Notes on Human Rights

BL-4005
[Link].B-4th Semester

UNIT-1

General Notion of Human Rights

Human Rights have become an established reality since the establishment of

the United Nations in 1945 which has, as its central concern, reaffirmed its faith
in fundamental human rights, in the dignity and worth of the human person, in
the equal rights of men and women and of nations large and small. The
expression “human rights” denotes all those rights which are inherent in our
nature and without which we cannot live as human beings. In other words,
human rights being eternal part of the nature of human beings are essential for
individuals to develop their personality, their human qualities, their intelligence,
talent and conscience and to enable them to satisfy their spiritual and other
higher needs. These are inalienable rights which belong equally to all members
of the human family and as such should be protected by rule of law if a man is
not to be compelled to have recourse, as a last resort, to be rebellion against
tyranny and oppression.

Human Rights , as such are incorporated in various International Human

rights Instruments, such as the International Covenant on Civil and Political
Rights, and the International Covenant on Economic , Social and Cultural
rights; regional human rights treaties such as the European Convention on
Human rights and Fundamental Freedoms, the American Convention on Human
Rights, The African Charter on Human rights, the Arab Commission on Human
Rights, subsidiary instruments , such as the Helsinki Final Act; and National
Constitutions, legislation and even judicial pronouncements. The range of
human rights, as contained in these instruments, treaties and national legislation
is very wide and covers variety of rights including traditional civil and political
rights on one hand and newly developed economic, social and cultural rights on
the other.

The purposes of securing human rights as such are to provide protection to

these rights against the abuse of power committed by the organs of State; to
establish institutions for the promotion by the organs of State; to establish
institutions for the promotion of living condition of human beings and for the
development of their personality; and at the same time, to provide effective
remedial measures for obtaining redress in the event these rights are violated.
Karel Vasak has aptly remarked that the “human rights which are essentially
individual in character for they are meant to be enjoyed by individual constitute
a social phenomenon by virtue of those for whom they are intended”.

Meaning of Human Rights

Human Rights are generally defined as those rights which are inherent in
individuals nature and without which one can’t leave as human being .Human
being possess by virtue of their being human , certain basic inalienable rights
which are called Human Rights .Since these rights belong to them because of
their very existence, they become operative with their birth. Human Rights
being the birth rights are therefore inherent in all the individuals irrespective of
their caste, creed, religion, sex and nationality. Human rights are not rights
which derive from a particular station; they are rights which belong to a man
simply because he is man. Human Rights are those minimal rights that
individual need to have against the state or other public authority by virtue of
their being members of the Human family irrespective of any other
consideration. Justice J.S Verma has rightly stated ‘human dignity’ is the
quintessence of human rights’. All those rights which are essential for the
protection and maintenance of dignity of individuals and create conditions in
which every human being can develop his personality to the fullest extent may
be termed as Human Rights.
Human Rights being essential for all-round development of the personality of
the individuals in the society, be necessary protected and be made available to
all the individuals. They must be preserved, cherished and defended if peace
and prosperity are to be achieved. Human rights are the very essence of a
meaningful life, and to maintain human dignity is the ultimate purpose of
government. The need for the protection has arisen because of inevitable
increase in the control over men’s action by the governments which by no
means can be regarded as desirable. There are several States where fundamental
standards of human behavior are not observed. The consciousness on the part of
the human beings as to their rights has also necessitated the protection by the
States. It has been realized that the functions of all the laws whether they are the
rules of municipal law or that of international law should be to protect them in
the interest of the humanity.

Origin and Development of Concept of Human Rights

The concept of Human Rights is founded on the ancient doctrine of natural
rights based on natural law. Traditionally the concept of natural law was
founded on concept of a higher law binding human authorities and asserted that
there were certain rights anterior to society. These were superior to rights
created by human authorities and were universally applicable to people of all
ages in all religion, and are believed to have existed prior to the developmental
of political societies. Thus it can be said that the concept of Human Rights has
cultural moral religious and social dimensions and a theoretical background that
goes back at least as for ancient Indian and Greek Philosophy up to
Contemporary Human Rights regime.
Genesis of Human Rights in India
Ancient India
In Ancient Hindu Philosophy the Concept of Human Rights was used in the
sense of ‘Just Claim’ which was expressed through the word ‘Adhikara’. The
concept of Adhikara was used in the sense that the person has come to possess
something value or status. The same word Adhikara is used today to mean what
we called right. I Hindu philosophy the concept of Human Rights can be
understood through the concept of Dharma which is an adhesive and cementing
catalytic agent which holds mankind individually and socially intact.
Radhakrishnan (in his book Indian Philosophy) opines that Dharma is the stable
condition, capable of giving perfect satisfaction to man and helping him in the
attainment of happiness and salvation. Its end according to him is the welfare of
all creation.
In Hindu Philosophy the concept of Dharma is based on four Pillars of
Satya(truthfulness), Ahinsa(Non-Violence), Bramcharya and Dama(Control
over the sense organs).In Mahabharata it is said that “Ahimsa Paramo Dharma
Svarpranmurta Var Na Murtanamhinsayajyayan Dharmnasit Kasun” .It means
that it is the duty of every person to practice love which consists of not hurting
others by thought word or act. In this way Hindu Philosophy tried to regulate
the external and internal behavior of people to protect the right of every person
which is now called as basic right. Further in Indian Philosophy the right of
people is recognized by imposing duty on king. Mahabharata lays down the
duty of king as follow:-
Praja Palana, to protect and maintain his people and to see that all sorts of
their requirements are fulfilled.
Praja Rangana, to please his subject and keep them contended. Their
educational, academic and cultural developments are also included in Praja
Ranjana.
Praja Raksana which consist in protection of the people from chaos
external invasions and internal damages.
Act as a Judge (A king should maintain justice and impartially inflict
punishment upon the culprit in accordance with the gravity of their crime.)
These provisions clearly indicate that in Hindu philosophy the Human Rights
were recognized through the concept of Adhikara and Dharma of every member
of society. Rigveda gave the principle of “ Sarva Dharma Sambhav” by which
an extremely ideal was placed before the king. On this principle Kautilya, the
author of ‘Arthshastra’ elaborated civil and legal rights in his treatise.
Arthshastra not only affirmed and elaborated the civil and legal rights first
formulated by Manu but also added a number of economic rights. He
specifically ordained that “the king shall provide the orphan, the dying, the
infirm, the affected and the helpless with maintenance, he shall also provide
subsistence to mothers as well as the children whom they gave birth to.

Medieval India
The Muslim concept of the administration of justice is based on the tenets and
injunctions of Holy Quran. The Quran may, thus be described as the supreme
legislative Code of islam which laid down basic rules of justice .its origin dates
back to the character and personality of the great Arabian Prophet , Mohammad.
Prophet is said to be not only the founder of the Islamic religion but also
executive, legislative and judicial head of Islam on all the points wherever the
Quran is silent. Under the Islamic Jurisprudence justice is regarded as a part and
parcel of the Divine nature.
The Mughal rulers especially with Akbar, a new era began in Mughal history of
India in the field of human rights, with his policy of universal reconciliation and
tolerance. Akbar went to the extent of saying that if he was guilty of an unjust
act; he would rise in judgment against himself. Jahangir also has raised the
developments of human rights during his tenure as Emperor. He arranged a
Chain with bells to be hung outside the palace in order to enable petitioners to
approach him for the redressal of their grievances.
It is a historical truth that Aurangzeb was the most cruel, fanatic and despotic.
He made earnest efforts to convert Kashmiri pundits to Islam with the use of his
governmental machinery. The ninth Sikh Guru Tez bahadur had to sacrifice his
life in 1675 AD. Guru Gobind Singh had to sacrifice his four sons in fighting
against injustice, repression and protecting human rights to save Hindus from
conversion .With reference to Islamic period Kanan Grahrana , pit it that ; the
concept of human rights got lost on its way in the dark and narrow alleys of the
Middle ages”. The sheer indifference to human rights ultimately gave rise to
Bhakti Movement in India. Bhakti Movement reviewed the old values of
righteousness, truthfulness, liberty, dignity and morality in the society. The
saints like Shankara, Ramanuja, Madhava, Tulsidas, Kabir and Guru Nanak Dev
Ji reiterated and preached Dharma and human values in the country .Guru
Nanak denounced slavery and stood for its abolition. To him, practice of slavery
in any form was inhuman and against the will of the Supreme Lord. He stood
for equality beings. To him, equality means universal equality transcending
considerations of colour, sex, caste and creed.

