HUMAN RIGHTS

MODULE IV
HUMAN RIGHTS AND CONSTITUTION

 Basic rights available since birth

 Irrespective of race, caste, religion, gender
 Human Rights - human rights” means the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or embodied in the International Covenants and enforceable
by courts in India”
 Available in vedas, puranas, Akbar, Jahangir appreciated
 Violation at the time of Britishers
 On January 24, 1947, Constituent Assembly voted to form an advisory committee on Fundamental
Rights
 Chairman – Sardar Patel
 List of rights - Dr. B. R. Ambedkar, B. N. Rau, K. T. Shah, Harman Singh, K. M. Musnshi and the Congress
expert committee.
 Nineteen fundamental rights were covered in Motilal Nehru Committee Report, 1928
 10 incorporated
 India had signed the Universal Declaration on Human Rights January 01, 1942.
 Part III – Magna Carta
 UDHR AND FUNDAMENTAL RIGHTS

Brief Description of Provision UDHR COI

Equality and equal protection before law Article 7 Article 14
Remedies for violation of Fundamental Rights Article 8 Article 32
Right to Life and personal liberty Article 9 Article 21
Protection in respect for conviction of offences Article 11(2) Article 20(1)
Right to property Article 17 Earlier a Fundamental Right under Article 31
Right to freedom of conscience and to practice,
Article 18 Article 25(1)
profess and propagate any religion
Freedom of speech Article 19 Article 19(1)(a)
Equality in opportunity of public service Article 21(2) Article 16(1)
Protection of minorities Article 22 Article 29(1)
Right to education Article 26(1) Article 21A
 Brief Description of Provision ICCPR COI
Right to life and liberty Article 6(1) & 9(1) Article 21
Prohibition of trafficking and forced labour Article 8(3) Article 23
Protection against detention in certain cases Article 9(2), (3) and (4) Article 22
Freedom of movement Article 12(1) Article 19(1)(d)
Right to equality Article 14(1) Article 14
Right not to be compelled to be a witness against own self Article 14(3)(g) Article 20(3)
Protection against double jeopardy Article 14(7) Article 20(2)
Protection against ex-post facto law Article 15(1) Article 20(1)
Right to freedom of conscience and to practice, profess and propagate any
Article 18(1) Article 25(1) & 25(2)(a)
religion
Freedom of speech and expression Article 19(1) & (2) Article 19(1)(a)
Right to assembly peacefully Article 21 Article 19(1)(b)
Right to form union/ association Article 22(1) Article 19(1)(c)
Equality in opportunity of public service Article 25(c) Article 16(1)
Equality and equal protection before law and no discrimination on the basis
Article 26 Article 14 & 15(1)
of any ground such as race, colour, sex, language, religion etc.
Protection of interests of minorities Article 27 Article 29(1) & 30
ARTICLE 21

 Art. 21 of our Constitution guarantees right to life and personal liberty.

 The Article runs as follows:-
"No person shall be deprived of his life or personal liberty except according to procedure established by law.“
 First Draft - "No person shall be deprived of his life or personal liberty without due process of law, nor shall any
person be denied equality before law within the territories of the federation.“
 Procedure Established by Law - that law is enacted by the legislature or the concerned body and is valid only if
the procedure is followed to the letter.
 Due Process of Law - doctrine that ensures that a law is made fair and just and checks if there is a law depriving
a person's liberty and life
 F. C. Mullin vs. The Administrator, Union Territory of Delhi & others
We think that the right to life includes the right to live with human dignity and all that goes with it, namely the bare
necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in
diverse forms freely moving about and mixing and mingling with fellow human beings........Every act which offends against or
impairs human dignity would constitute deprivation protanto of this right to life and it would have to be in accordance with
reasonable, fair and just procedures established by law which stands the test of other fundamental rights.“
 A. K. Gopalan vs. State of Madras (AIR 1950 SC 27)
Life in its expanded horizons today includes all that give meaning to a man's life, including his tradition, culture and heritage,
and protection of that heritage in its full measure would certainly come within the encompass of an expanded concept of
Article 21 of the Constitution.
 The Indian Judiciary has totally revolutionized this branch of the subject by laying down that the State or the Central
Government shall be liable to pay compensation to the victims of violation of fundamental rights and such compensation
could be awarded by the writ court while disposing of writ petitions without directing the party aggrieved to file a
separable suit
 FACETS OF ARTICLE 21
Right Case Law
Right to live with Human Dignity PUCL & Anr. v. State of Maharstra & Ors.
Right to Clean Air M.C. Mehta (Taj Trapezium Matter) v. Union of India
Right to Clean Water M.C. Mehta v. Union of India & Ors
Right to freedom from Noise Pollution In Re: Noise Pollution
Hussainara Khatoon & Ors. v. Home Secretary, State of
Right to Speedy Trial
Bihar
Right to Free Legal Aid Khatri And Others v. State of Bihar & Ors.
Right to Livelihood Olga Tellis & Ors. v. Bombay Municipal Corporation
Right to Food Kishen Patnayak v. State of Odisha
Right to Medical Care Pt. Parmanand Katara v. Union of India &Ors.
Rural Litigation And Entitlement Kendra v. State Of U.P. &
Right to Clean Environment
Ors
Right to Privacy K .S. Puttaswamy & Anr. v. Union of India & Ors
EDUCATIONAL RIGHTS

