CH 1 Concept of Human Rights - National and International Insights.

Q1. Define the term “Human Rights”. [4] 2024,2023,2016 bp-783

Q2. What are the instruments that constitute the International Bill of Rights? [12]
2024,2023,2016 bp-813
Q3. Define Human Rights and trace out the history of development of Human Rights in
India. [16] 2022,2015 bp-789 and Xerox
Q4. Discuss the origin and development of Human Rights with special reference to
International Insights. [16] 2016,2015 bp-789 and Xerox
Q5. Discuss the concept of Human Rights with special reference to the National and
International rights. [16] 2021
Or
Discuss the concept of Human Rights with National and International insights. [16]
2019,2018
Or
Define the term "Human Right" and explain the scope and ambit of it in National and
International Perspectives. [16] 2017
Definition of human rights bp-783
Human rights from international perspective
1. International human rights law bp-792
2. Evolution bp-789
3. Legal Instruments

a. Universal Declaration of Human Rights (UDHR), 1948

b. International Covenant on Civil and Political Rights (ICCPR), 1966 – BP-827

c. International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 –BP-
829

d. Convention on the Rights of the Child (CRC),

e. Convention of Elimination of Discrimination against Women, 1979.

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 The Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW, hereinafter) is an international convention that was adopted by the United
Nations General Assembly on December 18, 1979.
 It is referred to as an “international bill of rights for women.” The convention is divided
into six sections, with a total of 30 Articles.
 Over 185 countries (as of now) have ratified or acceded to CEDAW.
 The essential members or parties to the Convention are all UN members, with the exception
of six member states. By signing the Convention, nations agree to adopt a number of steps
to eliminate all forms of discrimination against women, including:
 to incorporate the principle of equality of men and women in their legal system, abolish all
discriminatory laws and adopt appropriate ones prohibiting discrimination against women;
 to establish tribunals and other public institutions to ensure the effective protection of
women against discrimination; and
 to ensure the elimination of all acts of discrimination against women by persons,
organizations, or enterprises.
CEDAW is composed of a preamble and 30 articles divided into six parts.
 Equal right to vote, hold public office, and participate in government and NGOs.
 Equal rights with men in acquiring, changing, or retaining nationality.
 Equal access to all levels of education, scholarships, and career guidance.
 Equal pay for equal work, safe working conditions, maternity protection.
 Equal access to health care, including family planning services.
 Equal rights to family benefits, loans, credit, and cultural life.
 Special measures to eliminate discrimination in rural areas.
 Women are to be treated equally in all legal matters, including contracts and property rights.
 Equal rights in marriage, divorce, parenting, and family planning.

f. Convention on the Elimination of all forms of Racial Discrimination (CERD),

 The Convention on the Elimination of All Forms of Racial Discrimination (CERD)

was adopted by the United Nations General Assembly on 21 December 1965 and came into
force on 4 January 1969.
 It is a legally binding treaty aimed at eliminating racial discrimination in all its forms and
promoting understanding among all races.

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 CERD defines racial discrimination as any distinction, exclusion, restriction, or preference
based on race, colour, descent, or national or ethnic origin that impairs the recognition,
enjoyment, or exercise of human rights and fundamental freedoms on an equal footing.
 State parties are obligated to prohibit and eliminate racial discrimination through
legislative, judicial, and administrative measures, criminalize racist propaganda and
organizations promoting racial hatred, and take special measures to advance disadvantaged
racial or ethnic groups.
 The Convention explicitly condemns racial segregation and apartheid, prohibits racially
motivated violence and discrimination in areas such as employment, housing, education,
and public services, and protects the rights of minorities to enjoy their culture, language,
and religion.
 The implementation of CERD is monitored by the Committee on the Elimination of
Racial Discrimination, a body of 18 independent experts that reviews periodic reports
from states, issues recommendations, and considers complaints under certain conditions.
The Committee also employs early warning and urgent action procedures to address serious
racial tensions or conflicts.
 India ratified CERD without reservations and has implemented constitutional provisions
under Articles 14, 15, 16, 17, and 21, as well as specific legislation like the SC/ST
(Prevention of Atrocities) Act, to address racial and caste-based discrimination.
 Overall, CERD stands as a cornerstone in the global legal framework against racism,
emphasizing that racial equality is a binding legal obligation and not merely a moral
aspiration.

4. International Bodies

● United Nations Human Rights Council (HRC) – bp-802

● Office of the High Commissioner for Human Rights (OHCHR) – bp-805
● commission on the status of women bp-808

National perspective

1. Evolution- xerox

2. Constitutional Protections

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The Constitution of India is the supreme legal document guaranteeing fundamental human
rights. It contains provisions that align with international norms and ensure civil, political,
economic, social, and cultural rights.

a. Fundamental Rights (Part III)

 Right to Equality (Articles 14–18) – Equality before the law, prohibition of

discrimination, abolition of untouchability, and abolition of titles
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 15 of the Constitution
This provision generally explains that the State should treat everyone equally, without
discrimination based on religion, caste, sex, colour, or place of [Link] explains that every
citizen shall have access to shops, public restaurants, hotels, and places of public
entertainment that are wholly or partially maintained and funded by the [Link] further
states that the State must ensure that no discriminatory treatment is being given to any
citizen while using wells, water tanks, bathing ghats, roads, and places of public resorts. It
states that the State has the power to enact such provisions that benefit the welfare of
women and children in this country.
Article 16
This Article states that the States must maintain equality in employment and appointment
to State-run offices in this country. While providing jobs and appointments, the State can
not discriminate merely on the grounds of race, sex, caste, colour, religion, descent, place
of birth and residence or any of them to any office under the ambit of the State.
Article 17: Abolition of Untouchability
Article 18: Abolition of Titles
 Right to Freedom (Articles 19–22) – Freedom of speech and expression, assembly,
association, movement, residence, and profession; protection in respect of conviction for
offences; protection of life and personal liberty.
 Right against Exploitation (Articles 23–24) – Prohibition of human trafficking, forced
labor, and child labor in hazardous industries.
 Right to Freedom of Religion (Articles 25–28) – Freedom of conscience and free
profession, practice, and propagation of religion.

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 Cultural and Educational Rights (Articles 29–30) – Protection of interests of minorities;
right of minorities to establish and administer educational institutions.
 Right to Constitutional Remedies (Article 32) – Power to move the Supreme Court for
enforcement of Fundamental Rights.

b. Directive Principles of State Policy (Part IV)

Though non-justiciable (not enforceable in court), these guide the state in promoting socio-
economic justice: 36 to 51
 Right to adequate means of livelihood.
 Equal pay for equal work.
 Provision for education, public health, and social security.
 Promotion of the welfare of people.

3. Protection of Human Rights Act, 1993

 To protect human beings from violations of their rights. “Human Rights” include the right
to life, liberty, equality, and dignity, as guaranteed by the constitution.
 To protect these rights from abuses of power committed by state bodies.
 To establish an organization for the advancement of existing living beings and the
development of their personalities.
 To provide effective and necessary actions for securing remedies in the event of a violation
of rights.
 The most significant feature of the Act is that it establishes the National Human Rights
Commission, State Human Rights Commissions, and Human Rights Courts to prevent and
prosecute serious human rights violations.
4. National human rights commission

After seeking guidance from the UN and upon its recommendations, India established the
National Human Rights Commission in the country through an ordinance. The ordinance was
later replaced by legislation enacted to redress violations of human rights and protect them.
The aim of the Protection of Human Rights Act, 1993 is to provide for the Constitution of the
National Human Rights Commission and State Human Rights Commission in different states
for better protection of human rights.

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According to Section 12 of the Act, the commission is required to perform the following
functions:

 Inquire about the complaints of violations of human rights either suo moto or on an
application made in this regard.
 Intervention in the proceedings of allegations of violations of human rights in the country.
 Visit jail or other institutions under the control of the state government where people have
been detained for the purpose of treatment, reformation or protection.
 Review guidelines and safeguards for the implementation of human rights in the country.
 Promote research and study treaties and international instruments in this regard.
 Spread literacy and awareness in society to promote human rights
 Encourage the efforts of NGOs and other institutions working in the field of human rights,
etc.

5. State Human Rights Commission

State Human Rights Commissions are statutory, non-constitutional bodies (at the state level)
involved in protecting human rights and examining violations that occur within their respective
states, just like what the National Human Rights Commission does at the national level.

West Bengal was the first state in India to constitute a State Human Rights Commission,

The State Commissions are required to inquire into the matters of violation of human rights in
the state, and the central government can confer upon them the functions to be discharged,
subject to Section 12 of the Act.

6. Specialized Bodies

● National Commission for Women (NCW)

The National Commission for Women was set up as statutory body in January 1992 under the
National Commission for Women Act, 1990 ( Act No. 20 of 1990 of Govt. of India) to :

 Review the Constitutional and Legal safeguards for women ;

 Recommend remedial legislative measures ;

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  Facilitate redressal of grievances and advise the Government on all policy matters affecting
women.

In keeping with its mandate, the Commission initiated various steps to improve the status of
women and worked for their economic empowerment during the year under report. The
Commission receive a large number of complaints and acted suo-moto in several cases to
provide speedy justice. It organized consultations, constituted expert committees on economic
empowerment of women, conducted workshops/seminars for gender awareness and took up
publicity campaign against Sexual Harassment of Women at Workplace, Violence against
women etc. in order to generate awareness in the society against these social evils.

● National Commission for Minorities (NCM)

The National Commission for Minorities (NCM) is a statutory body of the Government of
India established to safeguard and protect the rights of minority communities. It acts as a
watchdog to ensure that minorities are not discriminated against and that their constitutional
and legal safeguards are implemented effectively.

It became a statutory body after the enactment of the National Commission for Minorities
Act, 1992.
According to the NCM Act, 1992, the Commission is entrusted with the following functions:

i. Evaluate Safeguards – Monitor the working of constitutional and legal safeguards for
minorities.
ii. Investigate Complaints – Look into specific complaints regarding deprivation of minority
rights and take up the matter with authorities.
iii. Advisory Role – Make recommendations for effective implementation of safeguards.
iv. Research and Studies – Undertake research and analysis on issues concerning minorities.
v. Annual Report – Submit an annual report to the Central Government on the status of
minorities, which is then laid before Parliament.
vi. Monitoring Development Schemes – Oversee the implementation of government
programs and schemes meant for minority welfare.

● National Commission for Protection of Child Rights (NCPCR)

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The National Commission for Protection of Child Rights (NCPCR) is a statutory body
established by the Government of India to ensure that all laws, policies, programs, and
administrative mechanisms are in line with the rights of children as enshrined in the
Constitution of India and the United Nations Convention on the Rights of the Child
(UNCRC). Its primary objective is to protect, promote, and defend the rights of children in the
country.

Established in March 2007 under the provisions of the Commission for Protection of Child
Rights Act, 2005.

