UDHR and the Constitution of India - A

Comparison

Aligarh Muslim University

Faculty of Law
Mid Term Assignment
Human Rights
Submitted to: Dr. Saim Farooqui
Author: Rajat Kumar Singh
Semester: IX sec: B
17BALLB 59
Group III
Enrollment No. – GI0465
Mail id: rajatkrsingh2311@gmail.com
Mob. No. 9568533357
Session-2021-22
 S. No. INDEX Page No.

01. INTRODUCTION III

02. DEVELOPMENT OF HUMAN RIGHTS IN INDIA III

Ancient
Period
Medieval
Period
British
Period

03. INCORPORATION OF HUMAN RIGHTS IN V

INDIAN CONSTITUTION

04. UNIVERSAL DECLARATION OF HUMAN RIGHTS V

05. SPIRIT OF THE CONSTITUTION VI

06. THE UDHR AND INDIAN CONSTITUTION VII

07. CONCLUSION XII

II
INTRODUCTION
“Laws change. Universal truths are constant. What is true and right is true and right
for all. White and black alike.”
- Brad Pitt (12 Years a Slave)

Human Rights are inalienable fundamental rights to which a person is inherently entitled
simply because she or he is a human being. Human Rights are thus conceived as universal
and egalitarian. At the international level human rights have become a movement. It can be
studied through many ways which is called as the constituents of Human Rights. They may
be civil rights, political, economic, cultural, social rights.

They are also called somewhere Fundamental Rights. Being a humankind, one must have
some rights from birth and hence they are the birth rights of every human being. They are
also the rights of freedom to everyone irrespective of caste, creed, sex, region, colour,
profession, etc.

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”.1

Protection of human rights is essential for the development of the people of the country,
which ultimately leads to development of the national. The Constitution of India guarantees
basic human rights to every citizen of the country. The framers of the Constitution have put
their best efforts in putting down the necessary provisions. However, with continuous
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.

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 DEVELOPMENT OF HUMAN RIGTHS IN INDIA
Evolution of Human Rights in India can be traced back to the fifteenth century B.C from
Vedas. It is to be noticed that India embedded the concept of human rights from the time
immemorial and the same rights were discovered by the west later. The wide range of stories
and judicial pronouncement showed the concept of human rights and in Vedic period human
rights were deemed to be equality.

 Ancient Period

There are several Vedas which throw light on human rights. The famous Vedic quote “let
everyone be happy, let everyone free from all ills” which expected the king not only to
protect the lives of the people also to promote human well-being and prosperity. Kautilya had
pleaded with the king to protect the rights of the people and the dignity of the people.
Arthasatra not only dealt with civil and political rights formulated by Manu but also included
several economic rights for the people.

Buddhism and Jainism protected the moral order and dignity of the people. After Buddha,

1
Section 2(1)(d)

IV
Ashoka policy of non-violence made him protect the Human rights which include equality,
fraternity, happiness, and liberty of the individuals. People enjoyed many rights in the Hindu
Empire. Ashoka secured freedom from hunger, disease, deprivation and prohibit torture and
inhuman treatment of the prisoners.

The ancient period developed the common ideas to enlarge unity and harmony irrespective of
race, colour, language, religion, gender etc. Most of the Vedas and Smritis stated that the
whole world was one family. The ancient jurisprudence abundantly encouraged freedom,
equality, and liberty for all people.

 Medieval Period

Medieval India was popularly known as the Muslim period or Muslim era. During the Pre-
Mughal period, Hindus were forced to adopt their culture and religious practices. But, in later
Muslim period it is considerably changed and modified to its form. During the rule of Akbar,
the great, he brought many changes towards the Hindus to practice their own religion. It can
be clearly seen that “Human Right policy of universal reconciliation and tolerance” was
followed by the ruler and the same was followed by his son Jahangir.

