353 SOME ASPECTS OF INDIA'S LEGAL REGIME FOR THE PROMOTION AND PROTECTION OF HUMAN RIGHTS 68) Ajay Pandey* <목 차> 1. Provisions of Human Rights in the Constitution of India 2. Features that strengthen human rights in India 3. International Human Rights Instruments and India 4. Institutions 5. Conclusion
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353
SOME ASPECTS OF INDIA'S LEGAL REGIME FOR
THE PROMOTION AND PROTECTION OF
HUMAN RIGHTS
68)Ajay Pandey*
< 목 차>
1. Provisions of Human Rights in the Constitution of India
2. Features that strengthen human rights in India
3. International Human Rights Instruments and India
4. Institutions
5. Conclusion
The Constitution of India guarantees human rights by way of its provisions on
Fundamental Rights and the Directive Principles of State Policy. The Preamble to the
Constitution of India, spelling the larger purpose and the philosophy of the
Constitution, proclaims that to ensure justice, liberty and dignity to all citizens of
India is the primary objective of the Constitution.
The Preamble to the Constitution of India reads: WE, THE PEOPLE OF INDIA,
having solemnly resolved to constitute India into a sovereign socialist secular
democratic republic and to secureto all its citizens: JUSTICE, social economic and
political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of
status and of opportunity; and to promote among them all FRATERNITY assuring the
* Lawyer and a human rights practitioner, obtained his basic law degree from the University of Lucknow,Lucknow, India, an M.Phil. (Master of Philosophy) in International Law from the Centre for Studies inInternational Law, School of International Studies, Jawaharlal Nehru University, New Delhi, INDIA, andan LL.M. (Master of Laws) in Clinical Legal Education from the Vanderbilt University, Nashville, USAas a Fulbright Scholar, is currently serving the Institute of Rural Research and Development(www.smsfoundation.org), Gurgaon, Haryana, INDIA, as Director, Policy, Governance and Advocacy. Theauthor may be contacted through [email protected] and [email protected]
靈山法律論叢 제5권 제1호 (2008. 9)354
dignity of the individual and the unity and integrity of the Nation; IN OUR
CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY
ADOPT ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
Provisions of some of the most important international human rights treaties, which
India is a party to, further strengthen India’s Constitutional provisions of human rights.
India has ratified several international human rights treaties including the International
Covenant on Civil and Political Rights (ICCPR), and International Covenant on
Economic, Social and Cultural Rights (ICESCR). India is also bound by the provisions
of the UDHR as customary principles of international law and the Charter of the
United Nations to protect and promote human rights.
In addition, the Supreme Court of India has broadened and consolidated the scope
of India’s human rights regime through many of its landmark judgements. Human
rights concerns form the bedrock of justice delivery system in India. On the
relationship of international human rights treaties and the domestic law, the Supreme
Court of India has held that "[i]t is now an accepted rule of judicial construction that
regard must be had to international conventions and norms for construing domestic
law when there is no inconsistency between them and there is a void in the domestic
law." Vishaka and others v. State of Rajasthan and others, All India Reporter
(hereinafter referred to as AIR)1997, SC 3011, at 3015. The Court also clarified that
"[a]ny international convention not inconsistent with fundamental rights and in
harmony with its spirit must be read into these provisions to enlarge the meaning and
content thereof, to promote the objective of the constitutional guarantee." Id., at 3014.
Thus, the courts in India are "under an obligation to give due regard to international
conventions and norms for construing domestic laws, more so, when there is no
inconsistency between them and there is a void in domestic law." Apparel Export
Promotion Council v. A.K. Chopra, AIR 1999, SC 625, at 634. Also, India’s
Protection of Human Rights Act, 1993, covers international covenants in its definition
of human rights.The Protection of Human Rights Act, 1993, Act No. 10 of 1994,
Section 2 (1) (d). According to this provision, "human rightsmeans the right relating
to life, liberty, equality and dignity of the individual guaranteed by the Constitution or
embodied in the International Covenants and enforceable by courts in India."
