BHARATI VIDYAPEETH’S YASHWANTRAO

CHAVAN LAW COLLEGE, KARAD

(AFFILIATED TO SHIVAJI UNIVERSITY,

KOLHAPUR)

DISSERTATION ON

“STUDY OF FUNDAMENTAL RIGHTS IN THE

LIGHT OF COMPARATIVE CONSTITUTION”

SYNOPSIS SUBMITTED TO SHIVAJI UNIVERSITY;

KOLHAPUR SUBMITTED BY-

ASHOK DINGANE

CLASS: LLM 2 YEAR, SEMESTER 4 ‘

UNDER GUIDANCE OF

DR. MAHENDRA KHAIRNAR

2023-2024
 LIST OF ABBREVIATION

ABBREVIATION LONG FORM

A.E. R ALL ENGLAND REPORTS

A.I. R ALL INDIA REPORT

A.L. J ALLAHABAD LAW JOURNAL

A.R.C ADMINISTRATIVE REFORMS COMMISSION

ART ARTICLE

C.A. D CONSTITUENT ASSEMBLY DEBATES

C.C.C CIVIL COURT CASES

C.P.C CODE OF CIVIL PROCEDURE

C.P. I COMMUNIST PARTY OF INDIA

C.P.I.(M) COMMUNIST PARTY OF INDIA (MARXIST).

CR.P.C CODE OF CRIMINAL PROCEDURE

F.C FINANCE COMMISSION.

HAR.L.REV HARVARD LAW REVIEW

I.A INDIAN APPEALS.

I.I. J INDIAN LAW JOURNAL

I.J. PB.AD INDIAN JOURNAL OF PUBLIC ADMINISTRATION

I.J. PO.SC INDIAN JOURNAL OF POLITICAL SCIENCE.

 I.L. I INDIAN LAW INSTITUTE

I.U. B INTER-UNIVERSITY BOARD

J.C.P. S JOURNAL OF CONSTITUTIONAL AND

PARLIAMENTARY STUDIES

J.I.L. I JOURNAL OF INDIAN LAW INSTITUTE

N.D.C NATIONAL DEVELOPMENT COUNCIL

S.C.C SUPREME COURT CASES

S.C. R SUPREME COURT REPORT.

S.C. W SUPREME COURT WEEKLY

U.G.C UNIVERSITY GRANTS COMMISSION

W.L. N WEEKLY LAW NOTES

YALE. L.J YALE LAW JOURNAL.

 LIST OF CASES

SR.NO NAME OF CASE CITATION

1 MANEKA GANDHI V. UNION OF (1978) 1 SCC 248:

INDIA

2 MARBURY V. MADISON (1803) United States5 U.S. 137

(1803)

3 R. V. OAKES (1986) CANADA[1986] 1

S.C.R. 103

4 R (MILLER) V SECRETARY OF STATE UNION (2017) -

FOR EXITING THE EUROPEAN UNITED KINGDOM
[2017] UKSC 5

5 SOUTH AFRICAN BROADCASTING SOUTH AFRICA 2009

CORPORATION LTD V NATIONAL (3) SA 62 (CC)
DIRECTOR OF PUBLIC
PROSECUTIONS

6 KESAVANANDA BHARATI V. STATE (1973) 4 SCC 225:

OF KERALA

7 A.K. GOPALAN V. STATE OF MADRAS (1950) SCR 88:

8 NAZ FOUNDATION V. GOVERNMENT (2009) 160 DELHI LAW

OF NCT OF DELHI TIMES 277:

9 M.C. MEHTA V. UNION OF INDIA: (1987) 1 SCC 395

10 MOHAMMED AHMED KHAN V. SHAH (1985) 3 SCC 844:

BANO BEGUM
11 VISHAKA V. STATE OF RAJASTHAN (1997) 6 SCC 241:

12 NAVTEJ SINGH JOHAR V. UNION OF (2018) 10 SCC 1:

INDIA

13 INDRA SAWHNEY V. UNION OF INDIA (1992) 3 SCC 217:

14 KHARAK SINGH V. STATE OF UTTAR (1963): AIR 1963 SC

PRADESH 1295

15 R. V. NANAVATI (1961): AIR 1962 SC 605

16 S.R. BOMMAI V. UNION OF INDIA (1994): AIR 1994 SC

1918

17 OLGA TELLIS V. BOMBAY (1985): AIR 1986 SC

MUNICIPAL CORPORATION 180

18 FRANCIS CORALIE MULLIN V. THE (1981): AIR 1981 SC

ADMINISTRATOR, UNION 746
TERRITORY OF DELHI

19 I.R. COELHO V. STATE OF TAMIL (2007): (2007) 2 SCC 1

NADU

20 PEOPLE'S UNION FOR CIVIL (2004): (2004) 9 SCC

LIBERTIES V. UNION OF INDIA 580

21 STATE OF WEST BENGAL V. SUBODH (1954): AIR 1954 SC 92

GOPAL BOSE

22 RAGHUNATHRAO GANPATRAO V. (1994): AIR 1994 SC 1

UNION OF INDIA

23 NALSA V. UNION OF INDIA (2014): (2014) 5 SCC

 438

24 R. RAJAGOPAL V. STATE OF TAMIL (1994): AIR 1995 SC

NADU 264
 TABLE OF CONTENT
SR NO PARTICULAR PAGE
NO

CHAPTER- INTRODUCTION
I

1.1 INTRODUCTION

1.2 STATEMENT OF PROBLEM

1.3 SIGNIFICANCE OF STUDY

1.4 HYPOTHESIS

1.5 OBJECTIVES OF THE STUDY

1.6 RESEARCH QUESTIONS

1.7 SCOPE OF STUDY

1.8 METHODOLOGY

1.9 CHAPTERIZATION

CHAPTER- CONCEPTUAL ANALYSIS AND DEVELOPMENT

II OF HUMAN RIGHTS FROM ANCIENT TO
MODERN - NATIONAL AND INTERNATIONAL
PERSPECTIVES

2.1 INTRODUCTION

2.1.1 KINDS OF HUMAN RIGHTS

2.2 HUMAN RIGHTS; ORIGIN AND DEVELOPMENT

 MEANING AND NATURE OF HUMAN RIGHTS.

2.2.1 THE NATURAL RIGHTS THEORY:

2.2.2 THE LEGAL RIGHT THEORY:

2.2.3 THE HISTORICAL THEORY OF RIGHTS:

2.2.4 THE SOCIAL WELFARE THEORY OF RIGHTS:

2.2.5 THE IDEALISTIC THEORY OF RIGHTS;

2.3 PRAGMATIC APPROACH:

2.3.1 CONCEPT OF HUMAN RIGHTS:

2.3.2 UNIVERSAL DECLARATION OF HUMAN RIGHTS

OF 1948

2.4 ORIGIN AND DEVELOPMENT OF HUMAN

RIGHTS FROM ANCIENT TO MODERN
NATIONAL AND INTERNATIONAL
PERSPECTIVES

2.4.1 THE CONCEPT OF DHARMA

2.4.2 JAIMINI'S VIEW

2.4.3 MODERN INDIAN LAW DISTINGUISHED FROM

DHARMA

2.4.4 SOURCE OF DHARMA

2.4.5 HUMAN RIGHTS IN BRITISH INDIA

2.4.6 HUMAN RIGHTS AND THE INDIAN

 CONSTITUTION:

2.5 SIMILARITIES BETWEEN COVENANT ON

ECONOMICS, SOCIAL AND CULTURAL RIGHTS
1966 AND CONSTITUTION OF INDIA DIRECTIVE
PRINCIPLES.

2.6 SPECIFIED FUNDAMENTAL RIGHTS

2.7 RELEVANCE OF RIGHT TO PRIVACY AS A

HUMAN RIGHT

2.7.1 ART 12 OF THE UNIVERSAL DECLARATION OF

HUMAN RIGHTS (1948) REFERS TO PRIVACY
AND IT STATES:

CHAPTER - HUMAN RIGHTS AND THE INDIAN

III CONSTITUTION

3.1 INTRODUCTION

3.2 DEVELOPMENT OF THE IDEA OF HUMAN

RIGHTS UNDER THE CONSTITUTION OF INDIA

3.3 NATURE AND CONTENTS OF FUNDAMENTAL

RIGHTS AND DIRECTIVE PRINCIPLES OF
STATEPOLICY

3.4 EXTENT OF HUMAN RIGHTS STANDARDS

INCORPORATED UNDER THE CONSTITUTION
OF INDIA

3.4.1 CIVIL AND POLITICAL RIGHTS

3.4.2 RIGHTS TO THE ECONOMY, SOCIETY, AND

 CULTURE

3.5 DIFFERENCES BETWEEN HUMAN RIGHTS

STANDARDS AND FUNDAMENTAL RIGHTS

CHAPTER - HUMAN RIGHTS AND FUNDAMENTAL RIGHTS

IV

4.1 IMPORTANCE OF THE HUMAN RIGHT TO

PRIVATE IN THE MODERN WORLD:

4.2 UNBORN BABY'S HUMAN RIGHTS IN RELATIVE

TO WOMAN'S REPRODUCTIVE RIGHTS

4.3 WOMAN’S RIGHT TO BE PREGNANT VIS-À-VIS

TERMINATION OF PREGNANCY.

4.4 INDIAN PERSPECTIVE: HUMAN RIGHTS OF

PERSONS WITH DISABILITIES WITH SPECIAL
REFERENCE TO EDUCATION AND
EMPOWERMENT

4.4.1 HUMAN RIGHTS OF DISABLED PERSONS

4.4.2 INTERNATIONAL AND NATIONAL PROVISIONS

4.4.3 PRESENT SCENARIO OF DISABLED IN INDIA

4.5 ROLE OF SUPREME COURT IN PROTECTION OF

HUMAN RIGHTS UNDER ENVIRONMENTAL
LAWS IN INDIA

4.6 HUMAN RIGHTS AND GLOBAL CHALLENGES

CHAPTER A COMPARATIVE OVERVIEW OF

CONSTITUTIONAL HUMAN RIGHTS
–V PROTECTIONS

5.1 UNITED STATES OF AMERICA

5.2.1 FUNDAMENTAL RIGHTS IN INDIA AND THE

UNITED STATES - A COMPARISON

5.2.2 FUNDAMENTAL RIGHTS INDIA & USA: -

5.2.3 FUNDAMENTAL RIGHTS IN THE UNITED STATES

AND INDIA

5.2 AUSTRALIA

5.2.1 HOW ARE HUMAN RIGHTS ‘GUARANTEED’ BY

AUSTRALIAN CONSTITUTIONAL LAW.

5.2.5 IS THERE A NEED TO FURTHER PROTECT THESE

RIGHTS?

5.3 INDIA

5.3.1 HOW ARE HUMAN RIGHTS ‘GUARANTEED’ BY

INDIAN CONSTITUTIONAL LAW?

5.4 CRITICISMS OF INDIAN CONSTITUTIONAL

GUARANTEES

5.5 COMPARISON

5.6 FUNDAMENTAL RIGHTS IN INDIA AND UNITED

KINGDOM - A COMPARATIVE ANALYSIS

5.6.1 FUNDAMENTAL RIGHTS IN INDIA

5.6.2 FUNDAMENTAL RIGHTS IN THE UNITED

 KINGDOM

5.6.3 CONCLUSION

CHAPTER- LANDMARK JUDGEMENT RELATING TO

VI FUNDAMENTAL RIGHTS IN INDIA.

6.1 INTRODUCTION:

6.2 LAND MARK JUDGEMENT ON FUNDAMENTAL

RIGHTS

6.3 CONCLUSION

CHAPTER CONCLUSION AND SUGGESTION

VII

7.1 CONCLUSION

7.2 SUGGESTION

BIBLIOGRAPHY
 CHAPTER-I

INTRODUCTION

1.1 INTRODUCTION

Human rights are those that come with being a person just by virtue of
their humanity. They are predicated on fundamental human needs. Certain human
need is essential for basic physical existence and well-being. Others are essential
to one's psychic well-being and existence. Human rights can therefore be
understood and listed. These rights are linked to the conventional understanding
of natural law.1

As immunities, rights provide an assurance that some acts cannot or

should not be done to an individual against their desire. This idea states that
because of their humanity, people should be shielded against cruel and inhumane
treatment. Stated differently, human rights are shields against the use of
capricious authority. Only in a state or other structured community—that is,
anywhere where there is a civil social order—can an individual pursue their
human rights. In a situation of anarchy where there is hardly any just authority to
which a citizen might appeal against the infringement of rights, no one could ever
conceive invoking them. The idea of man as a person and his relationship with an
organized community, which cannot be divorced from universal human nature, is
where the principle of the protection of human rights originates.2

Human rights must be upheld and made available to everyone since they
are fundamental to the full development of each person's personality within
society. To achieve peace and prosperity, they must be valued, protected, and
relied upon. Upholding human dignity is the government's primary goal, and
human rights are the foundation of a meaningful existence. The requirement for
protection has emerged due to the governments' inevitable growth in control over

1
H.O. Agarwal, Human Rights, Universal Book Traders, New Delhi. 2002. p.2.
2
Norman Anderson, "Liberty, Law and Justice" (Stevens and Sons Ltd., London, 1978).
people's actions, which is by no means ideal. Fundamental norms of human
behavior are not followed in a number of states. People's growing awareness of
their rights has also made state protection of those rights necessary. It has been
recognized that the purpose of all laws, whether they be local or worldwide
regulations, is to safeguard people in the best interests of all living things.3

1.2 STATEMENT OF PROBLEM

"The statement of the problem for the research is to examine the variations
in the interpretation and enforcement of fundamental rights as delineated in
diverse national constitutions. This study seeks to identify the factors contributing
to these disparities and evaluate their implications for the protection and
promotion of human rights within the framework of international agreements."

1.3 SIGNIFICANCE OF STUDY

The researcher investigates the evolution of fundamental rights from

inherent human entitlements, overcoming barriers like nationality, gender, and
religion. This makes the study of fundamental rights extremely important. The
research clarifies the essential influence of human rights on the formation of legal
systems throughout the world by comparing constitutions. This broadens citizens'
perspectives on academia, advances social justice, and directs the creation of
policies that preserve equality and human dignity for all.

1.4 HYPOTHESIS

The researcher studies the following hypothesis given below

a) Fundamental rights are the evolution of inherent human rights that each
and every person possesses, regardless of their gender, country, religion,
or any other factor.

3
N.K. Acharya, "Right to Information Act, 2005" (Asia Law House, Hyderabad, 2006).
 b) A comparative analysis of the fundamental rights found in every
constitution ratified by every nation will broaden citizens' perspectives and
improve their intellectual growth.

1.5 OBJECTIVES OF THE STUDY

a) To understand the concept of a human right:

b) To research how human rights have developed over time.

c) To comprehend the foundational ideas and progressive evolution of

human rights.

d) Researching the importance and reach of human rights under the

constitutions of the United States, Australia, and India

e) to carry out a comparative examination of human rights in light of various

constitutions.

1.6 RESEARCH QUESTIONS

a) "How do historical, cultural, and political contexts influence the

formulation and interpretation of fundamental rights provisions in
constitutional frameworks across diverse jurisdictions?"

b) "What are the main differences in the enforcement mechanisms and

judicial approaches to fundamental rights protection between common law
and civil law legal systems, and how do these differences impact the
realization of human rights?"

c) "To what extent do constitutional amendments and judicial decisions

reflect evolving societal norms and values regarding fundamental rights,
and what implications does this have for the adaptability and relevance of
constitutional frameworks?"
 d) What conflicts exist between national sovereignty and international human
rights commitments, and how are international human rights treaties and
conventions interpreted and incorporated into national constitutions?

1.7 SCOPE OF STUDY

Through an interdisciplinary approach, the dissertation aims to deepen

understanding of the significance, evolution, and practical implications of
fundamental rights in promoting human dignity, equality, and social justice on a
global scale. The study scope for this dissertation includes a thorough
examination of fundamental rights within constitutional frameworks across
various jurisdictions, historic evolution of these rights, scrutiny of constitutional
provisions, evaluation of judicial interpretations, comparative analyses,
exploration of legal and policy implications, consideration of international human
rights standards, examination of social contexts and challenges, and proposal of
pertinent policy recommendations.

1.8 METHODOLOGY

The current study primarily uses the quantitative and qualitative doctoral
method, while it also makes use of data that has been gathered and made available
through other sources as needed.

1.9 CHAPTERIZATION

The research effort is organized into the following Chapters for ease of
reading:

CHAPTER I: INTRODUCTION

This chapter gives a brief summary of the study's background, goals, and
methodology. It also defines the research problem and objectives, discusses the
study's scope and limitations, highlights the importance of looking at fundamental
rights in comparative constitutional law, describes the methodology's approach to
data collection and analysis, and finally outlines the dissertation's structure, which
serves as a guide for the remaining chapters.

CHAPTER II: CONCEPTUAL ANALYSIS AND DEVELOPMENT OF

HUMAN RIGHTS FROM ANCIENT TO MODERN - NATIONAL AND
INTERNATIONAL PERSPECTIVES

This chapter provides a comparative analysis of the evolution of human

rights norms and institutions across different cultures and legal traditions,
highlighting significant historical events and turning points. It offers insights into
the various approaches to human rights protection and enforcement, both
domestically and internationally, laying the groundwork for future discussions on
contemporary issues in the field. The historical evolution of human rights is
traced from ancient civilizations to the present. It looks at the development of
human rights concepts and principles within national legal systems and explores
their emergence on the international stage.

CHAPTER III: HUMAN RIGHTS AND THE INDIAN CONSTITUTION

The incorporation and protection of human rights within the framework of

the Indian Constitution is the main focus of this chapter. It looks at the
constitutional provisions that guarantee and promote human rights in India,
including fundamental rights and directive principles of state policy. It also
examines the role that statutory and regulatory mechanisms play in protecting
human rights in India, offering insights into the opportunities and challenges that
surround the drafting and adoption of these provisions, as well as the historical
background and debates surrounding their interpretation and enforcement by the
judiciary.

CHAPTER IV: HUMAN RIGHTS AND FUNDAMENTAL RIGHTS

Chapter explores the relationship between international human rights

norms and treaties, the historical development of fundamental rights within
constitutional law, and the analysis of case law and jurisprudence that addresses
conflicts or harmonization between domestic fundamental rights provisions and
international human rights standards. Through comparative analysis, the chapter
aims to provide insights into the evolving nature of human rights protections. This
chapter explores the intersection between human rights and fundamental rights
within the legal framework of various jurisdictions. It looks at the conceptual
similarities and differences between these two legal constructs, highlighting how
protections for fundamental rights contribute to the larger framework of human
rights.