The right of an accused to be released on bail existed during the Mughal period, similarly, the
accused can be acquitted on the benefit of the doubt. Bhakti movement emerged in India, it
regenerated truth, righteousness, justice, and morality.

 British Period

The modern developments of human rights in India emerged during the British period. The
torture made by the British against Indians induced the Indians to protest the rule of Britishers
and encouraged the freedom fighters for the freedom movement to safeguard their liberties
and fundamental rights and freedoms. The national movement emphasised by Gandhiji not
only to free India from foreign rule but also to abolish the practice of Sati, untouchability,
Harijan’s rights etc.

The movement is for the fundamental freedom and civil and political rights for the people.
The objective of the Indian national congress, in the beginning, is to secure liberties, human
rights of non-discrimination on grounds of race, colour etc.

Raja Ram Mohan Roy and Ishwar Chandra Vidyasagar stood against the violence against
women in India including ‘sati paratha’, child marriage and other outbreaks of violence.
They criticised discrimination made against women. Vidyasagar took several efforts to
remove legal obstacles for widow remarriage through legislation in 1856 and played a vital
role in promoting education for girl children.

Mahatma Gandhi launched Non-violent struggle to emphasise self-governance and

fundamental laws for themselves. Jyotiba Phule founded ‘Satyashodhak Samaj’ to ensure
equality among the oppressed class and promote the education of girls.

‘Arya Samaj’ and Ramakrishna mission in 1899 were struggling for promoting education
for all the sections of the society. Human rights and fundamental freedoms are the only things
for the Indians to fight against the Britishers.

V
The proclamation of Queen Victoria on 1st November 1858 declared the secular nature of the
state and non-interference in religious practices.

INCORPORATION OF HUMAN RIGHTS IN INDIAN

CONSTITUTION
In the Constitution of India Bill 18952, the Indian National Congress demanded to insert
basic human rights for the people including freedom of speech and expression, right to
equality, right to free education etc. Indian National Congress in 1927 set up a committee to
draft Swaraj Constitution based on the declaration of rights.

In 1927, a committee was set up under the chairmanship of Pt. Motilal Nehru. The
committee suggested 19 fundamental rights be incorporated in the constitution of India. The
Constitution of India 1950 incorporated 10 fundamental rights suggested under the
committee. In 1946, Jawaharlal Nehru passed the objective resolution which contained most
of the human rights and it guaranteed safeguard for minorities, backward classes, tribal
people, oppressed and other classes in the country.

In 1945, Sapru Committee3 asked for the written codes for fundamental rights and after
several debates, the fundamental rights and directive principles of state policy were
incorporated in the Indian constitution.

India got its independence on August 15, 1947, but it was incomplete and on 10th December
1948, when the constitution of India was in making the Universal Declaration of Human
Rights was adopted.

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UNIVERSAL DECLARATION OF HUMAN RIGHTS
The traumatic events of the Second World War brought home that human rights are not
always universally respected. The extermination of almost 17 million people during the
Holocaust, including 6 million Jews, horrified the entire world. After the war, governments
worldwide made a concerted effort to foster international peace and prevent conflict. This
resulted in the establishment of the United Nations in June 1945.

In 1948, representatives from the 50 member states of the United Nations came together
under the guidance of Eleanor Roosevelt4 to devise a list of all the human rights that
everybody across the world should enjoy.

On 10 December 1948, the General Assembly of the United Nations announced the
Universal Declaration of Human Rights (UDHR) - 30 rights and freedoms that belong to
all of us. Seven decades on and the rights they included continue to form the basis for all
international human rights law.

Eleanor Roosevelt was heavily involved in championing civil rights and social activism. She

2
https://www.constitutionofindia.net/historical_constitutions/the_constitution_of_india_bill unknown 189
5 1st%20January%201895
3
https://advocatetanmoy.com/2021/10/14/sapru-committee-report-1945/
4
First Lady of the United States 1933-1945

VII
was appointed chair of the UN Commission on Human Rights which drafted the UDHR.