SOME ASPECTS OF INDIA'S LEGAL REGIME FOR THE PROMOTION AND PROTECTION OF HUMAN RIGHTS 355
India has several forums to give effect to the provisions of human rights. They
include the Supreme Court of India, High Courts, the National Human Rights
Commission,the National Commission for Women and the National Commission for
the Protection of Child Rights. Thus, India has a very strong platform to fulfill the
objectives of international human rights regime. This paper discusses some of these
aspects of India’s regime of human rights. It is divided into five sections. The first
section discusses some human rights provisions as enshrined in the Constitution of
India and some landmark judgments of the Supreme Court of India pertaining to
them; the second section traces some basic features which strengthen India’s human
rights regime; the third section discusses some international human rights treaties, India
is a party to; the fourth section carries a discussion on some of India’s prominent
institutions constituted to protect and promote human rights and the fifth section draws
the conclusion.
1. Provisions of Human Rights in the Constitution of India
The part guaranteeing Fundamental Rights, Part III of the Constitution of India. in
the Indian Constitution, is the fountain of human rights in India. The constitutional
provisions on the Directive Principles of State Policy compliment the fundamental
rights and further broaden India’s human rights regime. Above all, the Preamble to
the Constitution constantly guides and nurtures this regime. Thus, together these three
parts ensure a comprehensive coverage of human rights in India.For the text and
commentaries of various provisions of the Preamble, Fundamental Rights and Directive
Principles of State Policy of the Indian Constitution, see Shukla, V.N., Constitution of
India, Eastern Book Company, Lucknow, (2001); Baxi, P.M., The Constitution of
India, Universal, Delhi, (2007). The text of the Constitution of India may be also be
accessed through http://indiacode.nic.in/coiweb/welcome.html. The provisions of
fundamental rights in the Constitution of India include the right to equality; The
Constitution of India, Articles 14-18. the right to life and personal liberty;Id., Article
21. the right to freedom; Id. Articles 19-22. the right against exploitation;Id. Articles
23-24. the right to freedom of religion; Id. Articles 25-28. cultural and educational
靈山法律論叢 제5권 제1호 (2008. 9)356
rights of minority; Id. Articles 29-30. and the right to constitutional remedies against
the violation of any of the fundamental rights. Id., Article 32.
The provisions of the Directive Principles of State Policy (DPSP) are generally
non-justiciable.In this regard, Article 37 of the Constitution of India provides: "The
provisions contained in this Part shall not be enforceable by any court, but the
principles therein laid down are nevertheless fundamental in the governance of the
country and it shall be the duty of the State to apply these principles in making
laws." However, this aspect, as stated in the Constitution itself, has been diluted over
the years through judicial pronouncements and practice of fundamental rights. Now,
the position that has emerged with regard to the provisions of DPSP is that they are
complimentary and supplementary to Fundamental Rights. C.B. Boarding & Lodging v.
State of Mysore, AIR 1970 SC 2042, at 2050. Linking the Directive Principlesto
human rights, the Supreme Court has observed that the Directive Principles stand
elevated to inalienable fundamental human rights and that they are justiciable by
themselves. Air India Statutory Corporation v. United Labour Union, AIR 1997 SC
645.
Positive in their character, DPSP form provisions of economic and social human
rights. Some provisions of the DPSP include the provision for the State to secure a
social order for the promotion of the welfare of the people; The Constitution of India,
Article 38. provision on equal justice and free legal aid; Id. Article 39-A. provision
on right to work, to education and to public assistance in certain cases; Id. Article 41.
provision on just and humane conditions of work and maternity relief; Id. Article 42.
provision on living wage etc. for workers; Id. Article 43. provision on participation of
workers in management of industries; Id. Article 43-A. provision on early childhood
care and education for children below six years of age; Id. Article 45. The right to
free and compulsory education is a fundamental right for children between the age
group of 6-14 in India (see the Constitution of India, Article 21 A). provision for the
promotion of educational and economic interests of Scheduled Castes, Scheduled
Tribes and other weaker sections of society; Id. Article 46. provision on the duty of
SOME ASPECTS OF INDIA'S LEGAL REGIME FOR THE PROMOTION AND PROTECTION OF HUMAN RIGHTS 357
the State to raise the level of nutrition and the standard of living and to improve
public health; Id. Article 47. and the provision on protection and improvement of
environment and safeguarding of forests and wildlife. Id. Article 48-A.