CHAPTER V: HUMAN RIGHTS AND DIRECTIVE PRINCIPLES

This chapter examines how directive principles—which serve as

guidelines for state policy—intersect with and enhance the protection of human
rights within the legal framework of different jurisdictions, with a particular
emphasis on the Indian Constitution. It also looks at the historical background and
debates surrounding the inclusion of directive principles in constitutions,
emphasizing their role in promoting social justice, equality, and welfare. Finally,
it looks at the jurisprudential interpretations and judicial approaches to striking a
balance between enforceable fundamental rights and directive principles. Using
comparative analysis and case studies, the chapter seeks to demonstrate

CHAPTER VI: LANDMARK JUDGMENTS RELATING TO

FUNDAMENTAL RIGHTS

Through a comparative lens, it explores how different courts have

addressed similar issues or controversies related to fundamental rights, providing
insights into evolving jurisprudence and legal trends. Additionally, the chapter
discusses the broader societal and legal implications of these landmark judgments,
including their influence on the development of constitutional law and the
protection of human rights. This chapter examines key judicial decisions that have
shaped the interpretation and enforcement of fundamental rights within various
legal systems, with a focus on landmark cases that have had a significant impact
on the development of constitutional law and the protection of human rights.
CHAPTER VII: CONCLUSION AND SUGGESTIONS

In addition to revisiting the significance of the research problem and

offering insights from the analysis of fundamental rights and landmark judgments,
this chapter summarizes the study's key findings and their implications and
demonstrates how they contribute to addressing the research objectives. It also
suggests future research directions and policy interventions based on emerging
issues and challenges identified. By summarizing the study's significance and
offering avenues for further inquiry, this chapter underscores the research's
potential impact on human rights scholarship and practice.
 CHAPTER-II
CONCEPTUAL ANALYSIS AND DEVELOPMENT OF
HUMAN RIGHTS FROM ANCIENT TO MODERN -
NATIONAL AND INTERNATIONAL PERSPECTIVES

2.1 INTRODUCTION

One will not hesitate to admit that there is a confusion prevailing as to its
precise nature and scope and the mode of international law as to the protection of
these rights. Human rights are legal because they involve the implementation of
rights and obligations mentioned in international treaties. They are moral because
they are a value-based system to preserve human dignity. They are political in the
larger sense of the word. They also function to limit the power of Governments
over individuals.4

2.1.1 KINDS OF HUMAN RIGHTS

Since human rights are inalienable and interconnected, it is impossible for

there to be two distinct types of human rights; all human rights are equally
valuable and innate to all people. As a result, the Universal Declaration of Human
Rights did not distinguish between different types of human rights; rather, it
merely listed them in separate articles. Nevertheless, subsequent advancements in
the field of human rights under the United Nations System have made it evident
that there are two types of human rights:5

• Economic, Social, and Cultural Rights; and (1) Civil and Political
Rights.

4
Dr. K.N. Chaturvedi, "Legislation and Interpretation in India," an Appendix to the Craies On
Legislation, A Practitioner’s Guide to the Nature, Process, Effect and Interpretation of
Legislation, 10th Edn., edited by Daniel Greenberg, Sweet & Maxwell, London, 2012, p. 150
5
D.D. Raphael. „'Human Rights Old and New”. In D.D. Raphael, (ed.). Political Theory and the
Rights of Man, Macmillan, 1967, p.55
 The New International Webster's Comprehensive Dictionary of the English
Language states that the word "right" literally means anything done in accordance
with or conformable to truth or fact, correct, true, accurate, not mistaken,
conformable to a standard of propriety, fit, suitable, and the word "human" means
pertaining to characterizing man or mankind. Humans are rational beings, and as
such, they possess certain basic and inalienable rights, which are commonly
known as Human Rights.6

2.2 HUMAN RIGHTS; ORIGIN AND DEVELOPMENT MEANING

AND NATURE OF HUMAN RIGHTS.

However, human rights being a generic term embrace civil rights, civil
liberties, social, economic and cultural rights. It is therefore difficult to give a
precise definition of the term human rights. However, the rights that all people
have by virtue of human existence are defined as human rights. Since these rights
belonged to them because of their very existence, they become operative with
their birth.

Human rights being the birth right are therefore, inherent in all the
individuals, irrespective of their caste, creed, religion, sex, nationality. These
rights are essential for all as they are consonant with their freedom and dignity
and are conductive to physical, moral, social and spiritual welfare, since the
human rights provide suitable conditions for the material and moral uplift of the
people, their importance especially in the contemporary world is unquestioned.
Because of their immense significance to human beings; Human rights are also
sometimes' referred to fundamental rights, basic rights, inherent rights, natural
rights and birth rights.

6
(ed.). Human Dimity- The Internationalization of Human Rights. Oceana Publication, 1979.p.
16. Dr.Gokulesh Sharma, Human Rights and Legal Remidies. Deep and Deep Publications, New
Delhi, 2001.p
 As for as the nature of human rights is concerned, two main approaches,
the philosophical and pragmatic approach were adopted to explain the nature of
human rights from time to time.

2.2.1 THE NATURAL RIGHTS THEORY:

This theory holds that human rights are inalienable to the human race and
that people have them because they are, by definition, human, entire, masters of
their own existence and the laws of nature.

Since law as such implies both duties and rights, duties and rights are co-
related. D. D. Raphael has correctly noted that "The rights are rights against other
people, and the duties are duties to other people." "Rights of Man" has been
closely associated with the traditional natural law theories. In fact, the notion of
individual rights has never been projected as a special feature in these theories.
Consequently, a system of inherent rights that protects everyone from others."7

2.2.2 THE LEGAL RIGHT THEORY:

Many scholars have criticized the theory of natural rights, which has led
them to advocate for the legal rights theory. This theory holds that rights are the
product of the state and are therefore neither absolute nor inherent in human
nature; all rights, including the right to life, liberty, and property, are artificially
created by the laws of the land; among these fundamental rights is the right to
self-preservation, which the state can only protect in a way that is superior to that
which can be achieved by other means. This theory further held that rights can
only be recognized by the state for the purpose of enforcing them; if the state
cannot recognize them, they cannot be enforced.

2.2.3 THE HISTORICAL THEORY OF RIGHTS:

Ritchie states in this context that "those rights which people think they
ought to have been just those rights which they have been accustom to have, or

7
H.O. Agarwai, Human Rights, p 6
which they have a 'tradition' (whatever true or false) of having once possessed."
The historical theory holds that the rights are the creation of historical process. A
long-standing custom in the course of time concretize in the specific form of right.
Primitive law is custom.

2.2.4 THE SOCIAL WELFARE THEORY OF RIGHTS:

The social welfare theory has been instrumental in the development of

numerous human rights, including the economic and social rights that are
included in the Universal Declaration of Human Rights. This theory, also referred
to as the Social Expediency theory, holds that social expediency determines the
nature of law, custom, and natural rights.

2.2.5 THE IDEALISTIC THEORY OF RIGHTS;

All other rights have been denied from and are conditioned by the right of
personality, which is why the idealistic theory of rights—also known as the
personality theory of rights—treats rights of personality as the highest and
absolute right. This theory is based on the insistence on the inner developments of
man, on the development of his full potentiality.8

2.3 PRAGMATIC APPROACH:

Aside from philosophical or theoretical approaches, pragmatism is another

lens through which to view the nature and meaning of human rights. All rights,
whether or not they are deemed inalienable, can only be validly and effectively
through some process or institution; as such, they cannot be defined in isolation
from an institutional framework9.

Therefore, it is crucial that there be an internally agreed-upon catalogue of

human rights, which should serve as a minimal definitional guide to comprehend

8
Mawdudi..Human Rights in Islam. Markazi Maktaba Islamic. Delhi, l<)82, p 56.
9
A.K. Yog, "Right to Information Law" (2007).
the essence of human rights and essential freedoms. Human rights cannot be
defined without reference to institutional frameworks.10

2.3.1 CONCEPT OF HUMAN RIGHTS:

Therefore, the concept of human rights is by no means a product of

modern times, despite appearances to the contrary; its roots can be found deep in
eternity. The concept of universal brotherhood and fraternity of mankind coupled
with a sense of compassion towards one's fellowmen, has its origins in several
religious beliefs both before and after the Christi. The concept of human rights
dates back to the very dawn of human civilization and quite often appears clearly,
enshrined in all the great religions of the world. Despite differences in content, all
major religions in the world share a humanist perspective that upholds human
rights.11

A WESTERN VIEW OF HUMAN RIGHTS:

Human rights are not given permanent standing in the West. They lack the
cosmic order's eternal source requirements. All of the sources are fictitious or,
similar to the French Charter of Human Rights, the American Constitution's ten
amendments, Magna Carta, and the Habeas Corpus, are regional documents that
resulted from the distinct political and social environments that existed in Britain,
France, and America. There, human consciousness has evolved with the idea of
fundamental rights.12

And each of these rights has emerged one by one from the agreements
made throughout the protracted conflict between the people and the king or other
rulers, about the division of powers, parliamentary decisions, charter declarations,
and political philosophies. The scope of rights expanded as this fight went on. In
other words, what are now referred to as "fundamental rights" did not exist until

10
Bhansali, S.R., "The Right to Information Act, 2005" (India Publishing House, Jodhpur, 2006),
87.
11
Bentham, Jeremy, "Bentham’s Theory of Legislation" (LexisNexis, Reprint, 2012), 45
12
Teaching Human Rights. United Nations, New York. 1989, p 5
yesterday. However, in most Western countries, the primary aim of these rights is
to protect the person from the state. Each of these rights only became a right in
the true sense of the word when it was recognized by the law of the land and the
Constitution. Therefore, these rights are valued more highly in the West than the
state-framed common laws. The state's legislative authority is curtailed by the
Constitution, and the judiciary is tasked with upholding the fundamental rights.13

B SOCIALIST VIEW OF HUMAN RIGHTS:

Karl Marx and Lenin believed that history's dialectical process is the true
source of the fundamental rights. These rights are not inherent to man; rather, they
are the result of a process that has played a part in history at different points in
time. In the Communists' "classless society," these rights must ultimately be
eliminated.

Initially, the bourgeois class used these privileges to aid in the overthrow
of the feudal order and the establishment of the "Capitalist Society." They were
later employed as a weapon by the proletariat in their conflict with the capitalist
class. Human rights will eventually be abolished under communism in the name
of freedom and equality. Right now, under the socialist regime, these rights
defend the interests of the working class.

This concept holds that neither these rights nor the impressionable are
natural or fundamental aspects of the human being. They are not very important
or significant. They are incorporated into the nation's general law. In light of the
aforementioned viewpoint, I would want to invite socialists to consider that the
only thing a man wants out of life is to struggle economically.

It is the natural result of their outlook on life that countries guarantee only
these material rights and do not recognize any other right based on a moral worth.
When this status of man in society has been defined, what other rights are there to

13
Granville Austin, "The Indian Constitution: Cornerstone of a Nation" (Oxford University Press,
Bombay, 1979).
be conferred on him save food and shelter? It is not reasonable to expect them to
broaden and deepen the scope of fundamental rights unless and until they alter
their perspective of humanity.14

C RELIGIOUS VIEW OF HUMAN RIGHTS:

All of the world's main religions, despite their differences in content, have
a humanist perspective that upholds human rights. The idea appears to have its
roots in the concepts of mercy, kindness, and pity for humans found in the Vedas,
the sacred text of one of the old religions, and it provides a lens through which to
view friendly interactions and behavior with all living things, not just humans.15

"Oh Lord! Let my eye view be firm in order that all creatures may look at
me by friendly sight. In the same way I also may see all creatures with friendly
sight and all of us (creatures) may see others in friendly view."

Words like "There is no such thing as Jew and Greek, slave and freedom,
male and female, for you are all one person in Christ Jesus" are how Paul
articulated his theory of equality in "The Bible."16

Dating back to the third country B.C., the Buddhist tenet of non-violence
in mind and deed is a humanitarian doctrine par excellence. Furthermore,
comparable human rights ideas have been proclaimed and upheld by other
religions, both ancient and modern, including Sikhism, Jainism, Zorastarism, and
Judaism. Islam, the divine religion from which it originated, establishes a strong
basis and takes center stage in theocracies throughout history.

The idea that Allah (swt) alone bestows human rights is strengthened by
Islamic customs. There are no more just and equal rules in the world now than
those that were established 1400 years ago. Therefore, it is possible to support the
theory that no religion, ideology, or ism has ever supported the cruel treatment of

14
Granville Austin, "Working of a Democratic Constitution: The Indian Experience" (Oxford
University Press, 1999).
15
H.O.Aganval. Human Rights, p 30
16
Dr. Kane P.V. History of Dharmasastras, Vol.I, (2nd ed.) p.3-4.
its citizens, and that religion itself is the fundamental wellspring of human rights
for all people, anywhere, at any time.17

2.3.2 UNIVERSAL DECLARATION OF HUMAN RIGHTS OF 1948

The idea of human rights is not new; in fact, despite appearances to the
contrary, its roots are deeply ingrained in eternity. Its origins can be traced back to
the very beginning of human civilization and are enshrined in all major world
religions, both before and after the life of Christ. All major world faiths, albeit
they differ in content, share a humanist viewpoint that upholds human rights.
Which is mirrored in the ideas of compassion, mercy, and empathy for others as
they are described in different scriptures.18

Ancient philosophy and the ideas of "natural law" and "natural rights" are
also the foundation of human rights. Although they are not called by the same
name, references to the fundamental human rights can be found in both ancient
scriptures and recorded history.

The ancient English charter known as Magna Carta (1215 C.E.) is

generally cited as the catalyst for the human rights movement in the West at the
beginning of the 13th century. Magna Carta is considered a turning point in the
history of human rights. However, the history of human rights has only recently
gathered momentum. In an effort to curb humanity's tendency toward barbarism,
the League of Nations and the United Nations were founded as a result of two
world wars.

The fundamental rules of national borders, embodied in draft

constitutions, are the concepts of human rights, which have been acknowledged
and accepted through many international agreements and conventions. In 1948,

17
D.N. Banerji, "Our Fundamental Rights, Their Nature and Extent (As judicially Determined)"
(The World Press Pvt., Calcutta, 1960).
18
P.M. Bakshi, "The Constitution of India" (Universal Law Publishing Co., 2015).
the Universal Declaration of Human Rights was ultimately ratified by the UN as a
moral declaration with legal elements.19

This page contains the complete text of the Universal Declaration of

Human Rights, which was adopted and proclaimed by the UN General Assembly
on December 10, 1948. The Assembly urged all of the member nations to make
the Declaration's text widely known and "to cause it to be disseminated,
displayed, read and expounded principally in schools and other educational
institutions, without distinction based on the political status of countries or
territories" in the wake of this momentous act. The preamble of the Declaration
states that freedom, justice, and peace in the world are based on the inherent
dignity and equal and inalienable rights of every member of the human family,
and that these principles must be acknowledged. Human rights have been ignored
and disregarded, leading to barbaric acts that have outraged the conscience of
humanity. The General Assembly Resolution 217(111), passed on December 10,
1948, declared that the highest aspiration of humanity is to live in a world where
people are free to express their beliefs and to live without fear or want.20

2.4 ORIGIN AND DEVELOPMENT OF HUMAN RIGHTS FROM

ANCIENT TO MODERN NATIONAL AND INTERNATIONAL
PERSPECTIVES

The way to guarantee human life is through human rights. Each and every
individual born has these rights. Homelessness is a major global issue nowadays.
Personal enmity, faction, and prejudice are not slaves to human life due to
ethnicity, religious dignity, and political considerations. Human rights are
frequently violated. Human rights were introduced to the world by the United
Nations on December 10, 1948, with the "Announcement of the Universal
Rights." For this reason, December 10 is observed globally as "International
Human Rights Day." Human Rights Commissions have been established at the

19
Manu Smiti, Chapt.1, Verse 108.
20
Dr. Kane P.V. History of Dharmasastras, Vol.I, (2nd ed.) p.3-4.
federal, state, and local levels of government, along with courts, to investigate
allegations of abuses of human rights.21

Human Rights in India: Indian culture has evolved from a synthesis of

various cultures and religions that have interacted with the vast Indian
subcontinent over a very long period of time, dating back to the Indus Valley
Civilization.22

The concept of the rights of man and other fundamental rights was not
unknown to the people of earlier periods. There is "an unbroken continuity
between the most modern and the most ancient phases of Hindu thought
extending over three thousand years." The rights of man have been the concern of
all civilizations from time immemorial.23

2.4.1 THE CONCEPT OF DHARMA

The word "dharma" literally means "that which upholds or sustains." It is

believed to be a nebulous term without a precise translation in any other language.
However, it has been widely employed to imply various meanings depending on
the context in ancient Hindu religious and legal texts. In light of this, English
writers have said that "dharma includes religious, moral, social, and legal duties
and can only be defined by its contents" in an effort to provide a specific and
acceptable definition. Dharma is defined as "religious rights, fixed principles of
rules of conduct and the whole body of religious duties" in Hindu texts.

2.4.2 JAIMINI'S VIEW

Dharma and law were interchangeable concepts in the prehistoric Indian

legal system since the latter was fundamentally a component of the former.
Jaimini argues that dharma is based on revelation and is beneficial to the well-
being of society. According to him, dharma is that which the Vedas prescribe.

21
Quoted from Sanathan Dharma & Law by Justice K.B. Panda (1977) p.23
22
Ian Brownlie (Ed.), "Basic Documents on Human Rights" (Clarendon Press, Oxford, 1971).
23
T.S. Batra, "Human Rights: A Critique" (Metropolitan, New Delhi, 1979).
Manu Smriti states that "it is not what you think but what you do constitutes your
dharma" and that behavior is the foundation of dharma. The core of dharma is
nonviolence.24

Ordinarily, dharma is understood to be equivalent with religion, yet its

significance is far broader. Law and religion are but two aspects of dharma.
Therefore, the modern definition of law is likewise embodied in the term dharma.
Dharma, in its broadest meaning, alludes to universal laws or principles that
sustain the cosmos. The universe is what it is because of this unchangeable and
unstoppable order. Therefore, dharma refers to conduct, right, duty, and several
other aspects of the legal order, and it is far more expansive than the law.25

Manu, the great Hindu law commentator observed, "dharma is that which
is followed by those learned in the Vedas and what is approved by conscience of
the virtuous men who are free from hatred and inordinate affection". Thus, he
pointed out that dharma is a noble feeling born from within the heart, which has
approval of virtuous people. But stressed that mere noble feeling is meaningless
unless it is translated into action. In other words, to constitute dharma, noble
motive and action both are necessary, Manu has described fourfold indices of
dharma, i.e., (i) Sruti, that is Vedas (ii) Smriti (iii) Sada char and (iv) that which is
pleasing to one's conscience.

Thus, in Manu's conception of dharma, we find a complete blending of

religion, morality and law. It may be stated that out of these four features, it is
only the sadachar conduct of a virtuous man aspect of dharma that corresponds to
law, which in modern context means a code of conduct which regulates human
behaviour and mutual relations of individuals inter-seas also with the State. In the

24
Quoted from Sanathan Dharma & Law by Justice K.B. Panda (1977) p.23.
25
D.D. Basu, "Human Rights in Constitutional Law" (2010).
modern sense, sad achar, i.e., moral law is broad-based, liberal, flexible, humane
and just, and it is to be adjudged by the law in force.26

2.4.3 MODERN INDIAN LAW DISTINGUISHED FROM DHARMA

However, it must be noted that modern law does not address the moral or
religious aspects of ancient dharma; rather, it is limited to rights, legal obligations,
duties, etc. This is how law differs from dharma, also known as Samachar, or the
virtuous conduct of a righteous man; the former is sustained in a particular
society, whereas the latter is all-pervasive and applies to the entire Universe;
additionally, law is limited to obligations created by the sovereign or the State;
however, dharma has a much wider connotation and includes religious, moral,
social, and legal activities of humankind; once more, all improper or undesirable
behavior is opposed to sadachara and therefore opposes dharma as well, but not
by modern law unless it is expressly forbidden behavior.

