THE ICFAI UNIVERSITY,

DEHRADUN

TOPIC: HUMAN RIGHTS

SUBMITTED TO: SUBMITTED BY:

DR. AKHILESH KUMAR PANDEY JUHI PRIYA
(FACULTY OF LAW) ENROLLMENT NO
1305C00039
 TABLE OF CONTENT

TABLE OF CONTENT .................................................................................. 3

INTRODUCTION........................................................................................... 5

DEFINITION OF HUMAN RIGHTS ........................................................... 6

CHARACTERISTIC AND NATURE OF HUMAN RIGHTS ..................... 6

DEVELOPMENT OF HUMAN RIGHT ....................................................... 8

The UN Charter, 1945................................................................................. 8

The Universal Declaration of Human Rights, 1948 ......................... 8

International Covenants on Human Rights........................................ 8

LEGAL STATUS OF HUMAN RIGHTS IN INDIA .................................... 9

ACTIVE ROLE OF JUDICIARY ................................................................ 10

ENABLING PROVISION ........................................................................... 11

HUMAN RIGHTS DEVELOPMENT IN INDIA ...................................... 12

CONCLUSION ............................................................................................. 33

BIBLIOGRAPHY ........................................................................................ 36
 INTRODUCTION

Human Rights – Two simple words but when put together they constitute the very foundation of
our existence. Human Rights are commonly understood as “inalienable fundamental rights to
which a person is inherently entitled simply because she or he is a human being”.

There is no denying that all human beings are entitled to certain ‘basic’ and ‘natural’ rights
meant for a dignified existence as a human being. A dignified living environment with freedom
coterminous with that of others, to one and all is the central tenet of human rights.

Human rights are conceptualized to be certain rights that are inherent or occur naturally to
individuals as human beings, having existed even in the ‘state of nature’ before the development
of societies and emergence of the state. As widely recognized, the State cannot be accepted as
the fundamental source of these rights. They inhere in individuals by virtue of their birth as a
human itself. The State is accepted and understood merely as a recognizer, guarantor and
protector of these rights. The State, as its concept exists today, cannot act to the detriment of the
inherent rights of an individual, or for that matter, the collective conscience of individuals as a
community or a society.

Alternatively the natural or human rights are recognized as legal rights, constitutional rights etc
depending upon their assimilation in statutes or constitution of a nation, or, even fundamental
rights as per terminology awarded to them in the statute or the constitution.
 DEFINITION OF HUMAN RIGHTS

The Universal Declaration of Human Rights (UDHR), 1948, defines human rights as “rights
derived from the inherent dignity of the human person.” Human rights when they are guaranteed
by a written constitution are known as “Fundamental Rights” because a written constitution is
the fundamental law of the state.
Dr. Justice Durga Das Basu defines “Human rights are those minimal rights, which every
individual must have against the State, or other public authority, by virtue of his being a
‘member of human family’ irrespective of any consideration. Durga Das Basu’s definition brings
out the essence of human rights.

CHARACTERISTIC AND NATURE OF HUMAN RIGHTS

1. Human Rights are Inalienable – Human rights are conferred on an individual due to the
very nature of his existence. They are inherent in all individuals irrespective of their
caste, creed, religion, sex and nationality. Human rights are conferred to an individual
even after his death. The different rituals in different religions bear testimony to this fact.
2. Human Rights are Essential and Necessary - In the absence of human rights, the moral,
physical, social and spiritual welfare of an individual is impossible. Human rights are
also essential as they provide suitable conditions for material and moral upliftment of the
people.
3. Human Rights are in connection with human dignity – To treat another individual with
dignity irrespective of the fact that the person is a male or female, rich or poor etc. is
concerned with human dignity. For eg. In 1993, India has enacted a law that forbids the
practice of carrying human excreta. This law is called Employment of Manual
Scavengers and Dry Latrines (Prohibition) Act.
4. Human Rights are Irrevocable: Human rights are irrevocable. They cannot be taken away
by any power or authority because these rights originate with the social nature of man in the
society of human beings and they belong to a person simply because he is a human being. As
such human rights have similarities to moral rights.
5. Human Rights are Necessary for the fulfillment of purpose of life: Human life has a
purpose. The term “human right” is applied to those conditions which are essential for the
fulfillment of this purpose. No government has the power to curtail or take away the
rights which are sacrosanct, inviolable and immutable.
6. Human Rights are Universal – Human rights are not a monopoly of any privileged class
of people. Human rights are universal in nature, without consideration and without
exception. The values such as divinity, dignity and equality which form the basis of these
rights are inherent in human nature.
7. Human Rights are never absolute – Man is a social animal and he lives in a civic society,
which always put certain restrictions on the enjoyment of his rights and freedoms. Human
rights as such are those limited powers or claims, which are contributory to the common
good and which are recognized and guaranteed by the State, through its laws to the
individuals. As such each right has certain limitations.
8. Human Rights are Dynamic - Human rights are not static, they are dynamic. Human
rights go on expanding with socio-eco-cultural and political developments within the
State. Judges have to interpret laws in such ways as are in tune with the changed social
values. For eg. The right to be cared for in sickness has now been extended to include
free medical treatment in public hospitals under the Public Health Scheme, free medical
examinations in schools, and the provisions for especially equipped schools for the
physically handicapped.
9. Rights as limits to state power - Human rights imply that every individual has legitimate
claims upon his or her society for certain freedom and benefits. So human rights limit the
state’s power. These may be in the form of negative restrictions, on the powers of the
State, from violating the inalienable freedoms of the individuals
 DEVELOPMENT OF HUMAN RIGHT

