September 17, 2021

Human Rights Norms Reflected In Fundamental Rights of The Constitution

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Introduction

The history of human rights can be traced thousand years ago from the various legal, cultural, religious and society development the world have gone through. There is proof of human rights evolving in various regimes. For example, during the time of Prophet Mohammed, he formulated Constitution of Medina in 622, and Magna Carta, 1215 which helped in the formation of various constitutional rights in UK, USA and France. This is the origin of human rights. But these rights did not receive much importance and were violated multiple times because countries and rulers were more into conquering places and establishing their power. Such acts of the existing countries resulted in the World Wars. The International organisations such as League of Nations in 1919 helped in ending WWI but it failed to stop WWII. United Nations Organisations (UNO) established in 1945 helped in bringing peace which eventually led to an end of WWII.  Later, UNO worked for the worldwide development of rights which was known as Human rights.

As a result, UNO formulated Universal Declaration of Human Rights (UDHR) in 1948 which is based on certain documents and they are Magna Carta (1689), English Bill of Rights, the American Declaration of Independence, the American Bill of Rights, and the French Declaration of the Rights of Man and of the Citizen. UDHR was not legally binding on the States. As a result, they formed two covenants which is legally binding on the States and the covenants are as follows

  • Covenant on Civil and Political Rights, 1976
  • Covenant on Economic, Social and Cultural Rights, 1976

Fundamental Rights of India is similar to the above mentioned Declaration. These rights are taken from many sources which include the English Bill of Rights, the American Bill of Rights and French Declaration of the Rights of Man which also happens to be the source of UDHR. Fundamental rights in India are the rights guaranteed under Part III (Articles 12-35) of the Constitution of India. There are six fundamental rights recognised by the Indian constitution:

  • Articles 14-18: Right to equality,
  • Articles 19-22: Right to freedom,
  • Articles 23-24: Right against exploitation,
  • Articles 25-28: Right to freedom of religion,
  • Articles 29-30: Cultural and educational rights and
  • Article 32 and 226: Right to constitutional remedies.

Human Rights Vs. Fundamental Rights

From the table below, it is understood that Human Rights and India’s fundamental rights are similar because they have been adopted from a common source and this explains the reflection of UDHR on the Fundamental Rights of India.

ARTICLEFUNDAMENTAL RIGHTSCOVENANT OF CIVIL AND POLITICAL RIGHTS
Equality before lawArticle 14Article 26
Prohibition on discrimination on grounds of religion, race, caste, sex or place of birth.Article 15Article 18
Freedom of speech and expressionArticle 19(1)(a)Article 19
Freedom of peaceful assemblyArticle 19(1)(b)Article 21
Freedom to form associations or unionsArticle 19(1)(c)Article 22
Freedom of movement within borderArticle 19(1)(d)Article 12
Protection in respect of conviction for offencesArticle 20 (1)Article 15
Protection of life and personal libertyArticle 21Article 6 and 9
Right against arbitrary arrest and detentionArticle 22Article 14
Protection of slavery and forced labourArticle 23Article 8
Freedom of conscience and religionArticle 25(1)Article 18
Right to privacyArticle 21Article 17
Right to educationArticle 21AArticle 13 and 14 (of the covenant on economic, social and cultural rights)

Human Rights Under The Constitution Of India

The Constitution of independent India came into force on 26th January. The impact of the Universal Declaration of Human Rights on drafting part III of the Constitution is apparent. India has acceded to the Universal Declaration of Human Rights as well as to the subsequent International Covenants of Economic, Social and Cultural rights and Civil & Political Rights adopted by the Central Assembly of the United Nations. The Preamble to the Constitution declares India to be a Sovereign, Socialist, Secular and Democratic Republic. The term democratic denotes that the Government gets its authority from the will of the people. It gives a feeling that they all are equal irrespective of the race, religion, language, sex and culture.

The Preamble to the Constitution pledges justice, social, economic and political, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and fraternity assuring the dignity of the individual and the unity and integrity of the nation to aid its citizens. Fundamental Rights – enshrined in Part III of the Constitution have emerged from the doctrine of natural rights. Fundamental Rights are the modern name for what have been traditionally known as Natural Rights. The Natural Rights transformed into fundamen- tal rights operate as a constitutional limitation or a restriction on the powers of the organs set up by the Constitution or the State action. Judicial Review, Justiciability or Enforcement became an insepa- rable concomitant of fundamental rights. As no right of freedom can be absolute, limitations have been imposed to each fundamen- tal right in the interest of securing social justice. Enforcement of fundamental rights can even be suspended or prevented in an emergency.