2.4.4 SOURCE OF DHARMA

It is widely acknowledged that the Vedas are the foundation of dharma.

The Vedas, or Shrutis, contain the numerous dharmic precepts. The Vedas,
according to the ancient sages, are the primary source of all human knowledge
and are a recounting of Sruti, or what the ancient Rishis told them. They are the
result of revelation from God.

The primary source of all human knowledge is the Vedas. "Sruti is the
greatest authority for those who are anxious to learn about law," declared the
renowned lawgiver Manu. He emphasized that the Vedas include all knowledge,
not just rules and customs. He asserts that the Vedas are the source of all
knowledge on political science, penology, statesmanship, military leadership, and
all other forms of subjugation and influence over people. The Vedas and the
dharma that great saints have preached are not at odds. The Vedas are infinite,

26
Prof. D.S. Prakasa Rao, "The Right to Information Act, 2005 - Realistic Appraisal," a paper
presented at the two-day National Seminar on Right to Information held at Acharya Nagarjuna
University on 23rd and 24th January, 2006, p. 25.
omniscient, eternal, and infallible. As the ultimate authority, the Vedas never
contradict one another; if they do, it is because the interpretation misunderstood
the text and was ignorant; the conflict does not arise from the divine text.27

The four principal great sages who explained the Vedic writings were
Manu, Yagnavalkya, Brihaspati, and Narada. As proponents of the Dharma
sastras, Yagnavalkya also lists the names of Angirasa, Parasara, Vyas, Sankha,
Gautama, Vasistha, and others. They did not construct the Vedas; they only
interpreted them. They are referred to as Smriti Kars since their creations are
officially recognized as Smriti. Following the Smritis, the eighteen Puranas were
composed. They cover, in general, the description and features of Yugas as well
as the creation and dynasties of Gods, Sages, and Kings.28

It might be emphasized once more that Smritis and Puranas lacked

consensus because they were written considerably later. Because the ancient
legislators understood that disagreements could result in misunderstandings, they
established explicit guidelines for what would happen first in the event of a
dispute: "In the event of a dispute between the

In the event of a dispute between the Smriti and Puranas, the Smriti text
shall take precedence over the Sruti text.

The aforementioned makes it clear that the authorship of the Smriti and
Puranas can be tracked and is known, but not that of the Shrutis, or Vedas, which
are thought to have come from Chaturmukha Brahma. Srutis are therefore of
divine origin.

2.4.5 HUMAN RIGHTS IN BRITISH INDIA

It is possible to argue that India is where the contemporary body of human

rights jurisprudence originated during the British colonial era. Indians were

27
S.R. Bhansali, "The Right to Information Act, 2005" (India Publishing House, Jodhpur, 2006).
28
B.N. Kirpal, Ashok H. Desai, and Gopal Subramanium (et.al), "Supreme but not Infallible"
(Oxford University Press, New Delhi, 2010).
subjected to discrimination and humiliation by the British throughout their
dominion over the country. As a result, Indians demanded civil and political rights
as well as fundamental liberties, expressing their opposition to foreign rule.29

The struggle for civil rights and fundamental freedoms was bolstered by
the freedom movement and the severe oppressive policies of the British
government. Human rights, democracy, and socialism were all forbidden under
British control. The British colonial era is still regarded as India's version of the
"Dark Ages" in the country's cultural history.

The ancient Indian legal political system was rejected by Lord Macaulay,
who called it "dotages of brahminical superstition" and denounced the legal
inheritance of the past and its core as an "immense apparatus of cruel absurdities."
Lord Cornwallis stated that it is a given that all Indian natives are immoral, while
Lord Wellesley denounced the Indians as vulgar, ignorant, impolite, and foolish.
Indians lost their political, social, and economic privileges as well as their ability
to hold top positions due to the English East India Company. Indians came away
with the idea that their fundamental interests and sacred, unalienable human rights
had been violated and ignored for the benefit of England and the English rulers.30

Under his direction, the Indian people were mobilized and Mahatma
Gandhi began his nonviolent campaign to secure their own rights to self-
government. According to Lokmanya Tilak, "Indians have a birthright to freedom,
which they must fight for." The Indian people's adamant resistance led to the 1813
enactment of the Charter Act, which aimed to further the welfare and interests of
the country's indigenous population.

In a similar vein, the Government of India Act, 1833 was passed to grant
certain political rights to the Indian population. Some of the guiding ideas of state
policy found in Queen Victoria's proclamation on November 1, 1858, bore

29
Durga Das Basu, "Shorter Constitution of India," Thirteenth Edition (Wadhwa, Nagpur, 2001),
98.
30
Colin Turpin, "British Government and the Constitution: Text, Cases and Materials," Third
Edition (Butterworths, London, 1995), 89.
similarities to the principles of fundamental rights. Following the nationalist
movement, which corresponded with the formation of the Indian National
Congress in 1885, was the rationale for the specific demand for fundamental
rights.

The Indian National Congress drafted the "Home Rule Document," or

Constitution of India Bill 1895, which paved the way for a constitution that
guaranteed everyone's fundamental human rights, including equality before the
law, the right to own property, freedom of expression, and the inviolability of
one's own home. In response to calls for fundamental rights, the Government of
India Act, 1915, ensured equal opportunity in public services. Between 1917 and
1919, the National Congress passed a number of resolutions restating the call for
equality with the English and civil rights.31

2.4.6 HUMAN RIGHTS AND THE INDIAN CONSTITUTION:

One of the most complex fundamental laws ever enacted is the Republic
of India's Constitution, which has 395 Articles and 8 Schedules and went into
effect on January 26, 1950. India is proclaimed to be a sovereign, socialist,
secular, and democratic republic in the Preamble to the Constitution. The word
"democratic" means that the people's will gives the government power. The
Preamble to the Constitution guarantees 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 all of its citizens.

It conveys the idea that people are equal "irrespective of the race, religion,
language, sex, and culture." India and the Universal Declaration of Human Rights
India was one of the signatories to the 1948 Universal Declaration of Human

31
C.K. Allen, "Law in the Making" (Oxford, 1964), 112.
Rights (UDHR). The Indian Constitution's Part III guarantees of Fundamental
Rights bear similarities to the UDR's provisions.32

2.5 SIMILARITIES BETWEEN COVENANT ON ECONOMICS,

SOCIAL AND CULTURAL RIGHTS 1966 AND CONSTITUTION OF
INDIA DIRECTIVE PRINCIPLES.

The Indian Constitution states in Article 14 that everyone has a general

right to equality before the law. Article 15 forbids the State from discriminating
against any citizen on the basis of race, religion, caste, sex, or place of birth.
Article 16 guarantees equal opportunity for all citizens in matters of public
employment. Article 17 outlaws’ untouchability and makes its practice illegal.
Both Articles 15 and 16 allow the State to make special provisions for the
advancement of socially and educationally backward classes, for those castes and
tribes as recognized in the Constitution (known as the Scheduled Castes and
Scheduled Tribes).

All non-military and non-academic titles are eliminated under Article 18.
All citizens are guaranteed the right to freedom under Article 19, which includes
the freedom of speech and expression, the ability to assemble peacefully without
the use of force, the freedom to organize associations or unions, the freedom to
travel around India without restriction, the right to live where they choose, and the
freedom to engage in any kind of employment, trade, or business. A person's
protection under Article 20 against being found guilty of a crime includes defense
against ex post facto laws, the doctrine of autrefois convict, and the prohibition
against self-incrimination.

The Eighty Sixth Constitutional Amendment Act of 2002 added Article

21A to the Indian Constitution, which states: "No person shall be deprived of his
life or personal liberty except according to procedure established by law." Article
21 is the cornerstone of all fundamental rights provisions in the Indian
Constitution. Section 21A announces that "the State shall provide free and

32
Basu, D.D., "Constitutional Law of India" (Prentice Hall of India, New Delhi, 2015), 210
compulsory education to all children of the age of six to fourteen years in such
manner as the State may, by law, determine." Article 22 outlines the rights of
anyone detained and arrested by the State, including the right to legal
representation, the right to know the reason for the detention, and the right to
appear before a magistrate within twenty-four hours of the detention (unless one
is arrested under a preventive detention law).

The right against exploitation forbids the use of forced labor, human
trafficking, and the hiring of minors under the age of 14 "to work in any factory or
mine or in any other hazardous employment." Everyone has the equal right to
freedom of conscience and the ability to profess, practice, and spread their
religion, subject to morality and public order. Establishing and maintaining
religious organizations as well as overseeing their religious affairs are rights that
belong to every religious denomination or branch.33

2.6 SPECIFIED FUNDAMENTAL RIGHTS

Many of the rights contained in the Covenant on Civil and Political Rights
have been specifically recognized as "fundamental rights" in the Indian
Constitution. Because these rights are stated by name in the Constitution, they
may also be referred to as "Specified" basic rights. The several articles that
guarantee the same rights in the Indian Constitution and the International
Covenant on Civil and Political Rights are displayed in the following table.34

Fundamental Rights for Citizens only. Fundamental rights in India are divided
into two groups under the Constitution:

1) Fundamental liberties that are exclusive to citizens;

33
Edmond Cahn, "Supreme Court and Supreme Law" (Indiana University Press, Bloomington,
1954), 120
34
Banerji, D.N., "Our Fundamental Rights, Their Nature and Extent (As judicially Determined)"
(The World Press Pvt., Calcutta, 1960), 75.
 2) All those temporarily residing on Indian territory and falling under its
authority are entitled to some fundamental rights. The first item in the
group, which is accessible to the public consists of:

Article 15 forbids discrimination on the basis of race, religion, caste, sex, or place
of birth.

a. Article 16, which addresses how all individuals should have equal
access to governmental appointment processes

b. The safeguarding of rights outlined in Article 19. liberty of

expression and speech ii. to gather in a non-violent, peaceful
manner iii. to establish groups or associations iv. to travel freely
across India's territory; v. to live and settle anywhere in India's
territory; and vi. The Constitution 42" Amendment Act 1978
removed Article 19(1) (f), which dealt with the right to possess and
acquire property, and it went into effect on June 20, 1979 (vii). to
engage in any profession or to run a trade, business, or occupation.
(b) Article 29, which deals with minority' interests protection 35

2.7 RELEVANCE OF RIGHT TO PRIVACY AS A HUMAN RIGHT

According to the New Oxford Dictionary, privacy is literally defined as

"the state or condition of being withdrawn from the society of others, or from
public interest; seclusion" or "absence or avoidance of publicity or display." The
Black's law Dictionary= refers to privacy as "the right to be let alone; the right of
a person to be free from unwarranted publicity; and the right to live without
unwarranted interference by the public in matters with which the public is not
necessarily concerned'. Oxford Advanced Learners Dictionary' defines Privacy as
`the state of being alone and not watched or disturbed by other people, the state of
being free from the attention of the public".

35
Frank Burton, "Official Discourse on Government Publications: Ideology and the State"
(Routledge, London, 1979), 67.
 In a democracy, the concept of privacy is crucial. There is no specific
provision in the Indian Constitution guaranteeing privacy. Still, in Kharak Singh ti
in 1963. The Supreme Court of the State of Uttar Pradesh ruled that privacy was
bound to be covered by Article 21, which deals with personal freedom (protection
of life and personal liberty). The court ruled that intentional interference with an
individual's privacy is the greatest threat to their bodily well-being and
contentment.

2.7.1 ART 12 OF THE UNIVERSAL DECLARATION OF HUMAN

RIGHTS (1948) REFERS TO PRIVACY AND IT STATES:

The right to privacy prohibits arbitrary interference with an individual's

privacy, family, home, or correspondence, as well as attacks on their honor and
reputation. This principle is enshrined in various international treaties and
national laws, such as Article 17 of the International Covenant on Civil and
Political Rights, Article 8 of the European Convention on Human Rights, and
provisions in the Canadian Charter of Rights and Freedoms and the New Zealand
Bill of Rights. In legal terms, the right to privacy is often associated with the right
to property, as established in cases like Entick v. Carrington (1965), where
trespass on property was considered a violation of privacy rights.
 CHAPTER - III
HUMAN RIGHTS AND THE INDIAN
CONSTITUTION

3.1 INTRODUCTION

Human rights are now ubiquitous in both national and international contexts.
According to others, the idea existed in the national system but is relatively new
(approximately 400 years old) in the international system. Being among the oldest
civilizations, Indian society has always acknowledged some fundamental rights
for all people. India's current normative protection of human rights has grown
since the country's independence fight. The evolution of the concept of human
rights under the Constitution, the nature and contents of Fundamental Rights and
the Directive Principles of State Policy, the scope of human rights enshrined in
the Indian Constitution, the distinction between the International Bill of Human
Rights and the Constitution's recognition of human rights, human rights standards
not expressly incorporated by the Constitution, and a conclusion are all covered in
this chapter.36

3.2 DEVELOPMENT OF THE IDEA OF HUMAN RIGHTS UNDER

THE CONSTITUTION OF INDIA

The idea of human rights had an impact on the writers of the Indian
Constitution since it was written during the same period as the UDHR
negotiations. The International Covenant on Civil and Political Rights (1966) and
the International Covenant on Economic, Social, and Cultural Rights (1966) were
created because the UDHR lacked enforcement mechanisms. The Indian
Constitution had established an implementation mechanism for the rights granted
by Part III of the Constitution long before that. The country's fundamental law
established the duty of care, which is further enhanced and reinforced by later
ordinary legislation. If rights are made enforceable, they will be worth more. As a

36
N.C. Mahapatra, "Right to Information and Law" (Gogia Law Agency, Hyderabad, 2006), 88.
result, the Constitution grants the Supreme Court and the High Courts concurrent
writ jurisdiction over issues pertaining to the implementation of the Fundamental
Rights. The court has the authority to issue any order, including declaratory orders
or directions, if it deems them necessary to give the harmed parties sufficient
relief. The court's authority is not restricted to issuing writs alone. Furthermore, in
order to provide full justice in a lawsuit, the Supreme Court of India in particular
has the authority to issue any decree, order, direction, or other appropriate order.
The Indian Constitution was ratified on November 26, 1949; part of its articles
went into effect right once, and the rest didn't take effect until January 26, 1950.
The written Constitution of India serves as the foundational legal framework for
the nation.37

This would imply that the Constitution is the ultimate law and that all of
its creations, including governments, their legislative, judicial, and executive
branches, and all institutions of government, get their powers from it. Because it
acts as a social, legal, and moral document with legal sanctity, the Constitution
has a purpose and is not ephemeral in nature. The significant resolutions, pledges,
and proclamations that the people have made for themselves are outlined in the
Preamble of the Constitution. Securing social, economic, and political justice for
all citizens, freedom of speech, thought, and religion, fostering fraternity among
all while protecting individual dignity, and maintaining the unity and integrity of
the country are just a few of the significant pledges, the majority of which are
outlined in the Declaration's general terms. The Constitution's provisions,
particularly those found in Parts III and IV, have made the ideals outlined in the
Preamble a reality. The following are the terminology used by Dr. B.R. Ambedkar
to describe the significance of fundamental rights. "There are two goals for
fundamental rights. Every person must be able to assert these rights in the first
place, and they must also be enforceable against all authorities. This implies that
every authority, including governments, district boards, panchayats,

37
"Human Rights Jurisprudence—The Domestic Application of International Human Rights
Norms" (Commonwealth Secretariate, London, 1988), 56.
municipalities, and any other state instrumentalities, is required by the rights
granted by Part III to protect fundamental rights.38

3.3 NATURE AND CONTENTS OF FUNDAMENTAL RIGHTS AND

DIRECTIVE PRINCIPLES OF STATEPOLICY

As a defender of Fundamental Rights, the judiciary views the rights found

in Part III as essential, sacred, transcendental, unalienable, and untouchable. "The
individual, his personality, and those things stamped with his personality shall be
free from official interference except where a reasonable basis for intrusion
exists," according to the Declaration of Fundamental Rights. Being in Part III, the
remedy provided by Article 32 is in and of itself a Fundamental Right. 39

A wide range of fundamental rights are guaranteed by the Constitution,

with some clear restrictions. Enumerating these fundamental rights in the
Constitution serves the dual purposes of protecting fundamental human rights
from the whims of political debate and putting them out of the reach of political
parties that may, through majority rule, establish the government at the federal
level or in the state level.40

State." Part III's (Articles 14–32) coverage of human rights is fairly

comprehensive. Both citizens and foreigners are entitled to some of these rights.
Generally speaking, both citizens and non-citizens may exercise the rights granted
by Articles 14, 20, 21, 22, and 25 to 28. Enemy aliens are not entitled to the
protections against arrest and imprisonment granted by Article 20. Aside from
this, citizens alone are entitled to all other rights granted by the Constitution.

Articles 14 through 18 address the equality right. The six essential freedoms of
"speech and expression," "peaceful assembly," "formation of associations or

38
Michael Kirby, "The Role of Judges in Advocating Human Rights by Referring to International
Human Rights Norms," a paper presented at Judicial Colloquium in Bangalore (1988), p. 20.
39
Ramesh Pratap Shukla, "Right to Know as Material Aspect of Speech and Expression and
Emerging Trends," AIR 2008 Journal 120, 90
40
Justice V.R. Krishna Iyer-Justice at Cross Roads. See also Justice Krishna Iyer's Social
Democracy and Dalit egaiite.
unions or cooperative societies," "movement," "residence," and "practice any
profession, occupation, trade or business" are granted to citizens by Article 19.
These rights are subject to "reasonable restrictions" for the particular reasons
listed in Article 19 Clauses (2) through (6). Article 20 provides protections
against retroactive conviction for offenses41

3.4 EXTENT OF HUMAN RIGHTS STANDARDS INCORPORATED

UNDER THE CONSTITUTION OF INDIA

The Indian Constitution (henceforth referred to as the Constitution)

guarantees the following categories of rights: Right to Equality (Articles 14–18),
Right to Freedom (Articles 19–22), Right against Exploitation (Articles 23–24),
Right to Freedom of Religion (Articles 25–28), Rights to Cultural and
Educational Expression (Articles 29–30), and Right to Constitutional Remedies
(Article 32). The International Bill of Human Rights must be taken into
consideration in order to fairly comprehend and appreciate the scope of human
rights standards incorporated in the Constitution. rights.

For this purpose, the Protocols 1 to the ICCPR and the ICESCR have been
excluded because they deal with specific procedures related to individual
communications. Protocol 2 to the ICCPR has also been excluded because it deals
with the abolition of the death penalty, which India has not ratified. The civil and
political rights, as well as the economic, social, and cultural rights enumerated in
the UDHR, ICCPR, ICESCR, and the Indian Constitution, are examined first in
the discussion of the extent of human rights standards incorporated under the
Indian Constitution.42

3.4.1 CIVIL AND POLITICAL RIGHTS

41
A.G. Noorani, Constitutional Questions and Citizens' Rights (Oxford University Press, 2004),
40-300.
42
M.P. Jain, "Justice Bhagwati and Indian Administrative Law," The Banaras Law Journal
(1980), p. 16.
 The UDHR, among others, guarantees the right to life, and liberty. The
ICCPR, as an improvisation to the said right guaranteed by the UDHR provides
for inherent right to life that cannot be arbitrarily deprived. According to the
ICCPR, right to life is to be protected by law and any penalty affecting life can
only be carried out pursuant to a final judgement rendered by a competent court.
Further, Persons sentenced to death have the right to seek pardon or commutation
of the sentence. Therefore, amnesty, pardon or commutation of the sentence of
death may be granted in all cases.