Modern India
When we come to the sixteenth and seventeenth centuries, we find a rising
middle class of bourgeoisie flanked by lawyers, Physicians, artists, teachers and
men of letters. These were the people who were highly intelligent, energetic,
competent and educated. Yet, they were oppressed by the ruling feudal class
.Being aware of their plight, these were the people who were most dissatisfied
with the system and resented it most. The Common Law of England with its
statutory modifications and the principles of courts of equity commenced its
application in the 17th century to British subjects in small areas of certain parts
known as company’s factory. These factory establishments thus became the
nurseries of the English law in India which in course of time brought about
tremendous influence over the laws and the system of administration of justice
in the whole of this sub-continent. The influence of the English law has largely
been because of the fall of Muslim rule which made, the massive structure of
Indian law and jurisprudence resemble the height, the symmetry and the
grandeur of the common and statute law of England. The status of Human
Rights in Indian Context will be examined in two phase that is (A) pre-
Independence India and (B) Post-Independence India.

Human Rights in Pre-Independence India- There was no fundamental law

guaranteeing the subjects rights and liberties and they were humiliated and
discriminated against in many ways, in their own country .British resorted to
arbitrary acts such as brutal assaults on unarmed satyragrahis, internments,
deportations etc. The freedom movement and the harsh repressive measures of
the British rulers encouraged the fight for civil liberties and the demand for
constitutional guarantees of some fundamental rights. The avowed objective of
several national organizations including that of the Indian national Congress in
the beginning was only to secure some civil liberties and human rights of non-
discrimination on grounds of race, colour, etc in the matter of access to public
place, offices and services. So National Struggle for freedom, from its earliest
stages, in its practical manifestation was largely directed against racial
discriminations and to securing basic human rights for all the people.
The wave of reformist thought in the nineteenth century by Raja Ram Mohan
Roy, followed by Vidhya Sagar and Dayaanand Saraswati led the legislative,
social and educational changes. It must be mentioned and emphasized that most
of the disabilities regarding pardah, seclusion and remarriage were confined to
the upper classes and caste and to those living in urban areas. ‘Sati’ was
prevalent in those days and Raja Mohan Roy had given a petition to stop ‘Sati
in India to Lord William Bentinck and consequently a regulation declaring
‘Sati’ illegal was issued by the Government in 1829 .This effort was certainly
for emancipation and dignity of women.
The second half of the 19th century may be described as statutory period in
which many enactments and legislations were made for the protection of the
rights of the accused person from the arbitrary and discretion of the judge and
prosecutor to prosecute the accused person and gave them a fair chance of trial
to prove his/her guilt for the alleged offence charged over them. The Indian
Evidence Act, 1872 and Code of Criminal procedure,1898 laid down number of
procedural rights and privileges for the accused person which were the
reflection of English jurisprudence. The salient among them are as under:
The right of being presumed innocent throughout the trial (S102 and 105,
Indian Evidence Act, 1872);
The right to defend himself(S 251A, 256,257, Cr.PC1898);
The right of being produced before a magistrate(S 60, 61 [Link], 1898);
The right to know the grounds (S.173 (4) and 251A (i) Cr. PC., 1898);
Right to counsel(S 340(i), Cr. PC., 1898);
Right of trial in open court (S. 352, Cr. PC., 1898)
Right of trial in presence of accused(S, 353., Cr. PC., 1898);
Right to cross examine the witnesses(S 137, 138,143,145 and 154; Indian
Evidence Act, 1872)’
Right against Double Jeopardy (S. 403, Cr. PC., 1898);
Right to appeal (S. 371(3). Cr. PC. 1898).
Right to issue writ of habeas corpus for production of the person detained
in public or private custody before High Court.
The High Court could issue the direction. “That a person illegally or improperly
detained in public or private custody within such limits be set at liberty”.
(S.491, Cr. PC., 1898). This was important right in criminal jurisprudence.
The Constitution of India bill, 1895 prepared by Indian National
Congress, also known as ‘Home Rule Document’ talked about a Constitution
guaranteeing everyone of the citizens basic Human Rights like freedom of
expression , inviolability of one’s own home , right to property , equality before
law etc. Art 15 of this Bill, inter-alia contained the right of free speech and
expression. The Bill also had provisions guaranteeing Free State education and
compulsory primary education. These demands were not fulfilled by the British
Government but it was certainly a sound step taken by Indian National
Congress.
The idea of Fundamental or human rights was cherished long ago in India.
Congress party passed a resolution in 1927 to draft Constitution of India under
the Chairmanship of Moti Lal Nehru who submitted his report on 10 th August,
1928 which is popularly known as “Nehru Report”. The Report emphasized that
“our first case should be to have fundamental rights guaranteed in a manner
which will not permit their withdrawal under any circumstances.
Personal Liberty, inviolability of dwelling place andf property.
Freedom of conscience and of profession and practice of religion subject
to public order and morality.
Right of free expression of opinion and to assemble peaceably and
without arms and to form association and union subject to public order
and morality.
Right to free elementary education and in the matter of admission into
any educational institution maintained and aided by the State without
distinction of caste or creed.
Equality for all citizens before the law and in civil rights.
Right to every citizen to the writ of habeas corpus.
Protection in respect of punishment under ex post facto law.
Equality of Rights to men and women as citizens.
Right to keep and bear arms in accordance with Regulations.
Freedom of combination and association for the maintenance and
implementation of labour and economic conditions.
Human Rights in Post –Independence India
India got independence on 15th August, 1947. The Constituent Assembly
accomplished the herculean task of drafting the Constitution which was enacted
and adopted by the people of India on 26th January,[Link] genesis of vision,
need, recognition, protection and enforcement of human rights lies in the
freedom struggle of Indians for more than a century which culminated in the
form of Fundamental Rights and Directive Principles of State Policy on which
the mammoth structure of Indian Republic stands today. After witnessing “ the
colonial rule, every Indian was of the firm opinion that these rights are not only
basic but also inalienable for them for leading a civilized life. In fact, Indians
wanted the same rights and privileges that their British Masters were enjoying
in India. The Constituent Assembly incorporated in the Constitution of India the
substance of most of the rights proclaimed and adopted by the General
Assembly in the UDHR. Dr. S. Radha Krishnan has rightly described these
rights as pledge to our people and a pact with the civilized world. The UDHR
was proclaimed on 10th December, 1948 in where inherent dignity and equal
and inalienable rights of all members of human family were recognized as the
foundation of freedom, justice, and peace in the world. The Constitution came
to force on 26th January, 1950 and the dawn of the day brought a Sovereign,
Socialist, Secular and Democratic Republic with concepts of Justice, Liberty,
Equality, Dignity and Fraternity. Our Constitution is a unique document .it is
not a mere pedantic legal text, but it embodies certain human values, cherished
principles and spiritual norms and recognizes and upholds the dignity of man. It
accepts the individual as the focal point of all development and regards his
material, moral and spiritual development as the chief concern of its various
provisions. It does not treat the individual as a cog in the mighty, all powerful
machine of the State, but places him at the centre of the constitutional scheme
and focuses on the fullest development of his personality. Human Rights are not
the alien concern of distant lands and distant civilizations that have been thrust
upon us. The assertion of such rights and the determination to give
constitutional form to them were central to the National Movement for the
independence of our country. Human Rights have been incorporated in Indian
Constitution in the guise of Fundamental rights and Directive principles of State
policy.

Part III of the Constitution includes the following Fundamental Rights:

Right to Equality(Arts14-18)
Right to Freedom(Art19-22)
Right against Exploitation(Art23 and 24)
Right to Freedom of Religion(Art 25-28)
Cultural and Educational Rights(Art 29 and 30)
Right to Constitutional Remedies (Art 32).

Part IV of Constitution Includes

39A. Equal justice and free legal aid.
40. Organization of village panchayats.
41. Right to work, to education and to public assistance in certain
cases.
42. Provision for just and humane conditions of work and
maternity relief.
43. Living wage, etc., for workers.
43A. Participation of workers in management of industries.
44. Uniform civil code for the citizens.
45. Provision for early childhood care and education to children
below the age of six years.
46. Promotion of educational and economic interests of Scheduled
Castes, Scheduled Tribes and other weaker sections.
 47. Duty of the State to raise the level of nutrition and the standard
of living and to improve public health.

