Inclusion of Human Rights Jurisprudence

Under the Constitution of India through

Judicial Interpretation
I. Introduction to Human Rights and Constitutional
Framework
1.1 Meaning and Definition of Human Rights

Human rights are defined as fundamental rights inherent to all human beings, regardless of
nationality, sex, ethnicity, religion, language, or any other status. They represent the basic
standards necessary for living with dignity, encompassing a broad spectrum of rights that are
universal, inalienable, indivisible, and interdependent. The foundation for modern human
rights emerged after World War II, prominently established by the Universal Declaration of
Human Rights (UDHR) in 1948. Human rights can be categorized into several types:

• Civil and Political Rights

These include rights such as:

• Right to life
• Freedom from torture
• Freedom of expression and assembly
• Right to a fair trial
• Right to equality before the law

• Economic, Social, and Cultural Rights

These rights encompass:

• Right to education and health

• Right to an adequate standard of living
• Right to work and social security

• Collective Rights

These refer to the rights of groups, including:

• Right to development
• Right to a healthy environment
• Rights of minorities and indigenous peoples

1.2 Constitutional Foundation of Human Rights in India

The Constitution of India, enacted on 26th November 1949 and effective from 26th January
1950, is one of the most comprehensive constitutional texts worldwide. The framers of the
Constitution, influenced by the human rights movement, incorporated various provisions for
the protection of fundamental freedoms.

The constitutional framework for human rights protection in India is organized into three
main parts:

• Part III: Fundamental Rights (Articles 12-35)

These rights are justiciable and enforceable through courts. They include:

• Right to Equality (Articles 14-18)

• Right to Freedom (Articles 19-22)
• Right against Exploitation (Articles 23-24)
• Right to Freedom of Religion (Articles 25-28)
• Cultural and Educational Rights (Articles 29-30)
• Right to Constitutional Remedies (Articles 32-35)

• Part IV: Directive Principles of State Policy (Articles 36-51)

These non-justiciable guidelines are meant to direct the State's policies towards achieving
socio-economic justice and welfare.

• Part IVA: Fundamental Duties (Article 51A)

Incorporated by the 42nd Amendment in 1976, these duties assign specific responsibilities to
citizens, promoting accountability and participation.

1.3 The Dynamic Nature of Constitutional Interpretation

The Indian Constitution is a “living document” that evolves with changing social conditions
and emerging human rights standards. The Supreme Court has emphasized that constitutional
interpretation should adapt to contemporary realities, thereby allowing the incorporation of
international human rights jurisprudence into domestic law.

II. Sources of Human Rights Jurisprudence in Indian

Constitutional Law
2.1 International Human Rights Instruments

The influence of international human rights instruments is significant in shaping Indian

jurisprudence. Key instruments include:

• Universal Declaration of Human Rights (UDHR, 1948)

Although not legally binding, the UDHR's principles have been accepted as customary
international law and frequently referenced as interpretive aids by Indian courts.

• International Covenant on Civil and Political Rights (ICCPR, 1966)

Ratified by India in 1979, the ICCPR emphasizes rights such as life, prohibition of torture,
freedom of thought and expression, and the right to a fair trial.

• International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966)

Also ratified in 1979, this covenant recognizes rights to work, social security, adequate living
standards, health, and education.

• Convention on the Elimination of All Forms of Discrimination Against Women

(CEDAW, 1979)

Ratified in 1993, this convention is essential for advancing gender justice jurisprudence.

• Convention on the Rights of the Child (CRC, 1989)

Ratified in 1992, the CRC has significantly impacted child rights jurisprudence in India.

• Other Important Instruments

Other instruments such as the Convention Against Torture (CAT) and the International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD) further
contribute to the framework of human rights in India.

2.2 The Relationship Between International Law and Domestic Law

India adopts a dualist approach to international law, necessitating that international treaties
require legislative incorporation to have domestic effect. This process is governed by Article
253 of the Constitution, in conjunction with Entry 14 of List I (Union List) of the Seventh
Schedule.

Nonetheless, the judiciary employs creative techniques to realize international human rights
norms in domestic law. For instance:

• Article 51(c) directs the State to foster respect for international law and treaty
obligations, even though it is a non-justiciable directive principle. Courts reference
this article to support the incorporation of international standards.
• The Harmonious Construction Principle dictates that domestic laws should be
interpreted in alignment with international obligations unless a clear conflict arises.

III. Judicial Interpretation: The Primary Mechanism of

Inclusion
3.1 The Doctrine of Harmonious Construction with International Law

The Indian judiciary has intricately woven the principles of international human rights
standards into domestic law through judicial interpretations. The core principle holds that
where no inconsistency exists between domestic laws and international conventions, courts
are encouraged to utilize international instruments in interpreting fundamental rights.
Notable cases include:

• Kesavananda Bharati v. State of Kerala (1973): This case recognized that the
fundamental framework of the Constitution must align with universal principles of
justice and human dignity.
• Jolly George Varghese v. Bank of Cochin (1980): The court emphasized that Indian
courts should honor international law obligations.