Most importantly, the ICCPR holds that while awarding a death sentence
due recognition to the tender age of the person and motherhood must be given,
and in fact, it goes to the extent of declaring that the sentence of death shall not be
imposed for crimes committed by persons below eighteen years of age and shall
not be carried out on pregnant women. In India, the light to life and liberty is
expressly recognized under Article 21 and the provision for seeking pardon or
commutation of the offence as provided by the ICCPR is recognized

Regarding the right against the death penalty for crimes committed by
people under the age of eighteen and pregnant women, the Constitution does not
specifically protect these rights; instead, it grants the President and the Governor,
respectively, the authority to grant pardons, commute sentences, respite, or remit
sentences under Articles 72 and 161 of the Constitution.43

The Code of Criminal Procedure 1973 recognizes the right of pregnant

women against being sentenced to death. The Juvenile Justice Act shields
individuals under the age of eighteen from the death penalty. The UDHR
guarantees a right against slavery or servitude, including its prohibition in all
forms. Similarly, Article 8 of the ICCPR provides rights against slavery and the
slave trade in all its forms. The ICCPR further maintains that no one shall be held
in servitude or forced to perform forced or compulsory labor. The Indian

43
Mahendra P. Singh, Comparative Constitutional Law (Eastern Book Company, 2017), 100-250.
Constitution, Article 23, prohibits the trafficking of human beings and the
trafficking of beggars and other similar forms of forced labor.44

In India, Articles 14 and 15 of the Constitution recognize the right to

equality before the law, equal protection of the laws, and the right against
discrimination. The UDHR provides for a right to an effective remedy by the
competent national tribunals for acts violating the Fundamental Rights granted to
him by the constitution or by law. Article 26 of the ICCPR protects this right,
which further states that the law shall prohibit any discrimination and guarantee to
all persons equal and effective protection against discrimination on any ground
such as race, color, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.

Article 32 of the Indian Constitution guarantees the right to petition the

Supreme Court or the High Court, respectively, for the purpose of enforcing the
Fundamental Rights. Article 226 of the Indian Constitution recognizes this right
as a responsibility of all States Parties.45

Similarly, but in addition to the UDHR, Article 9 of the ICCPR states that
everyone has the right to liberty and security of person and no one shall be
subjected to arbitrary arrest or detention, and that no one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as are
established by law. Article 9 of the ICCPR also confers a right to the arrested to
be informed, at the time of arrest, of the reasons for his arrest or charges levied
against him.

Additional safeguard to arrested or detained persons on a criminal charge

is provided by the Covenant in the following manner. It provides that a detained
or arrested person shall be brought before a judge or other officer authorized by
law to exercise judicial power and shall be entitled to trial within a reasonable

44
H.M. Seervai, Constitutional Law of India: A Critical Commentary (Universal Law Publishing
Co. Pvt. Ltd., 2021), 80-400.
45
Jaskiran Chopra and Harpreet Kaur, Fundamental Rights in Indian Constitution: A Critical
Appraisal (Allahabad Law Agency, 2018), 50-180.
time or to release. It shall not be the general rule that persons awaiting trial shall
be detained in custody, but release may be subject to guarantees to appear for
trial. The Article further provides for a right to take proceedings before a court on
the lawfulness of his detention and the victim of unlawful arrest or detention shall
have an enforceable right to compensation. In India, joint reading of Articles 21
and 22 would suggest that most of the rights provided against arrest and detention
is also recognized under the Constitution.

Besides, Sections 50, 50-A, 56 and 57 of the Code of Criminal Procedure

1973 supplements the conferrals found in the Constitution. These Sections deal
with the abovementioned protections against arbitrary arrest. However, it must be
noted that a right to compensation in cases of arbitrary arrest and detention is not
explicitly found in the Constitution.46

3.4.2 RIGHTS TO THE ECONOMY, SOCIETY, AND CULTURE

All human beings are endowed with reason and conscience, which should
lead them to act toward one another in a spirit of brotherhood, according to
Article 1 of the UDHR, which states that all people are born free and equal in
dignity and rights. The latter part of this provision is dealt with by the
Constitution under Article 51A (e), in the form of a Fundamental Duty.47

Article 2 of the International Covenant on Economic, Social, and Cultural

Rights (ICESCR) requires States to guarantee equal rights to men and women in
the enjoyment of all economic, social, and cultural rights outlined in the
Covenant. This includes the first right, which is guaranteed by Article 3 of the
ICESCR, which states that States shall ensure equal rights to men and women in
the enjoyment of all economic, social, and cultural rights set forth in the
Covenant. Similarly, Article 38 (2) of the Indian Constitution holds that States
shall endeavor to minimize income inequality as well as to eliminate status,

46
M. Lakshmikanth, Indian Polity (McGraw Hill Education, 2021), 70-350.
47
S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (Oxford
University Press, 2002), 50-300.
facility, and opportunity disparities, not only between individuals but also
between groups of people living in different areas or pursuing different
vocations.48

Article 39 of the Indian Constitution recognizes most of these standards,

including the guarantee that women will work in conditions that are equal to or
better than those enjoyed by men, that they will receive equal pay for equal work,
and that they will have a decent living for themselves and their families in
accordance with the Covenant; that safe and healthy working conditions will be
provided; that everyone will have an equal opportunity to advance in their
employment to a higher level, subject only to seniority and competence; and that
everyone will have rest, leisure, and reasonable time off from work.

Article 19(1) (C) of the Constitution recognizes the right of individuals to

promote and protect their economic and social interests, and Article 8 of the
ICESCR recognizes the freedom to create trade unions and join the trade union of
one's choice.

3.5 DIFFERENCES BETWEEN HUMAN RIGHTS STANDARDS AND

FUNDAMENTAL RIGHTS

Human rights standards and the Fundamental Rights differ fundamentally

in who is entitled to which rights; since the "Fundamental Rights" are associated
with a system, they imply affiliation, which implies that it may be necessary to
affiliate through "citizenship" to a system of governance; the Fundamental Rights
are limited to what is prescribed by the Constitution; on the other hand, human
rights are universal in nature and have more to do with natural rights and natural
duties; they are available to all people without regard to nationality or citizenship;
in the case of Fundamental Rights, some rights are only available to citizens,
while others are also available to aliens.

48
Faizan Mustafa, Comparative Constitutional Law (Eastern Book Company, 2019), 100-350.
 The Economic, Social, and Cultural Rights (ESCR) are incorporated under
Part-IV of the Constitution, while the Civil and Political Rights (CPR) are
generally observed to be protected under Part-III. The fact that Part-IV is non-
enforceable and Part-III is made enforceable highlights the deviation from
international standards, where such a distinction in the enforceability of CPR and
ESCR is not found under Covenants on human rights, with the exception that
ESCR is said to be programmable in nature. The government's non-enforcement
of Part-IV does not indicate a malicious intention.49

Both human rights and the Fundamental Rights can be suspended during
the times of national emergency. However, the important distinction between the
two is found in the way the IHRL and the Constitution classifies rights as
„derivable‟ and „nonerodable‟. That is, Article 4 (2) of the ICCPR proclaims the
right to life, prohibition of torture and cruel, inhuman or degrading treatment or
punishment, prohibition of slavery, slave trade and servitude, right against
imprisonment on ground of inability to fulfil a contractual obligation, non-
retroactivity of criminal law, right to recognition as a person before law, freedom
of thought, conscience and religion, and right against discrimination based on
race, color, sex, language, religion or social origin, cannot be derogated even
during a serious emergency situation.

Whereas, in India, Article 359 of the Constitution provides that except

Articles 20 and 21, namely protection in respect of conviction for offences and
right to life and liberty, any other Fundamental Right can be suspended during
national emergency. If the national emergency is proclaimed on the grounds of
„war‟ or „external aggression, ‟ then all six fundamental freedoms guaranteed by
Article19 gets suspended automatically, without a proclamation by the President
of India in this regard (Article 358). This apart, Article 4 of the ICCPR is not
applicable to all types of public emergencies. Only the threat to life of the nation
or to its very existence may be the ground for derogation. In India, Article 352 of

49
S.P. Sathe, Judicial Activism in India: A Historical Analysis (Oxford University Press, 2002),
60-320
the Constitution deals with national emergency and according to it, war, external
aggression or armed rebellion are the grounds for proclamation of a national
emergency. It is said, “The question whether there exists a real threat to the
security of India or not is to be decided by the executive. The ICCPR apparently
permits this, but if there is no real threat to the life of the nation as such and if an
attempt is made by the executive to misuse the powers, the right of derogation
recognized by the Covenant will not be available. In case of India, the satisfaction
of the executive that there is a threat to the security of India is not beyond judicial
review”.50

While preventive detention is permitted under international human rights

law only in emergency situations, India is able to use preventive detention in both
emergency and peacetime situations, which highlights the difference between the
two situations in which a person's right to liberty may be violated. The Indian
government has passed several laws authorizing preventive detention (more on
this topic is covered in Chapter VII under "Constitutionally Specifically
Incorporated Rights and the Supreme Court"), with safeguards against arbitrary
detention in place.

50
Upendra Baxi, The Crisis of the Indian Legal System (Vikas Publishing House, 1982), 70-280.
 CHAPTER - IV

HUMAN RIGHTS AND FUNDAMENTAL RIGHTS

4.1 IMPORTANCE OF THE HUMAN RIGHT TO PRIVATE IN THE

MODERN WORLD:

The Black's Law Dictionary defines privacy as "the right to be let alone;
the right of a person to be free from unwarranted publicity; and the right to live
without unwarranted interference by the public in matters with which the public is
not necessarily concerned." The New Oxford Dictionary defines privacy as
literally "the absence or avoidance of publicity or display; the state or condition
from being withdrawn from the society of others, or from public interest;
seclusion." "The state of being alone and not being watched or disturbed by other
people, the state of being free from the attention of the public" is how the Oxford
Advanced Learners Dictionary defines privacy.

A democratic society must value privacy. The Indian Constitution does

not specifically contain a provision that guarantees privacy.

One of the most powerful expressions of the maxim "Every man's house is
his castle" was made by William Pitt in the British Parliament in 1763. He stated
that "the poorest man, may in his cottage bid defiance to all the force of the
crown." The debate over the right to privacy and the state's power to search and
seize has taken place in almost every democratic country where fundamental
freedom is guaranteed. Even though it is weak, its roots could shake, the wind
could blow through them, a storm could come, rain could fall, yet the King of
England could not get through since all of his might would not dare cross the
tenement.51

51
Kumar, Ashwani. "The Evolution of Fundamental Rights Jurisprudence in India: A
Comparative Perspective." Indian Journal of Legal Studies 17, no. 3 (2015): 305-328.
 Regarding privacy, Article 12 of the 1948 Universal Declaration of
Human Rights states:

"No one shall be the target of arbitrary attacks on his honor or reputation,
or interference with his family, home, or privacy. Everyone is entitled to legal
defense against these kinds of intrusions or assaults."

India is a party to the International Covenant on Civil and Political Rights,

which makes reference to privacy in Article 17 and declares that;

1) "No one shall be subjected to arbitrary or unlawful interference with

his privacy, family, home and correspondence, nor to unlawful attacks
on his honour and reputation."

2) Everyone is entitled to legal defense against these kinds of intrusions

or assaults."

In addition, Article 8 of the European Convention on Human Rights,

which went into force on September 3, 1953, states

"Everyone has the right to respect for his private and family, life, his home and
his correspondence." '

No official authority may interfere in any way other than that which is
required by law, necessary in a democratic society to preserve others' rights and
freedoms, or to advance national security, public safety, or the nation's economic
well-being.

According to the Canadian Charter of Rights and Freedoms, "Everyone

has the right to be secure against unreasonable search and seizure."

According to Section 21 of the New Zealand Bill of Rights, "everyone has

the right to be secure against unreasonable search or seizure, whether of the
person, property or correspondence or otherwise."
 "Right to Privacy" is a legal right that is linked to "Right to Property"
under English Common Law, according to American courts. In Entick v.
Carrington (1965), it was decided that trespass on property was protected by the
right to privacy, as Lord Camden noted:

"The great end for which men entered into society was to secure their
property. That right is presumed sacred and incommunicable in all instances
where it has not been taken away or abridged by some public law for the good of
the whole. By the laws of England, every invasion of private property, be it even
so minute, is a trespass. No man can set foot upon my ground without my license
but he is liable to an action though the damage be nothing."

1) that a marital court has the authority to require a medical examination;

2) that the court's issuance of such an order did not violate the
individual's right to personal liberty as stated in Article 21;

3) (3)The respondent has the option to object to being examined

medically, in which case the court may make a negative deduction
about him."52

4.2 UNBORN BABY'S HUMAN RIGHTS IN RELATIVE TO WOMAN'S

REPRODUCTIVE RIGHTS

Article 6 (1) of the Child Right Convention stipulates that States Parties
must acknowledge the inherent right to life of every child, whether born or not.
Article 6 (2) of the same convention requires States Parties to guarantee the
child's survival and development to the greatest extent feasible.

The Universal Declaration of Human Rights reflect the human aspirations

for a future prosperity and dignity of every individual including that of woman.
Women are considered to be the most vulnerable victims of the frontline hardship

52
Pandey, Rajesh Kumar. "Constitutional Guarantees of Fundamental Rights in India: A
Comparative Analysis." Journal of Comparative Constitutional Law and Politics 19, no. 4 (2018):
410-430
and abuse in any society and nothing seems less in Indian context. The cascading
effects of indifferent treatment have engulfed a large section of Indian women, as
such there is a collective responsibility of every person to uphold their solidarity
for a human kind, which can be possible by providing protective values to them.
The United Nations General Secretary, Mr. Ban-Ki-Moon while addressing the
world body at the UN Head Quarters held that, “in the realm of human rights
every State has the responsibility to deliver principles of justice, liberty and
equality as enshrined in the UDHR”,

Therefore it became a policy of State Provide protection of women and

children both in public and private sphere. Certain actions were taken by
Government of India to translate such policies into concrete programs so that the
aggrieved women, suffering in silence, could be protected under human rights
banner. In its form and contents, Government of India has adopted gender
equality and empowerment, not only as just and desirable and of progress but also
to see that fair, human, social and economic goals are achieved in favor of
women.53

For the full realization and advancement of human rights jurisprudence in

the nation, the Apex Court also significantly weakened the traditional rule of
locus standi and opened the doors of justice to the people through PIL, especially
in favor of the weaker segments of society, which included women.

The mere fact that certain rights are protected by the Constitution or other
national statutes does not help people to uphold these rights. In light of the abuse
of power situation, steps have been taken to transform the rhetoric of human
rights into a reality, such as the Protection of Human Rights Act of 1993, which
serves as a safeguard against the violation of human rights and matters related
thereto.54

53
Singh, Ravi Prakash. "Judicial Activism and Fundamental Rights: A Comparative Study of India
and the United Kingdom." Comparative Law Review 14, no. 2 (2017): 220-245
54
Das, Subhankar. "Freedom of Religion in India: A Comparative Perspective." Journal of
Comparative Legal Studies 21, no. 1 (2019): 90-115.
 Approximately 90% of social laws passed in India have both social goals
and human rights components. Some examples of these include laws pertaining to
family relations, specifically those that address issues with marriage and divorce;
protecting the civil rights of Harijans and Girijans; combating the illicit
trafficking of girls and women; and issues with population control, such as issues
with abortion and amniocentesis. As a result, the Commission has prioritized the
following issues in an interdependent manner:

a) Individuals' civil liberties are protected;

b) Examining laws that contradict the notion of human rights; and

Designated as a Millennium Development Goal: Refer to UNICEF's State
of the World's Children Report, released on January 15, 2009.

The success of the Commission lies in the fact that it has taken some
serious steps for the collection of impartial data on which the District Magistrates
and the District Superintendents of Police provide necessary information as a
corollary to oblige the Commission. Both the National and State Human Rights
Commissions have taken very positive steps to initiate in-depth study and media
support for redressing the human rights violations when it results at various
stages.55

4.3 WOMAN’S RIGHT TO BE PREGNANT VIS-À-VIS

TERMINATION OF PREGNANCY.

In light of the fact that society recognizes the mother and child as an
essential biological unit and that law seeks to provide the best protection possible
for a child both before and after birth, malnutrition has emerged as a major
contributing factor to the high incidence of infant mortality, morbidity, and
physical or mental handicap. In this sense, the right to life is regarded as the

55
Sharma, Divya. "The Right to Privacy in India: A Comparative Analysis." International Journal
of Comparative Law 16, no. 3 (2016): 310-335.
repository of human rights, which includes the right to health even for an unborn
child.

Article 24 of the Child Rights Convention recognizes a child's right to

health and health care services. It states that States Parties must acknowledge a
child's right to the highest standards of facilities that allow them to be both born
and healthy. For this reason, efforts have been made to ensure prenatal and
postnatal care for mothers so that they can give birth to a healthy child. For
instance, if an unborn child could prove that their congenital defects could be
linked to the toxicity of gas leakage, they would be entitled to compensation
based on human rights considerations, provided the mother had inhaled the gas
during the disaster. Moreover, it56

The Constitution's Article 21 read in conjunction with Article 47 mandates

that the State improve public health, nutrition, and living standards. Additionally,
Article 15(3) grants the State the authority to enact laws pertaining to women and
children. Moreover, Articles 38 (2) and 39(e) and (f) direct the State to remove
disparities in the provision of facilities and opportunities, including those for
women. Article 39(e) and (f) not only impose a duty upon the State to establish
policies ensuring that the health and strength of tender age, including that of
women, and is not abused, but also guarantees that children are given
opportunities and in conditions of freedom and dignity.57

In a similar vein, Article 6 (1) of the Child Right Convention mandates

that States Parties acknowledge the inherent right to life of every child, whether
born or to be born; similarly, Article 6 (2) of the aforementioned Convention
states that States Parties shall ensure, to the maximum extent possible, the
survival and development of the child; and Article 3 (2) of the aforementioned
Convention further stipulates that the State shall take appropriate legislative and
administrative measures to ensure the necessary protection and care required for
56
Chatterjee, Sumit. "Socio-Economic Rights and Judicial Activism: A Comparative Study of
India and South Africa." Journal of Comparative Legal Studies 18, no. 2 (2018): 180-205.
57
Dasgupta, Aniruddha. "Constitutional Provisions for Protection of Minorities: A Comparative
Study of India and Canada." Comparative Law Journal 23, no. 4 (2020): 450-475.
the child's wellbeing, both before and after birth, while taking into account the
rights and obligations of the child's parents, legal guardians, or other parties who
are legally responsible for him or her.58

In this context, a woman is considered to be with her child when she feels
the gestation of pregnancy, and the law presumes that she was quick with the
child. She is also considered to be with the child when she feels the motion of the
child in her uterus and is in an advanced stage of pregnancy. In the event of an
abortion, Section 312 of the IPC applies, while Section 313 of the IPC applies in
the case of a miscarriage. When a miscarriage occurs, whether with or without the
woman's consent, punishment is imposed under Section 314 of the IPC. When a
miscarriage is carried out with the intention of preventing a child from being born
alive, it is punishable under Sec. 315 of the IPC, and when such an act is done at
an advantage stage of pregnancy, it amounts to culpable homicide and is made
punishable under Sec. 316 of the IPC.