The NCPCR is tasked with the following:

a. Ensure compliance with constitutional provisions, UNCRC obligations, and child welfare
laws.

b. Investigate complaints of child rights violations, including those related to abuse,

exploitation, and neglect.

c. Examine laws affecting children and recommend amendments for better protection.

d. Oversee the functioning of juvenile homes, child care institutions, and adoption agencies.

e. Conduct studies, awareness campaigns, and capacity-building programs on child rights.

f. Submit reports to the Central Government on the state of child rights, which are tabled in
Parliament.

● National Commission for Scheduled Castes (NCSC) and National Commission for
Scheduled Tribes (NCST)

The National Commission for Scheduled Castes (NCSC) is a constitutional body established
to safeguard the interests of Scheduled Castes (SCs) in India. It ensures the effective
implementation of constitutional safeguards and socio-economic development measures for
SCs.

Functions

● Monitoring and Evaluation – Implementation of constitutional safeguards for SCs.

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● Inquiry into Complaints – Cases of deprivation of rights or atrocities against SCs.
● Advisory Role – Recommend socio-economic development programs.
● Annual Report – Submit to the President, who lays it before Parliament.
● Oversight of Welfare Schemes – Scholarships, reservations, employment opportunities.

Powers

● Civil court powers – Summoning witnesses, examining documents, and inspecting

records.

Q6. Write a critical note on reservation Policy in Human Rights Perspective. [16]
2021,2017

Introduction

Reservation in India is a form of affirmative action aimed at providing historically

disadvantaged communities with access to education, employment, and political
representation. It is rooted in the Constitution of India and inspired by global human rights
principles that emphasize equality, dignity, and justice. The idea is not to give charity, but to
level the playing field for communities that have suffered centuries of discrimination,
primarily based on caste, tribe, and social status.

Constitutional and Legal Basis

The policy draws strength from specific constitutional provisions:

● Article 15(4) & 15(5) – Allow the State to make special provisions for socially and
educationally backward classes, SCs, and STs, particularly in educational institutions.
● Article 16(4) – Provides reservation in public employment for backward classes that are
inadequately represented.
● Article 46 – Directs the State to promote the educational and economic interests of weaker
sections, especially SCs and STs.
● Articles 330–342 – Reserve seats for SCs and STs in Parliament and State Assemblies.
These provisions ensure that affirmative action is not seen as discrimination, but as a
constitutional duty for social justice.

Human Rights Perspective

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From an international human rights viewpoint, reservation is a legitimate tool to achieve
substantive equality:

● UDHR (1948) – Articles 1 and 7 emphasize equality before the law and non-
discrimination.
● ICCPR (1966) – Guarantees equal access to public service and political participation.
● ICESCR (1966) – Upholds the right to education, work, and cultural participation.
● UN Declaration on the Rights of Indigenous Peoples (2007) – Protects the rights of tribal
and indigenous communities.

This means India’s reservation policy aligns with the global consensus that disadvantaged
communities sometimes require special measures to overcome historical oppression.

Objectives of Reservation Policy

1. Corrective Justice – Acts as a remedy for centuries of systemic exclusion, especially

against Dalits, Adivasis, and OBCs. For example, Dalits were historically denied access to
schools and temples; reservation ensures they now have a guaranteed place in educational
institutions.
2. Representation – Without reservation, marginalized communities may remain invisible in
decision-making bodies. Reserved seats in legislatures ensure their voices are heard.
3. Social Integration – Encourages diverse groups to interact and share spaces in universities,
workplaces, and politics.
4. Empowerment – By providing opportunities for higher education and stable jobs,
reservation helps break the intergenerational cycle of poverty.

Positive Impacts

● Educational Access – SC, ST, and OBC students now form a significant portion of
university populations, which was almost non-existent before independence.
● Political Voice – Leaders from marginalized backgrounds like Dr. B.R. Ambedkar and
Ram Vilas Paswan shaped policy because of political representation.
● Employment Security – Reserved quotas in government jobs provide financial stability
and upward mobility.

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● Social Mobility – Families from disadvantaged backgrounds have moved into middle-class
status due to reserved job opportunities.

Criticisms and Challenges

1. Reverse Discrimination Argument – Critics argue that it sometimes disadvantages

deserving candidates from non-reserved categories. However, this ignores the systemic
advantages those groups have historically enjoyed.

2. Creamy Layer Issue – In OBC reservations, the benefits are often taken by relatively well-
off families, leaving the poorest behind.

3. Political Misuse – Political parties often expand reservation benefits for electoral gains,
diluting its focus.

4. Persistence of Inequality – Even with reservation, social discrimination persists in

housing, workplaces, and marriage, showing that legal measures alone cannot end
prejudice.

5. Lack of Review – There is rarely an updated socio-economic assessment to check whether

beneficiaries still need reservation.

Judicial Perspective

● Indra Sawhney Case (1992) – Upheld OBC reservations, set a 50% cap on total
reservations, and introduced the creamy layer concept to ensure only the truly needy
benefit.
● M. Nagaraj Case (2006) – Stated that reservation in promotions requires proof of
inadequate representation.

Way Forward

● Targeted Benefits – Identify and focus on the most disadvantaged within SC, ST, and
OBC categories.

● Regular Assessment – Review the necessity and extent of reservation periodically using
socio-economic surveys.

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● Supplementary Reforms – Strengthen school education, health care, and vocational
training to complement reservation.

● Merit and Justice Balance – Reservation should not undermine standards but should work
alongside skill development programs.

Conclusion

From a human rights perspective, reservation is not just a legal arrangement but a moral
imperative to ensure dignity, equality, and opportunity for communities historically denied
them. While it has improved access to education, employment, and politics, its long-term
success depends on better targeting, political integrity, and complementary development
policies. A mature reservation system should gradually evolve from a compensatory
mechanism into a truly equal opportunity framework.

Q7. Examine the role of UN. High Commissioner in the protection and promotion of
Human rights. [16] 2016,2021
Introduction
The Office of the United Nations High Commissioner for Human Rights (OHCHR) was
established in 1993 by the UN General Assembly (Resolution 48/141) following the Vienna
Declaration and Programme of Action. The High Commissioner serves as the principal UN
official with responsibility for human rights and acts as the moral voice and advocate for the
protection and promotion of rights worldwide.

Role from bp-807

Conclusion
The UN High Commissioner for Human Rights plays a central role in translating the ideals of
the Universal Declaration of Human Rights into practical reality. Despite facing political
and logistical challenges, the office remains a vital pillar for monitoring, advocating, and
assisting in the global protection of human dignity. Its effectiveness depends not only on its
independence and moral authority but also on the cooperation and political will of the
international community.

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CH 2. Universal Declaration of Human Rights, 1948.

Q1. Discuss the salient features of Universal Declaration of Human Rights. [8] 2024,2023
Or
Discuss various rights as enumerated in the Universal Declaration of Human Rights,
1948. [16] 2017,2021 [bp-815]
Or
Write a note on Universal Declaration of Human Rights, 1948. [16] 2019,2018
Or
Explain the Universal Declaration of Human Rights 1948 and its utility. [16] 2016

Universal declaration

 The Universal Declaration of Human Rights (UDHR) was adopted and proclaimed by
the General Assembly on 10 December 1948 where forty-eight States voted in favour
of the Declaration, none against, with eight abstentions.
 In a statement following the voting, the President of the General Assembly pointed out
that the adoption of the UDHR was "a remarkable achievement, a step forward in the
great evolutionary process."
 This achievement certainly based on the assertion of international concern about human
rights in the UN Charter which linked with three further different law building stages
such as (i) listing of rights in the UDHR; (ii) elaboration of the rights in the ICCPR and
ICESCR; and (iii) the adoption of a large number of additional declarations and
conventions concerning issues of special importance, such as discrimination against
women, racial discrimination and religious intolerance, rights relating to child,
minorities, indigenous peoples and persons with disabilities.

The Preamble

 The preamble of any legal instrument is the key to open the minds and contains the
ideals and aspirations or the objects which the makers intended to be realised by its
enacting provisions.
 The Universal Declaration of Human Rights pointedly notes in its preamble that “it is
essential, if man is not to be compelled to have recourse, as a last resort, to rebellion

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 against tyranny and oppression, that human rights should be protected by the rule of
law.”
 Recognising the inherent dignity of all members of the human family the preamble
provides that “the equal and inalienable rights … is the foundation of freedom, justice
and peace in the world”
 The preamble proclaims it as a common standard of achievement for all peoples and all
nations, to the end that every individual and every organ of society, keeping this
declaration constantly in mind, shall strive by teaching and education to promote
respect for these rights and freedoms and by progressive measures, national and
international, to secure their universal and effective recognition and observance, both
among the peoples of Member States themselves and among the peoples of territories
under their jurisdiction.

Civil and Political Rights

Articles 1 to 21 of the UDHR deal with the substantive provisions relating to civil and political
rights. These rights can broadly be categorized into three groups such as rights relating to rule
of law, liberties of people and freedoms.

(i) Rights Relating to Rule of Law: Articles 1 – 11

The preamble of the UDHR proclaims that “human rights should be protected by rule of law.”
The reason behind of this proclamation was that even before the adoption of UDHR, most of
its rights under Articles 1 to 11 have been incorporated into the domestic legal systems of most
countries. These rights are related to several basic elements of the rule of law which are set
forth as rights such as:

(i) rights to life, liberty, equal dignity, non-distinction, and personal security (Articles 1, 2 and
3),

ii. bans on slavery and torture (Articles 4 and 5),

iii. rights to legal recognition, equality before the law (Articles 6 and 7),

iv. effective remedies for violation of fundamental rights (Article 8),

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v. freedom from arbitrary arrest and detention (Article 9),
(vi) guarantees of fair criminal procedures, the presumption of innocence (Article 10), and
(vii) the principle of non-retroactivity in criminal law (Article 11).

The object of these human rights was to subjecting the exercise of power to legal rules,
protecting individuals from aggression, and assuring fair procedures. At the time of drafting
these rights there was no controversy in the drafting process as most of these rights were existed
in Constitutions of various States. The “equal protection of the laws” and “equality before the
law” are important corollary of rule of law which have duly been reflected in the UDHR.

The expression “rule of law” connotes in its popular meaning the paramount of law over
governments. The first meaning of the “rule of law” is the absence of arbitrary power to arrest
or punish a person. It means that no man is punishable or can be lawfully made to suffer in
body or goods except for a distinct breach of law established in the ordinary legal manner
before the ordinary courts of the land.

According to Dicey the second corollary of rule of law (equality before the law) is that no man
is above the law of the land, whatever be his rank or status is subject to the ordinary law and
means that among equals the law should be of the ordinary tribunals. Equal protection of the
laws means that among equals the law should be equal and equally administered, like should
be treated alike. But if there is any reasonable basis for classification, the legislature would be
entitled to make different treatment. In such a circumstance two conditions must be fulfilled:
(i) that the classifications must be found on an intelligible differentia which distinguishes those
that are grouped together from others, and (ii) that the differentia must have a rational relation
to the object sought to be achieved.