The UN Charter, 1945

The United Nations Charter was drafted, approved and unanimously adopted by all the delegates
of the 51 states, who attended the United Nations Conference at San Francisco The UN Charter
contains provisions for the promotion and protection of human rights. The importance of the
Charter lies in the fact that it is the first official document in which the use of ‘human rights’ is,
for the first time traceable and which also recognized the respect for fundamental freedom.

The Universal Declaration of Human Rights, 1948

The Universal Declaration of Human Rights was adopted by the General Assembly of the United
Nations on 10th December, 1948. The Declaration consists of thirty Articles and covers civil,
political, economic, social and cultural rights for all men, women and children. The declaration
however is not a legally binding document. It is an ideal for all mankind.

International Covenants on Human Rights

The Universal Declaration of Human Rights, 1948 was not a legally binding document. It lacked
enforcements. This deficiency was sought to be removed by the U.N. General Assembly by
adopting in December, 1966, the two Covenants, viz,
1. International Covenant on Civil and Political Rights and
2. International Covenant on Economic, Social and Cultural Rights.
The two International Covenants, together with the Universal Declaration and the Optional
Protocols, comprise the International Bill of Human Rights. The International Bill of Human
Rights represents a milestone in the history of human rights. It is a modern Magna Carta of
human rights.
LEGAL STATUS OF HUMAN RIGHTS IN INDIA

India has had a history of its own, in-so-far human rights of its inhabitants are concerned. Ruled
by despotic rulers/kings and emperors, its public, probably was never aware of the concept of
human rights. While European and other western countries got a taste of real time concept of
human rights with the advent of Magna Carta era, the concept of human rights remained alien, or
at the most, so intermittent that the people of India would have never bothered to think of their
existence with certain rights by the virtue of their being born as humans. The intermittent periods
were those isolated period of history when some benevolent individual had the reigns in their
hand as the ruler/kings and emperors. The colonial rule in India gave much impetus to
recognition of certain rights. The struggle for independence was marked with uprisings for
individual and societal rights. There was mass awakening and recognition of rights that were
inherent to human existence. The end of World War II was a turning point in the history of
struggle for human rights worldwide and the world community rose to the occasion by
endeavouring hard for recognition of human rights that would have universal application.

By virtue of being one of the signatories to the United Nation Declaration of Human Rights on
December 10, 1948, India became one pioneering countries of the world to have made a
commitment to respect and protect the human rights declared and accepted by the United Nations
Organizations. Induced by its people's struggle for freedom, India very promptly incorporated
some of the widely accepted human rights as fundamental rights in the Indian Constitution.

The Constitution of India epitomizes the testament of the people of India to protect and promote
the fundamental freedoms and rights of all human beings. The Constitution of India provides
elaborate provisions for all classes of human rights. Part- III relating to the Fundamental Rights
deals with the civil and political rights which and are justifiable in nature; meaning thereby, that
they are enforceable through a Court of Law. The economic, social and cultural rights are
contained in Part IV of the Constitution which lays down Directive Principles of State Policy.
The later are non-enforceable in a court of law, but, are fundamental to governance of country.
However, the country has witnessed enforcement of these rights by the deliberations of Hon’ble
Supreme Court of India.

ACTIVE ROLE OF JUDICIARY

Of course, all legal rights are human rights but it is unfortunate that all human rights have not
become legal rights as on date. This is because the law follows the action, as a consequence, it is
not possible to codify all probable laws in anticipation for protection of human rights, and this is
when the due procedure of law or the principle of natural justice plays an active role in
protecting the rights of the people when there is no legislation available.