The Supreme Court of India, through its various judgements, has further
strengthened the Constitutional provisions on human rights. In holding that the right to
life guaranteed in the Constitution of India means the right to a dignified life See
Francis Coralie Mullin v. Union Territory of Delhi, (1981) 1 Supreme Court Cases
(hereinafter referred to as SCC) 608: AIR 1981 SC 746; and Bandhua Mukti Morcha
v. Union of India, (1984) 3 SCC 161: AIR 1984 S.C. 802., the Court hasincluded
almost every human right within the scope of the right to life. Some examples are:
the right to speedy trial; Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360:
1992(5) SCC 326; Saraswati Seshgiri v. State of Kerala, AIR 1982 SC 1165: 1982(2)
SCC 310. the right to free legal aid to the poor; M. H. Hoskot v. State of
Maharashtra, (1978) 3 SCC 544: AIR 1978 S.C. 1548; Hussainara Khatoon v. State of
Bihar, (1980) 1 SCC 98: AIR 1979 SC 1369. the right to privacy in telephonic
conversation; People’s Union for Civil Liberties v. Union of India & Anr. (1997) 1
SCC 301: AIR 1997 SC 568. the right not to be subject of domiciliary visits by the
police without authority of law; Kharak Singh v. State of Uttar Pradesh & Others,
AIR 1963 SC 1295; Govind v. State of Madhya Pradesh & Another, AIR 1875 SC
1378 : 1975(2) SCC 148; State of Maharashtra & Another V. Madukar Narayan
Mandikar, AIR 1991 SC 207 : 1991(1) SCC 57.the right to know or the right to
information State of UP v. Raj Narain, AIR 1975 SC 865 or (1975) 4 SCC 428 S.P.
Gupta and Others V. Union of India and Others, AIR 1982, SC 149 or 1981 (Supp)
SCC 87 R R. P. Ltd v. Proprietors, Indian Express Newspapers, Bombay, (P) Ltd.,
(1988) 4 SCC 592, 613 or AIR 1989 SC 190; Association for Democratic Reforms v.
Union of India, AIR 2001, Del 126. the rights of prisoners; State of Maharashtra v.
Prabhakar Pandurang Sanzgiri, AIR 1966 S.C. 424; Sunil Batra v. Delhi
Administration (1978) 4 SCC 494: AIR 1978 S.C. 1675; Harbans Singh v. State of
U.P., 1991 Supp (2) SCC 507: AIR 1991 S.C. 531; State of AP v. Challa Ram
Krishna Reddy, (2000) 5 SCC 712: AIR 2000 S.C. 2083. the right to compensation in
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case of violation of a fundamental right and in particular of article 21; Rudul Sah v.
State of Bihar, (1983) 4 SCC 141; Bhim Singh v. State of J&K, (1985) 4 SCC 677;
M.C. Mehta v. Union of India, (1987) 1 SCC 395; Murarilal Jhunjhunwala v. State of
Bihar, 1991 Supp (2) SCC 647: AIR 1991SC 515; Smt. Nilabati Behera v. State of
Orissa & Others, (1993) 2 SCC 746: AIR 1993 SC 1960; Hussain v. State of Kerala,
(2000) 8 SCC 139. the right to a healthy environment, which includes several other
rights such as protection of wildlife, forests, lakes, protection from noise, air and
water pollution and maintenance of ecological balance; T. Damodhar Rao v. S.O.,
Municipal Corpn., Hyderabad, AIR 1987 AP 171; Chhetriya Pardushan Mukti
Sangharsh Samiti v. State of U.P., (1990) 4 SCC 449, 452: AIR 1990 S.C. 2060;
Virender Gaur v. State of Haryana, (1995) 2 SCC 574; Vellore Citizens Welfare
Forum v. Union of India, (1996)5 SCC 647; A.P. Pollution Board Control Board v.