 “Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages.
Elementary education shall be compulsory. Technical and professional education shall be made generally available
and higher education shall be equally accessible to all on the basis of merit……” (Article 26) – UDHR
 · Convention concerning Discrimination in Respect of Employment and Occupation (1958) - Article 3
 · Convention against Discrimination in Education (1960)
 · International Covenant on Economic, Social and Cultural Rights (1966) - Article 13
 · Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1981) –Article 10
 · The United Nations Convention on the Rights of the Child (1989) – Article 28 & 29
 19% of India’s Children
 (Eighty-sixth Amendment) Act, 2002
 six to fourteen years as a Fundamental Right
 Mohini Jain V state - the right to education flows directly from the right to life. The right to life and the dignity of
an individual cannot be assured unless it is accompanied by the right to education.’
 Maharashtra State Board of Secondary and Higher Education v. K.S. Gandhi – right to education at the secondary
stage was held to be a fundamental right.
 [Link] v. State of Andhra Pradesh - a constitution Bench had held education upto the age of 14 years to
be a fundamental right….
 The objective resolution moved by Pandit Jawaharlal Nehru in the Constituent Assembly on 13th December
1946, unanimously adopted by Constituent Assembly on 22nd January 1947 where it was decided that a safeguard
mechanism will be adopted for minority communities, depressed backward classes and tribal areas of the nation.
 Draft - Special Provisions Relating to Minorities” in part XIV
 The provisions for special rights of minorities were modified substantially and finally, no special rights except
cultural and educational were concerned to minorities.
 getting protection, problems of communal tensions and riots, the problem of lack of representation in civil service
and politics and the problem of separatism.
 Article 14, 29 and 30
 S.K. Patro v. State of Bihar - only for citizen and resident
 DAV College, Bathinda v. State of Punjab - The court held that the right provided to minorities under Article 30
guarantees them to establish and administer educational institutions of their own choice. Which also includes the
right of giving instructions in their own language and the University curricular was directly violating their right to
have instructions in Hindi as their own language and therefore infringing Article 30(1).
 State of Madras v. Champakam
 Kerala Education Bill
 Milli Takimi Mission Bihar & Ors. v. State of Bihar & Ors. - the Supreme Court held that running a minority
institution is a fundamental right and as important as other rights presented to the citizens of the nation. Refusal
to give affiliation or recognition by the statutory authority without just and adequate grounds is an infringement
of the right ensured under Article 30(1) of the constitution.
 Article 38 ensures that the state to secure a social order for the promotion of welfare of people permeated by
justice- social, economic and political and to minimise inequalities in income, status, facilities and opportunities.
 Article 39 states free legal assistance and equal justice of various dimensions. It directs the state to secure
livelihood for all the citizens, equitable distribution of material properties for the common good. It also gives
provision for the prevention of concentration of wealth, equal pay for equal work and for giving opportunities,
facilities to the children for the development.
 Article 46 is about Gandhian principles. It provides that the state may take necessary action to promote
educational and economic advancement of the weaker sections of the people and to protect them from social
injustice and exploitation.
 Article 347 provides power to the President to officially recognize a language, which is being spoken by the
substantial population.
 Articles 331, 333, 334, 336 and 337 have the special provisions of guaranteeing representation of Anglo Indians in
Union and State legislatures.
 Article 350(B) gives provision for appointing a Special Officer for linguistic minorities.
RIGHT TO EQUALITY

Article Brief description

Article 14 The State shall not deny to any person equality before the
law or the equal protection of the laws within the
territory of India, on grounds of religion, race, caste, sex
or place of birth
Article 15 The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or
any of them.
Article 16 There shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any
office under the State.
Article 17 Abolition of untouchability
Article 18 Abolition of all titles except military and academic
 The State shall not deny to any person equality before the law or the equal protection of the laws within the
territory of India.’
 Article 14 tries to achieve ‘equality of status’ for all people.
 It aims at establishing the ‘rule of law’ in India.
 This guarantee available to both citizens and non- citizens.
 It applies to all persons, natural as well as juristic.
 Right to equality (Article 14)
 Equality before the law ⇔ Equality protection of law
EQUALITY BEFORE LAW