Other Constitutional Rights include

Special Leave Petition in Supreme Court against judgment of any court
(136)
Right to Constitutional remedies for enforcement of Fundamental Rights
and other legal rights (226)
Right to sue the government for violation of fundamental and other legal
right (300).
Persons not to be deprived of property save by authority of law (300A).

The preamble, Fundamental Rights and Directive principle of State Policy

enshrine human rights for the people of India, Life, Liberty, Equality and
Dignity are four pillars of human rights jurisprudence on which edifice of
Indian Republic rests.

Origin of Human Rights in Western Tradition

Hammurabi’s Codes
The roots for the protection of the rights of man may be traced as far as back as
in the Babylonian laws .Babylonian King Hammurabi had issued a set of laws
to his people which is called Hammurabi’s Codes, established fair wages,
offered protection of property and required charges to be proved at trial. The
codes, while often harsh in their punishments provided standards by which
Babylonians could order their lives and treat one another. Assyrians laws, Hittiti
Laws also devised set of standards by which obligations of one was provided to
another. Jurisprudence of Lao-Tze and Confucius in China also protected
human rights. Thus, the world all major religions have a humanist perspective
that supports human rights despite the differences in the contents.
Greek Philosophy
The fact that the human rights were recognized as natural rights of man is
illustrated by a Greek Play Antigone. In this play, Sophocles describes that
Antigone’s brother, while he was rebelling against the king , was killed and his
burial was prohibited by the King Creon. In defiance of the order Antigone
buried her brother. When she was arrested for violating the order she pleaded
that she had acted in accordance with the “immutable, unwritten laws of
heaven” which even the king could not override. In Greek Philosophy the
concept of Human Rights can be found through the concept of virtue as justice.
They talked about virtue as justice and social control of man through this
conception virtue and justice. In essence they differentiate justice as virtue, the
character of a just man from which the concept of right or justice come.
Therefore according to this philosophy every person is entitled to the right of
virtuous conduct on the part of other. In fact, it was more dominated to duty
rather than right. For Greek Philosophy virtue was justice in the sense of inner
harmony and balance. Aristotle said that Justice is all virtue found in sum and
justice is perfect virtue because it is the practice of perfect virtue and perfect in
a special degree, because its possessor can practice his virtue towards other and
merely by himself. Thus by this way Aristotle recognizes the right of man in
society based on virtue. Aristotle mentor Plato had talk about a universal
standard of ethical conduct.

Roman Philosophy
The stoic philosophers formulated the theory of natural law after the breakdown
of Greek City States. The central notion of the stoics Philosophy was that the
Principle of natural law was universal in nature. Their application was not
limited to any class of persons of certain states. Rather, it applied to everybody
everywhere in the world. The natural rights of man being its embodiment were
not the particular privileges of citizens of certain state but something to which
every person being everywhere was entitled by virtue of the simple fact of being
human and rational. They set forth further that men could comprehend and obey
this law of nature because of their common possession of reason and capacity to
develop and attain virtue. In this way the stoic philosophers put forward their
idea of universal brotherhood of mankind and laid stress upon equality and
freedom for all. Roman jurist also expressed the same thought. Cicero also laid
emphasis upon universal nature of rules of natural law and described true law is
right reason in agreement with nature which is of universal application,
unchanging and everlasting. In the Greek Philosophy , the distinction between
right and law had been recognized, but right had been regarded as in source and
content antecedent to and largely independent of law. In the term right they
embodied, the two distinct concepts, first that of abstract goodness or
righteousness and second, that of an aggregate of privileges, a sense best
expressed in English by the collective Plural rights. While Greek Philosophy
had busied itself chiefly with abstract goodness or righteousness, the tendency
among Romans was towards individual and group interest simultaneously. It
can be said that Roman Philosophy of natural law has in fact in substantive
sense recognize every human being as endowed with reason and thus equal
before law. Therefore to protect every individual and natural right made the
natural law as touchstone of all manmade law.

Middle Ages:
During middle ages, the scholastic Philosophers like Aberald, Ambrose,
Augustine, Aquinas although laid down stress upon the concept of natural law
as the higher principle of law. But they did not go in quest of making the human
personality as the main concern of law and social life. Much attention was
focused on the development of power of divine, power of church and state.
Therefore it is said that middle ages were not conducive for the promotion of
the idea of human rights or their observance. The main characteristic of Middle
Ages Philosophy was that they look on the right of man for the God. For them
the God was the main concern and against whom Individual had no personality.

Modern Secular Natural Law and Human Rights: - Modern secular natural
law philosophy given by Grotius, Thomas Hobbes, John Locke and Jean
Jacques Rousseau detached natural law from religion laying down the
groundwork for the secular rationalistic version of modern natural law. It
developed on ideal system of percepts of universal validity and applicability
demonstrated by reason. Therefore they defined natural rights as moral quality
of man by virtue of which they ought in ideal law to have certain things or be
able to the certain things. This theory was an outgrowth of Protestantian and led
to Political development by the Puritans in seventeenth century. In England this
philosophy was for formulated by Locke led to Political dogma in American
Declaration of Independence and the French Declaration of the Rights of man.
According to Natural Rights, rights are that interest which in reason ought to be
recognized and secured. They are ideal claims or interests which are to be
treated as binding beyond the reach of any law-making.

Thomas Hobbes (1558-1679), in his theory of social contract recognized the

right to life, liberty, peace and cooperation in society through individual
cooperation He gave primacy to individual right in indirect way. He said that
originally man in law of nature was leaving in state of war where might was
right. Therefore in order to create peace and protect one from other every
member of society made a contract among themselves by which they entrusted
to a sovereign all their power to protect themselves. It is generally said that in
Hobbes Social Contract theory sovereign has full power and subject has no right
against him therefore he does not talk about individual right. But when we
interpret his social contract theory he seems to be individual right supporter
also. He by describing the purpose of society says that since all human behavior
is motivated by individual self-interest, society must be regarded merely as a
means to an end. He says that power of the State and the authority of the law are
justified only because they contribute to the security of individual Human
beings and there is no rational ground of obedience and respect for authority
except the anticipation that these will yield a larger individual advantage than
their opposites. Society is merely an ‘artificial’ body a collective term for the
fact that human beings find it individually advantageous to exchange goods and
services. It is thus clear cut individualism which means Hobbes philosophy the
most revolutionary theory of the age. According to him the advantage of
governments are tangible and they must accrue quite tangibly to individuals in
the form of peace and comfort and security of person and property. This is the
only ground upon which government can be justified or even exist. A general or
public good, like a public will is a figment of the imagination; there are merely
individuals who desire to live and to enjoy protection for the means of life. The
absolute power of the sovereign, a theory with which Hobbes name is more
generally associated is really the necessary compliment of his individualism.

John Locke (1632-1704), developed natural law theory into natural right theory
based on the superiority of individual right over the state. He said that natural
law could be understood as protective of the subjective interest and rights of
individual persons. He also put forth the social contract theory which was
closely linked with the theory of natural law because the basis for which the
natural law theories were formulated was the same for the social contract
doctrine also. He argued that man by nature endowed with enough freedom to
become a man in conformity with law. He held that state of nature is one of
peace, goodwill, mutual assistance and preservation and on this ground law of
nature provides a complete equipment of human rights and duties. But the
defect of the state of nature was in the fact that it has no organization to give
effect to the rules of right. Therefore to protect these natural rights state is
created through social contract. Locke also set up the proposition that moral
rights and duties are intrinsic, that morality makes law and not law makes
morality, and the government has to give effect to what is naturally right prior
to its enactment. He says that law in shape of reason obliges every man to
preserve his life and limits his liberty and possession and to be active in
rendering some service to others. For every man his original liberty has
meaning only by reference to this law. It is in this connection between man’s
liberty and law, between liberty and obligation that the idea of natural right
emerges. The natural right of man is then a right of freedom, freedom of will
and liberty of acting according to law of nature, freedom from all constraints
and all violence. He said that such claim of individual rights can never be set
aside, since society itself exists to protect them, they can be regulated only to
the extent, that is necessary to give them effective protection. In other words the
life, liberty and estate of one person can be limited only to make effective the
equally valid claims of another person to the same rights .In this way Locke
gave primacy to individual rights over state.