M.V. Nayudu, AIR 1999 S.C. 812; Narmada Bachao Andolan v. Union of India ,
(2000) 10 SCC 664. the right to bare necessities of life, including adequate nutrition,
clothing and shelter; Francis Coralie v. Union Territory of Delhi, supra note 28. the
right to education; Mohini Jain v. State of Karnataka, AIR 1992, S.C. 7673;
Unnikrishanan v. State of A.P., 1993 SCC 645. the right to livelihood; Narendra
Kumar v. State of Haryana, (1994) 4 SCC 460. and the right to safe drinking water.
Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664; A.P. Pollution
Control Board II v. M. V. Nayudu, (2001) 2 SCC 62.In addition, the Supreme Court
has also held that the fundamental rights safeguarded under articles 14 and 21 are
available also to non-citizens. National Human Rights Commission v. State of
Arunachal Pradesh, (1996) 1 SCC 742: AIR 1996 S.C. 1234.
2. Features that strengthen human rights in India
There are at least five most important features that strengthen human rights in India
and place them on a very high pedestal. They are: (1) the fundamental right to live
with human dignity and no denial of the right to life and personal liberty except in
accordance with a just and fair procedure established by law; (2) the right to equality
before law (3) the theory of basic structure of the Constitution (4) the power of
SOME ASPECTS OF INDIA'S LEGAL REGIME FOR THE PROMOTION AND PROTECTION OF HUMAN RIGHTS 359
judicial review; and (5) the right to information.
2.1 The Right to Life
The provision on the fundamental right to life and personal liberty, as provided for
in the Constitution of India, reads–"no person shall be deprived of his life or
personal liberty except according to procedure established by law." The Constitution of
India, Article 21. However, through various judicial pronouncements, this provision has
acquiredthe status of the single provision embracing almost all human rights in its
fold. In defining the meaning of the right to life, the Supreme Court, in one its
landmark judgements held:
… the right to life includes the right to live with human dignityand all that goes
along with it, namely, the bare necessities of life such as adequate nutrition, clothing
and shelter over the head and facilities for reading, writing and expressing oneself in
diverse forms, freely moving about and mixing and commingling with fellow human
beings. Francis Coralie v. Union Territory of Delhi, supra note 28.
In the matter of the other aspect of Article 21, "…except according to procedure
established by the law", the Supreme Court has clarified that the procedure established
by law means a just and fair procedure. Maneka Gandhi v. Union of India, AIR 1978
SC 597. Thus, the Court has added the requirement of due process of law for
denying to any person the right to a dignified life and personal liberty. Showing a
greater sense of respect for the right to life, the Supreme Court has gone as far as
holding that smokers of tobacco in public places violate the right to life of the
non-smokers without any procedure of the law. Murli S. Deora v. Union of India,
AIR 2002 SC 40.
2.2 The Right to Equality before law
Emanating from the Preamble to the Constitution of India, the concept of equality
finds concrete provisions in Articles 14, 15, 16, 17 and 18 of the Constitution. For
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the text of these Articles, see the Constitution of India, Supra note 7. Foremost of
these is the provision on the right to equality before law, which states, "The State
shall not deny to any person equality before the law or the equal protection of laws
within the territory of India." Constitution of India, Article 14. The concept of
equality in India does not involve only political and social equality. It also relates to
economic equality. Some provisions of the Directive Principles of State Policy are
especially relevant in this regard. Accordingly, the State is required to direct its policy
towards securing "that the operation of the economic system does not result in the
concentration of wealth and means of production to the common detriment." Id.,
Article 39 (c). Another provision requires the State to "strive to minimize the
inequalities in income, and endeavour to eliminate inequalities in status, facilitiesand
opportunities, not only amongst individuals but also amongst groups of people residing
in different areas or engaged in different vocations." Id., Article 38 (2).
2.3 Theory of the Basic Structure of the Constitution
The Supreme Court of India propounded the theory of the basic structure of the
Constitution. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461. Thus, some
aspects of the Constitution form the basic structure of the Constitution and hence they
cannot be amended by the legislature. According to the Court, "the doctrine of basic
structure contemplates that there are certain parts or aspects of the Constitution
including Article 15, Article 21, read with Articles 14 and 19 which constitute the
core values which if allowed to be abrogated would change completely the nature of
the Constitution." I.R. Coelho v. State of Tamil Nadu, (2007) SCC 1. Some of the
basic features of the Constitution include the objectives specified in the Preamble to
the Constitution, freedom and dignity of the individual, the principle of equal justice,
effective access to justice, the concept of social and economic justice, and judicial
review. See Basu, DD, Introduction to the Constitution of India, Nagpur, (2003), p.
