VIVEKANANDA INSTITUTE OF

PROFESSIONAL STUDIES
VIVEKANANDA SCHOOL OF LAW AND
LEGAL STUDIES

HUMAN RIGHTS
SUBMITTED TO: SUBMITTED BY:

Ms. Kanchan Lavania Jhalak Mehta

16553
1-N
INTRODUCTION

Human rights are rights inherent to all human beings, regardless of gender, nationality, place
of residency, sex, ethnicity, religion, color or and other categorization. Thus, human rights
are non-discriminatory, meaning that all human beings are entitled to them and cannot be
excluded from them. Of course, while all human beings are entitled to human rights, not all
human beings experience them equally throughout the world. Many governments and
individuals ignore human rights and grossly exploit other human beings.[1]

TYPES OF HUMAN RIGHTS

Civil and political rights uphold the sanctity of the individual before the law and guarantee
his or her ability to participate freely in civil, economic, and political society. Civil rights
include such rights as the right to life, liberty, and personal security; the right to equality
before the law; the right of protection from arbitrary arrest; the right to the due process of
law; the right to a fair trial; and the right to religious freedom and worship. When protected,
civil rights guarantee one's 'personhood' and freedom from state-sanctioned interference or
violence. Political rights include such rights as the right to speech and expression; the rights
to assembly and association; and the right to vote and political participation. Political rights
thus guarantee individual rights to involvement in public affairs and the affairs of state. In
many ways, both historically and theoretically, civil and political rights have been considered
fundamental human rights for which all nation states have a duty and responsibility to
uphold[2] They have also been seen as so-called ‘negative’ rights since they merely require
the absence of their violation in order to be upheld.

Social and economic rights include such rights as the right to a family; the right to education;
the right to health and well being; the right to work and fair remuneration; the right to form
trade unions and free associations; the right to leisure time; and the right to social security.
When protected, these rights help promote individual flourishing, social and economic
development, and self-esteem. Cultural rights, on the other hand, include such rights as the
right to the benefits of culture; the right to indigenous land, rituals, and shared cultural

[1] Human rights, available at: http://www.endslaverynow.org

[2] Davidson 1993: 39-45; Donnelly 1998: 18-35; Forsythe 2000: 28-52
practices; and the right to speak one's own language and ‘mother tongue’ education. Cultural
rights are meant to maintain and promote sub-national cultural affiliations and collective
identities, and protect minority communities against the incursions of national assimilationist
and nation-building projects. In contrast to the first set of rights, this second set of social,
economic, and cultural rights is often seen as an aspirational and programmatic set of rights
that national governments ought to strive to achieve through progressive implementation.
They have thus been considered less fundamental than the first set of rights and are seen as
‘positive’ rights whose realisation depends heavily on the fiscal capacity of states [3]

Solidarity rights, which include rights to public goods such as development and the
environment, seek to guarantee that all individuals and groups have the right to share in the
benefits of the earth's natural resources, as well as those goods and products that are made
through processes of economic growth, expansion, and innovation. Many of these rights are
transnational in that they make claims against wealthy nations to redistribute wealth to poor
nations, cancel or reduce international debt obligations, pay compensation for past imperial
and colonial adventures, reduce environmental degradation, and help promote policies for
sustainable development. Of the three sets of rights, this final set is the newest and most
progressive and reflects a certain reaction against the worst effects of globalization, as well as
the relative effectiveness of 'green' political ideology and social mobilization around concerns
for the health of the planet. [4]

Human Rights in India

As guaranteed by the Indian Constitution
The Constitution of India incorporates most of the rights enumerated in the UDHR in two
parts-- the Fundamental Rights and the Directive Principles of State Policy.
Fundamental Rights: Articles 12-35 of the Indian Constitution guarantees the Right to
Equality, Right to Freedom, Right Against Exploitation, Right to Freedom of Religion,
Cultural & Educational Rights, Saving of Certain Laws and Right to Constitutional
Remedies.

[3] Davidson 1993; Harris 1998: 9; see also Foweraker and Landman 1997: 14-17

[4] Solidarity rights, available at: http://www.dhnet.org.br

Directive Principles of State Policy (DPSP): Articles 36-51 of the Indian Constitution
guarantees Right to Social Security, Right to Work, Right to Free Choice of Employment,
and Protection Against Unemployment, Right to Equal Pay for Equal Work, Right to
Existence Worthy of Human Dignity, Right to Free and Compulsory Education, Right to
Equal Justice and Fee Legal Aid and the principles of policy to be followed by the State.