The UDHR marked an important shift by daring to say that all human beings are free and
equal, regardless of colour, creed, or religion. For the first time, a global agreement put
human beings, not power politics, at the heart of its agenda.

The 30 rights and freedoms set out in the UDHR include the right to asylum, the right to
freedom from torture, the right to free speech and the right to education. It includes civil
and political rights, like the right to life, liberty, free speech, and privacy. It also includes
economic, social, and cultural rights, like the right to social security, health, and education.5

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SPIRIT OF THE CONSTITUTION
It is important to remember the Preamble to the Indian Constitution in order to understand the
true spirit of the Constitution. The preamble reads -

We, the people of India, having solemnly resolved to constitute India into a Sovereign
Socialist Secular Democratic Republic and to secure to all its citizens:

Justice, Social, economic, and political;

Liberty, of thought, expression, belief, faith and worship;

Equality, of status and of opportunity;

and to promote among them all

Fraternity assuring the dignity of the individual and the unity and integrity of the nation;

In our constituent assembly, this twenty-sixth day of November, 1949, do hereby adopt, enact
and give unto ourselves this Constitution.

Justice, Liberty, Equality and Fraternity are the four fundamental pillars of the Constitution.
The wordings have attained a status of a touchstone that is used by the Indian courts wherever
the intent and purport of a particular Act is question.

In the Keshavananda Bharathi6 case, a majority of the full bench of the Supreme Court held
that the objectives specified in the preamble contain the basic structure of the Constitution
which cannot be amended in exercise of the power under Article 368 (amendment to
Constitution). From then on, Indian courts have held the Preamble as containing the basic
structure of the Constitution and have used it to validate an act or its provisions as
constitutional or unconstitutional.

Through Indira Gandhi Election Case7, Minerva Mills Case8 and Waman Rao Case9,
Supreme Court of India has clarified the basic feature of the Constitution and held that they
are

5
https://www.amnesty.org.uk/universal-declaration-human-rights-UDHR
6
Keshavananda Bharathi v. State of Kerala, [1973 SC, 1461]
7
975 AIR 1590 1975 SCC (2) 159
8
AIR 1980 SC 1789
9
(1981) 2 SCC 362, 1981 2 SCR 1

IX
beyond the power of parliament to amend even though the parliament had such power under
Art 368.

Articles 32 and 226 of the Constitution are of special relevance in the context of upholding
human rights. These articles concern with the power of Supreme Court and High Court to
issue certain writs.

THE UDHR AND THE INDIAN CONSTITUTION

The Indian Constitution drew on the principles enshrined in UDHR, not merely because of
their philosophical value but because the founders of the country realized that the social-
political-economic exploitation of the masses of India in the hands of centuries of foreign rule
cannot but otherwise be rectified than by Constitutional guarantees.

In incorporating them into the letter and spirit of the Constitution, they also made certain
fundamental rights like Right to Life, absolutely non-derivable than through due process of
law. Later, in Keshavananda Bharathi, Menaka Gandhi, and a couple of more cases referred
earlier, the Supreme Court of India expanded the Right to Life into ‘Right to Life with
dignity’.

The import of such an interpretation is truly unique in the annals of Constitutional Law
anywhere in the world.

SERIAL THE CONSTITUTION OF INDIA

NO. UDHR

Art. 14 (equality before the law and

All people are entitled to rights
without distinction based on
01. race, color, sex, language,
religion, opinion, origin,
property, birth or residency.
equal protection of the laws), as
limited by Art. 31C.
Art. 16 (1) (equality of public
employment), as limited by
Art 16(3)-16(5).

Art. 15 (on the basis of religion, race,

caste, sex, or place of birth), except
under Arts. 15(3) and 15(4) (special
provisions for women and children,
02. All Human beings are free and affirmative action).
and equal in dignity and
rights Art. 15 applies to all state action,
and to private action restricting
access to public places and facilities.
Art. 17

X
 (abolition of untouchability); and Art.
16(2) (employment discrimination on
the basis of religion, race, caste, sex,
descent, place of birth, and
residence), as limited by Art 16(3)-
16(5).