Jean Jacques Rousseau (1719-1778), he also supported the individual right but
in conformity with the general will of society. He says that in society, man can
only makes a claim; he can assert that he is entitled to make that claim. He can
say not only that he does not want to be killed or injured but that he ought not to
be killed or injured, on the ground that society as such must entail an
understanding that peaceable man will be left in peace and that everyone is
entitled not to be injured so long as he does not injure any one else. To protect
these rights Rousseau creates a social order based on general will to which he
regards a sovereign. He says that this social order is a sacred right which is the
basis of all other rights. In this social order each individual puts his person and
all his power in common under the supreme direction of the general will and
receive each member as an individual part of the whole. He says that the right
which each individual has is always subordinate to the right which the
community has over all. In this Rousseau’s conception of Human Rights was
based on the protection of rights in the interest of whole society.

Grotius also supported individual rights but his main concern was society. He
said that man is, to be sure, an animal but an animal of a superior kind, much
further removed from all other animals than the difference kind of animals are
from one another. But among the traits characteristics, of man is an impelling
desire for society, that is, for the social life- not of any and every sort but
peaceful and organized according to the measure of his intelligence, with those
who are of his own kind. For Grotius the preservation of a peaceful order is
itself an intrinsic good, and binding as those which serve more strictly private
ends. He says that there are certain minimal conditions or values which must be
realized, among them the main are, the security of property, good faith, fair
dealings and a general agreement between the consequences of men’s conduct
and their desire. Thus it can be said that Grotius supported the rights of
individual as a member of society in protection of which society has also its
own interest.

Kant and Human Rights in Individual Freedom:- Kant’s metaphysical

theory of right also regarded individual freedom as superior. Kant had a strong
belief in the inherent dignity of the human personality and he said that no man
had the right to use another person merely as a means to attain his own
subjective purposes; each human individual is always to be treated as end in
itself. Kant said that knowledge is product of mind dictated by will and by this
conception he replaced moral equality by the will. According to him the task of
law is to assure the maximum of free individual self-assertion to the extent
compatible with free exercise of those assertions by all other .For Kant, the
concept of freedom is central in his moral and legal philosophy .He makes a
distinction between ethical and juridical freedom. Ethical or juridical freedom
meant to him the autonomy and self- determination of the human will, one is
morally free in so for as he is capable of obeying a moral law which is engraved
in the hearts of all. Juridical freedom on the other hand, he defines as
independence of an individual from the arbitrary will and control of another.
This freedom he considered as the only original and inborn right belonging to
man by virtue of his humanness. Although Kant supported for maximum
individual freedom but he limits it though the concept of categorical imperative
when he says that you maxim of action should be such as to be maximum of
others. Kant defined the law as the totality of condition under which the
arbitrary will of one can co-exist with the arbitrary will of another according to
a general law of freedom. Thus it can be said that Kant’s conception of freedom
and law, seems to be the final form of an ideal of the social order of the
maximum of individual self assertion as the end for which the legal order exists
.In this way Kant treats individual freedom as superior to State.

Bentham’s Utilitarianism and Human Rights:- Human Rights in Bentham’s

Philosophy can be found through the concept of utility. According to Bentham,
the business of government is to promote the happiness of society by furthering
the enjoyment of pleasure and affording security against pain. It is the greatest
happiness of the greatest number that is the measure of right and wrong. He said
that if the individuals comprising society were happy the whole body polity
would enjoy happiness and prosperity. He emphasized that community can have
no interest independent of the individual; community interest meant to him
nothing but the sum of the interests of the several members who compose it.
Thus Bentham talks about Human Right in the form of maximum benefit of
maximum number.
Karl Marx Approach to Human Rights:- The Human Rights value in
Marxist Philosophy can be found in concept of ‘need not ‘in right’. It assumes
the ‘material interest as the basic postulate in comparison to the liberal
discourse on right containing rights of liberty, conscience, freedom of speech
and expression of assembly and association. Marx criticizes the modern
conception of right. For him it is basically an ideological rationalization of the
capitalistic society. He says that capitalistic society has two conflicting
requirement, first since labour power is sole source of surplus value the
capitalistic society is compelled by its inherent logic to view man as commodity
or an alienable object. Second since it is based on voluntary transaction between
free individuals, it is compelled to define man as a self-determining being or a
free subject. The logic of capitalism thus requires it to define man both as
subject and an object, a self-determining human being and a commodity.
Therefore he says that rights in capitalistic society, belong to the individual not
as a concrete and socially situated human being occupying a specific position in
society but as a socially transcendental abstraction as a mere juristic fiction.
Equality in the capitalistic society is therefore equality of persons (abstract), not
of (concrete) Human beings. Therefore he says that as concrete and socially
situated beings, man belong to different classes and possess unequal resources
and they are obviously unequal in their powers, capacity and opportunities.
Therefore, although the rights they possess are equal, those they exercise or
enjoy are therefore necessarily unequal. Therefore he says it is a formal equality
which is little more than a device to veil and legitimate the stark reality of
inequality. Therefore in attempt to create substantive equality, he says that in an
ideal system every man is entitled to do his duty in a common pool, from which
every individual will be entitled to take according to his needs. Thus it can be
said that Marx’s approach to right was basically based on need of every
individual which in effect recognizes the basic human rights of food and
livelihood which will be ideal equality. Thus Human Rights in Marxist
Philosophy is based on collective individualism in social fabric.
Adopting the Marxist approach, the Sociologist theory’s jurists took
upon the law as a social function an expression of human society concerning the
external relations of its individual members. Socialist theory tried to protect
individual rights in essence but the measure is society in form of state. For this
purpose Pound gave the theory of Social Engineering to build a structure of
society which will satisfy the maximum wants with the minimum of friction and
waste. For this purpose Roscoe pound recognizes certain rights of individuals
through the concept of Private, Public and Social Interest. Further to protect
these rights, Pound provided the ‘Jural Postulates’ of civilized society in the
form of individual assertion or claims against society and state. Thus socialist
theory also talked about human rights but in social fabric through state
mechanism.

Contemporary Idea of Human Rights:- The contemporary idea of Human

rights is basically the result of all Philosophical development in the field of law
and right of people. This contemporary ides is basically a post idealism which
does not require confine to any idea or theory but incorporate every ideas and
theories of rights which are for the protection of Human Rights .Now not only
Civil and Political Right but even Economic, Cultural and Social Right are
recognized as Human Rights.
However the Revival of Natural Law and Natural Rights theory provides
a basic ground to contemporary idea of Human Rights. In this respect
contribution of Debin, Stammler, John Rawls are noteworthy. According to
Debin, the law of nature was deduced from the nature of man as it reveals itself
in the basic inclinations of that nature under the control of reason. One of the
percepts of natural law is concerned with the good of society which is the
purposed of state and law. Stammler also said that in the realization of Justice,
the specific content of rule of positive law will vary from place to place and age
to age. He said that the universal element of purpose in all legal rules consist in
the adjustment therein made between the purposes of the community and those
of its individual members. The community itself represents the formal unity or
harmony of all individual purposes and justice is achieved when the individual
purposes, in as particular controversy are brought into harmony with the
fundamental purpose of society.
Further the happening of two World Wars in which there was great Human
Rights violations and thereafter formation of U.N Charter also affected the
concept of Human Rights. The opening world of preamble of Un Charter which
starts with, We the people of United Nations…. also made the individual as a
main concern of Human Rights. Therefore in UDHR certain rights and norms
were recognized as a common standard of achievement for all people and of all
nations, to the end that every individual and every organ of society shall
promote respects of these rights and freedoms to secure their universal and
effective recognition and observance. Later these norms were ratified in various
international charter s and covenants and conventions as merely the
institutionalization of those universal norms. This contemporary Human Rights
movements which blossomed in the war aftermath, thus became the main
concern of international legal system. This new conception of Human Rights
ultimately resulted in a new system of rights protection, inhering outside of
social contract vindicating a view of Human Rights within an adjudicatory
model. Human Rights now made protectable with or without the state of making
Human Rights with normative force positive.