FUNDAMENTAL RIGHTS
Fundamental rights are the basic human rights enshrined in the Constitution of India which
are guaranteed to all citizens. They are applied without discrimination on the basis of race,
religion, gender, etc. Significantly, fundamental rights are enforceable by the courts, subject
to certain conditions.
1. Right to Equality (Articles 14 – 18)

Right to equality guarantees equal rights for everyone, irrespective of religion, gender, caste,
race or place of birth. It ensures equal employment opportunities in the government and
insures against discrimination by the State in matters of employment on the basis of caste,
religion, etc. This right also includes the abolition of titles as well as untouchability.

2. Right to Freedom (Articles 19 – 22)

Freedom is one of the most important ideals cherished by any democratic society. The Indian
Constitution guarantees freedom to citizens. The freedom right includes many rights such as:

 Freedom of speech

 Freedom of expression

 Freedom of assembly without arms

 Freedom of association

 Freedom to practise any profession

 Freedom to reside in any part of the country

Some of these rights are subject to certain conditions of state security, public morality and
decency and friendly relations with foreign countries. This means that the State has the right
to impose reasonable restrictions on them.
3. Right against Exploitation (Articles 23 – 24)

This right implies the prohibition of traffic in human beings, begar, and other forms of forced
labour. It also implies the prohibition of children in factories, etc. The Constitution prohibits
the employment of children under 14 years in hazardous conditions.

4. Right to Freedom of Religion (Articles 25 – 28)

This indicates the secular nature of Indian polity. There is equal respect given to all religions.
There is freedom of conscience, profession, practice and propagation of religion. The State
has no official religion. Every person has the right to freely practice his or her faith, establish
and maintain religious and charitable institutions.

5. Cultural and Educational Rights (Articles 29 – 30)

These rights protect the rights of religious, cultural and linguistic minorities, by facilitating
them to preserve their heritage and culture. Educational rights are for ensuring education for
everyone without any discrimination.

6. Right to Constitutional Remedies (32 – 35)

The Constitution guarantees remedies if citizens’ fundamental rights are violated. The
government cannot infringe upon or curb anyone’s rights. When these rights are violated, the
aggrieved party can approach the courts. Citizens can even go directly to the Supreme Court
which can issue writs for enforcing fundamental rights. [5]

DIRECTIVE PRINCIPLE OF STATE POLICY

Part IV of the Constitution of India (Article 36–51) contains the Directive Principles of State
Policy (DPSP). Article 37 of the Indian Constitution States about the application of the
Directive Principles. These principles aim at ensuring socioeconomic justice to the people
and establishing India as a Welfare State.

[5] Fundamental Rights, available at: https://www.mea.gov.in

Directives based on Socialist Principles

 Article 38: The State shall strive to promote the welfare of the people by securing and
protecting a social order by ensuring social, economic and political justice and
by minimising inequalities in income, status, facilities and opportunities

 Articles 39: The State shall in particular, direct its policies towards securing:
Right to an adequate means of livelihood to all the citizens.

o The ownership and control of material resources shall be organised in a manner to

serve the common good.

o The State shall avoid concentration of wealth in a few hands.

o Equal pay for equal work for both men and women.

o The protection of the strength and health of the workers.

o Childhood and youth shall not be exploited.

 Article 41: To secure the right to work, to education and to public assistance in cases of
unemployment, old age, sickness and disability.

 Article 42: The State shall make provisions for securing just and humane conditions of
work and for maternity relief.

 Article 43: The State shall endeavour to secure to all workers a living wage and a
decent standard of life.

 Article 47: To raise the level of nutrition and the standard of living of people and to
improve public health.

Directives based on Gandhian Principles

 Article 40: The State shall take steps to organise village panchayats as units of Self
Government

 Article 43: The State shall endeavour to promote cottage industries on an individual or
cooperative basis in rural areas.
 Article 46: The State shall promote educational and economic interests of the weaker
sections of the people particularly that of the Scheduled Castes (SCs), Scheduled Tribes
(STs) and other weaker sections.

 Article 47: The State shall take steps to improve public health and prohibit consumption
of intoxicating drinks and drugs that are injurious to health.

 Article 48: To prohibit the slaughter of cows, calves and other milch and draught cattle
and to improve their breeds.

Directives based on Liberal-Intellectual Principles

 Article 44: The State shall endeavour to secure for the citizen a Uniform Civil
Code through the territory of India.

 Article 45: To provide early childhood care and education for all children until they
complete the age of six years.

 Article 48: To organise agriculture and animal husbandry on modern and scientific
lines.