As I have mentioned earlier, the magnificence of human rights is that it is all pervading, the trick
lies in the successful execution of the same. Fundamentally, the basic motive of all the three
wings of the democratic government, namely, the executive, the legislative, and the Judiciary
revolves around the protection of human rights. They strive together and separately to uphold the
human rights of the people in the country.

The Judiciary with no doubt has played a vital role in protection of Human rights over the
decades. Some of the most unpleasant violation of human rights like Sati, Child Marriage, Honor
Killings, Slavery, Child labour etc., have been abolished wholly owing to widespread awareness
and strict implementation measures taken by the Judiciary.

The status of human rights is fairly high under the Constitution of India which makes provision
for fundamental rights and empowers Supreme Court of India and High Courts to enforce these
rights. Equally important is the fact that India is a signatory to international conventions on
economic, social, cultural, civil and political rights, with certain conditions. These rights are
partly contained in Part III of the Constitution of India including the right to equality in Article
14, right to freedom of speech and expression in Article 19(1)(a), the right to protection of life
and personal liberty in Article 21 and the right to religious freedom in Article 25
In Part IV of the Constitution, the Directive Principles of State Policy i.e. the duties of the State
or the socio-economic rights, have been envisaged which are non justiciable in any court of law
but complementary to the fundamental rights in Part III. It directs the State to apply policies and
principles in the governance of the country so as to enhance the prospects of social and economic
justice. For instance, Article 43 directs the State to secure for workers a living wage, decent
standard of life and social and cultural opportunities. On a different note, the society should be
changed in a positive way by the State, enlighten and place every human being in a society
where their individual rights can be protected as well as upheld.

The Indian judiciary with its widest interpretation in observance of Human Rights has
contributed to the progress of the nation and to the goal of creating India as a vibrant State. The
definition of Human Rights can be found under Section 2(d) of the Protection of Human Rights
Act, 1993 as, “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
the Court of India.” So it is evident that Courts have a major role to play in enforcing the rights.

ENABLING PROVISION

The right to enforce the Human Rights provided in the Constitution of India is protected through
enabling provisions. Article 226 of the Constitution empowers High Courts to issue directions,
orders or writs in the nature of Habeas Corpus, Quo Warranto, Mandamus, Certiorari,
Prohibition for the enforcement of fundamental rights as well as any other legal rights. Article
32, itself a Fundamental Right, invests the Supreme Court with the power of judicial review for
the enforcement of fundamental rights with the power to issue directions, orders and writs as
well.
It is worth mentioning that Dr. Ambedkar who in course of his speech referred to draft Article 25
corresponding to the present Article 32, in the Constituent Assembly, said, “if I was asked to
name any particular article in the Constitution as the most important-an article without which this
Constitution would be nullity – I would not refer to any other article except this one. It is the
very soul of the Constitution and very heart of it and I am glad that the House, has realized the
importance”. During the debates in the Constituent Assembly Alladi Krishnaswami Aiyar also
remarked, “The future evolution of the Indian Constitution will thus depend to a large extent
upon the work of the Supreme Court and the direction given to it by the Court, while its function
may be one of interpreting the Constitution….it cannot in the discharge of its duties afford to
ignore the social, economic and political tendencies of the time which furnish the necessary
background”. And these predictions have come true. Any aggrieved person could have direct
access to superior Courts for obtaining quick relief against the state for violation of any
fundamental right. In addition to the above provisions, Article 142 enables the Supreme Court to
make such orders as are necessary to do complete justice in the cause; Article 141 provides that
the law declared by the Supreme Court shall be binding on all; and Article 144 obliges all
authorities to act in the aid of the Supreme Court.

HUMAN RIGHTS DEVELOPMENT IN INDIA

1829 - The practice of sati was formally abolished by Governor General William Bentick.
1929 - Child Marriage Restraint Act, prohibiting marriage of minors under 14 years of
age is passed.
1955 - Reform of family law concerning Hindus gives more rights to Hindu women.

1973 - Supreme Court of India rules in Kesavananda Bharati case1 that the basic structure
of the Constitution (including many fundamental rights) is unalterable by a constitutional
amendment.
1978 - SC rules in Menaka Gandhi v. Union of India2 that the right to life under Article
21 of the Constitution cannot be suspended even in an emergency.
1985-6 - The Shah Bano case3, where the Supreme Court recognized the Muslim
woman's right to maintenance upon divorce, sparks protests from Muslim clergy. To

1 (AIR) 1973 SC 1461

2 AIR (1978) SC
 nullify the decision of the Supreme Court, the Rajiv Gandhi government enacted
The
Muslim Women (Protection of Rights on Divorce) Act 1986
1989 - Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act , 1989 is
passed.
1992 - A constitutional amendment establishes Local Self-Government ( Panchayati Raj
) as a third tier of governance at the village level, with one third of the seats reserved
for women. Reservations were provided for scheduled castes and tribes as well.
1993 - National Human Rights Commission is established under the Protection of
Human
Rights Act.
2001 - Supreme Court passes extensive orders to implement the right to food.
CONCLUSION