Developments of the Concept of Human Rights in Various States:-

The conception of human rights as individual political legal claim, implying

limitations and obligations upon society and government is a product of modern
history. The ideas of elaboration and protection of rights of human beings have
been gradually transformed into written norm. Looking at human rights from
the recognition of rights perspectives, it may be fairly said to begin with Magna
Carta in 1215. The Magna Carta or the Great Charter of the Liberties of
England granted by King John of England to the English barons on 15 June,
1215 was in response to the heavy taxation burden created by the third crusade
and the ransom of Richard I, captured by the holy Emperor Henry VI. The
English barons protested the heavy taxes and were unwilling to let King John
rule again without some concessions in their rights. The main object of Magna
Carta was to prevent King John from substituting violence for legal process
from taking law into his own hands and going against them with an army at his
back or sending against them in similar wise. This great charter promised that
no plea civil or criminal should henceforth be decided against any free man until
he had failed in the customary proof at as such this Charter made it clear that
there were certain rights of the subject which could not be violated even by
Sovereign in whom all power was legally vested.

Petition of Rights (1628): The movement continued through the repeated

confirmations of the Magna Carta and the petition of Rights 1628 and
culminated in the Bills of Rights 1689, which enacted in a parliamentary statute
the declarations which the people made the prince and princess of orange to
subscribe at their accession in 1688. The contribution of this instrument towards
the development of Fundamental Rights will be evident when we look at its
concluding words:
“It may be declared and enacted, that all and
singular the rights and liberties asserted and claimed in the said declaration are
the true, ancient and indubitable rights and liberties of the people of this
kingdom”.
 Virginia Bills of Rights (1776):-
The Bill of rights adopted in the state Constitution
of Virginia in 1776 was the first declaration of rights in a written constitution.
The doctrine of natural rights is reflected in the preamble of the Declaration.
The declaration emphasis that all men are by nature equally free and enjoyment
of life and liberty and that government is or ought to be instituted for the
common benefit, protection and security of the people, nation or community.
The rights asserted by the Virginia Bill of Rights were- equality of men,
freedom of press, freedom of religion, right not to be taxed without consent or
not to be deprived of liberty except by law of land, right against general
warrants, cruel punishments and self incriminations.

American Declaration of Independence (1776):- American notion of

independence, and their determination to overthrow the authority of the imperial
tyrannical government has led them to make the Declaration of independence on
July 4, 1776. This famous document was drafted by Thomas Jefferson. It
mounted attack not only against the divine right of the king to rule but also
against a government which did not reflect the will of the people. The
significance of this Declaration lies in the assertion that all men are created
equal, that they are endowed by their Creator with certain inalienable rights,
which are Life, Liberty and pursuit for happiness. It also states that to secure
these rights Governments are instituted among men, deriving their just powers
from the consent of the governed, i.e., it is the right of the people to institute
new government to protect their rights and happiness.

French Declaration of the Rights of Man (1789):- The French Revolution

was based upon those principles which were set in motion by the English and
American Revolution. It differed mainly in that it was basically the result of
economic and social inequalities and injustices of the French ancient regime.
 These inequalities were conspicuous not only among the Third Estate
(lower classes) but also in the First Estate (clergy) and in the Second
Estate(nobility) it had caused the greatest amount of concern among the writers,
who were apparently influenced by the teachings of Roussseau . They
enthusiastically claimed that it marked the dawn of new age for the mankind in
general and believed in the prospect of right reason and natural and
imprescriptible right to life, liberty and the pursuit of happiness.
The National Assembly on 26th August, 1789 published the Declaration
of Rights of man and its Citizen (hereinafter referred as the French
Declaration).The writings of Rousseau, Locke and Montesquieu were used in
drafting the declaration. The declarations are as follows:-
Articles:
1. Men are born and remain free and equal in rights. Social distinctions
may be founded only upon the general good.
2. The aim of all political association is the preservation of the natural
and imprescriptible rights of man. These rights are liberty, property,
security, and resistance to oppression.
3. The principle of all sovereignty resides essentially in the nation.
Nobody nor individual may exercise any authority which does not
proceed directly from the nation.
4. Liberty consists in the freedom to do everything which injures no one
else; hence the exercise of the natural rights of each man has no limits
except those which assure to the other members of the society the
enjoyment of the same rights. These limits can only be determined by
law.
5. Law can only prohibit such actions as are hurtful to society. Nothing
may be prevented which is not forbidden by law, and no one may be
forced to do anything not provided for by law.
6. Law is the expression of the general will. Every citizen has a right to
participate personally, or through his representative, in its foundation. It
must be the same for all, whether it protects or punishes. All citizens,
being equal in the eyes of the law, are equally eligible to all dignities and
to all public positions and occupations, according to their abilities, and
without distinction except that of their virtues and talents.
7. No person shall be accused, arrested, or imprisoned except in the cases
and according to the forms prescribed by law. Any one soliciting,
transmitting, executing, or causing to be executed, any arbitrary order,
shall be punished. But any citizen summoned or arrested in virtue of the
law shall submit without delay, as resistance constitutes an offense.
8. The law shall provide for such punishments only as are strictly and
obviously necessary, and no one shall suffer punishment except it be
legally inflicted in virtue of a law passed and promulgated before the
commission of the offense.
9. As all persons are held innocent until they shall have been declared
guilty, if arrest shall be deemed indispensable, all harshness not essential
to the securing of the prisoner's person shall be severely repressed by law.
10. No one shall be disquieted on account of his opinions, including his
religious views, provided their manifestation does not disturb the public
order established by law.
11. The free communication of ideas and opinions is one of the most
precious of the rights of man. Every citizen may, accordingly, speak,
write, and print with freedom, but shall be responsible for such abuses of
this freedom as shall be defined by law.
12. The security of the rights of man and of the citizen requires public
military forces. These forces are, therefore, established for the good of all
and not for the personal advantage of those to whom they shall be
entrusted.
 13. A general tax is indispensable for the maintenance of the public force
and for the expenses of administration; it ought to be equally apportioned
among all citizens according to their means.
14. All the citizens have a right to decide, either personally or by their
representatives, as to the necessity of the public contribution; to grant this
freely; to know to what uses it is put; and to fix the proportion, the mode
of assessment and of collection and the duration of the taxes.
15. Society has the right to require of every public agent an account of his
administration.
16. A society in which the observance of the law is not assured, nor the
separation of powers defined, has no constitution at all.
17. Property being an inviolable and sacred right, no one can be deprived
of it, unless demanded by public necessity, legally constituted, explicitly
demands it, and under the condition of a just and prior indemnity.

The American Bill of Rights (1791):- The American Bill of Rights was
adopted as a part of the Constitution to serve as legal limitation on the powers
of each of the organs set up by the Constitution. Another reason recreating
adoption of rights in the Constitution was justifiable guarantee of individual
rights meant that judiciary would protect individual against their violation by
legislature and Executive. Therefore amendments to Constitution were proposed
led to the Bill of Rights incorporated in ten Amendment of Constitution.