Art. 21 (Right to life with dignity, no

extrajudicial executions). Art. 23
Right to life, liberty and security (prohibition of traffic in human
03. of person. beings and forced labor); Art. 24
(prohibition of hazardous labor by
children under age 14); Art. 17,
Abolition of Untouchability.

04. Art 17 and Art 23, 24. Specific Act

Freedom from slavery. of Parliament exists for abolition of
Bonded labour.

05. Freedom from torture Art 20, 21, 22

06. Right to be treated equally by the Art 14

law.

07. Right to equal protection by Art 14, Art 39A

the law

08. Right for all to effective Art 14, 20, 21,22

remedy by competent
tribunal

09. Freedom from arbitrary arrest. Art 22

10. Right to a fair public hearing Art 20, 21, 22, 39A
by independent tribunal

Right to presumption of
11. innocence until proven guilty at
public trial with all guarantees Art 20, 21,22, 39A
necessary for defense

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 12. Right to privacy in home, Though not specific, Art 21
family and is invoked
correspondence

Freedom of movement in your Not covered specifically, Art 21 is

13. own country and the right to invoked under Menaka Gandhi v.
leave and return to any countries UOI

14. Right to political asylum in N/A

other countries

Right to nationality Art. 19(1)(d) as to movement, and (e)

at to residence, as limited by Art.
15. 19(5) (reasonable restrictions in the
interests of the public or of a
"scheduled tribe").

16. Right to marriage and family and Covered by separate Acts, specific to
to equal rights of men and cultures and religions.
women during and after Marriage

17. Right to own property Art 31

18. Freedom of thought and Art 19, 25, 26, 27, 28

conscience and religion

Art. 25 (freedom of religion and of

19. Freedom of opinion and conscience, "subject to public order,
expression and to seek, morality and health"), though under
receive and impart Art. 25(2) any level of government
information may restrict economic activities
related to religion. Special mention
is made of the religious practices of
the Sikh religion. Under Art. 26, all
religious orders have limited powers
to establish places of worship and
teaching, while Art. 28 ensures the
separation of religious and state
education.

In addition, The Right To

Information Act 2005

XII
 20. Freedom of Association Art. 19(1) (b) (freedom of peaceful
and assembly assembly), as limited by Art. 19(3)
(reasonable restrictions to advance
national security).

21. Right to take part in and select There are numerous provisions,
government throughout the text of the
Constitution, including those relating
to election of the President, local
village committees (Panchayats), and
detailed rules for elections, eligibility
for public service, etc.

Right to social security and

22. realization of economic, Art 29, 30, 43
social and cultural rights

Right to work, to equal pay for

23. equal work and to form and Art 19, 39, 42
join trade unions

24. Right to reasonable hours of work Art 42, 43

and paid holidays

Right to adequate living

25. standard for self and family, Art 47, and other Provisions of Part
including food, housing, IV of Constitution
clothing, medical care and social
security

26. Right to education Art 45

27. Right to participate in cultural life

and to protect intellectual Art 29, 30
property rights

28. Right to social and international

order permitting these freedoms to Art 38
be realized

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 Each person has responsibilities
29. to the community and others as Art 48A, Art 51A
essential for a democratic society

30. Repression in the name of rights Art 32, 32 A, 33-35, Art 226
is unacceptable.

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CONCLUSION
The Constitution of India has absorbed and reflected the basic spirit and intent of the
important provisions of UDHR, thereby reflecting the will of the Indian State in being a part
of the wider comity of nations to promote Human Rights and Justice everywhere, not merely
in words but in its spirit. The provisions of the Constitution are part of a dream that the
founder-fathers of India shared. The dream of a world where all humans will enjoy their
freedoms guaranteed by the collective will of the people.

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