(ii) Rights Relating to Liberties of People: Articles 12 – 17

Articles 12 to 17 of the UDHR are primarily concerned with the liberties of people as they live
and interact with one another in civil and political society. They include:
(i) the right to be free of arbitrary interference with one’s “privacy, family, home, or
correspondence” from arbitrary attacks upon one’s “honour and reputation” (Article 12),
(ii) the freedom of movement and the right of return; the right to seek and enjoy political
asylum (Article 13),

[Link] right to seek asylum (Article 14),

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iv. the right to a nationality (Article 15),

v. the right to marry and to found a family, the right of the family as such to “protection by
society and the State,” (Article 16), and

vi. the right to own property (Article 17).

The scope of the application of these rights may be varied in different social and political
contexts.

(iii) Rights Relating to Freedom: Articles 18 – 21

Articles 18 to 21 of the UDHR provides for the rights relating to freedom such as:

i. freedom of religion and belief (Article 18),

ii. freedom of opinion, expression, and communication (Article 19),
iii. freedom of assembly and association (Article 20), and
iv. the right to take part in government and equal access to public service (Article 21).

The right of religious freedom is one of the oldest internationally recognised human rights. The
scope and ambit of freedom of religion is concerned with right of individual to practice and
propagate not only matters of faith or belief but also all those rituals and observances which
are regarded as integral part of religion by the followers of its doctrines.

Economic, Social and Cultural Rights

Articles 22 to 28 of the UDHR contain the economic, social and cultural rights.

Article 22, on the right to social security, provides: “[e]veryone, as a member of society, has
the right to social security and is entitled to realization, through national effort and international
co-operation and in accordance with the organization and resources of each State, of the
economic, social and cultural rights indispensable for his dignity and the free development of
his personality.”

Article 23(3), set in the context of right to work, provides that “[e]veryone who works has the
right to just and favourable remuneration ensuring for himself and his family an existence
worthy of human dignity, and supplemented, if necessary, by other means of social protection”.

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The right to rest and leisure (Article 24), right to standard of living adequate for the health of
himself and of his family (Article 25), right to education (Article 26), right to participate in
cultural life (Article 27), right to good social and international order (Article 28) are component
part of the economic, social and cultural rights of the UDHR.

The UDHR laid down under Article 29 certain limitation to these rights and freedoms, by
providing that everyone has duties to the community in which alone the free and full
development of his personality is possible.

Article 29 in the UDHR is that absolute individual rights cannot be guaranteed by the modern
State. The guarantee of each of the above rights is therefore limited itself by conferring upon
the State power to impose reasonable restrictions by the law as may be necessary in the large
interest of the community.

Conclusion

The UDHR, though not legally binding, has influenced national constitutions, laws, and
international treaties. It affirms that all people possess inherent dignity and rights that must be
protected universally. By balancing individual freedoms with community welfare, it sets a
moral and political benchmark for human rights protection worldwide.

Q2. Examine the binding effect of Declaration on domestic system of Laws. [8] 2024,2023
bp-817
Q3. Explain the utility, scope and ambit of Universal Declaration of Human Rights. [16]
2022
or
Critically explain the utility of the Universal Declaration of Human Rights, 1948 with
reference to Indian scenario. [16] 2017
or
Explain the Universal Declaration of Human Rights 1948 and its utility. [16] 2016

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Scope and ambit
human rights are a set of individual and collective rights that have been formally promoted and
protected through international and domestic law since the 1948 Universal Declaration of

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Human Rights. Arguments, theories, protections, and violations of such rights, however, have
been in existence for much longer but since the Universal Declaration, the evolution of their
express legal protection has grown rapidly. Today, the numerous international treaties on
human rights promulgated since the Universal Declaration to which an increasingly large
number of nation states are a party define the core content of human rights that ought to be
protected across categories of civil, political, economic, social, and solidarity rights.

1. civil and political rights bp-816

2. economic and social rights bp-816
3. Solidarity rights, which include rights to public goods such as development and the
environment, seek to guarantee that all individuals and groups have the right to share
in the benefits of the earth's natural resources, as well as those goods and products that
are made through processes of economic growth, expansion, and innovation. Many of
these rights are transnational in that they make claims against wealthy nations to
redistribute wealth to poor nations, cancel or reduce international debt obligations, pay
compensation for past imperial and colonial adventures, reduce environmental
degradation, and help promote policies for sustainable development. Of the three sets
of rights, this final set is the newest and most progressive and reflects a certain reaction
against the worst effects of globalization, as well as the relative effectiveness of 'green'
political ideology and social mobilization around concerns for the health of the planet.

legal effect of the declaration bp-817

CH 6. Convention on Rights of Child, 1989.

Q1. Discuss about various rights recognized under the International Convention on the
Rights of the Child, 1989. [16] 2024,2023,2015
or
The Convention on Rights of Child, 1989 is a detail Code on the Rights of Child - Discuss
with reason. [16] 2021,2019
or
Write a critical note on the convention on Rights of Child, 1989. [16] 2016

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Introduction

The International Convention on the Rights of the Child (CRC), adopted by the UN General
Assembly on 20 November 1989 and enforced from 2 September 1990, is the most
comprehensive legally binding international instrument concerning children’s rights. It
recognizes children (every human being below 18 years of age) as holders of civil, political,
economic, social, and cultural rights, and obligates State Parties to ensure their realization
without discrimination of any kind.

It has total 54 Articles

Rights Recognized under the CRC

The CRC broadly recognizes the following categories of rights:

CHILD IN FAMILY ENVIRONMENt

 Best Interests of the Child to be the primary consideration for all actions of: • public or private
social welfare institutions • courts of law • administrative authorities • legislative bodies •
 States parties shall ensure that the institution, services responsible for the care of children shall
confirm with standards prescribed.
 States Parties shall respect the responsibilities, rights and duties of parents or persons legally
responsible for the child and to provide appropriate directions and guidance in consistence with
the evolving capacities of the child.
 Every child has inherent right to • life, • survival and • development
 Children shall not be separated from their parents against their will except by competent
authority if such separation is necessary for the best interest of the child.
 Children whose parents live in different countries should be allowed to move between those
countries so that parents and children can stay in contact.
 Both parents to have common responsibility for upbringing and development their children. The
best interests of the child will be their basic concern.
 State to take legislative, administrative, social and educational measures to protect from all
forms of: violence-physical or mental • injury or abuse • neglect • mal-treatment or exploitation,
including sexual abuse. While in the care of parents or any other person who has the care of the
child.

CHILDREN DEPRIVED OF FAMILY ENVIRONMENT / ALTERNATIVE CARE

 Children who cannot be looked after by their own family have a right to special care and must be
looked after properly, by people who respect their ethnic group, religion culture and language
 Children have the right to care and protection if they are adopted or in foster care. The first
concern must be what is best for them. The same rules should apply whether they are adopted
in the country where they were born, or if they are taken to live in another country.

23 | P a g e
 The Convention recognizes the right of a child who has been placed by the authorities for the
purposes of care, protection or treatment of his or her physical or mental health.
 Children who have been neglected, abused or exploited should receive special help to physically
and psychologically recover and reintegrate into society.

CHILD LABOUR

 The government should protect children from: • Dangerous work. • Harmful to health,
education and right to play. • Business which is unsafe and unsuited for their development
(physical, mental, spiritual, moral and social).

EDUCATION, SOCIAL SECURITY, RELIGIOUS AND ECONOMIC RIGHTS

 Children have the right to live. Governments should ensure that children survive and develop
healthily.
 Child who is capable of forming his/her own views shall have the right to express those views
and views of the child to be given due weight.
 Child shall have the right to freedom of expression; this right shall include freedom to seek,
receive and impart information and ideas.
 States Parties shall respect the right of the child to freedom of thought, conscience and religion.
Rights and duties of parents and legal guardians to provide directions to the child according to
their evolving capacity
 States Parties recognize the rights of the child to freedom of association and to freedom of
peaceful assembly.
 No child shall be subjected to arbitrary or unlawful interference with his or her privacy.
 States Parties shall ensure that the child has access to information and material aimed at
promotion of his or her social, spiritual and moral well being and physical and mental health.
 Recognizes special needs of a children with disabilities.
 State shall take appropriate measure to combat disease and malnutrition, provide for adequate
nutritious food and clean drinking water. Ensure appropriate pre natal and post natal health care
for mothers.
 Children – either through their guardians or directly – have the right to benefit from the social
security schemes of the Government.
 Children have the right to a standard of living that is adequate for child physical, mental,
spiritual, moral and social development.
 State shall ensure free and compulsory primary education and encourage development of
different forms of secondary education. Make higher education accessible to all on the basis of
capacity. Make educational and vocational information and guidance available and accessible to
all children. Encourage regular attendance at schools. State shall ensure school discipline is
administered in a manner consistent with the child’s human dignity.
 State shall ensure education of the child is directed to the development of the child’s
personality, talents and abilities.
 State parties shall recognize right of the child to rest and leisure and to engage in play and
recreational activities.

KIDNAPPING, TRAFFICKING AND VIOLENCE AGAINST CHILDREN

 Governments should take steps to stop illicit transfer and non return of children abroad. State to
promote bilateral or multi –lateral agreements.
 State to take all measures to abolish traditional practices prejudicial to the health of children.

24 | P a g e
 State shall take all measures to protect the child from harmful drugs and psychotropic
substances.
 State to protect the child from: • Sexual exploitation • Inducement to engage in any unlawful
sexual activity • Use of children in prostitution • Use of children in pornographic performances.
 The Government should take all measures possible to make sure that children are not abducted,
sold or trafficked.
 The State shall protect the child from all forms of exploitation prejudicial to their welfare.
 The State to ensure that no child be subjected to torture or punishment. Neither capital
punishment nor life imprisonment shall be imposed for offences committed by child.
 The State shall take all measures to promote physical and psychological recovery and social
reintegration of child victim.
 The State to recognise the right of every child accused of having infringed the penal laws to be
treated in a manner consistence with the promotion of child’s sense of dignity.

NON-DISCRIMINATION

 States Parties shall ensure Rights set forth in the CRC- irrespective of the child’s or parent’s or
legal guardian’s • race, • colour, • sex, • language • religion • political opinion • national/ethnic
or social origin • property • disability • birth • or other status
 States Parties shall take all measures to ensure: • child is protected against discrimination or
punishment on the basis ofthe above.

Conclusion

The 1989 CRC is a landmark in recognizing children as rights-holders rather than mere
recipients of charity or protection. It integrates survival, development, protection, and
participation rights, binding States to promote them through legislation, policy, and
cooperation. By ratifying the Convention, States commit to creating an environment where
children can grow in dignity, free from discrimination, exploitation, and violence, and
empowered to participate in shaping their own lives.

Q2. Elucidate the legal provision with case laws relating to protecting of rights of child
and prevention of child abuse. [16] 2022,2017
Or

Examine the protection of Rights of Child in National and International scenario. [16]
2018

National Scenario
Introduction
Children are the most vulnerable section of society. They become the victims of exploitation
and ill-treatment easily and can be directed into undesirable channels by anti-social elements.