 Article 49: The State shall protect every monument or place of artistic or historic
interest.

 Article 50: The State shall take steps to separate judiciary from the executive in the
public services of the State.

 Article 51: It declares that to establish international peace and security the State shall
endeavour.[6]

[6] DSPS, available at: https://www.drishtiias.com

NATIONAL HUMAN RIGHTS COMMISSION
The National Human Rights Commission (NHRC) of India was established on 12 October,
1993. The statute under which it is established is the Protection of Human Rights Act
(PHRA), 1993 as amended by the Protection of Human Rights (Amendment) Act, 2006.
It is in conformity with the Paris Principles, adopted at the first international workshop on
national institutions for the promotion and protection of human rights held in Paris in October
1991, and endorsed by the General Assembly of the United Nations by its Regulations 48/134
of 20 December, 1993. The NHRC is an embodiment of India’s concern for the promotion
and protection of human rights. Section 2(1)(d) of the PHRA defines Human Rights 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 courts in India.

Mission Statement: To promote and protect human rights of all and enhance the reach of
Commission to the grass root level, especially the vulnerable and marginalized sections of the
society.

Our Focus Areas: Human dignity for all, protect rights of the people especially from
marginalised sections of society, prison reforms, women & child rights, rights of disabled,
elderly, LGBTI rights, environment protection, health care & mental health, human rights
education, bonded & child labour issues, good governance, business & human rights, human
right defenders, NGO’s/civil society and encourage research on issues related to human
rights, generate awareness and work with all the stakeholders for continuous improvement in
laws & schemes to promote and protect human rights in a holistic manner

Priority NHRC Functions: In delivering its strategic plan for 2018-2021, the NHRC will
prioritise support for the following functions:

* Complaints and redressal mechanism.

* Awareness raising, Human Rights Education, training and research.

* Cooperation with all SHRCs and other National Commissions.

* Cooperation with civil society, NGOs and Human Rights Defenders.

* Monitoring and Progress

* Engagement in international and regional bodies and mechanisms.[7]

UNIVERSAL DECLARATION OF HUMAN RIGHTS

"All human beings are born free" redirects here.

The Universal Declaration of Human Rights (UDHR) is an international document adopted

by the United Nations General Assembly that enshrines the rights and freedoms of all human
beings. It was accepted by the General Assembly as Resolution 217 during its third session
on 10 December 1948 at the Palais de Chaillot in Paris, France. Of the 58 members of the
United Nations at the time, 48 voted in favour, none against, eight abstained, and two did not
vote.

A foundational text in the history of human and civil rights, the Declaration consists of 30
articles detailing an individual's "basic rights and fundamental freedoms" and affirming their
universal character as inherent, inalienable, and applicable to all human beings.[8] Adopted as
a "common standard of achievement for all peoples and all nations", the UDHR commits
nations to recognize all humans as being "born free and equal in dignity and rights"
regardless of "nationality, place of residence, gender, national or ethnic origin, colour,
religion, language, or any other status".[9] The Declaration is considered a "milestone
document" for its "universalist language", which makes no reference to a particular culture,
political system, or religion.[10][11] It directly inspired the development of international human
rights law, and was the first step in the formulation of the International Bill of Human Rights,
which was completed in 1966 and came into force in 1976.

Although not legally binding, the contents of the UDHR have been elaborated and
incorporated into subsequent international treaties, regional human rights instruments, and
national constitutions and legal codes.

[7] NHRC, available at: https://nhrc.nic.in

[8] Human Rights Law, available at: www.un.org

[9]UDHR Booklet, Art. 2

[10] "Universal Declaration of Human Rights". www.amnesty.org.

[11] "Human Rights: The Universal Declaration vs. The Cairo Declaration". Middle East Centre..
The Declaration consists of the following:

 The preamble sets out the historical and social causes that led to the necessity of drafting
the Declaration.
 Articles 1–2 establish the basic concepts of dignity, liberty, and equality.
 Articles 3–5 establish other individual rights, such as the right to life and the prohibition
of slavery and torture.
 Articles 6–11 refer to the fundamental legality of human rights with specific remedies
cited for their defence when violated.
 Articles 12–17 set forth the rights of the individual towards the community,
including freedom of movement and residence within each state, the right of property and
the right to a nationality.
 Articles 18–21 sanction the so-called "constitutional liberties" and spiritual, public, and
political freedoms, such as freedom of thought, opinion,
expression, religion and conscience, word, peaceful association of the individual, and
receiving and imparting information and ideas through any media.
 Articles 22–27 sanction an individual's economic, social and cultural rights,
including healthcare. It upholds an expansive right to a standard of living, provides for
additional accommodations in case of physical debilitation or disability, and makes
special mention of care given to those in motherhood or childhood.[12]
 Articles 28–30 establish the general means of exercising these rights, the areas in which
the rights of the individual cannot be applied, the duty of the individual to society, and
the prohibition of the use of rights in contravention of the purposes of the United Nations
Organisation.[13]

[12] Glendon 2002, Chapter 10.