The League of Nations

The concept of a peaceful community of nations had been proposed as far back
as 1795, when Immanuel Kant's Perpetual Peace: A Philosophical
Sketch outlined the idea of a league of nations to control conflict and promote
peace between states .Kant argued for the establishment of a peaceful world
community, not in a sense of a global government, but in the hope that each
state would declare itself a free state that respects its citizens and welcomes
foreign visitors as fellow rational beings, thus promoting peaceful society
worldwide International co-operation to promote collective security originated
in the Concert of Europe that developed after the Napoleonic Wars in the 19th
century in an attempt to maintain the status quo between European states and so
avoid war. This period also saw the development of international law, with the
first Geneva Conventions establishing laws dealing with humanitarian relief
during wartime, and the international Hague Conventions of 1899 and
1907 governing rules of war and the peaceful settlement of international
disputes.
The forerunner of the League of Nations, the Inter-Parliamentary Union,
was formed by peace activists William Randal Cremer and Frédéric Passyin
1889. The organization was international in scope, with a third of the members
of parliaments (in the 24 countries that had parliaments) serving as members of
the IPU by 1914. Its aims were to encourage governments to solve international
disputes by peaceful means. Annual conferences were held to help governments
refine the process of international arbitration. Its structure consisted of a council
headed by a president, which would later be reflected in the structure of the
League.
At the start of the 20th century, two power blocs emerged from alliances
between the European Great Powers. It was these alliances that, at the start of
the First World War in 1914, drew all the major European powers into the
conflict. This was the first major war in Europe between industrialized
countries, and the first time in Western Europe that the results
of industrialization (for example, mass production) had been dedicated to war.
The result of this industrialized warfare was an unprecedented casualty level:
eight and a half million soldiers killed, an estimated 21 million wounded, and
approximately 10 million civilian deaths .
 By the time the fighting ended in November 1918, the war had had a
profound impact, affecting the social, political and economic systems of Europe
and inflicting psychological and physical damage. Anti-war sentiment rose
across the world; the First World War was described as "the war to end all
wars” and its possible causes were vigorously investigated. The causes
identified included arms races, alliances, secret diplomacy, and the freedom of
sovereign states to enter into war for their own benefit. One proposed remedy
was the creation of an international organization whose aim was to prevent
future war through disarmament, open diplomacy, international co-operation,
restrictions on the right to wage war, and penalties that made war unattractive
While the First World War was still underway, a number of governments
and groups had already started developing plans to change the way international
relations were carried out to try to prevent another such conflict. United States
President Woodrow Wilson and his adviser Colonel Edward M.
House enthusiastically promoted the idea of the League as a means of avoiding
any repetition of the bloodshed of the First World War, and the creation of the
League was a centerpiece of Wilson's Fourteen Points for Peace. Specifically
the final point stated: "A general association of nations must be formed under
specific covenants for the purpose of affording mutual guarantees of political
independence and territorial integrity to great and small states alike
Before drafting the specific terms of his peace deal, Wilson recruited a
team led by Colonel House to compile information deemed pertinent in
assessing Europe’s geo-political situation. In early January 1918, Wilson
summoned House to Washington and the two began hammering out, in
complete secrecy, the president’s first address on the League of Nations, which
was delivered to Congress on 8 January 1918. Wilson's final plans for the
League were strongly influenced by South African Prime Minister Jan
Smuts (served as a General in World War I), who in 1918 had published a
treatise entitled The League of Nations: A Practical Suggestion. According to F.
S. Crafford, Wilson adopted "both the ideas and the style" of Smuts ]
On 8 July 1919, Wilson returned to the United States and embarked on a
nation-wide campaign to secure the support of the American people for their
country’s entry into the League. On 10 July, Wilson addressed the Senate,
declaring that "a new role and a new responsibility have come to this great
nation that we honor and which we would all wish to lift to yet higher levels of
service and achievement". Support, particularly from Republicans, was scanty at
best.
The Paris Peace Conference, convened to build a lasting peace after the
First World War, approved the proposal to create the League of Nations
(French: Société des Nations, German:Völkerbund) on 25 January 1919.
The Covenant of the League of Nations was drafted by a special commission,
and the League was established by Part I of the Treaty of Versailles. On 28 June
1919, 44 states signed the Covenant, including 31 states which had taken part in
the war on the side of the Triple Entente or joined it during the conflict. Wilson
canvassed the country to generate support for the treaty and the league, but his
health was failing, and he gave his last speech on the subject on 25 September
1919. Despite Wilson's efforts to establish and promote the League, for which
he was awarded the Nobel Peace Prize in October 1919, the United States did
not join. Opposition in the Senate, particularly from Republican
politicians Henry Cabot Lodge and William Borah and especially in regard
to Article X of the Covenant, ensured that the United States would not ratify the
agreement.
The League held its first council meeting in Paris on 16 January 1920, six
days after the Versailles Treaty came into force. In November, the headquarters
of the League was moved to Geneva, where the first General Assembly was
held on 15 November 1920.
United Nations Charter
The provisions of the United Nations Charter provided a basis for the
development of international human rights protection. The preamble of the
charter provides that the members "reaffirm faith in fundamental human rights,
in the equal rights of men and women" and Article 1(3) of the United Nations
charter states that one of the purposes of the UN is: "to achieve international
cooperation in solving international problems of an economic, social, cultural,
or humanitarian character, and in promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as to race, sex,
language, or religion". Article 55 provides that:
The United Nations shall promote: a) higher standards of living, full
employment, and conditions of economic and social progress and development;
b) solutions of international economic, social, health, and related problems; c)
international cultural and educational cooperation; d) universal respect for, and
observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion.
Of particular importance is Article 56 of the charter:"All Members pledge
themselves to take joint and separate action in co-operation with the
Organization for the achievement of the purposes set forth in Article 55." This is
a binding treaty provision applicable to both the Organisation and its members
and has been taken to constitute a legal obligation for the members of the
United Nations Overall; the references to human rights in the Charter are
general and vague. The Charter does not contain specific legal rights, nor does it
mandate any enforcement procedures to protect these rights despite this, the
significance of the espousal of human rights within the UN charter must not be
understated. The importance of human rights on the global stage can be traced
to the importance of human rights within the United Nations framework and the
UN Charter can be seen as the starting point for the development of a broad
array of declarations, treaties, implementation and enforcement mechanisms,
UN organs, committees and reports on the protection of human rights. The
rights espoused in the UN charter would be codified and defined in the
International Bill of Human Rights, composing the Universal Declaration of
Human Rights, the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights.

Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) was adopted by
the United Nations General Assembly in 1948, partly in response to the
atrocities of World War II. Although the UDHR was a non-binding resolution, it
is now considered by some to have acquired the force of
international customary law which may be invoked in appropriate circumstances
by national and other judiciaries .The UDHR urges member nations to promote
a number of human, civil, economic and social rights, asserting these rights as
part of the "foundation of freedom, justice and peace in the world." The
declaration was the first international legal effort to limit the behaviour of states
and press upon them duties to their citizens following the model of the rights-
duty duality.
...recognition of the inherent dignity and of the equal and inalienable rights of
all members of the human family is the foundation of freedom, justice and
peace in the world.
—Preamble to the Universal Declaration of Human Rights, 1948
The UDHR was framed by members of the Human Rights Commission,
with former First Lady Eleanor Roosevelt as Chair, who began to discuss an
International Bill of Rights in 1947. The members of the Commission did not
immediately agree on the form of such a bill of rights, and whether, or how, it
should be enforced. The Commission proceeded to frame the UDHR and
accompanying treaties, but the UDHR quickly became the priority. Canadian
law professor John Humphrey and French lawyer René Cassin were responsible
for much of the cross-national research and the structure of the document
respectively, where the articles of the declaration were interpretative of the
general principle of the preamble. The document was structured by Cassin to
include the basic principles of dignity, liberty, equality and brotherhood in the
first two articles, followed successively by rights pertaining to individuals;
rights of individuals in relation to each other and to groups; spiritual, public and
political rights; and economic, social and cultural rights. The final three articles
place, according to Cassin, rights in the context of limits, duties and the social
and political order in which they are to be realized. Humphrey and Cassin
intended the rights in the UDHR to be legally enforceable through some means,
as is reflected in the third clause of the preamble
Whereas it is essential, if man is not to be compelled to have recourse, as
a last resort, to rebellion against tyranny and oppression, that human rights
should be protected by the rule of law.
—Preamble to the Universal Declaration of Human Rights, 1948
Some of the UDHR was researched and written by a committee of
international experts on human rights, including representatives from all
continents and all major religions, and drawing on consultation with leaders
such as Mahatma Gandhi. The inclusion of civil, political, economic, social and
cultural rights was predicated on the assumption that all human rights are
indivisible and that the different types of rights listed are inextricably linked.
This principle was not then opposed by any member states (the declaration was
adopted unanimously, Byelorussian SSR, Czechoslovakia, Poland, Saudi
Arabia, Ukrainian SSR, Union of South Africa, USSR, Yugoslavia.); however,
this principle was later subject to significant challenges
The Universal Declaration was bifurcated into treaties, a Covenant on
Civil and Political Rights and another on social, economic, and cultural rights,
due to questions about the relevance and propriety of economic and social
provisions in covenants on human rights. Both covenants begin with the right of
people to self-determination and to sovereignty over their natural resources.
This debate over whether human rights are more fundamental than economic
rights has continued to the present day.
The drafters of the Covenants initially intended only one instrument. The
original drafts included only political and civil rights, but economic and social
rights were also proposed. The disagreement over which rights were basic
human rights resulted in there being two covenants. The debate was whether
economic and social rights are inspirational, as contrasted with basic human
rights which all people possess purely by being human, because economic and
social rights depend on wealth and the availability of resources. In addition,
which social and economic rights should be recognised depends on ideology or
economic theories, in contrast to basic human rights, which are defined purely
by the nature (mental and physical abilities) of human beings. It was debated
whether economic rights were appropriate subjects for binding obligations and
whether the lack of consensus over such rights would dilute the strength of
political-civil rights. There was wide agreement and clear recognition that the
means required to enforce or induce compliance with socio-economic
undertakings were different from the means required for civil-political rights
This debate and the desire for the greatest number of signatories to
human-rights law led to the two covenants. The Soviet bloc and a number of
developing countries had argued for the inclusion of all rights in a so-
called Unity Resolution. Both covenants allowed states to derogate some
rights. Those in favor of a single treaty could not gain sufficient consensus.