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The Constitution-makers reflecting their anxiety to protect and safeguard the interest and
welfare of the children.
Constitution
Right to equality
Article 14 of the Constitution of India states that every person is equal before the law and has
equal protection of the laws. Thus, this right is applicable to children of India, as well, because,
they too, are the citizens of this nation.
Right against discrimination
Article 15 of the Constitution talks about the prohibition of discrimination based on race, caste,
etc. Under Article 15(1), no citizen shall be discriminated against based on his religion, race,
caste, sex, place of birth or any of them. Further, Article 15(3) states that the State shall not be
prevented from making any special provisions for women and children.

Right to freedom of expression

Article 19(1)(a) has conferred a right to freedom of speech and expression to each and every
citizen of India. This right is applicable to everyone, including the children of India. Children
have the liberty of expression as long as their opinions and knowledge do not harm others.

Right to life

According to Article 21 of the Constitution of India, every person has the right to life, liberty
and security. It also states that no individual must be deprived of his life or personal liberty
unless according to procedure established by law. Similarly, every child in India has the right
to personal liberty and due process of law.

Right to health

Under Article 21 of the Constitution of India, although indirectly, every child has the right to
lead a healthy life. Issues like HIV infections, lack of safe drinking water, adequate sanitation,
malnutrition, inter alia, come under the protection of life.

Right to education

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Under Article 21A of the Constitution of India, every child in the age group of 6-14 has the
right to free and compulsory elementary education. Moreover, Article 45 states that the State
shall strive to provide early childhood care and education for all children under the age of six
years.

Right to being protected from trafficking and forced into labour

Article 23 of the Constitution of India states that every person (including children) has the right
to be protected from trafficking, begging and other similar forms of bonded labour.

Right to be protected from hazardous employment

Under Article 24 of the Constitution of India, every child below the age of 14 has the right to
be protected from employment in factories or mines or be engaged in any other precarious
employment conditions.

Right to be protected against abuse

Article 39(e) of the Constitution of India states that the health and strength of workers and the
young age of children are not violated, and that, there is a right to be protected from being
abused and not forced by economic necessity to enter avocations or minor occupations that do
not suit their age or energy.

Right to equal opportunities and facilities

Article 39(f) of the Constitution of India states that children must be provided with just
opportunities and facilities to progress in a healthy way and conditions of liberty and dignity.
Also, children and youngsters are given protection against ill-treatment and moral and material
abandonment.

Rights against social injustice and all forms of exploitation

Article 46 of the Constitution discusses the rights of the weaker sections of the society and that
they should be safeguarded from social injustice and all forms of exploitation.

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Child marriage

Child marriage denies children their basic rights. Many a time, children who are subjected to
this offence have to drop out of school, thus, denying their basic right to education bestowed
under Article 21 and Article 45 of the Constitution.

Moreover, they are also exposed to violence (sexual, physical and emotional), thus denying
their right to personal liberty which is also vested under Article 21 of the Constitution of India.

Employment of child for begging

Employment or use of a child for begging is an offence under Section 76 of the Juvenile Justice
Act and is also a violation of Article 21 (right to personal liberty) of the Constitution.

The exploitation of a child employee

A child can be ostensibly engaged or kept in bondage for the purpose of employment or be
declined to give his share of earnings or might have his earrings used for the employer’s gain.
Such an act is prohibited under Article 39(e) and Article 46 of the Constitution and is
punishable under Section 79 of the Juvenile Justice Act.

Cruelty

Any person who is in charge or has control over a child- assaults, abandons, abuses, exposes
or willfully neglects the child or creates circumstances where the child undergoes any of the
aforementioned treatments will be termed to have subjected the child to cruelty. This act is
punishable under Section 75 of the Juvenile Justice Act and is a violation of Article 21 (right
to life and liberty) of the Constitution.

Intoxicating a child

Giving a child intoxicating liquor or narcotic drug or tobacco or any psychotropic substance,
not only orally, but also for inhaling or smoking or by using an injection, etc is an offence.
Performing such an act will attract a penalty under Section 77 of the Juvenile Justice Act and

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is also a violation of Article 19(1)(a) which discusses freedom of speech and expression and
Article 21 which discusses the right to life and personal liberty in the Constitution.

Using a child for supplying or smuggling intoxicating substances

Any person who uses a child for vending, peddling, transporting, delivering or smuggling any
intoxicating liquor, narcotic drug or psychotropic substance is said to have committed an
offence under Section 78 of the Juvenile Justice Act. Even in this case, Article 21 is violated.

Selling or procuring a child

Under Section 81 of the Juvenile Justice Act, any person who sells or buys a child for any
purpose has committed an offence.

Kidnapping and Abduction of a child

Children after being kidnapped are sold through human trafficking rackets and used for several
purposes, some of them are:

1. prostitution,
2. begging,
3. house helpers, etc.

This act is punishable under Section 84 of the Juvenile Justice Act. A note must be taken that
this Section must be read and understood in the light of the Indian Penal Code provisions from
359-369.

Child soldiers

Any non-State, self-styled militant group or outfit declared by the Central Government, if
recruits or uses any child for any purpose is liable to punishment under Section 83 of the
Juvenile Justice Act.

Indian Penal Code

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There are several provisions under the Indian Penal Code, 1860 that are offences and a violation
of child rights, some are as follows:

● Murder

Section 300, 301, 302, 303 discusses murder. These provisions are applicable to the offenders
who kill/murder a child or minor, as well.

● Abatement to suicide

Section 305, 306 in the IPC is that of abetment of suicide under 18 years of age, or by any
insane or a delirious person, or an idiot person or an intoxicated person and the punishments
applicable thereof.

● Offences causing miscarriage, exposure of infants, etc

Section 312, 313, 314 discuss the offences relating to causing miscarriage. Whereas, Section
315 and Section 316 discuss the injuries born to unborn children. Further, Section 317 discusses
the exposure and abatement of a child under 12 years of age by parents or guardians. Section
318 discusses the intentional concealment of the birth of a child by secretly burying it or
disposing of it.

● Kidnapping, abduction, slavery and forced labour

Section 359 to Section 374 of the IPC comprises kidnapping, abduction, slavery, sale of minors
and forced labour.

● Rape

Section 375 of the IPC deals with rape against will, with or without consent when she is under
sixteen years of age, etc.

The Juvenile Justice (Care and Protection of Children) Act 2000

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Chapter IX of the Juvenile Justice Act, 2015 re-enacts the provisions relating to special
offences with regards to juveniles. To be specific, Section 74 to 89 of the Act deals with the
punishment for offences committed against children. They have the following heads:

1. Provision on disclosure of Identity of children (Section 74).

2. Punishment for cruelty to children (Section 75).
3. Penalty for giving intoxicating substances to a child (Section 77).
4. Utilising the child for carrying and smuggling intoxicating substances (Section 78).
5. The exploitation of a child employee (Section 79).
6. Sale and procurement of a child for any purpose (Section 81).
7. Corporal punishment (Section 82).
8. Use of children by militant groups (Section 83).
9. Kidnapping and abduction of a child (Section 84).
10. Offences committed on physically impaired children (Section 85).

Protection of Children from Sexual Offences (POCSO)

The Government of India enacted the (POCSO) in 2012 to safeguard children from crimes such
as sexual abuse, sexual assault, sexual harassment and pornography. This act prescribes strict
penalties for the crime. The maximum penalty under this Act is life imprisonment and a fine.

Offences against the POCSO Act are:

● Penetrative sexual assault

● Sexual assault
● Aggravated penetrative or aggravated sexual assault
● Sexual harassment
● Child pornography

Information Technology Act, 2000

The Information (IT) Act, 2000 contains sufficient provisions for combating the prevailing
cyber crimes. In particular, Section 67B of the Act specifically provides for strict penalties for
publishing, browsing or transmitting child pornography electronically.

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The Child Labaur (Prohibition and Regulation) Act, 1986

This Act was ! enacted with a view to rationalizing earlier legislation on child-labour,
progressive elimination of child labour in hazardous employment, and regulation of conditions
of child-labour in non-hazardous industries. The Act, thus, prohibits employment . of children
in certain specified hazardous occupations and processes, and regulates the working conditions
in others.

In N. Bhageerathan v State (1999, p.632), it was held that if an accused or employer is unable
to prove that children employed were not below 14 years, he can be convicted for the offence
of employing child labour.

National Policy on Child Labour

The National Policy on Child Labour is a landmark endeavor in the progressive elimination of
child labour in India. A National Policy on Child Labour has been formulated in conjunction
with the legal measures to address the socio-economic issues having a bearing on child labour
and to provide a framework for concrete programmes of action. The policy attempts to deal
with the situation where the children work, or are compelled to work, on a regular or a
continuous basis to earn wages for themselves and/or for their families, and where their
conditions of work result in their being severely disadvantaged and exploited, and where abuses
connected with such factors impacting on wage-employed children need to be given close
attention by the state for rectification, amelioration, and regulation through specific legal and
administrative instruments and measures. The policy encompasses action in the fields of
education, health, nutrition, integrated child development, and employment.

National Commission for Protection of Child Rights

In order to ensure protection of rights of children, the government has adopted the National
Charter for Children, 2003. To fulfil its international commitment, the Commission for
Protection of Child Right Act, 2005 was passed. It is an Act to provide for the constitution of
a National Commission and State Commissions for Protection of Child Rights and children's
courts for providing speedy trial of offences against children of violation of child rights.

Section 3 of the Act envisages the constitution of a body known as the National Commission
for the Protection of Child Rights. While sections 17 provides for constitution of State

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Commission. These Commissions, national and state, have similar functions and powers at
national and the concerned state levels, respectively.

Unnikrishnan J.P &Ors v. State of Andhra Pradesh

The court held that the right to education is implicit in the right to life. This case expanded the
Right to education being enshrined to Right to Life. In 2002, by the 86th Amendment of the
Constitution inserted Right to Education within Right to life.

M.C Mehta v. State of Tamil Nadu

The judgment passed states the direction to prohibit child labour in hazardous conditions; the
petitioner was concerned about the high rate of child labour in hazardous conditions in the
Match factories of Savakis in Kamraj district of Tamil Nadu. The judgment gave out the visions
of the constitution and also linked between child labours with poverty, the judgment also stated
that there has been no proper eradication of child labour by the state,

Sanjay Suri v. Delhi administration

The court laid down orders to transfer some guilty officers and laid down the rules to protect
children in jails. Juvenile undertrials were the subject of Sanjay Suri’s petition. Many children
were sent to jail despite the prohibition in the children’s Act. The Juvenile were kept together
with habitual and other adults where they were brutalized and made to do undesirable tasks,

Vishal Jeet v. Union of India

Several directions were issued to end the sexual exploitation of children. The court issued
directions to the state government to set up rehabilitation homes for the children found begging
in the streets and also minor girls pushed into ‘flesh trade’ to protective homes.