[13]^ Jump up to:a b "OHCHR | Universal Declaration of Human Rights at 70: 30 Articles on 30
Articles - Article 28". www.ohchr.org..
CASES

Kesavanada Bharati v. State of Bengal

Kesavananda Bharati Sripadagalvaru, the Kerala seer from Edneer Mutt whose property
rights case in the Supreme Court in 1973 helped define basic structure under the Constitution,
passed away at the age of 79. It was in the landmark Kesavananda Bharati vs. State of Kerala
after which it was ruled that the “basic structure” of the Constitution cannot be amended. The
Supreme Court in a 7:6 judgment had ruled that Parliament has no powers to alter the basic
structure of the constitution. The arguments in the case of Kesavananda Bharati v State of
Kerala went for 68 days.
Kesavananda Bharati challenged the Constitution (29th Amendment) Act, 1972, questioning
the Kerala government’s attempts, under two-state land reform acts, to impose restrictions on
the management of its (mutt) property. Bharati also challenged three Constitutional
amendments – the 24th, 25th and 26th amendments – introduced by the Indira Gandhi
government. The principal question that was raised in the case was about the power of
Parliament to amend the Constitution in totality especially with respect to fundamental rights.
To simply put, the basic question that the Supreme Court had to decide was whether
Parliament could alter, amend, abrogate any part of the Constitution even to the extent of
taking away all fundamental rights?
The Supreme Court then ruled that the ‘basic structure’ of the Constitution was inviolable,
and could not be amended by Parliament. The 'basic structure' doctrine has since been
regarded as a tenet of Indian constitutional law.

Background of the Kesavananda Bharati case:

Such challenge --- Kesavananda Bharati case --- was inevitable, given government
reactions to the court’s judgement in the Golak Nath case (1967). In Golak Nath case, an 11-
judge Bench held that Parliament could not amend Fundamental Rights, including the Right
to Property under the Constitution. This didn't sit well with Indira Gandhi’s government, after
which Parliament passed major amendments, allowing amendment of Fundamental Rights
and putting some property issues beyond judicial review.
In the early 1970s, the then PM Indira Gandhi- led government had enacted major
amendments to the Constitution (the 24th, 25th, 26th and 29th) to get over the judgments of
the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and above mentioned
Golak Nath case.
In RC Cooper case, the court had struck down Indira Gandhi’s bank nationalisation policy,
and in Madhavrao Scindia it had annulled the abolition of privy purses of former rulers.
All the 4 amendments -- 24th (fundamental rights, 1971), 25th (property rights, 1972), 26th
(privy purses, 1971), 29th (land reform acts, 1972), as well as the Golak Nath judgment,
came under challenge in the Kesavananda Bharati case.

Judgement:
The Constitutional Bench-led by Chief Justice SM Sikri -- ruled by a 7-6 verdict held that
Parliament can amend every Article in the Constitution but should be restrained from altering
the ‘basic structure’ of the Constitution.
The court held that under Article 368, which provides Parliament amending powers,
something must remain of the original Constitution that the new amendment would change.
The court did not define the ‘basic structure’, and only listed a few principles — federalism,
secularism, democracy — as being its part. Since then, the court has been adding new
features to this concept.

________________________________________________________
[14]Kesavananda Bharati v. State of Kerala, AIR 1962 SC 933.
D.K. Basu vs. State of West Bengal
Introduction:
DK Basu, Executive Chairman of Legal Aid Services, West Bengal, a non-political
organization on 26/08/1986 addressed a letter to the Supreme Court of India calling his
attention to certain news published in the Telegraph Newspaper about deaths in police
custody and custody. He requested that the letter be treated as a Writ Petition within the
“Public Interest Litigation”. Considering the importance of the issues raised in the letter, it
was treated as a written Petition and the Defendants were notified. While the writ petition
was being considered, Mr. Ashok Kumar Johri addressed a letter to the Chief Justice of the
Supreme Court calling his attention to the death of a Mahesh Bihari from Pilkhana, Aligarh in
police custody. The same letter was also treated as a Request for Writing and was included
along with D.K.Basu’s Request for Writing. On 14/08/1987 the Court issued the Order
issuing notices to all state governments and a notice was also issued to the Law Commission
requesting appropriate suggestions within a two month period. In response to the notification,
several states submitted affidavits, including West Bengal, Orissa, Assam, Himachal Pradesh,
Haryana, Tamil Nadu, Meghalaya, Maharashtra, and Manipur. Additionally, Dr. A.M.Singh
vi, Principal Counsel was appointed Amicus Curiae to assist the Court. All of the attorneys
who appeared provided useful assistance to the Court.