International treaties
In 1966, the International Covenant on Civil and Political
Rights (ICCPR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR) were adopted by the United Nations, between them
making the rights contained in the UDHR binding on all states that have signed
this treaty, creating human-rights law.
Since then numerous other treaties (pieces of legislation) have been
offered at the international level. They are generally known as human rights
instruments. Some of the most significant, referred to (with ICCPR and
ICESCR) as "the seven core treaties", are:
1. Convention on the Elimination of All Forms of Racial
Discrimination (CERD) (adopted 1966, entry into force: 1969)
2. Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) (adopted 1979, entry into force: 1981)
3. United Nations Convention Against Torture (CAT) (adopted 1984, entry
into force: 1984)
4. Convention on the Rights of the Child (CRC) (adopted 1989, entry into
force: 1989)
5. Convention on the Rights of Persons with Disabilities (CRPD) (adopted
2006, entry into force: 2008)
6. International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families (ICRMW or more often MWC)
(adopted 1990, entry into force: 2003).

Classification of Human Rights

1. CLASSIC AND SOCIAL RIGHTS
One classification used is the division between ‘classic’ and ‘social’
rights. ‘Classic’ rights are often seen to require the non-intervention of the state
(negative obligation), and ‘social rights’ as requiring active intervention on the
part of the state (positive obligations). In other words, classic rights entail an
obligation for the state to refrain from certain actions, while social rights oblige
it to provide certain guarantees. Lawyers often describe classic rights in terms of
a duty to achieve a given result (‘obligation of result’) and social rights in terms
of a duty to provide the means (‘obligations of conduct’). The evolution of
international law, however, has lead to this distinction between ‘classic’ and
‘social’ rights becoming increasingly awkward. Classic rights such as civil and
political rights often require considerable investment by the state. The state does
not merely have the obligation to respect these rights, but must also guarantee
that people can effectively enjoy them. Hence, the right to a fair trial, for
instance, requires well-trained judges, prosecutors, lawyers and police officers,
as well as administrative support. Another example is the organization of
elections, which also entails high costs.
On the other hand, most ‘social’ rights contain elements that require the
state to abstain from interfering with the individual’s exercise of the right. As
several commentators note, the right to food includes the right for everyone to
procure their own food supply without interference; the right to housing implies
the right not to be a victim of forced eviction; the right to work encompasses the
individual’s right to choose his/her own work and also requires the state not to
hinder a person from working and to abstain from measures that would increase
unemployment; the right to education implies the freedom to establish and
direct educational establishments; and the right to the highest attainable
standard of health implies the obligation not to interfere with the provision of
health care.
In sum, the differentiation of ‘classic’ rights from ‘social’ rights does not
reflect the nature of the obligations under each set of rights.

2. CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL

RIGHTS
Civil Rights
The term ‘civil rights’ is often used with reference to the rights set out in the
first eighteen articles of the UDHR, almost all of which are also set out as
binding treaty norms in the ICCPR. From this group, a further set of ‘physical
integrity rights’ has been identified, which concern the right to life, liberty and
security of the person, and which offer protection from physical violence
against the person, torture and inhuman treatment, arbitrary arrest, detention,
exile, slavery and servitude, interference with one’s privacy and right of
ownership, restriction of one’s freedom of movement, and the freedom of
thought, conscience and religion. The difference between ‘basic rights’ (see
below) and ‘physical integrity rights’ lies in the fact that the former include
economic and social rights, but do not include rights such as protection of
privacy and ownership.
Although not strictly an integrity right, the right to equal treatment and
protection in law certainly qualifies as a civil right. Moreover, this right plays
an essential role in the realization of economic, social and cultural rights.
Another group of civil rights is referred to under the collective term ‘due
process rights’. These pertain, among other things, to the right to a public
hearing by an independent and impartial tribunal, the ‘presumption of
innocence’, and the ne bis in idem principle (freedom from double jeopardy)
and legal assistance (see, e.g., Articles 9, 10, 14 and 15 ICCPR).

Political Rights
In general, political rights are those set out in Articles 19 to 21 UDHR
and also codified in the ICCPR. They include freedom of expression, freedom
of association and assembly, the right to take part in the government of one’s
country and the right to vote and stand for election at genuine periodic elections
held by secret ballot (see Articles 18, 19, 21, 22 and 25 ICCPR).

Economic and Social Rights

The economic and social rights are listed in Articles 22 to 26 UDHR, and
further developed and set out as binding treaty norms in the ICESCR. These
rights provide the conditions necessary for prosperity and wellbeing. Economic
rights refer, for example, to the right to property, the right to work, which one
freely chooses or accepts, the right to a fair wage, a reasonable limitation of
working hours, and trade union rights. Social rights are those rights necessary
for an adequate standard of living, including rights to health, shelter, food,
social care, and the right to education (see Articles 6 to 14 ICESCR).

Cultural Rights
The UDHR lists cultural rights in Articles 27 and 28: the right to
participate freely in the cultural life of the community, the right to share in
scientific advancement and the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic production of which
one is the author (see also Article 15 ICESCR and Article 27 ICCPR).
The alleged dichotomy between civil and political rights, and economic,
social and cultural rights
Traditionally it has been argued that there are fundamental differences
between economic, social and cultural rights, and civil and political rights.
These two categories of rights have been seen as two different concepts and
their differences have been characterized as a dichotomy. According to this
view, civil and political rights are considered to be expressed in very precise
language, imposing merely negative obligations which do not require resources
for their implementation, and which therefore can be applied immediately. On
the other hand, economic, social and cultural rights are considered to be
expressed in vague terms, imposing only positive obligations conditional on the
existence of resources and therefore involving a progressive realization.
As a consequence of these alleged differences, it has been argued that
civil and political rights are justifiable whereas economic, social and cultural
rights are not. In other words, this view holds that only violations of civil and
political rights can be adjudicated by judicial or similar bodies, while economic,
social and cultural rights are ‘by their nature’ non-justiciable.
 Over the years, economic, social and cultural rights have been re-
examined and their juridical validity and applicability have been increasingly
stressed. During the last decade, we have witnessed the development of a large
and growing body of case law of domestic courts concerning economic, social
and cultural rights. This case law, at the national and international level,
suggests a potential role for creative and sensitive decisions of judicial and
quasi-judicial bodies with respect to these rights.
Many international fora have elaborated on the indivisibility and
interdependency of human rights. As stated in the 1993 Vienna Declaration and
Programme of Action: ‘All human rights are universal, indivisible and
interdependent and interrelated. The international community must treat human
rights globally in a fair and equal manner, on the same footing, and with the
same emphasis.’ The European Union (EU) and its member states have also
made it clear on numerous occasions that they subscribe to the view that both
categories of human rights are of equal importance, in the sense that an
existence worthy of human dignity is only possible if both civil and political
rights and economic, social and cultural rights are enjoyed. In their Declaration
of 21 July 1986, they affirmed that ‘the promotion of economic, social and
cultural rights as well as of civil and political rights is of paramount importance
for the full realisation of human dignity and for the attainment of the legitimate
aspirations of every individual.’
The so-called Limburg Principles on the Implementation of the ICESCR
also indicate that a sharp distinction between civil and political rights on the one
hand and economic, social and cultural rights on the other is not accurate. These
principles were drawn up in 1986 by a group of independent experts, and
followed in 1997 by the Maastricht Guidelines on Violations of Economic,
Social and Cultural Rights. Together, these documents provide a clear
explanation of the nature of the state party obligations under the ICESCR. The
same can be said of the 1990 General Comment 3 of the UN Committee on
Economic, Social and Cultural Rights on the nature of states parties’ obligations
in relation to the ICESCR.
Fortunately, continuous declarations at the international level on the
indivisibility and interdependency of all rights have finally been codified by
way of the recently adopted Optional Protocol to the ICESCR. States parties to
the Optional Protocol will recognise the competence of the Committee on
Economic, Social and Cultural Rights to receive and consider individual and
collective complaints alleging violations of economic, social and cultural rights
set forth in the ICESCR. The Committee will also be empowered to request
interim measures to avoid possible irreparable damage to the victims of the
alleged violations and, where it receives reliable information indicating grave or
systematic violations, it shall conduct an inquiry which may include a visit to
the state party.
The adoption of the Optional Protocol on the 60th anniversary of the
UDHR, on 10 December 2008, represents an historic advance for human rights.
Firstly, economic, social and cultural rights - historically demoted to an inferior
status with limited protection - are now finally on an equal footing with civil
and political rights. Secondly, through an individual complaints procedure the
meaning and scope of these rights will become more precise, facilitating efforts
to respect and guarantee their enjoyment. Thirdly, the existence of a potential
‘remedy’ at the international level will provide an incentive to individuals and
groups to formulate some of their economic and social claims in terms of rights.
Finally, the possibility of an adverse ‘finding’ of the Committee on Economic,
Social and Cultural Rights will give economic, social and cultural rights
salience in terms of the political concerns of governments; which these rights
largely lack at present