3.2 Expansion of Article 21: The Right to Life and Personal Liberty

The most significant advancement in human rights jurisprudence is the expansive

interpretation of Article 21, which speaks to the right to life and personal liberty. Originally
seen as limited, the interpretation has substantially evolved.

• Maneka Gandhi v. Union of India (1978): This landmark case transformed judicial
interpretation, leading to:
o The requirement that the procedure established by law must be just and fair.
o The assertion that Article 21 integrates with Articles 14 and 19.
o Recognition that the right to life encompasses living with human dignity.

This broadened interpretation initiated the recognition of additional rights derived from
Article 21 based on international human rights standards.

3.3 Rights Derived from Article 21 Through Judicial Interpretation

Several critical rights have emerged through the interpretation of Article 21, including:

• Right to Live with Human Dignity

This was established in Francis Coralie Mullin v. Administrator, Union Territory of

Delhi (1981), where the court affirmed the right to live with dignity as integral to the right to
life.

• Right to Livelihood

In Olga Tellis v. Bombay Municipal Corporation (1985), the court held that the right to
life includes the right to livelihood, emphasizing that the lack of means of living violates this
right.

• Right to Health

The case Paschim Banga Khet Mazdoor Samity v. State of West Bengal (1996) affirmed
that the right to health is an essential component of the right to life, obliging the State to
provide adequate health facilities.

• Right to Education

The right to education was recognized as fundamental in Mohini Jain v. State of Karnataka
(1992) and further cemented in Unni Krishnan v. State of Andhra Pradesh (1993), leading
to the constitutionalization of Article 21A.
• Right to Clean Environment

M.C. Mehta v. Union of India (1987) established that the right to a healthy environment is
part of Article 21, influenced heavily by international environmental principles.

• Right to Privacy

The landmark ruling in K.S. Puttaswamy v. Union of India (2017) declared that the right to
privacy is a fundamental right embedded in Article 21.

• Right Against Torture

In D.K. Basu v. State of West Bengal (1997), the court instituted guidelines to prevent
custodial violence, referencing international standards.

• Right to Speedy Trial

*Hussainara Khatoon v. Home Secretary, State of Bihar (1979) affirmed that the right to
a speedy trial is integral to Article 21.

• Right to Legal Aid

Cases like M.H. Hoskot v. State of Maharashtra (1978) assert that providing free legal
services is essential for a fair trial.

IV. Landmark Cases Incorporating International Human

Rights Jurisprudence
4.1 Vishaka v. State of Rajasthan (1997)

This case is a landmark example of the judiciary incorporating international human rights
norms into Indian law through a Public Interest Litigation concerning sexual harassment at
the workplace. The court:

• Acknowledged the lack of domestic legislation on the issue.

• Invoked multiple articles of the Constitution and leaned heavily on international
conventions including CEDAW.
• Formulated the Vishaka Guidelines, filling the legislative gap.

Key Observations from the court emphasized the importance of international conventions in
ensuring gender equality and human dignity.

4.2 PUCL v. Union of India (1997) — Right to Privacy in Telephonic

Conversations

This case addressed whether telephone tapping violated fundamental rights to privacy. The
court ruled that the right to privacy is encompassed within Article 21, requiring strict
procedural safeguards.
4.3 Apparel Export Promotion Council v. A.K. Chopra (1999)

The Supreme Court reinforced the Vishaka principles, underscoring that courts must consider
international conventions when interpreting domestic laws, filling voids in legislation where
necessary.

4.4 People's Union for Civil Liberties v. Union of India (2003) — Right to
Food

The Supreme Court recognized the right to food as part of Article 21, linking it to
international standards and guiding the government on critical food security measures.

4.5 Naz Foundation v. Government of NCT of Delhi (2009) and Navtej Singh
Johar v. Union of India (2018)

These landmark cases concerned the decriminalization of homosexual acts, with the Supreme
Court utilizing international jurisprudence to dismantle Section 377 of the Indian Penal Code.

4.6 National Legal Services Authority v. Union of India (2014) — Transgender

Rights

The Court recognized transgender individuals as a distinct gender, affirming their

fundamental rights and drawing from international norms to shape its interpretation.

4.7 K.S. Puttaswamy v. Union of India (2017) — Right to Privacy

Extensively referencing international law, this ruling reaffirmed that privacy is a basic human
right protected under multiple articles of the Constitution.