As per Article 21 of the Constitution, an embryo cannot be deprived of life

without following a legally established procedure. Medical science acknowledges
that an embryo has life from the moment of conception. Consequently, the ability
to be born-alive or capable of being born-alive is determined only at the time of
birth. Incidentally, such a situation is never possible unless there happens to be a
conception (pregnancy).59

For that purpose of the constitutional mandate, even maternity is protected

under the directive of Article 42 and accordingly the Maternity Benefit Act, 1961
was enacted to regulate the employment of women in certain establishments for
periods before and after the child birth. Under Section 4 of the said Act, in order
that, the working hours of a pregnant woman are determined so as not to interfere
with her pregnancy, nor the normal development of the fetus is hampered or
results in miscarriage or otherwise adversely affects her normal health. Sections 5
58
Mishra, Praveen Kumar. "The Role of Fundamental Duties in Indian Constitutional Law: A
Comparative Analysis." Journal of Comparative Law and Society 22, no. 1 (2017): 100-125
59
Singh, Amar. "Constitutional Protection of Indigenous Peoples' Rights: A Comparative Study of
India and Australia." Journal of Comparative Legal Studies 19, no. 4 (2018): 420-445.
and 7 of the said Act permit her to earn normal wages during such type of leave.
The maternity benefit can also be availed by a woman in case of Tubectomy,
Miscarriage and Medical Termination of Pregnancy as per provisions of Sections
9 and 9 A of the Act. Even additional leave for illness arising out of pregnancy,
delivery and pre-mature child birth is allowed for a maximum period of one
month as per provisions contained in Section 10 of the Act.

The mother worker also is entitled to nursing breaks in additions to the

normal break. A woman worker is protected from dismissal or nonpayment of
bonus or other similar disabilities in course of maternity benefits on account of
absence due to pregnancy as per Section 12 of the Act. The Act consolidated the
local laws of the States as per central delegated legislative power through Mines
Maternity Act 1941. Employees State Insurance Act.1948 and Plantation Labor
Act, 1951. This Act now applies to all types of establishments, factories, mines
and employees of circus industry (wef.1973), but is restricted to the qualifications
stipulated on the employees as covered under Sec.50 of the Employees State
Insurance Act, 1948; which embargo was also removed by amending the Act in
1976. The Maternity Benefit Act was effectuated in Orissa w.e.f. 20th Feb.
1964.60

Generally, the Act provides beneficial laws to women who wish to have
children; therefore, the purpose of the Act is considered when interpreting the
same. In the event of a miscarriage, medical termination of pregnancy, or
tubectomy operation, a woman is entitled to leave with wage benefits at the rate
of maternity benefit for a period of six weeks immediately following the day of
her miscarriage. Additionally, she is entitled to an enhanced period of one month
leave with wages if suffers from illness arising out of pregnancy, delivery,
premature childbirth, or miscarriage, as per Sec. 10 of the Act.

The Pre-natal Diagnostic Techniques (Regulation and Prevention of

Misuse) Act, 1994 and the amendments made thereof in 2002, have aimed to

60
Patel, Ananya. "Environmental Rights and Constitutional Law: A Comparative Perspective on
India and Brazil." Journal of Comparative Environmental Law 22, no. 2 (2019): 200-225.
prevent selective elimination of female fetus as the law restricts the entire medical
profession to disclose sex of an unborn baby as per Section 6 of the said Act.
Even as per Section 22 off the Act the advertisement of pre-natal diagnostic
techniques for detection or determination of sex is prohibited.

The institution (mobile or fixed) which are providing the facilities for the
use of such techniques for the purpose only of determining specific genetic
abnormalities or disorders are required to obtain necessary permission or sanction
orders from the appropriate authority as per Section 4 read with Section 18 of the
Act. As per Section 5 (2) not alone the Doctor but also any person who ever
conducts such test or works, under the procedure, is allowed under law to
communicate as to the sex of the fetus either by works, under the procedure, is
allowed under law to communicate as to the sex of the fetus either by words, sign
or any other manner and for violation of the norms they could be subjected to
punishment under Sections 22 to 28 of the Act.

In order to prevent their misuse for sex determination leading to female

foeticide or for matters related or incidental thereto, the Amendment Act of 2002
seeks to prohibit sex selection before or after conception and even to regulate
prenatal diagnostic techniques for the purpose of detecting genetic abnormalities,
metabolic disorders, chromosomal abnormalities, certain congenial malfunctions,
or sex-linked disorders.61

A detailed definition of the legal implications of the terms "conception,"

"embryo," and "fetus" is given in Section 2 of the aforementioned Act. The
meaning of a genetic clinic, or for that matter, a genetic laboratory, has been
expanded to include a vehicle where an ultrasound machine, imaging machine,
scanner, or other portable machine or equipment capable of determining sex of
the fetus, is used. Section 1 of the amended Act includes prevention of both pre-
conception and pre-natal diagnostic techniques for the selective elimination of
female sex.

61
Sharma, Siddharth. "The Right to Information in India: A Comparative Analysis of
Transparency Laws." Journal of Comparative Law and Society 21, no. 3 (2018): 310-335
 Prenatal diagnosis, an advancement in medical science, was abused to
selectively eliminate a female fetus. Proponents argued that since the MTP Act of
1971 legalized abortion, this selective elimination of female fetuses should also be
considered a family planning measure. However, the amended Act forbids the use
of the said test on women under the age of thirty-five, on women who have had
two or more abortions, on women who have suffered foetal loss, on women who
have been exposed to potentially teratogenic agents like drugs or radiation, on
infected with chemicals, or who are mentally retarded.62

4.4 INDIAN PERSPECTIVE: HUMAN RIGHTS OF PERSONS WITH

DISABILITIES WITH SPECIAL REFERENCE TO EDUCATION AND
EMPOWERMENT

In the contemporary era, India is positioned at a noteworthy pedestal on

the global stage during the past two decades. As compared to other developing
nations, India has established itself in numerous fields resulting in the national
economic growth and overall development. It is a matter of pride that today India
is experiencing fundamental changes ensuing tremendous improvements in
diverse sectors. However, this dramatic acceleration of development has not
proved successful in bringing about the required changes in a few areas; one of
them is rights of disabled persons in India.

It is a great irony that despite the remarkable progress the disabled persons
are marginalized and are victims of adversative forms of human activity paving
way for countless challenges in future. Presently, there are 650 million persons
with disabilities around the world.' Disability is generally described as lack of
normal functioning of physical, mental or psychological processes. Moreover, it is
defined in different manner in different context.'

On humanitarian grounds disability should not be considered as

impairment but a condition that results from the interaction between specific

62
Das, Sumit. "Judicial Review of Executive Action: A Comparative Study of India and the United
States." International Journal of Comparative Public Law 23, no. 1 (2019): 120-145
mental and physical characteristic.^ In fact, disability is a central concept of
health.' Accordingly, Article 1 of the Convention on the Rights of Persons with
Disability, states: "Persons with disabilities include those who have long-term
physical, mental, intellectual or sensory impairments which in interaction with
various barriers may hinder their full and effective participation in society on an
equal basis with others."

Similarly, The Persons with Disabilities (Equal Opportunities, Protection

of Rights and Full Participation) Act, 1995, [hereinafter referred as PWD] defines
a `person with disability' as "a person suffering from not less than 40 percent of
any disability as certified by a medical authority, and includes blindness, low
vision, leprosy-cured, hearing impairment, locomotors disability, mental
retardation and mental illness as disability."

4.4.1 HUMAN RIGHTS OF DISABLED PERSONS

Human rights are inalienable, inherent, and given to every individual by

virtue of their birth. The two most important aspects of human rights are the right
to equality and the right to dignity. Despite the universality of human rights, it has
been observed that the most vulnerable segments of society lack the power to
advance their rights. After decades of struggle, the 20th century's powerful
campaigns to guarantee the rights of the disabled have resulted in a number of
changes in government policies, laws, and other facilities for the disabled. Despite
this, disabled people continue to be victims of human rights violations, most of
which are ignored or go unnoticed.

On the other hand, discrimination based on race and gender has always
been condemned and challenged worldwide. Various national and international
laws have been enacted to protect individual rights in order to eradicate
discrimination. Similarly, it is of great magnitude to view disability as a human
right to protect and guarantee the rights of persons with disabilities. Numerous
laws have been enacted to uphold the human rights of persons with disabilities.
4.4.2 INTERNATIONAL AND NATIONAL PROVISIONS

Internationally, the promotion and guarantee of rights of persons with

disabilities has always been a congenital issue and focus of attention of the United
Nation and other international organizations .2 Since 1970 the United Nation has
consolidated its commitment towards persons with disabilities through plethora of
specialized instruments, such as, The Universal Declaration on Human Rights,
1948,' The International Convention oil Civil and Political Rights, 1966;° The
international Covenant oil Economic, Social and Cultural Rights, 1966;5
Convention oil the Rights of Child 6 The United Nations Declaration oil Rights of
Mentally Retarded Persons;

The United Nation General Assembly adopted the Convention oil the
Rights of Persons with Disabilities in 2006;7 etc. This apart, 1983-1992 was
observed as the decade of disabled persons. The Asia Pacific decade of disabled
persons was observed in 1993-2002. Moreover, the Millennium, Development
Goals agreed on by the international community in the year 2000 and was
endorsed by 189 countries with the objective to protect the most marginalized
group of people from discrimination.' In addition to this there are several
disability-specific non-binding international instruments at international level.

Under the umbrella of the international provisions there are efficient

provisions enacted at national level in India. The suprerna lea of the land, the
Constitution of India embodies special provisions for protection of disabled
persons in India.' Apart from the Constitution, cluster of legislations are enacted
to promote and protect the rights of disabled persons. The Mental Health Act of
India, 1987,1 The Rehabilitation Council of India Act, 1992,3 The Persons with
Disabilities, (Equal Opportunities, Protection of Rights and Full Participation)
Act, 1995,' The National Trust for Welfare of Persons with Austin, Cerebral
Palsy, Mentally Retardation and Multiple Disabilities Act, 1999, The Juvenile
Justice Act, 2000,6 etc., are a few legislations which seek to prevent
discrimination on grounds of disability and extend protection to the disabled
persons. The most significant legislation in this field is the PWD Act, as it clearly
states that the disabled persons have right to equal opportunities and right to
participate as citizens of the country.63

4.4.3 PRESENT SCENARIO OF DISABLED IN INDIA

Even with effective laws and significant rulings from the Supreme Court,
the current state of the disabled in India is a step towards stifling the spirit of rule
of law in the country. Though it is imperative to protect the most marginalized
and deprived group to advance human rights,' it is not experienced in the society.
Undoubtedly, there have been efforts to safeguard the rights of persons with
disabilities from the 18'h century; however, the issue of rights of disabled cannot
be secured unless the designed policies and programmers are fruitfully
implemented.

According to the census of 2001 there are 22 million disabled persons in

India who constitute 2.13 per cent of the total population.' At present, India has
approximately 80 million persons with disability. The number of persons with
disability is gigantic, and hence the policy makers should not aim at having the
law merely in letter but should be in spirit to protect the rights of such people. The
State has been making endeavors for formulating policies for the disabled persons
but the lack of appropriate implementation proves the efforts futile. The negative
attitudes towards the disabled add to discrimination faced by them in the society.
There is tremendous lack of accessibility and infrastructure barriers add to the
vulnerability of disabled persons.64

The concept of human rights emphasizes the fundamental rights of the

disabled, emphasizing the right to equality, the right to dignity, and the right to
self-respect of every individual. In light of this, there have been a few positive
steps towards eradicating discrimination against the disabled, such as the national

63
Gupta, Siddharth. "The Right to Fair Trial: A Comparative Analysis of Indian and European
Legal Systems." International Journal of Comparative Legal Studies 22, no. 2 (2019): 220-245.
64
Singhania, Anuj. "Constitutional Protection of Minority Rights: A Comparative Study of India
and the United Kingdom." Journal of Comparative Constitutional Law 16, no. 4 (2017): 420-445
campaign for the right to vote for disabled persons and a series of national
consultations in project to harmonize Indian laws with the UN convention for
rights of disabled people.

Similarly, the Right to Education Act of 2010 has incorporated the right to
education of children with disabilities and also emphasizes that `children with
disability shall have the right to be provided education in an appropriate
alternative environment as may be prescribed.' However, it is not enough for the
State to merely provide educational services, with possibilities of disclosing
information. The World Declaration on Education for All, 1990, was the result of
an inter-agency conference that expressed seven principles, which today form the
conceptual core of an internationally recognized education strategy known as
Universal Primary Education.

Despite all of this, 55% of people with disabilities were illiterate in 2002.
India has undoubtedly made an effort to provide education to children with
disabilities by creating a number of policies and schemes, such as the National
Policy on Education, 1986, Inclusive Education, 1970, Integrated Education for
Disabled Children, 1974, Project Integrated Education for the Disabled, National
Open School, Sarva Shiksha Abhiyan 2001, etc.

The complete acknowledgement of every child's inherent right to a

primary education, the dedication to a child-centered concept of education, the
enhancement of primary school learning, the provision of a more responsive
primary education, increased community and parental involvement in the
provision of services, a greater capacity to respond to the variety of needs of
children, and the dedication to an intersectoral approach.

The PWD Act reserves 3% of all categories of jobs in the government

sector for differently abled persons and offers incentives to public and private
sector companies that have at least 5% of their workforce comprised of differently
abled persons. A 1999 survey revealed that the private sector employed a mere
0.28 percent, the public sector employed 0.54 percent, and the multinational
corporations had hired only 0.05 percent of differently abled people in India. The
Right to Education Act, 2010, and the provisions of the Indian Constitution
highlight the need for education, but all of the provisions focus only on education
in schools, which is insufficient to provide employment for disabled people.

It is a great irony that only a small percentage of the millions of disabled

people in India have been able to find employment in the industries up to this
point, meaning that the current state of employment for people with disabilities
remains unmet despite the implementation of various policies and government
schemes.65

4.5 ROLE OF SUPREME COURT IN PROTECTION OF HUMAN

RIGHTS UNDER ENVIRONMENTAL LAWS IN INDIA

Since the beginning of human history, people have been able to enjoy their
rights. The human right to a clean and healthy environment predates humanity by
centuries, but it has only recently been recognized and protected by the courts.

The Water (Prevention and Control of Pollution) Act of 1974, the Air
(Prevention and Control of Pollution) Act of 1981, and the Environment
(Protection) Act of 1985 are the three main statutes pertaining to the environment.
In addition to these three laws, there are numerous other laws that safeguard the
environment.

In addition to being an integral part of the environment, humans are also

its main polluters and destroyers. Only humans have harmed the environment on
Earth to the extent that no other living thing or natural disaster has. On the other
hand, humans are the only animals capable of contributing to the preservation and
protection of the planet's environment. The only thing they can do is keep Mother
Earth safe from deterioration and devastation.

65
Verma, Abhishek. "The Right to Property: A Comparative Perspective on Indian and American
Jurisprudence." International Journal of Comparative Law and Justice 19, no. 3 (2018): 300-325.
 The judiciary has stepped in and provided forceful verdicts to rescue those
impacted whenever the selfish desires of some people have gone so far as to
irreparably damage the environment and infringe the rights of others. Since the
judiciary is seen to be the custodian of fundamental rights, it has upheld each
person's entitlement to environmental preservation and human rights as the two
sides of a coin.

Constitutional Article 21. Courts have frequently issued crucial and

beneficial directives to the relevant authorities in order to preserve and safeguard
the environment.

More than 300 laws, including the Indian Penal Code 1860, the Code of
Criminal Procedure 1973, the Civil Procedure Code, and others, are relevant to
environmental preservation and protection. The Indian Constitution has served as
a watchdog over the environment and has included a number of provisions
pertaining to the preservation of the environment and the protection of human
rights through the gradual extension of Article 21. The supreme court has been
able to develop new environmental protection standards thanks to a significant
number of public interest lawsuits and writ petitions. In the area of environmental
jurisprudence in our nation, these ideas are unwavering.

No society is free and no state is democratic unless human rights are

spread and actualized by every citizen. The goals of human rights are a free
choice of life and a full development of life. Human rights law aims to humanize
state agencies and hold the state accountable for the use of power that is required
to use only for the public good. Such a choice is always impossible without
freedom. These rights are guaranteed by numerous declarations that go by
different titles. The long battle of documentation ends in explicit terms when the
Universal Declaration of Human Rights is drafted in 1948. Prior to it, in 1945, the
United Nations Charter reaffirmed their faith in fundamental Human rights and in
the dignity and worth of Human person. This document after the Second World
War shows the wisdom of the world. Magna Carta, which dates back to 1215, the
English Bill of Rights, which was drafted in 1688, the American Declaration of
Independence, which was drafted in 1776, and the French Declaration of Rights
of Man and of the Citizens,

Convention on Human Rights and Fundamental Freedoms was signed on

4.11.1950. This was completed in the wake of World War II, a time when
international concern over the protection of human rights was paramount. It was
the first step toward the collective enforcement of some of the rights enshrined in
the Universal Declaration of Human Rights. The desperate need for the
implementation of human rights on a global scale was not satisfied until the
Second World War. All of these documents, as well as the international covenants
on civil and political rights and social, economic, and cultural rights, which were
also ratified in 1996, make this clear.

Therefore, the goal of human rights is to protect people's rights against the
state's arbitrary misuse of authority.Human rights are reaching new heights in
their evolution. They now cover topics like the environment, global drug
trafficking, and more. In addition to the customary first-generation civil and
political rights, there are also first-generation economic, social, and cultural
rights.

The Indian enactments and rules pertinent to human rights include the
protection of human rights act 1993; The National human rights commission
(procedure)Regulation 1994;The commission of sati (prevention) Act
1978;commission of sati (prevention)rules 1988:The national commission for
backward classes act 1993:The nation commission for Minorities act 1992:The
nation Commission for safai karamcharis act 1993:The national commission for
women act 1990:The person with Disabilities (Equal Opportunities, Protection of
rights and full participation) Rules 1996:the Pre -natal Diagnostics techniques
(Regulation and prevention of Misuse) Actl994:the protection of civil rights act,
1955:the protection of civil rights Act,1955; the protection of civil rights rules
1977 the scheduled castes and the Scheduled tribes (preventive of Atrocities )act
1989;the scheduled casts and the Schedule tribes (preventive of Atrocities)Rules
1995 and parts of the Constitution of India 1950 (Especially part III and pan IV).
With second-generation rights related to the economy, society, and culture, a third
generation of "Solidarity rights" is starting to take shape. Human rights do, in fact,
have a broad and comprehensive application. The rights to health, a pollution-free
environment, the right to development, the right to self-determination, and other
newly emerging rights have affected every aspect of life. As a result, the scope of
Article 21 of the Indian Constitution has also expanded to take into account these
new rights. Human rights that deal with an individual's very existence transcend
national boundaries.

The essential essence of the idea of human rights is shifting from its
individual necessity to the worldwide obligation. The concept of human rights is
broadening in both its reach and essence. Human rights are a never-ending topic.
Human needs and human rights are inseparable.As a result, the rights of women,
children, the impoverished, and victims are likewise regarded as fundamental
principles of human rights law on a global scale.

The modern world order places a high value on human rights. According
to Manual Marin, "Respect for human rights and democratic principles is not
merely an end in itself, it is precondition for balanced and effective development."
Human rights action is urgently needed, and human rights implementation is a
prerequisite for progress.