In the present era, the human rights refers to more than mere existence with dignity. The
International Institute of Human Rights in Strasbourg divides the human rights into three
generations. First-generation human rights are fundamentally civil and political in nature, as
well as strongly individualistic in nature; the Second-generation human rights are basically
economic, social and cultural in nature, they guarantee different members of the citizenry with
equal conditions and treatment; the Third-generation human rights refers to the right to self-
determination and right to development.

It is true that nobody is perfect, and this also applies to our judiciary. As in some cases like ADM

Jabalpur v. S. K Shukla67 our Judiciary failed to satisfy the need of Human Rights. The five
senior most judges of Indian Supreme Court including the Chief Justice struck down the Habeas
Corpus. On this day during the Emergency the Supreme Court sank to its lowest when it decided
the infamous Habeas Corpus Case with the following conclusion:

In view of the Presidential Order dated 27th June 1975 no person has any locus to move any writ
petition under Article 226 before a High Court for habeas corpus or any other writ or order or
direction to challenge the legality of an order of detention on the ground that the order is not
under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is
based on extraneous considerations.

The Presidential Order referred to was the one issued during Emergency declaring that the right
of any person to move any Court for any enforcement of the rights conferred by Articles 14, 21
and 22 of the Constitution and all proceedings pending in any Court for the enforcement of the
above mentioned rights shall remain suspended for the period during which the Proclamation o
As a consequence with the expansion of scope of human rights, the ambit of safeguarding the
rights also increases, as a result, the judiciary should toil more to prevent the violation of human
rights. Judiciary is the only organ which can translate these rights into reality; which is not
possible without the help of the judicial officers of the respective courts.

Ultimately after many ups and downs the Indian judiciary is playing a role incomparable in the
history of judiciaries of the world. It must, therefore, prove itself worthy of the trust and
confidence which the public reposes in it. The judiciary must not limit its activity to the
traditional role of deciding dispute between two parties, but must also contribute to the progress
of the nation and creation of a social order where all citizens are provided with the basic
economic necessities of a civilized life, viz. employment, housing, medical care, education etc.
as this alone will win for it the respect of the people of the country.

I from the bottom of my heart congratulate the Academy’s effort to organise such regional
conferences which certainly creates a forum for the judicial officers to develop a national
dialogue of emerging challenges and also to contribute towards the excellence of the judicial
system. With conviction, I can say that with such conferences and training programmes
organised more frequently; it will facilitate in achieving our challenges at ease.

The brief survey of the above mentioned cases shows that the activism of the Indian Supreme
Court to protect the children from various type of exploitation. Although the Supreme Court
made laudable directions and suggestions in many instances to protect basic rights of poor
children, unfortunately these directions and suggestions are not followed and implemented by the
government machinery effectively. In this regards, the performance of the Indian Judiciary
stands out as a signal contribution to the implementation of human rights generally and that of
Child Rights in particular.

As such in the M.C. Mehta v. State of Tamil Nadu and Goodricke Group Ltd v Center of West
Bengal Supreme Court of India emphasized on national Constitution and international
instruments, including the Convention on the Rights of the Child, the Indian government is
required to ensure that children do not engage in hazardous work. In Lakshmi Kant Pandey v
Union of India with object of ensuring the welfare of the child J. Bhagwati directed the
Government and various agencies to follow some principles as their constitutional obligation to
ensure the welfare of the child. Also judiciary has taken the lead to save the child from
exploitation and improve their conditions. To mention a few, the Asiad case (1981), L.K.Pandey
case (1994), M.C.Mehtas case (1991), Vishal Jeet v. Union of India (1990), and Gaurav Jain v.
Union of India (1997) are some of the famous decisions where the judiciary has shown enough
courage to uphold the interests of the children and spared no one to improve the working
conditions of the child workers. The judiciary has always made concrete efforts to safeguard
them against the exploitative tendencies of their employer by regularizing their working hours,
fixing their wages, laying down rules about their health and medical facilities. The judiciary has
even directed the states that it is their duty to create an environment where the child workers can
have opportunities to grow and develop in a healthy manner with full dignity in consensus of the
mandate of our constitution.
 BIBLIOGRAPHY

WEBSITES
http://shodhganga.inflibnet.ac.in.
http://nhrc.nic.in
http://www.legalservicesindia.com.
http://legacy.fordham.edu.
http://www.ohchr.org

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