Judgment:

Ratio Decidendi:

 When the right is guaranteed by the State, it is against the State that the remedy
must be sought if the constitutional obligation imposed has not been fulfilled.

 Article 21 guarantees the right to life and personal liberty and has been held to
include the right to live with human dignity. It thus also includes a guarantee
against torture and assault by the State or its functionaries.

 Protection against arrest and detention is guaranteed by Article 22. It provides that
no individuals arrested shall be detained in custody without being informed of the
 grounds of arrest and that arrested individuals shall not be denied the right to
consult and defend themselves by a legal practitioner of their choice.

 Article 20(3) provides that a person accused of an offense shall not be compelled
to be a witness against himself or herself.

Obiter Dicta:

 The Court was of the opinion that custodial violence, including torture and death
in lock-ups, strikes at the rule of law. Custodial violence, including torture and
death in prisons, was considered by the court to be one of the worst crimes in a
civilized society governed by the rule of law.

 The Court observed that despite the constitutional and statutory provisions aimed
at safeguarding the personal liberty and life of a citizen, the growing incidence of
torture and deaths in police custody has been a disturbing factor.

 Reference was made to the case of Neelabati Bahera v. State of Orissa (1993)[15]
in which the Supreme Court had held that prisoners and detainees are not
deprived of their Fundamental Rights under Article 21 and only the restriction
permitted by law could be imposed on the enjoyment of the Fundamental Rights
of prisoners and detained.

Guidelines issued:

The Court issued a list of 11 guidelines in addition to the Constitutional and Statutory
Safeguards to be followed in all cases of arrest and detention.[16] The guidelines are as
follows: –

 Police personnel who make the arrest and handle the interrogation of the arrested
person must wear precise, visible and clear identifications and identification labels
with their designations. Details of all personnel handling the interrogations of the
arrested person must be recorded in a register.

 That the police officer making the arrest of the detainee will prepare a
memorandum of arrest at the time of the arrest and said memo will be witnessed
 by at least one witness who may be a member of the family of the arrested person
or a respectable person from the locality from where the arrest is made. It must
also be signed by the detainee and must contain the time and date of the arrest.

 A person who has been arrested or detained and is detained at a police station or
interrogation centre or other confinement, shall have the right to have a friend or
relative or other person known to him or who has an interest in his well-being will
be informed, as soon as possible, that you have been arrested and are being
detained in a particular place unless the witness crediting the arrest memorandum
is himself a friend or relative of the arrested.

 Police must notify a detainee’s time, place of detention, and place of custody
where the detainee’s next friend or relative lives outside the district or city through
the District’s Legal Aid Organization and station. Police of the affected area
telegraphically within the period of 8 to 12 hours after the arrest.

 The person arrested must be made aware of his right to have someone informed of
his arrest or detention as soon he is put under arrest or is detained.

 An entry must be made in the Case Diary at the place of detention regarding the
arrest of the person which shall also disclose the name of the next friend of the
person who has been informed of the arrest and the names and particulars of the
police official in whose custody the arrestee is.

 Upon request, the Arrestee must also be examined at the time of his arrest and
major and minor injuries, if present on his body, must be recorded at that time.
The “Inspection Memo” must be signed by both the detainee and the arresting
police officer and a copy must be provided to the detainee.

 The detainee must undergo a medical examination by a trained physician every 48

hours while in custody by a physician on the panel of approved physicians
appointed by the Director of Health Services of the State or Union Territory
concerned.

 Copies of all documents, including the arrest memo, must be sent to the
Magistrate for registration.
  The Arrestee may be allowed to meet with his attorney during the interrogation,
although not throughout the interrogation.

 A Police Control Room must be provided at all central district and state offices,
where the arresting officer must communicate information about the arrest and the
place of custody of the arrested, within 12 hours after the arrest and in the Police
Control Room Board, must be displayed on a visible notice board.[17]

[15]Neelabati Bahera v. State of Orissa, 1993 AIR SCC 196.

[16] Id.

[17]D.K. Basu v. State of West Bangal, (1997) 1 SCC 426