Conclusion

The protection of child rights and prevention of abuse in India is ensured through a multi-
layered legal framework combining constitutional guarantees, special legislations, and
proactive judicial intervention. While enforcement remains a challenge due to socio-economic

33 | P a g e
realities, landmark judicial pronouncements and dedicated bodies like the NCPCR have
strengthened the implementation of these rights. Continued vigilance, awareness, and strict
enforcement are essential to secure a safe and dignified environment for every child.

CH 8 Human Rights and Indian Constitution

Q1. Explain the relationship between “Human Rights” and “Fundamental Rights” under
the Constitution of India. [12] 2024,2023

Or

Compare between Human Rights recognized under Universal Declaration of Human

Rights, 1948 and the Fundamental Rights as continued in Constitution of India. [16]
2022,2015

Meaning of Human Rights

 Human Rights are the basic rights and freedoms that belong to all human beings by virtue
of being human — regardless of nationality, race, religion, gender, or any other status.
 They are recognized under documents like the Universal Declaration of Human Rights
(UDHR), 1948, International Covenant on Civil and Political Rights (ICCPR), 1966, and
International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966.
 In India: The Protection of Human Rights Act, 1993 defines them as “the rights relating to
life, liberty, equality and dignity of the individual guaranteed by the Constitution or
embodied in International Covenants and enforceable by courts in India.”
 Universal, inalienable, and apply to all people everywhere.

Meaning of Fundamental Rights

● Fundamental Rights are specific rights guaranteed by Part III of the Constitution of India
(Articles 12 to 35) to ensure political democracy, protect individual liberty, and prevent
arbitrary action by the State.
● Purpose: They limit the power of the State and secure freedoms essential for the
development of an individual’s personality.
● Enforcement: They are justiciable — meaning a person can approach the Supreme Court
(Article 32) or High Court (Article 226) if these rights are violated.
● Examples:

34 | P a g e
 1. Right to Equality (Art. 14–18)
2. Right to Freedom (Art. 19–22)
3. Right against Exploitation (Art. 23–24)
4. Right to Freedom of Religion (Art. 25–28)
5. Cultural and Educational Rights (Art. 29–30)
6. Right to Constitutional Remedies (Art. 32)

Relationship Between Human Rights and Fundamental Rights

Aspect Human Rights Fundamental Rights Relationship

Based on moral
Many Fundamental Rights
philosophy, natural Based on the Constitution of
Origin are also Human Rights in
law, and international India (Part III)
the Indian context
covenants

Broad — includes civil, Relatively narrower —

political, economic, mainly civil and political Fundamental Rights form
Scope
social, and cultural rights, though some social a subset of Human Rights
rights rights are included

Fundamental Rights
Apply to all human Apply to citizens (some to
Universality operationalize Human
beings everywhere all persons) within India
Rights domestically

Enforcement depends In India, courts interpret

Enforceabili on domestic law and Directly enforceable in Fundamental Rights in
ty international Indian courts light of Human Rights
mechanisms principles

Right to life, freedom

Right to equality, freedom of Many Human Rights are
from torture, right to
Examples speech, right to education given constitutional force
education, right to
(Art. 21A) as Fundamental Rights
health

Relationship between Human Rights and Fundamental Rights

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While Human Rights are a global concept, Fundamental Rights are constitutional
provisions specific to India. Their relationship can be explained as follows:

a) Common Objective
● Both aim to protect human dignity, liberty, and equality.

b) Source of Inspiration
● The framers of the Indian Constitution drew inspiration for Fundamental Rights from:

o UDHR, 1948

● Many provisions of Part III of the Constitution reflect the principles of international
Human Rights.

c) Enforceability
● Human Rights: Recognized internationally, but their enforcement depends on each
country’s laws and institutions. International bodies like the UN Human Rights
Council can only recommend or criticize; they cannot directly enforce rights in India.

● Fundamental Rights: Legally enforceable within India through courts. If violated, a

person can directly approach the Supreme Court (Art. 32) or High Courts (Art. 226).

d) Scope
● Human Rights: Broader and include political, civil, economic, social, and cultural
rights (e.g., right to food, right to clean environment).

● Fundamental Rights: Mostly focus on civil and political rights, though some socio-
economic rights have been included through judicial interpretation (e.g., Right to
Education, Right to Health under Art. 21).

Comparison between human rights, and fundamental rights

Basis of
Human Rights Fundamental Rights
Comparison
Human rights are universally accepted Fundamental rights are those rights
rights that are available to every that are inherent in nature and are
Meaning person regardless of gender, age, sex, available to the citizens of a
caste, race, religion, nationality, or particular country by virtue of its
other status. Constitution.

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Basis of
Human Rights Fundamental Rights
Comparison
Recognised internationally and Protected and recognised in the
Protection and
protected by the UDHR and various Constitution of a country and, hence,
Recognition
international treaties and conventions. fundamental in nature.
Human rights that are part of a
The Constitution can be amended,
country’s Constitution or statute can
Amendment and hence, so can fundamental
be changed by amending those statutes
rights.
or the Constitution.
Enforced by the United Nations and
Enforceable against both the State
Enforceability various other international treaties and
and individuals in certain cases.
conventions.
Violations of human rights in a
Remedies include writ jurisdiction
Remedies for country can be addressed in the
and applications to the High Court or
Violations Supreme Court or Apex Court of that
Supreme Court in India.
country.
Comparative study of Fundamental Rights and Universal Declaration of Human Rights

37 | P a g e
Judicial Interpretation

Indian courts have expanded the meaning of Fundamental Rights by reading them in harmony
with Human Rights instruments.

● Vishaka v. State of Rajasthan (1997): Supreme Court referred to CEDAW

(Convention on the Elimination of All Forms of Discrimination Against Women) to
interpret gender equality under Articles 14, 15, and 21.
38 | P a g e
 ● People’s Union for Civil Liberties v. Union of India (1997): Right to privacy was
read into Article 21, influenced by international human rights norms.

● Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981): Article

21 interpreted to include the right to live with human dignity, drawing from UDHR.

Conclusion

In essence:

● Human Rights are the broad moral and universal ideals that all humans are entitled
to.

● Fundamental Rights are specific legal guarantees provided under the Indian
Constitution to protect those ideals within the Indian legal framework.

● The Indian judiciary has played a central role in harmonizing the two, ensuring that
constitutional interpretation keeps pace with global human rights standards.

Q2. Examine the role of the Indian Judiciary in the protection and promotion of Human
Rights in India. [16] 2024,2023,2016
Or
Discuss the role of Supreme Court of India for enforcement of Human Rights. [16]
2022,2015
Or

Discuss the enforcement of Human Rights in India with reference to suitable Judicial
Decisions. [16] 2021,2018

Introduction

India is the biggest democracy in the world. Being a democratic country one of the main
objectives is the protection of the basic rights of the people. Government of India has given
due consideration to the recognition and protection of human rights. The Constitution of India
recognizes these rights of the people and shows deep concern towards them.

Constitution of india

 Constitution guarantees most of the human rights contained in Universal Declaration of

Human Rights.

39 | P a g e
 Part III of the constitution contains civil and political rights, whereas economic, social and
cultural rights have been included in Part IV of the Constitution. All the statutes have to be
in concurrence of the provisions of the Constitution.
 The philosophy and objective of the Constitution of India is enshrined in the preamble
which include the protection of the dignity of an individual. For the fulfillment of this
objective Part III of the constitution guarantees fundamental rights to people which are
essential for the development of an individual personality, these rights include right to
equality, the right to freedom, the right against exploitation, the right to freedom of religion,
cultural and educational rights and the right to constitutional remedies.
 The constitution through Directive Principles of State Policy enshrined in the Part IV of the
Constitution, ascertains the duties on the government to work for the welfare of the people
and protection of human rights of the people.
 Articles 32 and 226 guarantees right to constitutional remedies, i.e. right to move to
Supreme Court and high court to enforce fundamental rights. An aggrieved person can
directly approach the Supreme Court or High Court of the concerned state for the protection
of his/her fundamental rights. In such cases Court are empowered to issue appropriate
order, directions and writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-
Warranto and Certiorari.

Role of the Judiciary

 Judiciary is ultimate guardian of the human rights of the people. It not only protects the
rights enumerated in Constitution but also has recognized certain unenumerated rights by
interpreting the fundamental rights and widened their scope. As a result people not only
enjoy enumerated rights but also un-enumerated rights as well.
 Supreme Court in Maneka Gandhi v. Union of India, interpreted the right to life and to
widen its scope and deduced un-enumerated right such as “right to live with human
dignity”. Thereafter, in many cases court such as People's Union for Civil Liberties and
another v. State of Maharashtra and others, held that right to life includes right to live
with human dignity. Therefore, through the judicial interpretations various rights have been
recognized though they are not specifically provided in Part III of the Constitution.
 The rule of locus standi, i.e. right to move to the court, whereby only aggrieved person can
approach the court for redress of his grievances has been relaxed by the judiciary. Now
court through public interest litigation permits public spirited persons to file a writ petition

40 | P a g e
 for the enforcement of rights of any other person or a class, if they are unable to invoke the
jurisdiction of the Court due to poverty or any social and economic disability. In S.P.
Gupta v. Union of India and others, Supreme Court held that any member of the public
can approach the court for enforcing the Constitutional or legal rights of those, who cannot
go to the court because of poverty or any other disabilities. Person can even write letter to
the court for making complaints of violation of rights. Similar observations have been made
by Supreme Court in various judgments such as in Bandhua Mukti Morcha v. Union of
India, Narmada Bachao Andolan v. Union of [Link], public interest litigation
has become the tool for the protection of human rights of the people in India.
 Children are more prone to exploitation and abuse. The rights of the children are needed to
be specially protected because of their vulnerability. Judiciary is playing a commendable
role in protecting the rights of children from time and again. There are various instances
where judiciary intervened and the rights of children. In the case of Labourers working
on Salal project v. State of Jammu and Kashmir, Supreme Court held that child below
the age of 14 years cannot be employed and allowed to work in construction process. Court
has issued various directions related to child labour. Supreme Court in Vishal Jeet v. Union
of India asked governments to setup advisory committee to make suggestions for
eradication of child prostitution and to evolve schemes to ensure proper care and protection
to the victim girls and [Link] the case of People's Union for Civil Liberties (PUCL)
v. Union of India where the Supreme Court released child labourers and also ordered for
grant of compensation to them. Concern of the Supreme Court about the protection of rights
of children does not ended here it reiterated the importance of compulsory primary
education vis-a-vis eradication of child labour in the case of Bandhua Mukti Morcha v.
Union of India.
 Women are considered weak in our society which has resulted in the backwardness of
women in every sphere. Women remains oppressed ones and are often denied basic human
rights. They are subjected to violence in society whether it is within four walls of the house
or at workplace. Despite the guarantees of equal rights to women still they are not equally
treated with men. Supreme Court has played remarkable role in protection of their rights
such as in case of Associate Banks officers Association v. State Bank of India,Supreme
Court protected the rights of women workers and held that women workers are in no way
inferior to their male counterparts and hence there should be no discrimination on the
ground of sex against women. . In Bodhi Satwa Gautam v. Subra Chakarborty Supreme

41 | P a g e
 Court has held that rape is a crime against basic human rights. Supreme Court laid down
guidelines for protection of women against sexual harassment at work place in case of
Vishaka v. State of Rajasthan and reiterated the same in Medha Kotwal Lele v. Union
of [Link] for ensuring the safe work environment for women were given and
made it mandatory for employer to take responsibility in cases of sexual harassment at work
 Judicial system protects the rights of its citizens including [Link] Supreme Court by
interpreting Article 21 of the Constitution protected and preserved the rights of the
prisoners. A landmark judgment in D.K. Basu v. State of West Bengal, protected the rights
of the prisoners and laid down various guidelines for arrest and detention to prevent the
custodial violence and observed that right to life include right to live with human dignity.
Similarly Court in Sheela Barse v. State of Maharashtra dealt with an issue of
mistreatment of women in police station and court laid down various guidelines for the
protection of rights of women in custodial/correctional institutions.