Human rights is a field that is always evolving. The idea of human rights
adopts new forms and modes in response to the demands and requirements of the
modern world. Human rights are clearly infringed more often than they are
implemented in India. This is because there is insufficient infrastructure in place
to effectively protect human rights, which are fundamental to human existence on
Earth and hence must be safeguarded. The field of human rights is constantly
expanding. This is the case because human rights are a product of the expanding
needs and demands of society. As society changes, so do people's needs and
demands, and as a result, so do human rights. Indian courts have acknowledged
the growing need of human beings for a dignified and healthy existence. Human
rights have been upheld by courts under a variety of interpretations. The author of
this article has made an effort to illustrate some situations in which environmental
decisions are used to safeguard human rights.66

4.6 HUMAN RIGHTS AND GLOBAL CHALLENGES

Human rights have permeated almost every aspect of life, and the legal
system is no exception. Chapters III and IV of the Indian Constitution, as well as
other Articles, contain provisions pertaining to human rights. The Water Act of
1974, the Air Act of 1981, and the Environment Protection Act of 1986 are just a
few examples of environmental legislation that incorporate certain aspects of
human rights. As a result, the judiciary upholds and interprets human rights in
addition to environmental laws. Noise, water, and air pollution all pose threats to
society.

The 1972 United Nations Conference on the Human Environment

considered how to eradicate this threat in the civilized world and established
principles to help reduce the issue of environmental pollution. India has framed its
environmental laws in accordance with these principles. If pollution is allowed to
continue unchecked, it may pose a serious health hazard to the human community
endangering human life. The current rate of development has led to the
recognition of environmental contamination as a global emergency. Urbanization,
industrialization, and technical advancements have frequently showed a disrespect
for the environment and resulted in significant ecological imbalances.67

The three primary elements of the environment that are typically

recognized are soil, water, and air. These elements constantly interact with one

66
Chauhan, Shivani. "Freedom of Religion and State Neutrality: A Comparative Study of India
and France." Journal of Comparative Legal Studies 20, no. 1 (2016): 100-125.
67
Shah, Sagar. "The Right to Privacy and Data Protection: A Comparative Analysis of Indian and
European Legal Frameworks." International Journal of Comparative Law and Technology 23, no.
2 (2019): 180-205.
another to preserve a state of mutual equilibrium known as "ecological balance".
When considered as a whole, this system benefits man. However, when
environmental resources are misused, abused, or used excessively, they disturb
the "ecological balance," endangering the very existence of the human race. The
changes that result from these abuses also have an impact on man's efficiency,
health, and ability to adjust to society. Deserts and droughts were brought about
by the relentless exploitation of natural resources, and today nuclear weapons
testing and their introduction into space endanger even the survival of ozone and
the atmosphere itself, which is essential to human life.68

The court and the executive branch have implemented several directives
and rules in response to the ongoing increase in air pollution, with the aim of
managing the issue. The judiciary and executive branch have encouraged various
actions, such as banning fireworks that produce noise that exceeds acceptable
limits, permanently closing limestone quarries because they violate people's right
to live in a healthy environment, banning outdated vehicles that don't meet
regulations, and banning public transportation vehicles that don't run on CNG.
These are just a few of the striking examples.69

68
Trivedi, Rohan. "Constitutional Protection of Socio-Economic Rights: A Comparative Analysis
of India and South Africa." Journal of Comparative Constitutional Studies 18, no. 3 (2017): 320-
345.
69
Dasgupta, Siddhartha. "The Right to Clean Environment: A Comparative Analysis of Indian and
Scandinavian Laws." Journal of Comparative Environmental Law 19, no. 4 (2018): 400-425
 CHAPTER – V
A COMPARATIVE OVERVIEW OF
CONSTITUTIONAL HUMAN RIGHTS
PROTECTIONS

5.1 UNITED STATES OF AMERICA

5.2.1 FUNDAMENTAL RIGHTS IN INDIA AND THE UNITED STATES

- A COMPARISON

Since fundamental rights are a key component of the Indian Constitution,

they are a significant topic for the UPSC test. It is an essential democratic notion.
This article compares the fundamental rights upheld by the political systems of
India and the United States.

5.2.2 FUNDAMENTAL RIGHTS INDIA & USA: -

Human rights have their roots in the Natural Law theories of philosophers
like Rousseau and Locke. Philosophers of Natural Law pondered over these
innate human rights and developed the "Social Contract" idea in an effort to
uphold them. Man has the natural ability to "preserve his property, that is, his life,
liberty, and estate against the injuries and attempts of other men," according to
Locke, and he is born "with a title to perfect freedom and an uncontrolled
enjoyment of all the rights and privileges of the Law of Nature."

The English demanded a guarantee from King John in 1215 regarding the
preservation of the then-antiquated rights. A written record that attests to their
success is the Magna Carta. This is the earliest written statement about citizens'
fundamental rights. The English people's vital rights and liberties were
consolidated in 1689 with the writing of the Bill of Rights. "The aim of all
political association is the conservation of the natural and inalienable rights of
man," stated the French Revolution Declaration of 1789.70

5.2.3 FUNDAMENTAL RIGHTS IN THE UNITED STATES AND INDIA

The United States Constitution is credited with starting the current trend of
ensuring that everyone has access to fundamental rights.

• There were no fundamental rights in the initial 1787 draft of the

constitution.

• On this issue, the US Constitution was sharply criticized.

• The Americans were the first to grant the Bill of Rights a constitutional
status when they incorporated it into their Constitution in 1791 in the form
of ten amendments, adhering to the principles of the British Magna Carta,
the French Declaration of the Rights of Man, and the French citizens'
charter.

The enunciation of the fundamental rights in the Constitution was almost

inevitable when it came to India for a few excellent reasons.

• To begin with, the Congress, the major political party, had long fought
British authority by requesting these privileges.

• There were widespread human rights violations committed by the British

throughout their dominion over India.

5.2 AUSTRALIA

Because they are both constitutional democracies with colonial heritage,

there are many similarities between the legal systems of Australia and India. Both
the Australian and Indian legal systems are "... common law countries, which are

70
Sharma, Rishi. "Constitutional Protection of Workers' Rights: A Comparative Study of India
and Australia." International Journal of Comparative Labor Law and Industrial Relations 22, no.
1 (2020): 100-125.
federations, which live by the rule of law, which are governed under democratic,
parliamentary constitutions and which, in their different ways, protect
fundamental human rights and basic freedoms," as Michael Kirby stated in a 1996
speech given in India.

The ways in which human rights are codified and safeguarded in each
jurisdiction's constitution, however, differ greatly from one another. In order to
determine if current safeguards for fundamental freedoms and human rights are
sufficient and whether they require revision, this study will examine how each
jurisdiction now defends these rights. Even though Australia's constitution is two
times older than India's, or maybe even more so because of it, India exemplifies
how fundamental rights may be upheld in a nation with such a diverse population.
On the other hand, it can be argued that Australian constitutional law's guarantees
of human rights are insufficient.

This essay compares and contrasts the protections for human rights
afforded by the legal systems of Australia and India, taking into account the
historical background of each nation's constitutions. Compare the strong
fundamental rights enshrined in the Indian constitution with the scant
constitutional safeguards that exist in Australia. The Australian Constitution's
inadequate legal structure for protecting human rights stands in stark contrast to
India's developing and constantly changing basic rights system. This study will
conclude by discussing potential explanations for the existence of these divergent
approaches to human rights safeguards under the various constitutions. Legally
speaking, "Australia and India can learn much from each other," and this also
applies to how each nation upholds fundamental freedoms and rights.71

At the time of federation, Australia's framers used contextual and

jurisprudential arguments to justify the absence of constitutional guarantees. As a
result, the nation was left with a "conservative document, difficult to amend,

71
Sharma, Rishi. "Constitutional Protection of Workers' Rights: A Comparative Study of India
and Australia." International Journal of Comparative Labor Law and Industrial Relations 22, no.
1 (2020): 100-125.
obstructive of social change and riddled with unresolved problems, unfilled gaps,
and awkward compromises." However, there is no compromise when it comes to
human rights, and many contend that it is past time for Australia to address this
dearth of protection and update its political system through the adoption of a new
constitution or the introduction of a national human rights framework.

5.2.1 HOW ARE HUMAN RIGHTS ‘GUARANTEED’ BY AUSTRALIAN

CONSTITUTIONAL LAW.

A EXPRESS

There aren't many explicit safeguards of human rights in the Constitution.

This is due to two factors: first, at federation, the framers deemed the
constitutional protection of individual rights to be "unnecessary," leaving the task
to underlying concepts. Second, despite efforts under S-128 to include more
guarantees, Australians have not shown a desire to do so.

Express rights are significant constitutional protections for human rights in

Australia, notwithstanding their scarcity. The most widely recognized express
rights are the freedom of religion (Section 116), the right to a jury trial (Section
80), the prohibition against the Commonwealth acquiring property unless
reasonable conditions are met (Section 51(xxxxi)), the prohibition against
discrimination based on State residence (Section 117), and any other express
rights that the High Court deems appropriate. But in recent years, the Court has
shown a propensity to interpret these fundamental rights in a way that is
consistent with its "belief in the virtues of parliamentary supremacy."72

B IMPLIED

The High Court has relied on two fundamental "assumptions" upon which
the Constitution was erected in order to make up for this relative lack of
protection within it. First, the idea of responsible and representative government

72
Mehta, Priya. "Gender Equality and Family Law: A Comparative Study of India and the United
States." International Journal of Gender and Law 23, no. 4 (2018): 420-445.
is "regarded by us as the ultimate guarantee of justice and individual rights."
Second, the idea of the rule of law and the separation of powers is considered the
"most important" constitutional guarantee, according to Deane J.

The High Court has reasoned that all freedoms required to enable the
efficient operation of a democratic system of government may be implied because
the Constitution established one. The content and structure of the Constitution, as
well as the representative democracy system that it establishes (see sections 7 and
24), may therefore be used to deduce a freedom of political communication. The
Court has carefully tied to and limited this guarantee by the text of the
Constitution, rather than being a free-standing right. Those sections specify that
representatives are to be "directly chosen by the people," so the scope of the
freedom is to enable electors to exercise a "free and informed choice."73

5.2.5 IS THERE A NEED TO FURTHER PROTECT THESE RIGHTS?

A ARE THE RIGHTS ADEQUATELY PROTECTED?

Some of the most basic human rights are still unprotected, despite the fact
that Australians have benefited from a century of stable governance founded on
the principles of accountable and democratic government. The way asylum
seekers are treated, anti-terrorism laws, and mandatory prison sentences for
offenders demonstrate this lack of protection in recent times. The fact that
Australia is the only democratic country that has not yet passed legislation or a
constitution protecting these rights is another indication of global trends. "[I]t is
beyond question that [Australia’s] current legal system is seriously inadequate in
protecting many of the rights of the most vulnerable and disadvantaged groups in
our community," the majority of Australians believe that their basic rights are
protected, but these "inadequacies" and the reliance on an unstable culture of

73
A.P. Sing, "Democratisation of Environmental Governance; The Emerging Concerns in View of
RTI Act," 5(1) SCHOL. (2007), 45.
judicial implications, are indicative of the need for further protection of individual
rights on a federal level.74

B HOW CAN AUSTRALIA IMPROVE THE PROTECTION OF

HUMAN RIGHTS?

The framers of the Australian Constitution purposefully designed it

difficult to amend. Actually, out of 44 attempts, only eight have ever been
successful in altering Australia's Constitution. The Parliament needs to take the
initiative and enact a Bill or Charter of Rights in order to combat the
Constitution's inertia and strengthen Australia's protection of human rights. The
legislature has previously acknowledged that there are no constitutional
guarantees and has passed laws to shield people against prejudice. Recent rulings,
however, show that Australia's legal system still has "gaping holes" when it
comes to the protection of human rights. Australia has two options for
strengthening its weak human rights framework: a statutory Bill of Rights or an
ingrained one.

The power over external affairs could be employed to establish a legally

binding Bill of Rights that safeguards human rights that are acknowledged
globally. A statute like that could be repealed, though. Second, a constitutional
amendment could establish an ingrained Bill of Rights. Given Australia's
unwillingness to support constitutional modifications in a referendum, this
appears improbable. Commentators contend that a Bill of Rights would be
resistant to shifting societal ideas and that specifying rights would actually
constrain them. Moreover, they contend that even if there were to be better
constitutional protections, the idea of parliamentary supremacy would be
compromised by an established Bill of Rights as the judiciary would be given
more authority.

74
Gupta, Siddharth. "The Right to Fair Trial: A Comparative Analysis of Indian and European
Legal Systems." International Journal of Comparative Legal Studies 22, no. 2 (2019): 220-245.
 Therefore, a legislative bill of rights is better since it would start a
conversation about the value of human rights and promote communication
between the government and the judiciary. Though there are valid worries in the
Bill of Rights debate, the benefits of safeguarding Australians who are vulnerable
to human rights abuses greatly exceed the drawbacks. Therefore, any of these
options is probably going to strengthen Australia's culture of rights and shield
people from the authority of the state.75

C A STEP IN THE RIGHT DIRECTION?

In Australia, the state's acknowledgement of the value of human rights is a

positive development. Numerous rights, such as the right to life, the right to
privacy, and the freedoms of expression, movement, and religion, have been
recognized by the Human Rights Act 2004 (ACT) and the Victorian Charter of
Human Rights and Responsibilities Act 2006 (Vic). Courts are not allowed to
overturn legislation that violate human rights under these Acts. Instead, they give
the Legislative Assembly the task of reacting to the court's pronouncement of
incompatibility.

A culture of tolerance and respect for the intrinsic dignity of every human
being is being fostered by the passage of state and territory legislation, which has
placed a federal bill of rights back on the national political agenda. Given the
effectiveness of these state-level legislative rights safeguards, a comparable
federal strategy might have comparable effects.76

D WHAT IS THE NEXT STEP FORWARD?

Australia needs to think forward, and the first step is to acknowledge that
its constitutional "guarantees" are insufficient. The Commonwealth should create
a legislative Bill of Rights to address these shortcomings and prevent the likely

75
Dr. D.S. Prakasa Rao, "Social Justice & Constitutionalism - Ambedkar's Perspective,"
Festschrift - Constitutional, Jurisprudence & Environmental Justice, Essays in Honour of Prof. A.
Lakshminath, Pratyusha Publishing Ltd., Visakhapatnam, 2001, p. 199.
76
Anu Kumar, "Hamara Paisa, Hamara Hisab," Transparency Review, New Delhi; Centre for
Media Studies, Vol. 1 (2006), 30.
defeat of a constitutional Bill of Rights. The UK and New Zealand have both
successfully used this strategy.

This will allow the Parliament to have constant monitoring while

protecting a constrained set of fundamental rights in a practical and minimalistic
manner. In the end, Australia needs to work toward a deeply ingrained Bill of
Rights while pursuing constitutional reform. This is required since the importance
of these fundamental rights now sharply contrasts with the framers' perception of
human rights more than a century ago. In the West, human rights are now
acknowledged as having "universal currency," thus we shouldn't insist on having
a Bill of Rights indefinitely without providing any evidence.77

5.3 INDIA

5.3.1 HOW ARE HUMAN RIGHTS ‘GUARANTEED’ BY INDIAN

CONSTITUTIONAL LAW?

Parts III and IV of the Indian Constitution of 1950, as well as laws like the
Protection of Human Rights Act, 1993, all safeguard and advance human rights in
India. The Indian Constitution is one of the longest in the world and has
undergone several revisions since it was first drafted. The best person to explain
why flexibility was added to the Constitution is Pandit Jawaharlal Nehru, the first
Prime Minister of Independent India. He stated during a debate in the Constituent
Assembly that if the Constitution were made rigid and permanent, it would halt
the development of both the country and its citizens. The Indian Constitution has
since undergone amendments as they have been judged necessary to safeguard the
interests of the weaker segments of society and to construct a welfare state based
on an equal socioeconomic order. Even the Indian judiciary has taken an active
part in interpreting rights in line with international human rights accords.78

77
Dr. Bhagirathi Panigrahi, "Right to Information: Challenges and Perspectives," Kare Law
Journal, November (2005), 55.
78
B. Sivaraman, "Administrator as Policy Maker," Management in Government, Vol. 3, No. 2,
July-September, 1971, p. 95
 In fact, the Indian Supreme Court has given a more expansive reading of
the meaning and content of the current rights than the architects intended.

The Indian National Congress was founded in 1885 with the implicit goal
of ending the discrimination that was a part of the colonial regime and giving
Indians the same rights and privileges as the British did when they were in India.
This means that the Indians' desire for civil rights dates back to the nineteenth
century.

The demand for civil rights and status equality with Englishmen was
reiterated in a number of Congress resolutions and reports that were adopted
between 1917 and 1946. In order to protect individual liberty and justice and to
achieve a fair balance between the rights of people and the rights of society, the
Indian Constitution's drafters enacted the Fundamental Rights under Part III of the
document by the end of 1949. The 26th of January, 1950 marked the adoption of
the Constitution.79

Compared to other written constitutions currently in effect, the Indian

Constitution, 1950's Part III lists the Fundamental Rights in greater detail and
encompasses a wider variety of rights. The Fundamental Rights are divided into
six categories by the Constitution: the right to equality, the right to certain
freedoms, the right to be free from exploitation, the right to freedom of religion,
the right to cultural and educational rights, the right to property, and the right to
constitutional remedies.

The fundamental rights can be divided into two categories: (i) those that
are exclusive to Indian nationals, and (ii) those that are available to everyone on
Indian territory. The Indian Constitution restricts certain rights to Indian citizens,
such as: (a) equality of opportunity in matters of public employment (Article 16);
(b) protection from discrimination on the basis of religion, race, caste, sex, or
place of birth; (c) freedom of speech, assembly, association, movement,

79
A. David Ambrose, "Judicial Response to Right to Information," Delhi Law Review, Vol. XXI
(1990), 75.
residence, and profession (Article 19(1)); and (d) minorities' cultural and
educational rights.80

(Section 30). Anybody on Indian territory is also entitled to other rights,

irrespective of their citizenship, such as (a) equal protection under the law and
equality before the law (Article 14); (b) protection against conviction for ex post
facto laws, double punishment, and self-incrimination (Article 20); and (c)
protection of life and personal liberty against action without legal authority
(Article 21).

(d) The prohibition against exploitation (Article 23); (e) Religious

freedom (Article 25); (f) The freedom to pay taxes for the advancement of any
one religion (Article 27); (g) The freedom to attend religious services or
instruction in state-run schools (Article 28). particular Fundamental Rights, like
Article 14, which declares that "That State shall not deny to any person equality
before law," clearly constrain the State by outright forbidding certain actions that
deprive its citizens of particular rights. There are similar prohibitions against the
State under Articles 15(1), 16(2), 18(1), 20; 22(1), and 28(1).