V. Directive Principles and International Human Rights

5.1 Nature and Scope of Directive Principles

Part IV of the Constitution outlines the Directive Principles of State Policy (DPSPs), which
embody socio-economic rights crucial for governance. While non-justiciable, they guide the
State in legislative actions to ensure welfare and justice.

5.2 Judicial Approach to Directive Principles

Historically, the judiciary maintained a hierarchy favoring Fundamental Rights over DPSPs.
However, since the 1970s, efforts have been made to harmonize these provisions, leading to
the integration of certain DPSPs as fundamental rights through judicial interpretation.

5.3 Elevation of Directive Principles to Fundamental Rights

Several key rights emerged from Directive Principles:

 • The Right to Education, initially a DPSP, was elevated to a fundamental right via
judicial pronouncements culminating in the 86th Amendment.
• The Right to Health has been recognized through Article 47, linking it to Article 21.
• The Right to a Clean Environment stems from Article 48A, incorporated into
Article 21 through judicial interpretation.

VI. Protection of Specific Rights Through Judicial

Interpretation
6.1 Rights of Women

The judiciary has drawn heavily from CEDAW to protect women's rights:

• Establishment of the Vishaka guidelines bridged the gap in law on sexual

harassment, later codified in the sexual harassment law.
• Recognition of the right to live free from domestic violence has strengthened legal
protections for women.

6.2 Rights of Children

The Convention on the Rights of the Child has extensively influenced legal norms for
children in India:

• Juvenile Justice legislation aligns with CRC principles ensuring children's rights are
respected.
• The rights against child labor and for education have strengthened judicial precedents,
leading to protections under various legislative acts.

6.3 Rights of Prisoners

Indian courts affirm that prisoners retain fundamental rights:

• Protection against torture and the right to speed and humane treatment are now
enforced through judicial mechanisms.

6.4 Rights of Refugees

Despite the absence of formal treaty commitments, Indian courts have extended essential
rights to refugees through Article 21, ensuring protection against refoulement.

6.5 Rights of Persons with Disabilities

The Rights of Persons with Disabilities Act, 2016 reflects judicial interpretations
acknowledging the need for reasonable accommodations in various spheres.

VII. Judicial Activism and Public Interest Litigation

7.1 The Evolution of Public Interest Litigation in India
Public Interest Litigation (PIL) arose in India as a means for the courts to enforce human
rights for marginalized groups. The relaxation of legal standing (locus standi) has facilitated
broader access to justice.

7.2 Judicial Activism in Human Rights Protection

Indian courts have been proactive in interpreting laws to enhance human rights protections.
Some key aspects include:

• Guideline creation in absence of legislation.

• Institutional reforms through comprehensive judicial orders.

7.3 Criticisms and Limitations

Despite its successes, judicial activism often invites scrutiny:

• Concerns regarding overreach into legislative domains.

• Questions about judicial capacity to effectively oversee and monitor complex policy
implementations.

VIII. The Human Rights Protection Framework

8.1 National Human Rights Commission

Established under the Protection of Human Rights Act, 1993, the NHRC's primary
functions include:

• Investigation of human rights complaints.

• Ensuring compliance with international norms and advocating for rights awareness.

8.2 State Human Rights Commissions

Each Indian state is empowered to establish its own Human Rights Commission, addressing
state-specific human rights violations.

8.3 Specialized Commissions

Various specialized commissions have been established to address the needs and rights of
specific vulnerable groups, ensuring comprehensive protection mechanisms.

IX. Contemporary Developments and Challenges

9.1 Emerging Areas of Human Rights Jurisprudence

Significant modern areas of concern include:

• Digital Rights: Recognizing access to the internet as part of the right to life.
 • Climate Justice: Integration of environmental rights into the fundamental rights
framework.

9.2 Challenges in Implementation

Despite robust protections, challenges remain:

• Implementation Gaps: Adherence to judicial directives often lags.

• Access to Justice: Many marginalized voices persist in their struggle to access justice
effectively.

9.3 The Way Forward

To further protect human rights, strategic advancements include:

• Developing inclusive legal frameworks for incorporating international human rights

law.

X. Conclusion
The journey of human rights jurisprudence in India—from the narrow interpretations of
Article 21 to a robust framework accommodating innumerous rights—illustrates the
judiciary's transformative role in recognizing and protecting individual freedoms. While
significant achievements mark the landscape, persistent challenges must be addressed to
fulfill the constitutional promise of justice for all.

Important Terms to Remember

• Dualist Approach: International law requires incorporation into domestic

jurisprudence.
• Justiciable Rights: Rights enforceable through the courts.
• Locus Standi: The legal standing to initiate judicial proceedings.

Suggested Readings

• Constitution of India (Parts III, IV, and IVA)

• Protection of Human Rights Act, 1993
• Key judgments: Maneka Gandhi, Vishaka, NALSA, Puttaswamy