2] 1966

[3] Part III of the Constitution of India

[4] Vs. The Administrator, Union of Territory of Delhi & others (1981 2 SCR 516)

[5] Vs. State of Madras (AIR 1950 SC 27)

[6] AIR 1963 SC 1295

[7] Ayyangar J.

[8] Stated by Justice Dhanuka

[9] AIR 1985 SC 652

[10] The UDHR Covenant, 1966

[11] Constitution of India

[12] (1973) 4 SCC 225; AIR 1973 SC 1461

[13] (1997) 6 SCC 241

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