PROTECTION OF HUMAN RIGHTS- Education about Human Rights should become a part of the general public education.Technical and financial assistance should be provided to increase knowledge about human rights. Police members and security forces have to be trained to ensure the observation of human rights standards for law enforcement. Law that makes human rights violations illegal,should be created and existing law should be implemented. Policies and programs should be adopted to ensure people have access to their rights. Proper reservations in politics and public life should be provided by the Government. Government should provide that women have the same rights as men regarding the nationality of their children. Government should work against the trafficking of women and exploitation of prostitution of women. To violate the most basic human rights; is to deny individuals their fundamental moral entitlements. It is, in a sense, to treat them as if they are less than human and undeserving of respect and dignity.

Recent Events of Human Rights Violation

Limits on free speech and attacks on religious minorities, often led by vigilante groups that claim to be supporters of the ruling Bharatiya Janata Party (BJP), are an increasing concern in India. In 2016, students were accused of sedition for expressing their views; people who raised concerns over challenges to civil liberties were deemed anti-Indian; Dalits and Muslims were attacked on suspicion they had killed, stolen, or sold cows for beef; and nongovernmental organizations (NGOs) came under pressure due to India’s restrictive foreign funding regulations. A crackdown on violent protests in Jammu and Kashmir beginning in July killed over 90 people and injured hundreds, fueling further discontent against government forces. Impunity for police and security forces largely continued amid new allegations of torture and extrajudicial killings, including reports of sexual assault and other abuses by security forces in the central Indian state of Chhattisgarh.

Case  Laws

The following cases highlight few instances where human rights were the base for formulating landmark decisions. It is necessary to protect the rights of women, transgender, LGBTQ, etc. The legal world should meet the needs and demand of public accordingly as the world is not static.

MC Mehta v. Union of India (1986)

This is a landmark case that highlighted the concept of Right to Life. This case is about the escape of Oleum gas from Shriram Food and Fertilisers Ltd at Delhi. This case got its momentum because it happened after one year of Bhopal Gas Tragedy and it was the need of the hour to formulate a new law so that none of them escapes liability. Hence, absolute liability was established. This extended also the scope of Article 21 and Article 32.

Air India v Nargesh Meerza (1981)

In this case, regulations 46 and 47 of the Air India Employees Service Regulations were challenged. These Service Regulations created major differences in the salaries and designation of male and female in-flight cabin crew. The male cabin crew were referred to as “Air Flight Pursers” and the female cabin crew as Air Hostesses.

According to Regulation 46, Flight Pursers have a retirement age of 58 years. Air Hostesses were required to retire on the grounds of marriage, first pregnancy or 35 years of age, whichever occurred earlier. According to Regulation 47, it was under the discretion of the Managing Director to extend a person’s job. Such regulations were violative of Article 14, 15(1) and 16(2)

Naz foundation v. Govt of NCT of Delhi and Ors (2009)

A PIL was filed before the Court by Naz for the Rights of LGBTs because sexual acts between same sex were considered to be an offence under Sec 377 of IPC. Naz considered this as violative of Article 14, 15, 19 and 21 of the constitution. This case was filed due to the continued discrimination of the gay and transgender community in India. Here, the Court stated that the part which decriminalised consensual homosex was unconstitutional and stressed upon the importance of upholding the values of equality, tolerance and inclusiveness in Indian Society. But this judgment was overruled in 2013 by the Supreme Court of India.

NALSA v. Union of India (2014)

This is a landmark decision where the Supreme declared transgender people as the ‘third gender’. Transgender will also be able to enjoy the fundamental rights granted under the Constitution of India and gave them the right to self-identification of their gender as male, female or third gender. Moreover, the court also held that transgender are minorities so they were granted reservations in admissions to educational institutions and jobs.

Navtej Singh Johar v. Union of India (2018)

This case finally settled the position of Sec.377 and stated that this section is violative of the rights enshrined under Article 14, 15, 19 and 21. This case decriminalised consensual sex between consenting adults.

Joseph Shine v. Union of India (2018)

A writ petition was filed under Article 32 challenging the constitutional validity of Section 497 of IPC read with Section 198 of CrPC being violative of Article 14, 15 and 21.

Authors- Silpa Ann Koshy (kristu jayanti law college) & Allapureddy vaishnavi (ICFAI foundation for higher education)

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