Conclusion

Therefore, Judiciary is playing a crucial role in the protection of the human rights of the people
from time and again by expanding the scope of the rights and recognizing new rights with the
need of time.

Q3. Examine the meaning of the expression – Article 21 of the Indian Constitution does
not merely speak of life but a life worth living with all its essential facets. [16] 2024

Or

Explain the interconnection between Human Rights Jurisprudence and Right to life
guaranteed under Article 21 of the Constitution of India with decided cases.

Or

Write a detail note on 'Right to life and personal liberty'. [16] 2021,2019

Or

Write a note on Right to Life and Personal Liberty with reference to the Universal
Declaration of Human Rights and Indian Constitution. [16] 2017

Introduction

42 | P a g e
Article 21 of this part states that “No person shall be deprived of his life or personal liberty
except according to the procedure established by law”, and this is known as the Right to Life
and Personal Liberty.

Understanding Article 21 of the Indian Constitution

 Article 21 confers the fundamental right to life and personal liberty on every person,
including foreigners, and these two rights have been given paramount importance by the
courts.
 These rights enjoy a fundamental ascendancy over all other attributes of the political and
social order, and thus, the Legislature, Executive and the Judiciary are more sensitive to
them than to the other attributes of daily existence.
 The early approach to Article 21 was circumscribed by the ‘literal interpretation’. But over
the course of time, the scope of application of the Article has been expanded by ‘liberal
interpretation’ of the components of the article in tune with the relevant international
understanding.

Right To Live with Human Dignity

In Sunil Batra v. Delhi Administration, the Supreme Court reiterated and held that the right
to life included the right to lead a healthy life so as to enjoy all faculties of the human body in
their prime conditions. It would even include the right to protection of a persons tradition,
culture, heritage and all that gives meaning to a mans life. It includes the right to live in peace,
to sleep in peace and the right to repose and health.

Right against Sexual Harassment at Workplace

Sexual Harassment of women has been held by the Supreme Court to be violative of the most
cherished of the fundamental rights, namely, the Right to Life contained in Art. 21.

In Vishakha v. State of Rajasthan, the Supreme Court has declared sexual harassment of a
working woman at her work as amounting to the violation of rights of gender equality and
rights to life and liberty which is a clear violation of Articles 14, 15 and 21 of the Constitution.
In the landmark judgment, the Supreme Court in the absence of enacted law to provide for
effective enforcement of basic human rights of gender equality and guarantee against sexual
harassment laid down some guidelines.

Right to Reputation

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Reputation is an important part of one’s life. It is one of the finer graces of human civilization
that makes life worth living. The Supreme Court in Smt. Kiran Bedi v. Committee of Inquiry
held that good reputation was an element of personal security and was protected by the
Constitution, equally with the right to the enjoyment of life, liberty, and property. The court
affirmed that the right to enjoyment of private reputation was of ancient origin and was
necessary to human society.

Right To Livelihood

To begin with, the Supreme Court took the view that the right to life in Art. 21 would not
include the right to livelihood. In ReSant Ram, a case which arose before Maneka Gandhi
case, where the Supreme Court ruled that the right to livelihood would not fall within the
expression life in Article 21. The court said curtly:

The right to livelihood would be included in the freedoms enumerated in Art.19, or even in
Art.16, in a limited sense. But the language of Art.21 cannot be pressed into aid of the argument
that the word life in Art. 21 includes livelihood also.

Right to Shelter

In Chameli Singh v. State of U.P., a Bench of three Judges of Supreme Court had considered
and held that the right to shelter is a fundamental right available to every citizen and it was read
into Article 21 of the Constitution of India as encompassing within its ambit, the right to shelter
to make the right to life more meaningful.

Right to Medical Care

In Parmananda Katar v. Union of India, the Supreme Court has very specifically clarified
that preservation of life is of paramount importance. The Apex Court stated that once life is
lost, status quo ante cannot be restored. It was held that it is the professional obligation of all
doctors (government or private) to extent medical aid to the injured immediately to preserve
life without legal formalities to be complied with the police.

Article 21 casts the obligation on the state to preserve life. It is the obligation of those who are
in charge of the health of the community to preserve life. No law or state action can intervene
to delay and discharge this paramount obligation of the members of the medical profession.

Right to Clean Environment

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The Right to Life under Article 21 means a life of dignity to live in a proper environment free
from the dangers of diseases and infection. Maintenance of health, preservation of the
sanitation and environment have been held to fall within the purview of Article 21 as it
adversely affects the life of the citizens and it amounts to slow poisoning and reducing the life
of the citizens because of the hazards created if not checked.

In M.C. Mehta v. Union of India (1997), the Supreme Court issued several guidelines and
directions for the protection of the Taj Mahal, an ancient monument, from environmental
degradation.

Right to Know or Right to Be Informed

Holding that the right to life has reached new dimensions and urgency the Supreme Court in
R.P. Ltd. v. Proprietors Indian Express Newspapers, Bombay Pvt. Ltd., observed that if
democracy had to function effectively, people must have the right to know and to obtain the
conduct of affairs of the State.

Right to Education

The right to education Flows directly from the right to Life, and the right to education being
concomitant to the fundamental rights, the state is under a CONSTITUTIONAL mandate to
provide educational institutions at all levels for the benefits of the citizens.

Mohini Jain v. State of Karnataka, a 1989 Supreme Court of India case, occurred when the
Government of Karnatak issued a notification that permitted the private medical colleges in the
State of Karnatak to charge exorbitant tuition fees from the students admitted other than the
'Government seat quota'. The Supreme Court of India observed that mention of 'life and
personal liberty' in Article 21 of the Constitution automatically implies some other rights, those
are necessary for the full development of the personality, though they are not enumerated in
Part III of the Constitution. Education is one such factor responsible for overall development
of an individual and therefore, right to education is integrated in Article 21 of the Constitution.

Personal Liberty

The meaning of the term personal liberty was considered by the Supreme Court in the Kharak
Singhs case, which arose out of the challenge to Constitutional validity of the U. P. Police
Regulations that provided for surveillance by way of domiciliary visits and secret picketing.
Oddly enough both the majority and minority on the bench relied on the meaning given to the

45 | P a g e
term personal liberty by an American judgment (per Field, J.,) in Munn v Illinois, which held
the term life meant something more than mere animal existence. The prohibition against its
deprivation extended to all those limits and faculties by which the life was enjoyed.

Right to Privacy

As per Blacks Law Dictionary, privacy means 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.

Although not specifically referenced in the Constitution, the right to privacy is considered a
penumbral right under the Constitution, i.e. a right that has been declared by the Supreme Court
as integral to the fundamental right to life and liberty. Right to privacy has been culled by the
Supreme Court from Art. 21 and several other provisions of the constitution read with the
Directive Principles of State Policy.

Right to Free Legal Aid & Right to Appeal

In M.H. Hoskot v. State of Maharashtra, the Supreme Court said while holding free legal
aid as an integral part of fair procedure the Court explained that the two important ingredients
of the right of appeal are; firstly, service of a copy of a judgement to the prisoner in time to
enable him to file an appeal and secondly, provision of free legal service to the prisoner who
is indigent or otherwise disabled from securing legal assistance. This right to free legal aid is
the duty of the government and is an implicit aspect of Article 21 in ensuring fairness and
reasonableness; this cannot be termed as government charity.

Right to Speedy Trial

In Hussainara Khatoon v. Home Secretary, State of Bihar, it was brought to the notice of
the Supreme Court that an alarming number of men, women, and children were kept in prisons
for years awaiting trial in courts of law. The Court took a serious note of the situation and
observed that it was carrying a shame on the judicial system that permitted incarceration of
men and women for such long periods of time without trials.

The Court held that detention of under-trial prisoners, in jail for a period longer than what they
would have been sentenced if convicted, was illegal as being in violation of Article of 21. The
Court, thus, ordered the release from jail of all those under-trial prisoners, who had been in jail
for a longer period than what they could have been sentenced had they been convicted

46 | P a g e
Conclusion

Indian judiciary provided excellent elucidation to right to life and personal liberty under Article
21 of the constitution. The Supreme Court not only explained the instinctive human qualities
of the Article 21 but also established certain procedure to implement them. This makes the
Rule of Law magnificent and meaningful. Each interpretation or the procedure laid down with
regard to Article 21 is particularly aimed to achieve justice mentioned in the Preamble through
all round development of the citizens. Each explanation provided attempts to fulfil the basic
needs of the human being while safeguarding ones dignity.

Q4. Compare and contrast between the “Fundamental Rights” under the Constitution of
India and “Human Right Covenant.” [16] 2024,2023,2019

Meaning and Nature

Fundamental Rights (India)

● Fundamental Rights are specific rights guaranteed by Part III of the Constitution of India
(Articles 12 to 35) to ensure political democracy, protect individual liberty, and prevent
arbitrary action by the State.
● Purpose: They limit the power of the State and secure freedoms essential for the
development of an individual’s personality.
● Enforcement: They are justiciable — meaning a person can approach the Supreme Court
(Article 32) or High Court (Article 226) if these rights are violated.
● Examples:
1. Right to Equality (Art. 14–18)
2. Right to Freedom (Art. 19–22)
3. Right against Exploitation (Art. 23–24)
4. Right to Freedom of Religion (Art. 25–28)
5. Cultural and Educational Rights (Art. 29–30)
6. Right to Constitutional Remedies (Art. 32)

Human Rights Covenants

● Rights contained in international treaties like the ICCPR and ICESCR, adopted by
the UN General Assembly in 1966 (both came into force in 1976).

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 ● Recognized as universal and inalienable; applicable to all human beings, regardless
of nationality.

● Binding only on States that ratify them; India has ratified both ICCPR and ICESCR
(with some reservations).

● Enforceability depends on domestic incorporation into national law.

Scope and Content

Human Rights Covenants (ICCPR &

Category Fundamental Rights (India)
ICESCR)

Yes – Right to equality, freedom, ICCPR covers right to life, liberty,

Civil & protection from exploitation, freedom from torture, freedom of
Political Rights religious freedom, constitutional expression, political participation, fair
remedies. trial, privacy, etc.