160. Thus, these provisions, remaining immune from amendment, provide support to
the regime of human rights as they carry some of the most important and basic
elements of human rights. It is indeed a matter of great strength for the regime of
human rights in India that the basic elements of human rights in the Constitution have
SOME ASPECTS OF INDIA'S LEGAL REGIME FOR THE PROMOTION AND PROTECTION OF HUMAN RIGHTS 361
assumed such an important status so as to become immune from amendment by the
Parliament.
2.4 Judicial Review
The power of judicial review together with the theory of basic structure of the
Constitution is the greatest functional guarantee for the protection of fundamental
rights in India. Underscoring the importance of judicial review, the Supreme Court has
at times held that judicial review in the light of fundamental rights is a part of the
basic structure of the Constitution. Kihota v. Zachilhu, AIR 1993 SC 412. The
following observations of the Supreme Court of India succinctly explain various
aspects of judicial review and courts’role in protecting fundamental rights:
The role of the judiciary is to protect fundamental rights. Judiciary is the best
institution to protect fundamental rights, given its independent nature and also because
it involves interpretation based on the assessment of values besides textual
interpretation. It enables application of the principles of justice and law. Realising that
it is necessary to secure the enforcement of the fundamental rights, power for such
enforcement has been vested by the Constitution in the Supreme Court and the High
Courts. After enunciation of the basic structure doctrine, full judicial review is an
integral part of the constitutional scheme. The jurisdiction so conferred on the High
Courts and the Supreme Court is a part of inviolable basic structure of the
Constitution of India. It gives practical content to the objectives of the Constitution
embodied in Part III and other parts of the Constitution. I.R. Coelho v. State of Tamil
Nadu, supra note 51.
2.5 The Right to Information
Citizens’ right to information has been recognized in India as a natural corollary to
the right to freedom of speech and expression. State of UP v. Raj Narain S.P. Gupta
and Ors. V. Union of India and Ors. R R. P. Ltd v. Proprietors, Indian Express
Newspapers, Bombay, (P) Ltd. Association for Democratic Reforms v. Union of India,
靈山法律論叢 제5권 제1호 (2008. 9)362
supra note 33.However, it became an instrument accessible to the common man only
after the enactment of the Right to Information Act, 2005 (the Act).The Right to
Information Act, 2005 (Act no. 22 of 2005). The larger objective of the Act is to
promote transparency and accountability in the working of public authorities. Id., see
the Preamble. The Act, recognizing the right to information of all citizens, Id., Section
3. provides for a mechanism to ensure that the provisions of the Act are carried
effectively. Id., the Preamble. Accordingly, public authorities are required to
disseminate information to the public about themselves and their functions. Id., Section
4. They are also required to give the information to the particular information seeker
under the Act within a specified time period of thirty days and within forty eight
hours where such information relates to life and liberty. Id., see Section 7 (1). Failure
to comply with these and other provisions of the Act will attract penalties on the
concerned public information officers.Id., Section 20. Thus, the promise of the Act has
paved the way for peoples’ effective participation in the affairs of the country. The
right to information, therefore, is a promising tool in peoples’ hands which they can
use to protect their rights with greater participation and effectiveness.
3. International Human Rights Instruments and India
India has ratified a number of important international human rights treaties to
further enrich its human rights regime. Some of the most important international
human rights treaties, which India has ratified, are: the International Covenant on Civil
and Political Rights (ICCPR) International Covenant on Civiland Political Rights, GA
res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966); 999
UNTS 171, entered into force March 23, 1976.International Covenant on Economic
Social and Cultural Rights (ICESCR) International Covenant on Economic, Social and
Cultural Rights, G.A. Res. 2200A (XXI), 21 U.N.GAOR Supp. (No.16) at 49, U.N.
Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976. the Convention
on the Rights of the Child (CRC) Convention on the Rights of the Child,G.A. res.