 Equality before law

 It is taken from English Common law.
 This implies the absence of any special privileges in any person.
 Implies no discrimination before the law on inapposite grounds like rank, office, etc.
 It means that “the law should be equal and should be equally administered, that like should be treated alike.”
(JENNINGS)
 States that every individual is subject to the jurisdiction of ordinary courts irrespective of their rank or position.
 It is corollary from equality before the law.
 It is based on the last clause of the first section of the 14th Amendment of the US Constitution.
 It directs that equal protection should be secured to all persons within the territorial jurisdiction.
 This implies that such protection should be without any favor and discrimination.
 This implies equal treatment in similar circumstances, both in the privileges and liabilities imposed by the law.
 It is a positive obligation of the state which it should achieve by bringing about necessary social and economic
changes, to ensure every person enjoys such equal protection.
 Air India v. Nargesh Meerza Regulation
46 of Indian Airlines regulations provides an air Hostess will be retire from the service upon attaining the age of 35 years or
on marriage within 4 years of Service or on first pregnancy, whoever found earlier but regulation 47 of the regulation act the
managing director had the discretion extend the age of retirement one year at a time beyond the age of retirement up to the
age of 45 years at his option if an air hostess was found medically fit .it was held by the court that an air hostess on the
ground of pregency was unreasonable and arbitrary, it was the violation of article 14 under constitution law of India.
 D.S Nakara v. union of India,
in this case supreme court said that Rule 34 of the central services( pension) rules, 1972 as unconstitutional on the ground
that the classification made by it between pensioners retiring before a certain date and retiring after that date was not depend
upon the any rational principal it was arbitrary and the infringement of article of article 14 of Indian constitution law.
 E.P. Royappa v. State of Tamil Nadu
The Supreme court has drifted from the traditional concept of equality which was based on reasonable classification and has
laid down a new concept of equality. Bhagwati J., delivering the judgement on behalf of himself, Chandrachud and Krishna Iyer,
JJ. propounded the new concept of equality in the following words- "Equality is a dynamic concept with many aspects and
dimensions, and it cannot be 'cribbed, cabined and confined' within traditional and doctrinaire limits. From a positivistic point
of view, equality is antithesis to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of
law in a republic while the other, to the whim caprice of an obsolete monarch. Where an act is arbitrary, it is implicit in it that
it is unequal both according to political logic and constitutional law and is therefore violative of Article 14"�.
 Navtej Singh Johar v. Union of India
Section 377 was declared Unconstitutional by a bench of then acting Chief justice Dipak Mishra, J. Khanwilkar, J.
Nariman, J. Chandrachud and J. Malhotra. Five-judge Bench of the Supreme Court unanimously decriminalized Section
377 of the Indian Penal Code, to the extent that it criminalized same-sex relations between consenting adults. The
LGBT community has a choice of choosing the same sex partner legally. The above segment of Section 377 was held
to be unconstitutional and violative of Article 14 and Article 15 -right to equality in law and right to equality on the
ground of sex.
 Indian Young lawyers association and ors. v. State of Kerala and ors
By a majority of 4:1, of the 5 judge constitutional bench, the Supreme Court declared the Sabarimala Temple’s custom
of not allowing mensurating women from entering the temple premises as unconstitutional.
 M. Nagaraj v. Union of India
 Indira Swahney
THE RIGHT TO DEVELOPMENT

 The United Nations declaration on the right to development (1986) declares development a human right and
redefines development as a participatory process ‘in which all human rights and fundamental freedoms can be fully
realized.’ (Art. 1)
 The application of the right to development in India mainly reflects a legal argument for the protection of
minority rights, such as women’s rights, Dalit rights and Adivasi rights in cases on affirmative action in education,
land acquisition and labour rights.
 Madhu Kishwar vs. State of Bihar
constitutionality of customary law in Bihar in 1996, which had until then excluded tribal women from the inheritance
of property, the right to development was used to argue for an amendment of the discriminatory law ‘…to ensure
that women have an active role in the development process. Appropriate economic and social reforms should be
carried out with a view to eradicate all social injustice
 Nand Kishore vs. State of U.P.
There it was argued that ‘…the scales of justice must tilt towards the right to development of the millions who will
be benefited from the road and the development of the area, as against the human rights of 35 petitioners therein…
 Air India Statutory Corporation vs United Labour Union
The Directive Principles in our Constitution are fore-runners of the U.N.O. Convention on Right to Development as
inalienable human right and every person and all people are entitled to participate in, contribute to and enjoy
economic, social cultural and political development in which all human rights, fundamental freedoms would be fully
realised. It is the responsibility of the State as well as the individuals, singly and collectively, for the development
taking into account the need fuller responsibility for the human rights fundamental freedoms as well as the duties to
the community which alone can ensure free and complete fulfilment of the human being.