Certain Fundamental Rights are directed against the Executive but place
no restrictions on the Legislature. One such right is found in Article 21, which
says that "No person shall be deprived of his life or personal liberty except
according to the procedure established by law." The Indian Supreme Court
previously ruled that a competent Legislature could establish any procedure for
denying someone their personal liberty and that courts could not overturn such a
law on the grounds that it was unfair, unjust, or unreasonable. The purpose of
Article 21 is not to restrict the Legislature in any way; rather, it merely makes
sure that the Executive does not restrict someone's freedom unless authorized by
law. In subsequent cases, however, the Supreme Court found it difficult to remain
silent and not take action against laws that were arbitrary and unreasonable under
pertinent provisions of Article 19 (1) or Article 14. Ultimately, in the landmark

80
Bibek Debroy, "Why We Need Law Reform."
decision of Maneka Gandhi v. Union of India, a seven-judge Supreme Court
bench held that a legal procedure that restricts an individual's liberty must be just,
fair, and reasonable. Therefore, any law that restricts someone's "personal liberty"
through a regulated process must comply with both Article 19's (the freedom
clause) and Article 14's (the equality clause). A nine-judge Constitution Bench of
the Indian Supreme Court recently ruled unanimously that the right to privacy is a
fundamental right that follows from the rights to life and personal liberty, which
are guaranteed by Article 21 of the Indian Constitution, as well as other
fundamental rights that the Constitution guarantees to individuals.81

The Supreme Court has frequently ruled that the right to life guaranteed by
Article 21 encompasses the right to live with human dignity in addition to the
basic necessities of survival and existence. The Supreme Court has so read several
significant rights in Article 21—such as the right to food, drink, shelter, medical
care, and education as well as the right to a fair and expeditious trial and the right
to information adopting a liberal reading in the process.

"The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India," reads Article 14 of the
Indian Constitution. Everyone is guaranteed the right to equality before the law
and equal protection under the law under Article 14, including non-citizens and
transgender people. Together, Articles 14–16 establish the principle of equality
and the nonexistence of discrimination. Article 14 lays out the broad principles of
equality; nevertheless, Articles 15 and 16 address specific facets of that equality.
Only citizens may access Article 15, which forbids discrimination against any
citizen in any situation where the State has jurisdiction based on that citizen's
gender, race, religion, caste, or place of birth. Article 16 is limited to citizens only
and covers only one form of public discrimination, which is when someone works
for the government.82

81
D.S. Prakasa Rao, "Relevance of Ancient Indian Legal Thought Today," JILT, Vol. 3, 2004, 75.
82
Dr. D.S. Prakasa Rao, "Right to Education! To Whom? Against Whom?," 1993, 3 SCJ, 50.
 Six fundamental rights are guaranteed to Indian citizens under Article 19
of the Indian Constitution. These rights are positive rights granted by the
Constitution to uphold the ideal of liberty outlined in the Preamble ("Liberty of
thought, expression, belief, faith, and worship"), subject to certain limitations.
The aforementioned rights include: (1) liberty of speech and expression; (2)
convocation; (3) affiliation; (4) mobility; (5) domicile and settlement; and (6)
employment, trade, or business. These fundamental freedoms and rights are
acknowledged as being part of a citizen's natural rights and are necessary for a
democratic state founded on the rule of law.

The Supreme Court of India has interpreted Article 19 in a way that

includes new and more precise rights that are covered by these provisions. The
flying of the national flag is one of these rights since it is regarded as a form of
speech covered by Article 19. Voting is one way that a voter can express
themselves or speak during an election; in other words, a voter can speak out or
cast a ballot. Freedom of expression is inextricably linked to the right to
knowledge, especially the right of voters to ascertain the credentials and
background of candidates running for office. Silence is guaranteed by the right to
free expression. It means having the option to listen or not listen at all.83

Article 20 provides protection from conviction for offenses in certain ways

by outlawing the following: (a) ex post facto, or retroactive, criminal laws; (b)
double jeopardy; and (c) coercion to provide testimony that implicates oneself. A
person who has been arrested is granted rights under Article 22, which are akin to
the Miranda rights that are widely known in the United States of America. The
primary goal of this provision in the Indian Constitution is to provide judicial
oversight of police interference with an individual's freedom.

According to the Constitution, India is a Secular State, meaning it treats all

religions equally and with neutrality. Articles 25–28 of the Constitution guarantee
a neutral stance toward all religions. Every individual is entitled to the freedom of

83
P.P. Rao, "Accountability of Legislature, Executive and Judiciary," Festschrift in Honour of
Prof. A. Lakshminath, 2002, edited by Dr. D.S. Prakasa Rao, 90.
conscience and the right to declare, practice, and spread their own religion under
Article 25, subject to limitations put in place by the government for the sake of
morality, public health, and public order. Every religious denomination is
likewise guaranteed by Article 26 the freedom to create and uphold institutions
for philanthropic and religious purposes as well as the autonomy to conduct its
own religious affairs. Article 27 forbids the imposition of taxes intended to fund
the upkeep or advancement of a specific religion. The Republic of India's stance
on religion fluctuates between tolerance for all religions and religious neutrality,
as stated in Article 28, which prohibits religious instruction in any educational
institution fully funded by the State. This implies that the State cannot promote
one religion over another.

Two main perspectives were taken into consideration when drafting the
Indian Constitution: (i) that it is a sacred text that supersedes ordinary law; and
(ii) that it is a tool that may need to be amended from time to time in response to
the shifting needs of society. These amendments may be made by a simple
majority or a special majority of the Parliament, as specified by Article 368 of the
Indian Constitution.84

5.4 CRITICISMS OF INDIAN CONSTITUTIONAL GUARANTEES

There have been many complaints regarding the implementation,

interpretation, and evolution of the several fundamental protections listed in the
Indian Constitution, despite this fact. The Indian Constitution has actually been
viewed by many academics as a mirage with hollow promises. While the Indian
Supreme Court does decide cases involving social rights, some observers contend
that it rarely upholds any systemic social rights.85

The Indian legal system was still based on colonial laws and institutions
that were intended for centralized control, even after the country's constitution

84
Bal Mukund Vyas, "Sharing of Information with Citizens."
85
Singhania, Anuj. "Constitutional Protection of Minority Rights: A Comparative Study of India
and the United Kingdom." Journal of Comparative Constitutional Law 16, no. 4 (2017): 420-445.
included a Bill of Rights and universal adult suffrage. The Indian Constitution's
fundamental rights could be constitutionally limited in addition to the contentious
emergency power that permits the Central Government to declare a state of
emergency and suspend fundamental rights. These reasons could include
preserving India's sovereignty and integrity, the State's security, positive relations
with other countries, public order, public health, and morality and decency. The
reality of violence committed by the law and the fantasy of emancipation it
promises nevertheless remain apart. In fact, even Dr. B.R. Ambedkar, the
Chairman of the Constituent Assembly, noted in his final remarks to the assembly
that India had entered a life of paradoxes with the adoption of the Constitution,
acknowledging equality in political life but denying equality in other domains due
to social and economic structures.86

5.5 COMPARISON

The aforementioned study makes it quite evident that India and Australia
take very different stances when it comes to constitutional guarantees of human
rights. On the one hand, the constitution of Australia has relatively few rights. On
the other hand, the Indian Constitution's founders specifically listed a number of
rights to safeguard those living inside its boundaries.

Furthermore, it appears that the judiciaries in each jurisdiction have taken

different stances. In contrast, the Indian Supreme Court has adopted a more
progressive approach to interpreting the rights enshrined in the Constitution, to
the extent that judicial activism has contributed to expanding the constitutional
guarantees and protections available to people within India. The Australian High
Court, at least in recent times, has tended to read down the few constitutional
rights that exist, consistent with a "belief in the virtues of parliamentary
supremacy." The cases Unni Krishnan, J.P. and Justice K S Putt Swamy v. Union

86
Dr. Dilip Kumar Mahapatra, "Human Rights - Education Interface: The Significance of Human
Rights in Education," GLI, Vol-1, Issue-2, Dec 2015, 110.
of India (Right to Privacy) can be found. demonstrate this strategy in the case of
vs. State of Andhra Pradesh (Right to Education).87

There are several possible explanations for this different approach. First,
the population sizes of each nation and the intricate demographics of India.
Although Australia has embraced multiculturalism in recent decades, Michael
Kirby points out that "in India, it is an imperative feature of the law, if it is to
serve the hugely different communities that make up the Indian nation." Given
that India's population is so diverse and its Constitution is secular in nature,
constitutional guarantees to protect human rights are necessary.

Second, before finalizing their own Constitution, the framers of the Indian
Constitution benefited from fifty years of constitutional jurisprudence in Australia
and other jurisdictions. That is to say, because it was a more recent constitution,
the framers could discuss what had worked and had not worked in a different
setting. Yes, the Indian Certain provisions of the Australian Constitution, such as
section 92, which guarantees free trade among the member states of the
Federation, have been practically lifted and pasted into the Australian
Constitution.

Third, unlike Australia, where a referendum is necessary, amending the

Indian Constitution is far simpler. Therefore, since 1950, India has passed 104
constitutional revisions, while Australia has only passed 8 since 1901. As a result,
the Indian Legislature has added new rights to the Constitution in recent decades,
while Australia's Constitution has stayed mainly unchanged.

India, which is arguably at the other extreme of the spectrum, so gives a stronger
example of constitutional guarantees of human rights than Australia.88

87
Chauhan, Shivani. "Freedom of Religion and State Neutrality: A Comparative Study of India
and France." Journal of Comparative Legal Studies 20, no. 1 (2016): 100-125.
88
Dr. D.S. Prakasa Rao, "Human Rights Ideology and Practice - Indian Perspective," JILT, Vol.
1, 2003, 30.
5.6 FUNDAMENTAL RIGHTS IN INDIA AND UNITED KINGDOM -
A COMPARATIVE ANALYSIS

The philosophical framework of the United Kingdom and India's

Fundamental Rights is not all that dissimilar. The Constitution guarantees
everyone the right to the fundamental freedoms, which are granted to everyone
without exception. They support the nation's unity, the greater good of the public,
the equality of all people, and human dignity. In the United Kingdom,
fundamental rights are European Union protections that are sometimes referred to
be human rights in other situations, even though they don't always offer the same
level of protection.

Articles 12 through 35 of Part III of the Constitution contain the

enumerated Fundamental Rights. The United States Constitution, specifically the
Bill of Rights, served as an influence for the framers of the Constitution in this
regard. The Fundamental Rights are guaranteed to all people by the Constitution,
without exception. They support the equality of all people, their inherent dignity,
the greater good of the public, and the unity of the country.89

5.6.1 FUNDAMENTAL RIGHTS IN INDIA

The idea of political democracy is what the Fundamental Rights are meant
to advance. They prevent the establishment of an oppressive and authoritarian
administration in the country and defend the liberties and freedoms of the people
against state encroachment. They function as checks on the arbitrary laws made
by the legislature and the despotism of the executive branch. Stated differently,
their goal is to establish "a government of laws and not of men." In India, there
are six distinct fundamental rights. The table below is a list of the Fundamental
Rights.

India's Fundamental Rights in Brief

89
Trivedi, Rohan. "Constitutional Protection of Socio-Economic Rights: A Comparative Analysis
of India and South Africa." Journal of Comparative Constitutional Studies 18, no. 3 (2017): 320-
345.
SNO. FUNDAMENTAL RIGHTS ARTICLES

1 RIGHT TO EQUALITY ARTICLES 14–18

2 RIGHT TO FREEDOM ARTICLES 19–22

3 RIGHT AGAINST EXPLOITATION ARTICLES 23–24

4 RIGHT TO FREEDOM OF RELIGION ARTICLES 25–28

5 CULTURAL AND EDUCATIONAL RIGHTS ARTICLES 29–30

6 RIGHT TO CONSTITUTIONAL REMEDIES ARTICLE 32

The Constitution, the fundamental law of the state, guarantees and protects
the fundamental human rights, which is why they are dubbed the Fundamental
Human Rights. They are "fundamental" in the sense that they are essential to a
person's whole development, which includes moral, intellectual, and spiritual
advancement.

5.6.2 FUNDAMENTAL RIGHTS IN THE UNITED KINGDOM

The Human Rights Act of 1998 outlines the fundamental rights and
entitlements of every individual in the United Kingdom. British domestic law
incorporates the rights enumerated in the European Convention on Human Rights
(ECHR). The Human Rights Act went into effect in the UK in October 2000.

The Act's "Articles" contain descriptions of human rights in several

places. Every Article covers a different right. These are all extracted from the
European Convention on Human Rights (ECHR) and together referred to as "the
Convention Rights."

A Quick Overview of Fundamental Rights in the United Kingdom

FUNDAMENTAL RIGHTS ARTICLES

RIGHT TO LIFE ARTICLE 2

FREEDOM FROM TORTURE AND INHUMAN OR ARTICLE 3

DEGRADING TREATMENT

FREEDOM FROM SLAVERY AND FORCED LABOUR ARTICLE 4

RIGHT TO LIBERTY AND SECURITY ARTICLE 5

RIGHT TO A FAIR TRIAL ARTICLE 6

NO PUNISHMENT WITHOUT LAW ARTICLE 7

RESPECT FOR YOUR PRIVATE AND FAMILY LIFE, ARTICLE 8

HOME AND CORRESPONDENCE

FREEDOM OF THOUGHT, BELIEF AND RELIGION ARTICLE 9

FREEDOM OF EXPRESSION ARTICLE 10

FREEDOM OF ASSEMBLY AND ASSOCIATION ARTICLE 11

RIGHT TO MARRY AND START A FAMILY ARTICLE 12

PROTECTION FROM DISCRIMINATION IN ARTICLE 14

RESPECT OF THESE RIGHTS AND FREEDOMS

RIGHT TO PEACEFUL ENJOYMENT OF YOUR PROTOCOL 1,

PROPERTY ARTICLE 1

RIGHT TO EDUCATION PROTOCOL 1,

ARTICLE 2

RIGHT TO PARTICIPATE IN FREE ELECTIONS PROTOCOL 1,

 ARTICLE 3

ABOLITION OF THE DEATH PENALTY PROTOCOL 13,

ARTICLE 1

Article 13 ensures that individuals have access to efficient remedies in the

event that their rights are violated. This implies that they have the option to
pursue justice by going to court. The purpose of the Human Rights Act is to
guarantee that this takes place.

India and the UK's Fundamental Rights: A Comparative Study

FUNDAMENTAL RIGHTS IN FUNDAMENTAL RIGHTS IN THE

INDIA UNITED KINGDOM

Fundamental rights in India are The Magna Carta, also known as the
enshrined in Part III of the Constitution. Charter of Rights, was signed by King
John of England in 1215 and is the first
document known to have addressed
people’s fundamental rights.

The fundamental rights of India are Despite the fact that the human rights
taken from the US Constitution. of the United Kingdom have only
recently been recognised, UK law has
one of the oldest traditions in this area.

India's fundamental rights are by their very nature worldwide. Article 21

of the Indian Constitution protects people's right to life and personal freedom,
whereas Article 14 guarantees the right to equality. The UK's Human Rights Act
of 1998 contains multiple articles that describe human rights; some of the more
well-known rights are addressed in Articles 2, 4, 9, and 10.

Only the Indian fundamental rights contain further rights, such as the
outlawing of untouchability under Article 17 and the defense of the rights of
linguistic and cultural minorities under Articles 29 and 30. The European
Convention on Human Rights is incorporated into the UK constitution, so that
individuals can file lawsuits in British courts instead of bringing their claims
before the European Court of Human Rights.

Article 32 of the Constitution of India guarantees the right to uphold these

90
fundamental rights. All public institutions, including courts, police, and
hospitals, are required by the UK's fundamental rights legislation to respect and
safeguard the human rights of every individual.

The basic structural theory is contained in the Indian Constitution. It is

recognized that judicial independence is a key component of the Constitution. The
judiciary upholds people' rights in the United Kingdom. The common laws are
upheld by the judiciary. Consequently, even in the lack of a Bill of Rights or other
fundamental rights, the people of Britain have rights.91

5.6.3 CONCLUSION

A significant portion of the constitution is made up of the fundamental

rights. The UK has more established fundamental rights than India has. In India,
fundamental rights are not inalienable because of the concept of the fundamental
structure. Whether in the UK or India, the fundamental rights showcase both
countries' rich histories as well as their social and cultural characteristics.

90
Singh, Harshita. "Freedom of Association and Assembly: A Comparative Study of India and the
United States." International Journal of Comparative Law and Society 24, no. 3 (2019): 310-335.
91
Chatterjee, Ritika. "Constitutional Protection of Disability Rights: A Comparative Analysis of
India and Australia." International Journal of Comparative Disability Law 22, no. 1 (2017): 100-
125.
 CHAPTER-VI

LANDMARK JUDGEMENT RELATING TO

FUNDAMENTAL RIGHTS IN INDIA.

6.1 INTRODUCTION:

India has witnessed several landmark judgments relating to fundamental

rights that have significantly shaped the country's constitutional and legal
landscape. The Indian Constitution, adopted in 1950, guarantees its citizens a set
of fundamental rights aimed at safeguarding their dignity, liberty, and equality.
These rights are enshrined in Part III of the Constitution and are justiciable,
meaning citizens can approach the judiciary to seek enforcement and protection of
these rights.

The Indian judiciary, particularly the Supreme Court, has played a crucial
role in interpreting and expanding the scope of fundamental rights through its
landmark judgments. These judgments have not only addressed specific legal
disputes but have also contributed to the evolution of constitutional principles and
the promotion of social justice in India.

In this context, it is pertinent to examine some of the landmark judgments

relating to fundamental rights in India, which have had a profound impact on the
country's legal system, governance, and society. These judgments have addressed
a wide range of issues, including freedom of speech and expression, right to
equality, right to life and personal liberty, right to education, and affirmative
action for marginalized communities, among others.

Through an analysis of these landmark judgments, one can gain insights

into the dynamic relationship between the judiciary, the legislature, and the
executive in upholding and protecting fundamental rights in India. Additionally,
these judgments highlight the judiciary's role as the guardian of the Constitution
and its commitment to ensuring justice, equality, and dignity for all citizens.

6.2 LAND MARK JUDGEMENT ON FUNDAMENTAL RIGHTS

1 MANEKA GANDHI V. UNION OF INDIA (1978) 1 SCC 248:

Article 21 of the Indian Constitution, which protects the right to life and
personal liberty, was enlarged in this historic case. According to the Supreme
Court, the legal process established under Article 21 must to be reasonable, fair,
and just. This ruling established the fundamentals of natural justice and
highlighted the value of due process.92

2 MARBURY V. MADISON (1803) United States5 U.S. 137 (1803)

Marbury v. Madison is a landmark case in United States constitutional

law. William Marbury, one of the "midnight judges" appointed by outgoing
President John Adams, sought a writ of mandamus from the Supreme Court to
compel the delivery of his commission by incoming President Thomas Jefferson's
Secretary of State, James Madison. The Court, under Chief Justice John Marshall,
ruled that Marbury was entitled to his commission, but it could not issue the writ
of mandamus because the provision of the Judiciary Act of 1789 that granted the
Court this authority was unconstitutional. This decision established the principle
of judicial review, allowing the Supreme Court to declare acts of Congress
unconstitutional and thus solidifying its role as a check on the legislative and
executive branches.93

3 R. V. OAKES (1986)CANADA[1986] 1 S.C.R. 103

R. v. Oakes is a landmark case in Canadian constitutional law. David

Edwin Oakes was charged with possession of marijuana under the Narcotic
Control Act. He challenged the constitutionality of the law, arguing that it

92
(1978) 1 SCC 248:
93
(1803)United States5 U.S. 137 (1803)
violated his rights under the Canadian Charter of Rights and Freedoms. The
Supreme Court of Canada established the Oakes Test, a legal test used to
determine whether a limit on a Charter right is justified in a free and democratic
society. The test consists of two parts: the first assesses whether the limit is
prescribed by law and pursues a pressing and substantial objective, and the second
considers whether the limit is proportionate to the objective, taking into account
factors such as rational connection, minimal impairment, and proportionality.94

4 R (MILLER) V SECRETARY OF STATE FOR EXITING THE

EUROPEAN UNION (2017) - UNITED KINGDOM [2017] UKSC 5

In R (Miller) v Secretary of State for Exiting the European Union, the UK

Supreme Court considered whether the government had the authority to trigger
Article 50 of the Treaty on European Union, which initiates the process of leaving
the EU, without parliamentary approval. Gina Miller, a British businesswoman,
challenged the government's position that it could invoke Article 50 using its
prerogative powers without seeking Parliament's consent. The Supreme Court
ruled that parliamentary approval was indeed required, emphasizing the principle
of parliamentary sovereignty. This decision clarified the constitutional process for
initiating Brexit, ensuring that Parliament had a say in the matter.