Economic, Limited direct protection (Art. 21 ICESCR explicitly guarantees rights to

Social & expanded by courts; DPSPs in Part work, health, education, social security,
Cultural IV are not enforceable but guide adequate standard of living, cultural
Rights policy). participation.

Right to constitutional remedies Rights apply to all individuals, without

Specific Rights (Art. 32), some rights exclusive to distinction; no “citizens-only”
citizens (e.g., Art. 19 freedoms). restriction.

Source and Inspiration

● Fundamental Rights: Influenced by the UDHR, 1948, U.S. Bill of Rights, Irish
Constitution, and other constitutional traditions.

● Human Rights Covenants: Derived directly from the UDHR; aim to make it legally
binding on States through treaty obligations.

Enforceability

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Fundamental Rights Human Rights Covenants

Not directly enforceable unless incorporated into domestic

Directly enforceable in Indian
law; UN Human Rights Committee can examine complaints
courts.
but decisions are not binding like court orders.

Remedies: Writs (Habeas Remedies: State reporting to UN bodies, recommendations,

Corpus, Mandamus, Certiorari, special rapporteurs; may influence domestic judicial
Prohibition, Quo Warranto). interpretation.

Flexibility and Limitations

Fundamental Rights
● Can be restricted by law for reasonable grounds (e.g., sovereignty, public order,
morality).

● Can be amended by Parliament, but basic structure (including core FRs) cannot be
destroyed (Kesavananda Bharati, 1973).

Human Rights Covenants

● Allow certain restrictions/derogations in times of emergency (Article 4 of ICCPR) but
require them to be strictly necessary and non-discriminatory.

● Non-derogable rights (e.g., prohibition of torture, slavery) cannot be suspended.

Similarities

1. Common objective: Protection of human dignity, liberty, and equality.

2. Inspired by UDHR: Both reflect the 1948 declaration’s principles.

3. Judicial interpretation: Indian courts often interpret Fundamental Rights in light of

ICCPR and ICESCR provisions.

4. Evolving nature: Both are interpreted progressively to meet contemporary needs.

Differences at a Glance

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Aspect Fundamental Rights Human Rights Covenants

International treaties (ICCPR,

Source Constitution of India (Part III)
ICESCR)

Applicabilit Mostly to Indian citizens (some rights to all To all human beings in States that
y persons) ratify the Covenants

Enforceabili Requires domestic incorporation;

Directly enforceable in Indian courts
ty monitored internationally

Primarily civil and political rights Covers both civil-political and

Scope (economic/social rights via DPSPs & Art. economic-social-cultural rights
21 expansion) fully

Reporting & monitoring by UN

Remedies Constitutional remedies (writs)
bodies; recommendations

Limited restrictions per treaty

Restrictions Reasonable restrictions per Constitution
provisions

Possible by constitutional amendment, Possible through treaty revision,

Amendment
subject to basic structure doctrine consent of State parties

Relationship between the Two

● India, as a signatory to ICCPR and ICESCR, is obliged to align domestic laws and
policies with covenant obligations.

● The Supreme Court of India has referred to international covenants to expand the
scope of Fundamental Rights:

o Vishaka v. State of Rajasthan (1997) – Relied on CEDAW to frame sexual

harassment guidelines.

o People’s Union for Civil Liberties v. Union of India (1997) – Used ICCPR to
interpret privacy rights.

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 o Apparel Export Promotion Council v. A.K. Chopra (1999) – Reaffirmed the
role of international conventions in interpreting FRs.

Conclusion
While Fundamental Rights are constitutional guarantees specific to India and directly
enforceable, the Human Rights Covenants are global commitments that rely on domestic legal
systems for enforcement. The two complement each other: the Covenants set universal
standards, and Fundamental Rights give them local force and legal teeth within India.

Q5. Examine the relationship between Fundamental Rights and Directive Principles of
State Policy in Indian perspectives. [16] 2018

What are Fundamental Rights

Fundamental rights, often called “basic rights,” are essential for human beings to live with
dignity in a civilised society. They are also known as negative or individual rights because they
impose limitations on the state to prevent encroachment on individual liberty. These rights are
justifiable, allowing individuals to seek legal recourse if their rights are violated.

In the Indian Constitution, fundamental rights are outlined in Part III, specifically from Article
12 to Article 35. There were seven fundamental rights originally, but the Right to Property was
repealed after the abolition of the zamindari Act. The six remaining fundamental rights are as
follows:

● Right to equality (Article 14-18)

● Right to freedom (Article 19-22)

● Right to freedom of religion (Article 25-28)

● Right against exploitation (Article 23-24)

● Cultural and educational rights (Article 29-30)

● Right to constitutional remedies (Article 31-32)

Directive Principles of State Policy

 Part IV of the constitution focuses on the Directive Principles of State Policy, which are
regarded as positive rights since they place affirmative responsibilities on the state.

51 | P a g e
 Although non-justiciable, these principles are important guidelines for the legislature in
formulating policies.
 The Directive Principles of State Policy (DPSP) aid the state in achieving its socio-
economic objectives.
 DPSPs in the Indian Constitution draw inspiration from Section 45 of the Irish Constitution
of Ireland.
 Articles 36-51 of the Indian Constitution encompass the DPSP. Some of these principles
are currently subjects of debate in Parliament. Examples of DPSPs include:

● Right to work

● Uniform Civil Code

● Right to education

● Maternity benefits

Relationship

The relationship between Fundamental Rights and Directive Principles of State Policy (DPSP)
can be described as follows:

 Complementary Nature

Fundamental Rights and DPSP are considered complementary to each other. While
Fundamental Rights focus on individual rights and liberties, DPSP emphasises the goals and
principles the state should strive to achieve in the social and economic spheres. Both sets of
provisions aim to secure a just and equitable society.

 Non-Justiciability of DPSP

Unlike Fundamental Rights, which are justiciable and can be enforced in courts, DPSPs are
non-justiciable. This means that individuals cannot directly approach courts for their
enforcement. However, DPSP provides guiding principles to the state in formulating policies
and legislation.

 Harmony and Harmonious Construction

The courts have emphasised the need for harmony between Fundamental Rights and DPSP.
The Doctrine of Harmonious Construction guides the interpretation of constitutional provisions

52 | P a g e
 in a way that avoids conflicts between the two sets of rights and seeks to give effect to both as
far as possible.

 Subordination of DPSP

While Fundamental Rights enjoy higher legal protection, DPSPs are considered subordinate to
Fundamental Rights. In a conflict between the two, the courts generally prioritise the protection
of Fundamental Rights.

 State Obligation

DPSP impose positive obligations on the state to promote social justice, welfare and equitable
distribution of resources. The state is expected to take steps to implement DPSP over time,
subject to its available resources and other considerations.

 Progressive Realisation

DPSP are principles and goals that are gradually realised over time. The state is expected to
make reasonable efforts to progressively fulfil these principles, considering its financial
capacity and socio-economic conditions.

Difference

Point of Directive Principles

Fundamental Rights
Differentiation of State Policy

Directive Principles
are written in Part 4 of
Classification and the Constitution of
Fundamental Rights are sometimes considered as a kind
Placement in the India. They are given
of restriction imposed on the State.
Constitution in Articles 36-51 of
the Constitution of
India.

The basic rights that are guaranteed to Indian citizens Directive Principles of
Purpose and Nature by the Constitution of India are known as Fundamental the Indian constitution
Rights. are the guidelines to

53 | P a g e
 be followed by the
Government while
framing policies.

Economic and Social

Democracy is
Role in Establishing Political Democracy is established in India with the help
established with the
Different Types of of Fundamental Rights given in the Constitution of
help of the Directive
Democracy India.
Principles of State
Policy.

The welfare of the

entire community is
The welfare of each and every citizen is promoted
Scope of Welfare fostered with the help
through the Fundamental Rights.
of Directive
Principles.

Violation of Directive
Principles is not a
As per the law, the violation of Fundamental Rights is
Punishability punishable crime
punishable.
unlike violation of
Fundamental Rights.

Directive Principles
are not justiciable as
Fundamental Rights are justiciable as they can be
Enforceability they cannot be
enforced legally by the courts if there is a violation.
enforced by the courts
if there is a violation.

If there is a law in
If there is a law which is in violation of fundamental
violation of Directive
Judicial Power rights then the courts can declare it as invalid and
Principles, then the
unconstitutional.
courts do not have the

54 | P a g e
 power to declare it as
invalid and
unconstitutional.

Directive Principles
are directions for the
Fundamental Rights are sometimes considered as a kind Government in
Nature of Imposition
of restrictions imposed on the State. helping it to achieve
some particular
objectives.

Directive Principles of
Fundamental rights can be suspended during a national
Suspension during State Policy can never
emergency. But, the rights guaranteed under Articles 20
Emergency be suspended under
and 21 cannot be suspended.
any circumstances.

Directive Principles of
State Policy were
borrowed from the
Fundamental Rights were borrowed from the
Origin and Source Constitution of
Constitution of the United States of America.
Ireland, which was in
turn copied from the
Constitution of Spain.

Case Laws on the Relationship

In the case of Golak Nath vs the State of Punjab (A.I.R. 1976 S.C.R. (2) 762), the Supreme
Court held that Fundamental Rights cannot be diluted, abridged, diminished or taken away. In
response, the Parliament introduced an Amendment Act and inserted Article 31(C) in Part III
of the Constitution. Article 31(C) states that if a law is framed in line with DPSP and violates
Articles 14, 19 and 21 (Fundamental Rights), the law should not be declared void on these
grounds alone.

55 | P a g e
In the case of Champak Dorairajan vs the State of Madras, the Supreme Court ruled that
DPSP cannot override the provisions of Part III of the Constitution, which includes
Fundamental Rights. DPSP must operate subsidiary to Fundamental Rights and should not
contradict them. This judgment was crucial, and in response, the Parliament amended various
fundamental rights conflicting with DPSP.

Conclusion

While Fundamental Rights confer individual rights and freedoms, DPSP provides a roadmap
for the state to ensure social and economic justice, promote the welfare of the people and create
a just society. The relationship between the two involves balancing and harmonising their
objectives to achieve a balanced constitutional framework.

Q6. Critically evaluate Social Economic and Cultural Rights as guaranteed under the
International Convention and Indian Constitution. [16] 2017

Introduction

 Human rights are divided into three generations according to international law scholarship.
The first generation is referred to as civil and political right, the second is the economic,
social, and cultural rights and the third is the right of people to self-determination and
minority rights.
 The second generation of rights that are social and economic rights are meant to address
the social and economic needs of individuals and they relate to equality.
 The doctrine of human rights aspires to provide a common framework for determining the
basic civil, economic, political, and social conditions required for all individuals to lead a
minimally good life. Economic, Social and Cultural rights are designed to ensure the
protection of people as full persons, based on a perspective in which people can enjoy
rights, freedoms and social justice simultaneously.

International Covenant on Economic, Social and Cultural Rights

Economic, social and cultural rights are fully recognized by the international community and
throughout international human rights law. Of course, under international human rights law
civil and political rights have, in many respects, received more attention, legal codification and
judicial interpretation, and have been instilled in public consciousness to a far greater degree,
than economic, social and cultural rights.