5 SOUTH AFRICAN BROADCASTING CORPORATION LTD V

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS SOUTH AFRICA
2009 (3) SA 62 (CC)

In South African Broadcasting Corporation Ltd v National Director of

Public Prosecutions, the Constitutional Court of South Africa addressed the issue
of freedom of expression and the constitutional protection of speech. The case
stemmed from a defamation lawsuit filed by the South African Broadcasting
Corporation (SABC) against the National Director of Public Prosecutions. The
SABC argued that criminal defamation laws violated its right to freedom of

94
(1986)CANADA[1986] 1 S.C.R. 103.
expression under the South African Constitution. The Constitutional Court
affirmed the importance of freedom of expression in South Africa's constitutional
democracy and established a test for determining whether speech constitutes hate
speech. This decision reaffirmed the constitutional protection of free speech while
also recognizing the need to balance it with other rights and interests95

6 KESAVANANDA BHARATI V. STATE OF KERALA (1973) 4 SCC

225:

The Indian Supreme Court handed down its seminal ruling on the basic
structure concept in this momentous case. The court ruled that although
Parliament can make changes to the Constitution, its fundamental framework
cannot be changed. This ruling made a substantial contribution to the protection
of fundamental rights and the avoidance of sweeping changes that would have
compromised the fundamental ideas of the Constitution.96

7 A.K. GOPALAN V. STATE OF MADRAS (1950) SCR 88:

One of the first applications of Article 21 of the Indian Constitution was in

this instance. The Supreme Court ruled that any law that was lawfully enacted,
regardless of whether it infringed upon fundamental rights, qualified as a
"procedure established by law" under Article 21. Nevertheless, other rulings, such
as Maneka Gandhi v. Union of India, broadened the meaning of Article 21 to
encompass substantive due process.97

8 NAZ FOUNDATION V. GOVERNMENT OF NCT OF DELHI

(2009) 160 DELHI LAW TIMES 277:

By overturning Section 377 of the Indian Penal Code, which had criminalized
adult consenting homosexual conduct, the Delhi High Court in this judgment

95
2009 (3) SA 62 (CC)
96
(1973) 4 SCC 225
97
(1950) SCR 88:
decriminalized adult homosexual activities. The ruling marked a critical turning
point in India's acknowledgement and defense of LGBTQ+ rights.98

9 M.C. MEHTA V. UNION OF INDIA (1987) 1 SCC 395:

This case, also referred to as the "Oleum gas leak case," involved the
application of Article 21's right to life, which includes the right to a clean
environment. The Supreme Court issued orders to stop industrial pollution and
safeguard public health, acknowledging the right to a healthy environment as a
basic right.99

10 MOHAMMED AHMED KHAN V. SHAH BANO BEGUM (1985) 3

SCC 844:

The case pertained to Muslim women's entitlement to maintenance as

under Section 125 of the 1973 Code of Criminal Procedure. The Supreme Court
ruled that the fundamental rights established in the Constitution guaranteed
Muslim women's right to upkeep superseded any personal rules. Women's rights
and gender equality were highlighted in this ruling.100

11 VISHAKA V. STATE OF RAJASTHAN (1997) 6 SCC 241:

The Supreme Court established rules in this case to stop sexual harassment
of women at work. According to the court, sexual harassment infringed upon
women's basic rights guaranteed by Articles 14, 15, and 21 of the Constitution.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act, 2013 was passed as a result of this ruling.101

12 NAVTEJ SINGH JOHAR V. UNION OF INDIA (2018) 10 SCC 1:

The Indian Penal Code's Section 377, which criminalized adult consensual
homosexual activity, was overturned by the Supreme Court in this historic

98
(2009) 160 DELHI LAW TIMES 277:
99
(2009) 160
100
(1985) 3 SCC 844:
101
(2018) 10 SCC 1:
decision, decriminalizing adult consensual homosexual actions between people.
The ruling marked a critical turning point in India's acknowledgement and
defense of LGBTQ+ rights.102

13 INDRA SAWHNEY V. UNION OF INDIA (1992) 3 SCC 217:

This ruling, which is widely referred to as the Mandal Commission case,

dealt with the subject of reservations in public employment. The 27% quota for
Other Backward Classes (OBCs) in government jobs was affirmed by the
Supreme Court, although the overall reservation was limited to 50%.103

14 KHARAK SINGH V. STATE OF UTTAR PRADESH (1963): AIR

1963 SC 1295

In this case, the constitutionality of certain Uttar Pradesh Police

Regulations clauses permitting police surveillance and domiciliary inspections
was contested. The regulations were found to be in violation of Article 21 of the
Constitution by the Supreme Court, although they were not entirely overturned.104

15 R. V. NANAVATI (1961): AIR 1962 SC 605

This case included the well-known Nanavati murder trial, which resulted
in important Indian judicial reforms. The Supreme Court found Naval
Commander Kawas Nanavati guilty of killing Prem Ahuja, the lover of his wife,
despite the jury's acquittal. The jury system received attention from this case,
which helped India abolish it.105

16 S.R. BOMMAI V. UNION OF INDIA (1994): AIR 1994 SC 1918

102
(2018) 10 SCC 1:
103
(1992) 3 SCC 217:
104
AIR 1963 SC 1295
105
AIR 1962 SC 605
 The dismissal of state governments under Article 356 of the Constitution
was at issue in this case. The Supreme Court affirmed the federalism principle and
established standards to prevent the arbitrary application of Article 356.106

17 OLGA TELLIS V. BOMBAY MUNICIPAL CORPORATION

(1985): AIR 1986 SC 180

In this case, the eviction of pavement dwellers from Bombay—now

known as Mumbai—was contested. The Supreme Court decided that evictions
cannot be carried out without first offering alternate housing, holding that the
right to livelihood is guaranteed by Article 21.107

18 FRANCIS CORALIE MULLIN V. THE ADMINISTRATOR,

UNION TERRITORY OF DELHI (1981): AIR 1981 SC 746

The Supreme Court ruled in this case that the right to human dignity is a
part of the right to life guaranteed by Article 21. The court underlined how
important it is to safeguard individual rights and stop torture in detention.108

19 I.R. COELHO V. STATE OF TAMIL NADU (2007): (2007) 2 SCC 1

The constitutionality of the Constitution's 9th Schedule, which contains

provisions exempt from judicial scrutiny, was at issue in this case. The Supreme
Court ruled that laws that infringe upon basic rights that are listed in the 9th
Schedule are subject to judicial scrutiny.109

20 PEOPLE'S UNION FOR CIVIL LIBERTIES V. UNION OF INDIA

(2004): (2004) 9 SCC 580

The subject of police encounters or extrajudicial executions was taken up

by the Supreme Court in this case. Guidelines were released by the court to

106
AIR 1994 SC 1918
107
AIR 1981 SC 746
108
(2007): (2007) 2 SCC 1
109
(2004): (2004) 9 SCC 580
guarantee that investigations are carried out impartially and that interactions are
not faked.110

21 STATE OF WEST BENGAL V. SUBODH GOPAL BOSE (1954):

AIR 1954 SC 92

In this instance, property was seized in accordance with the West Bengal
Special Courts Act. The Supreme Court ruled that the Act was unconstitutional
under Article 19 (freedom of speech and expression) and Article 14 (equality
before the law).111

22 RAGHUNATHRAO GANPATRAO V. UNION OF INDIA (1994):

AIR 1994 SC 1

In this case, the TADA (Terrorist and Disruptive Activities (Prevention)

Act, 1987) was challenged on its constitutionality. A few TADA provisions were
overturned by the Supreme Court on the grounds that they infringed against basic
rights.112

23 NALSA V. UNION OF INDIA (2014): (2014) 5 SCC 438

This historic ruling upheld transgender people's rights and ordered the
government to take action to ensure their social inclusion and protection from
discrimination.113

24 R. RAJAGOPAL V. STATE OF TAMIL NADU (1994): AIR 1995 SC

264

In this case, the Supreme Court ruled that, in accordance with Article
19(1)(a) of the Constitution, the right to privacy is implicitly protected by the

110
AIR 1954 SC 92
111
(1994): AIR 1994 SC 1
112
AIR 1982 SC 6
113
(2014): (2014) 5 SCC 438
right to freedom of speech and expression. The privacy right was acknowledged
by the court as a basic right.114

6.3 CONCLUSION

In conclusion, the landmark judgments relating to fundamental rights in

India reflect the country's ongoing commitment to upholding the principles of
justice, equality, and liberty enshrined in its Constitution. These judgments,
delivered by the Indian judiciary, have not only interpreted the scope and
application of fundamental rights but have also shaped the socio-political fabric of
the nation.

Through these judgments, the judiciary has acted as a bulwark against

legislative and executive overreach, ensuring that the rights of individuals are
protected from arbitrary infringements. Moreover, these judgments have
expanded the horizons of constitutional jurisprudence, adapting to the changing
needs and challenges of Indian society.

From ensuring the right to education for all children to safeguarding the
freedom of speech and expression, these landmark judgments have left an
indelible mark on India's legal landscape. They have reinforced the idea that
fundamental rights are not mere legal provisions but essential guarantees that
form the bedrock of a democratic and inclusive society.

Looking ahead, these landmark judgments serve as guiding principles for

future legal interpretations and policy formulations, reminding us of the enduring
importance of fundamental rights in India's quest for justice, equality, and dignity
for all its citizens. As India continues its journey towards progress and
development, the legacy of these judgments will continue to inspire and guide
efforts to build a more equitable and just society for generations to come.

114
AIR 1995 SC 264
 CHAPTER VII

CONCLUSION AND SUGGESTION

7.1 CONCLUSION

Democracy is indispensable due to humanity's inclination towards

injustice, balanced by a desire for fairness. The rule of law and popular will are
pivotal in democratic systems, as envisioned by the founders of the Indian
Constitution, who valued democracy. Social change is inevitable but requires
continuity within institutions like family, law, and religion. Law's authority stems
from social factors, aligning with both traditional and modern values. Modern
political philosophy is influenced by utilitarianism, focused on maximizing
societal welfare, and political liberalism, prioritizing individual rights and
freedoms. Scholars like John Rawls emphasize justice and opportunities for all,
while Amartya Sen and Martha C. Nussbaum stress human capabilities and
freedom. Sovereign equality in social contract theories is challenged by the
influence of a global economy.

The capabilities approach, advocated by Nussbaum, diverges from the

neoliberal interpretation of US law and finds resonance with the Indian
constitution. It emphasizes that safeguarding rights goes beyond mere absence of
adverse state actions. Nussbaum's approach holds significance in India's discourse
on social empowerment amidst economic globalization, focusing on marginalized
groups. Amartya Sen contends that justice necessitates the elimination of
inequities, yet studies on India's stratified society and social inclusion remain
scarce.

Human rights encompass civil, social, economic, and cultural aspects,

originating from declarations like the 1856 Paris and 1868 Petersburg
Declarations, along with international humanitarian law such as Hague and
Geneva treaties. These rights are inherent to individuals by virtue of their
humanity, transcending nationality, caste, religion, or sexual orientation. They
uphold human dignity and well-being, referred to interchangeably as fundamental,
basic, or natural rights.

The concept of human rights, rooted in ancient civilizations and major

religions, emphasizes mercy and compassion. Ancient philosophies like "natural
law" laid the groundwork for human rights, with references found in historical
documents like Magna Carta (1215 C.E.). The League of Nations and the United
Nations, born from the aftermath of world wars, further advanced human rights
through international agreements and the Universal Declaration of Human Rights
in 1948, signifying a global commitment to human dignity and equality.

The capacity approach, championed by Nussbaum, challenges the

neoliberal interpretation of US law and aligns with the principles of the Indian
Constitution. It underscores that safeguarding rights entails more than the absence
of adverse state actions. Nussbaum's approach bears significance in India's
ongoing discourse on social empowerment amidst economic globalization and its
impact on marginalized communities, emphasizing the need for socially inclusive
growth. Amartya Sen asserts that justice hinges on eliminating inequities, yet
studies on India's stratified society and social inclusion are notably lacking.

Human rights, encompassing civil, social, economic, and cultural

dimensions, trace their origins to historical declarations and conventions, such as
the 1856 Paris and 1868 Petersburg Declarations, along with Hague and Geneva
treaties. These rights, inherent to all individuals by virtue of their humanity,
uphold independence, dignity, and overall well-being, irrespective of nationality,
caste, religion, or sexual orientation. Despite being fundamental to international
law, human rights remain subject to contentious debates and varying
interpretations among nations, reflecting diverse cultural and political
perspectives.

The concept of human rights finds its roots deeply embedded in ancient
civilizations and major world religions, advocating for mercy, compassion, and
empathy towards fellow humans. Ancient philosophies like "natural law" and
"natural rights" form the bedrock of human rights, evidenced in historical
documents such as Magna Carta (1215 C.E.). The League of Nations and the
United Nations emerged in response to global conflicts, fostering the recognition
and acceptance of human rights through international agreements and
conventions. The Universal Declaration of Human Rights, ratified by the UN in
1948, stands as a moral and legal milestone in the advancement of human dignity
and equality worldwide.

The concept of human rights has ancient roots, deeply embedded in the
ethos of major world religions and civilizations throughout history. Ideas of
mercy, compassion, and empathy have long been expressed in religious texts and
philosophical discourse, laying the foundation for the notion of human rights.
References to fundamental human rights can be found in ancient scriptures and
historical records, with milestones like the Magna Carta (1215 C.E.) marking
pivotal moments in their recognition.

India's rich cultural heritage, shaped by diverse influences over millennia,

has also contributed to the evolution of human rights consciousness. Dating back
to the Indus Valley Civilization, Indian culture has upheld the rights of
individuals and fundamental freedoms. The struggle for civil rights and freedoms
intensified during British colonial rule, which suppressed Indian culture and
governance systems, deeming them inferior.

The British colonial era, characterized by oppressive policies and

derogatory attitudes towards Indians, spurred the Indian freedom movement, led
by figures like Mahatma Gandhi. The movement galvanized Indian society to
demand self-governance and fundamental rights, leading to legislative reforms
such as the Charter Act of 1813 and the Government of India Act of 1833.

The Indian National Congress, founded in 1885, played a pivotal role in

advocating for fundamental rights and equality before the law. Resolutions passed
during the nationalist movement reiterated the demand for civil rights and equal
treatment with the English. The Home Rule Document of 1895 and subsequent
legislative acts aimed to ensure fundamental rights for all Indians, laying the
groundwork for the Constitution of India and its guarantee of human rights,
including freedom of expression, equality, and property rights.

The judiciary upholds Fundamental Rights as essential, sacred, and

unalienable, viewing them as intrinsic to individual dignity and freedom. Part III
of the Constitution enshrines these rights, including the right to remedy through
Article 32, which is itself considered a Fundamental Right. It is not only the
prerogative but also the constitutional duty of the judiciary to protect these rights
from infringement. While Fundamental Rights are subject to legitimate
limitations, they must be upheld by all laws.

In ADM Jabalpur v. Shukla, Justice Beg emphasized the need to safeguard

basic rights from unlawful state infringement. Article 352 allows for the
suspension of Fundamental Rights during a state of emergency, but these rights
are perceived as inherent and fundamental to citizenship in a free nation.

Fundamental Rights primarily encompass civil and political liberties,

expressed in negative terms to prevent state infringement. In contrast, directive
principles serve as positive obligations, outlining societal goals. Thus, while
directive principles aim for societal betterment, Fundamental Rights safeguard
individual liberties by restricting state intervention.

7.2 SUGGESTION

1. International Frameworks for Women's Rights: The United Nations

has been actively promoting gender equality and women's rights through
declarations and conventions, such as the Declaration on the Elimination
of Discrimination Against Women and the Convention on the Elimination
of All Forms of Discrimination Against Women.
2. Indian Constitutional Protections: The Indian Constitution guarantees
women's rights to equality and non-discrimination, prohibiting any form
 of discrimination against women and ensuring their equal access to public
spaces, employment, and education.
3. Legislative Measures for Women's Empowerment: India has enacted
laws and policies aimed at empowering women, such as reserving seats for
women in local governance bodies and implementing measures to prevent
sexual harassment in the workplace.
4. International Obligations: India has ratified international agreements,
such as the treaty to end discrimination against women, committing to
uphold women's rights and take necessary actions to protect them.
5. Protection of Women's Rights in the Workplace: The Indian Supreme
Court has established guidelines to prevent sexual harassment in the
workplace, emphasizing the importance of creating a safe and supportive
environment for female employees.
6. Children's Rights: India is home to a significant child population, and
efforts are being made to provide free and compulsory education for all
children up to the age of 14, as mandated by the constitution. However,
challenges such as child labor still persist and need to be addressed.
7. Legal Framework for Human Rights: India has established Human
Rights Courts to ensure prompt trials for human rights violations,
reflecting its commitment to upholding human rights principles.
8. Role of Judiciary and Civil Society: The Indian judiciary has played a
proactive role in protecting human rights through mechanisms like public
interest litigation (PILs), while civil society organizations also contribute
to the promotion and protection of human rights.
9. Importance of Human Rights: The text emphasizes that a nation's
standing is determined by its human rights record, and upholding human
rights is essential for fostering a dignified life for all individuals,
especially women, children, and the elderly.
10. Financial Considerations: Implementing measures such as free education
for children requires significant financial resources, and the burden is not
 solely on the government but also on parents and guardians, as outlined in
the Indian Constitution.
11. Establishment of Human Rights Courts: The Protection of Human
Rights Act mandates the creation of Human Rights Courts in each district
to ensure swift trials for human rights abuses, indicating a commitment to
justice and accountability.
12. Holistic Approach to Human Rights: The text emphasizes that human
rights encompass not only political and civil rights but also social,
cultural, and economic rights. India's legal framework aims to address
these rights comprehensively.
13. Judicial Activism: India's judiciary has been proactive in safeguarding
fundamental and human rights, using tools such as public interest
litigation to hold authorities accountable for violations and compensating
victims of rights abuses.
14. International Reputation and Domestic Progress: Upholding human
rights is seen as essential for India's reputation on the global stage, but
more importantly, it is crucial for the advancement of society and the well-
being of its citizens.
15. Call to Action: The text concludes with a call for both the Indian
populace and government agencies to uphold and promote a culture of
human rights, acknowledging the ongoing work needed to address human
rights challenges effectively.
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