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The UN General Assembly adopted the ICESCR on 16 December 1966. It entered into force
on 3 January 1976. As on 11 October 2007, 157 States had ratified the ICESCR thereby
voluntarily undertaking to implement its norms and provisions. The International Covenant on
Economic, Social and Cultural rights (ICESCR) covers a wide spectrum of rights.

The ICESCR comprises of a preamble and thirty-one articles. Whole ICECSR is divided into
five parts. Part I recognizes the right of peoples to self determination; Part IIcovers the general
nature of States parties obligations; Part III touches upon the substantive rights; Part IV deals
with international implementation;· and Part V contains typical final provisions of a human
rights treaty. Following rights are identified as economic, social and cultural rights under the
International Covenant on Economic, Social and Cultural Rights under Articles 6 to 15:

Limitations on the Rights

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The covenant places certain limitations on the exercise of the rights recognized by it. Many of
these limitations flow from the very nature of the rights and the problems involved in their
implementation by states.

First, the covenant is based on the general awareness that full realization of the rights contained
in it would require a high level of economic development in state. Thus, the developing
countries are allowed to determine to what extent they would guarantee these rights, " with due
regard to human rights and their national economy" (Article 2 (1))

Second, states are permitted to impose limitations on the economic, social and cultural rights,
subject to two conditions: (1) that the limitations must be "compatible with the nature of these
rights", and (2) that they must be imposed "solely for the purpose of promoting the general
welfare in a democratic society" (Article 4). This does not mean that the state or any group or
person may engage in any activity in destruction of these rights (Article 5 (1))

Third, many of the rights, such as the right to adequate standard of living and the right to the
benefits of scientific and technological advance, depend on international co-operation for their
realization (Article 2(1), 11, 15and 22). Article 2( 1)) specifically stresses the importance of
international economic and technical co-operation for full realization of the rights recognized
under the covenant

Three Components of the Obligations

As part of the ongoing debate as to whether economic, social and cultural rights have the same
moral and legal status as other commonly recognized human rights, such as civil and political
rights, a three part typology of duties, applicable to all human rights, has been developed.

The Duty to Respect

The duty to respect the rights enumerated in the ICESCR refers to a State's negative obligation
to refrain from acting in ways that would deprive people of their rights or impair their
enjoyment of them, and is immediately applicable.

The Duty to Protect

The Committee has both expressly and impliedly established an obligation upon States parties
to protect the individual's interests against third party interference. The duty to protect requires
States to act to ensure that third parties do not violate' human rights. This duty requires States

58 | P a g e
to take positive measures, for example by adopting appropriate regulatory frameworks, which
restrain others from abusing human rights.

The Duty to Fulfil

The duty to fulfil economic, social and cultural rights obliges States to take positive action to
ensure that social and economic rights are realized or made accessible to everyone. This
obligation requires States to guarantee a specified result, which may involve ensuring an
immediate outcome or achieving a minimum standard directed at the progressive realization of
a right.

Economic, social and cultural rights under the indian constitution

The leaders of India's freedom struggle fully realized that in the new dispensation following
political freedom, the people should have the fullest opportunities for advancement in the social
and economic spheres and that State should make suitable provision for ensuring such progress.
For that the framers of the Indian Constitution borrowed the idea of enacting Directive
Principles of State policy (DPSP) from the Irish Constitution. The Preamble of the Indian
Constitution declares India a Sovereign, Socialist Secular Democratic Republic and sets out
main objectives of the Constitution to secure justice for all citizens, social, economic and
political.

Part III of the Indian Constitution enumerates the fundamental rights and Part IV sets out the
Directive Principles of State Policy. While the former guarantees fundamental rights to the
individuals, the latter gives direction to the State to provide economic and social rights to its
people in specified matters. Together, they constitute the conscience of the Constitution.

Articles 12 to 35 of the Indian Constitution deal with Fundamental Rights and Articles 36 to
51 contain the Directive Principles of State Policy. The justiciability of fundamental rights is
itself guaranteed under the Indian Constitution. In particular, by virtue of Articles 32 and 226
of the Constitution the responsibility for the enforcement of the fundamental rights lies with
the Supreme Court and the High Courts.

The Directive Principles of State Policy enunciated in Part IV of the Indian Constitution are
nothing but principles of Raj Dharma (duty of the State).These fundamental principles are
embodied in part IV of the Constitution from Article 37 to 51. The provisions in these articles
include areas of governance like securing and protecting a social order, mitigating inequality
among different groups of people, distribution of wealth, ensuring adequate means of

59 | P a g e
livelihood to individuals, ensuring the principle of equal pay for equal work, looking upon on
the health of workers, the freedom and dignity of children and the youth, providing free Legal
aid, concentrating on topics such as the right to education, right to public assistance in case of
disablement for old age, proper working conditions, proper relief provided in the period of
maternity, a proper living wage for the workers, uniform civil code for the citizens, promoting
education for the backward section of the society, ensuring the standard of living and improving
the public health, promoting international peace and security, protecting and improving the
environment and safeguarding the forest, protecting the monuments of national importance,
etc.

Article 37 of the Indian Constitution specifically echoes, as the principles laid down are
fundamental in the governance of the country. The word fundamental in part III of the Indian
Constitution is the word "rights" are legally enforceable, and the word fundamental in the
governance of the country in part IV of the Constitution, which are not legally enforceable.
Fundamental rights are backed by legal sanctions, Directive Principles of State Policy are left
to the sense of the duty to those charged with the governance of the country.

Soon after the commencement of the Indian Constitution the question was raised regarding the
Directive Principles of State Policy before the Court in State of .Madras v. Champakam
Dorairajan, (AIR 1951 SC 226), it was expressed that the Directive Principles of State Policy
have to conform and run subsidiary to the Chapter on fundamental rights. By this decision the
implementation of economic, social and cultural received setback. However, the Supreme
Court in MH Qureshi v. State of Bihar; (AIR 1958 SC 731) propounded the doctrine of . .
harmonious construction, and the doctrine of integrated scheme in 1.C. Golak Nath v. State of
Punjab (AIR 1967 SC 1943).

The Economic, Social and Cultural rights that the Directive Principles of State Policy
symbolize that demonstrably can be read as forming part of an enforceable regime of
fundamental rights. What then is crucial is the will of the state to implement this constitutional
mandate. The agenda of the state can be shaped to a considerable extent by a creative and
activist judiciary. The state has to be constantly reminded of its obligations and duties. The
actual realization ofESC rights may be a long-drawn affair, but keeping it on the agenda is
more than half that effort. The Indian judiciary has through a combination of strategies done
just that.

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Q7. Discuss Right to Religion with reference to the Universal Declaration of Human
Rights and Indian Constitution. [16] 2017

Introduction

The Right to Religion is a fundamental human right that safeguards an individual’s liberty to
believe, not believe, change belief, and to manifest religious convictions freely without
coercion or discrimination. It is rooted in the broader principles of freedom of thought and
conscience, forming a cornerstone of both international human rights law and constitutional
guarantees in democratic societies. At the international level, the Universal Declaration of
Human Rights (UDHR) recognizes this freedom as inherent to human dignity. In India, a
secular state with deep religious diversity, the Constitution enshrines the right to religion in
Articles 25–28 of Part III, making it enforceable in domestic courts.

Right to Religion under the Universal Declaration of Human Rights (UDHR)

The UDHR, adopted by the United Nations General Assembly on 10 December 1948, was a
response to the horrors of World War II, including large-scale religious persecution.

● Article 18 of the UDHR states:

“Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief in
teaching, practice, worship and observance.”
● Article 2 prohibits discrimination, including on grounds of religion.

● Article 26(2) on education calls for promoting tolerance among all religious groups.

The UDHR protects both internal freedom (forum internum – freedom to hold beliefs) and
external freedom (forum externum – freedom to express beliefs). It applies to theistic, non-
theistic, and atheistic beliefs, and safeguards the right to change one’s religion. While the
UDHR itself is not legally binding, it has influenced binding instruments such as the
International Covenant on Civil and Political Rights (ICCPR), which in Article 18(3)
allows restrictions only if they are necessary for public safety, order, health, morals, or the
fundamental rights of others.

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Right to Religion under the Indian Constitution

The framers of the Indian Constitution, mindful of India’s pluralism, placed religious freedom
in the list of Fundamental Rights. The Preamble guarantees “liberty of thought, expression,
belief, faith, and worship,” and Articles 25–28 operationalize this liberty.

● Article 25 – Freedom of conscience and the right to profess, practice, and propagate
religion, subject to public order, morality, health, and other fundamental rights. The
State may regulate secular activities and enact social reform laws.

● Article 26 – Freedom of religious denominations to manage religious affairs, establish

and maintain institutions, own property, and administer it according to law.

● Article 27 – Prohibits compelling any person to pay taxes for the promotion or
maintenance of any particular religion.
● Article 28 – Regulates religious instruction in educational institutions:
○ Prohibited in State-run institutions.
○ Permitted in institutions administered under trusts requiring such instruction,
but attendance is voluntary.

Comparative Table – UDHR vs Indian Constitution

Feature UDHR (Art. 18) Indian Constitution (Arts.

25–28)

Nature Non-binding international Enforceable domestic law

declaration

Freedom to change Explicitly stated Implicit; recognized by courts

religion

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 Religion vs. secular No explicit distinction Distinction via essential
aspects practices doctrine

Restrictions Public safety, order, health, morals, Public order, morality, health,
rights of others other FRs

Religious instruction Not specifically addressed Explicitly regulated (Art. 28)

Significance

● Upholds human dignity and autonomy.

● Promotes religious harmony in pluralistic societies
● Prevents state favoritism toward any religion
● Enables social reform within religious frameworks.

Challenges

● Defining “essential religious practices” (judicial subjectivity).

● Balancing religious freedom vs. public order.
● Preventing misuse of propagation rights.
● Political polarization impacting secularism.

Judicial Interpretation in India

Bijoe Emmanuel v. State of Kerala (1986) – Upheld the right of Jehovah’s Witness students
to not sing the national anthem on grounds of freedom of conscience.

Ismail Faruqui v. Union of India (1994) – Held that a mosque is not essential to Islamic
worship and that religious sites can be acquired by the State for public order.

S.R. Bommai v. Union of India (1994) – Declared secularism as part of the basic structure of
the Constitution, making it beyond the amending power of Parliament.

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Conclusion

The Right to Religion, whether in the universal language of the UDHR or the enforceable
framework of the Indian Constitution, is a vital safeguard of human dignity, autonomy, and
pluralism. In India, it embodies the secular character of the State and ensures that all faiths are
treated equally under the law. At the same time, it allows the State to intervene in secular
aspects of religion to ensure social reform and public order. Judicial interpretation has been
central in preserving the delicate balance between protecting spiritual freedom and maintaining
societal harmony. In an increasingly interconnected yet divided world, the effective protection
of this right is essential for sustaining democracy, peace, and respect for diversity.

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