3. FUNDAMENTAL AND BASIC RIGHTS

 Fundamental rights are taken to mean such rights as the right to life and
the inviolability of the person. Within the UN, extensive standards have been
developed which, particularly since the 1960s, have been laid down in
numerous conventions, declarations and resolutions, and which bring already
recognised rights and matters of policy which affect human development into
the sphere of human rights. Concern that a broad definition of human rights may
lead to the notion of ‘violation of human rights’ losing some of its significance
has generated a need to distinguish a separate group within the broad category
of human rights. Increasingly, the terms ‘elementary’, ‘essential’, ‘core’ and
‘fundamental’ human rights are being used.
Another approach is to distinguish a number of ‘basic rights’, which
should be given absolute priority in national and international policy. These
include all the rights which concern people’s primary material and non-material
needs. If these are not provided, no human being can lead a dignified existence.
Basic rights include the right to life, the right to a minimum level of security,
the inviolability of the person, freedom from slavery and servitude, and freedom
from torture, unlawful deprivation of liberty, discrimination and other acts
which impinge on human dignity. They also include freedom of thought,
conscience and religion, as well as the right to suitable nutrition, clothing,
shelter and medical care, and other essentials crucial to physical and mental
health.
Mention should also be made of so-called ‘participation rights’; for
instance, the right to participate in public life through elections (which is also a
political right; see above) or to take part in cultural life. These participation
rights are generally considered to belong to the category of fundamental rights,
being essential preconditions for the protection of all kinds of basic human
rights.

4. OTHER CLASSIFICATIONS
 Freedoms
Preconditions for a dignified human existence have often been described
in terms of freedoms (e.g., freedom of movement, freedom from torture and
freedom from arbitrary arrest). United States President Franklin D. Roosevelt
summarised these preconditions in his famous ‘Four Freedoms Speech’ to the
United States Congress on 26 January 1941:
 Freedom of speech and expression;
 Freedom of belief (the right of every person to worship God in his own
way);
 Freedom from want (economic understandings which will secure to every
nation a healthy peace-time life for its inhabitants); and
 Freedom from fear (world-wide reduction of armaments to such a point
and in such a thorough fashion that no nation would be able to commit an
act of physical aggression against any neighbour).
Roosevelt implied that a dignified human existence requires not only
protection from oppression and arbitrariness, but also access to the primary
necessities of life.

Civil Liberties
The concept of ‘civil liberties’ is commonly known, particularly in the
United States, where the American Civil Liberties Union (a non-governmental
organisation) has been active since the 1920s. Civil liberties refer primarily to
those human rights which are laid down in the United States Constitution:
freedom of religion, freedom of the press, freedom of expression, freedom of
association and assembly, protection against interference with one’s privacy,
protection against torture, the right to a fair trial, and the rights of workers. This
classification does not correspond to the distinction between civil and political
rights.
 Individual and Collective Rights
Although the fundamental purpose of human rights is the protection and
development of the individual (individual rights), some of these rights are
exercised by people in groups (collective rights). Freedom of association and
assembly, freedom of religion and, more especially, the freedom to form or join
a trade union, fall into this category. The collective element is even more
evident when human rights are linked specifically to membership of a certain
group, such as the right of members of ethnic and cultural minorities to preserve
their own language and culture. One must make a distinction between two types
of rights, which are usually called collective rights: individual rights enjoyed in
association with others, and the rights of a collective.
The most notable example of a collective human right is the right to self-
determination, which is regarded as being vested in peoples rather than in
individuals (see Articles 1 ICCPR and ICESCR). The recognition of the right to
self-determination as a human right is grounded in the fact that it is seen as a
necessary precondition for the development of the individual. It is generally
accepted that collective rights may not infringe on universally accepted
individual rights, such as the right to life and freedom from torture.

First, Second and Third Generation Rights

The division of human rights into three generations was first proposed by
Karel Vasak at the International Institute of Human Rights in Strasbourg. His
division follows the principles of Liberté, Égalité and Fraternité of the French
Revolution.
First generation rights are related to liberty and refer fundamentally to
civil and political rights. The second generation rights are related to equality,
including economic, social and cultural rights. Third generation or ‘solidarity
rights’ cover group and collective rights, which include, inter alia, the right to
development, the right to peace and the right to a clean environment. The only
third generation right which so far has been given an official human rights
status - apart from the right to self-determination, which is of longer standing -
is the right to development (see the Declaration on the Right to Development,
adopted by the UNGA on 4 December 1986, and the 1993 Vienna Declaration
and Programme of Action (Paragraph I, 10)). The Vienna Declaration confirms
the right to development as a collective as well as an individual right,
individuals being regarded as the primary subjects of development. Recently,
the right to development has been given considerable attention in the activities
of the High Commissioner for Human Rights. Adoption of a set of criteria for
the periodic evaluation of global development partnerships from the perspective
of the right to development by the Working Group on the Right to
Development, in January, 2006, evidence the concrete steps being taken in this
area. The EU and its member states also explicitly accept the right to
development as part of the human rights concept.
While the classification of rights into ‘generations’ has the virtue of
incorporating communal and collective rights, thereby overcoming the
individualist moral theory in which human rights are grounded, it has been
criticised for not being historically accurate and for establishing a sharp
distinction between all human rights. Indeed, the concept of generations of
rights is at odds with the Teheran Proclamation and the Vienna Declaration and
Programme of Action, which establish that all rights are indivisible,
interdependent and interrelated.

Universality of Human Rights

In the last fifty years the principle of universality has become central to
the interpretation of human rights law. The recognition and protection of
fundamental rights had already to some extent been codified before Second
World War, albeit primarily in national law, and especially in national
constitutions. It was, however, only after the Second World War that politicians
and civil society alike came to realize that national schemes for the protection of
human rights did not suffice. Since then, human rights have found their way
into a wide range of regional and global treaties.
The entry into force of the UN Charter on 24 October 1945 marked the
formal recognition of human rights as a universal principle, and compliance
with human rights was mentioned in the Preamble and in Articles 55 and 56 as a
principle to be upheld by all states. In 1948, it was followed by the adoption of
the UDHR, and in 1966 by the ICESCR and the ICCPR and its First Optional
Protocol (see II§1.C).
The UDHR specifies over thirty rights. It regards the protection of these
rights as a common standard to be ultimately achieved. Several governments
and scholars maintain that a number of human rights in the UDHR have the
character of jus cogens (a peremptory norm, which states are not allowed to
derogate from; a rule which is considered universally valid). Its universality is
underlined by the fact that in 1948 it was formulated and agreed upon not only
by Western states, but also by representatives from countries such as China, the
Soviet Union, Chile, and Lebanon. It was moreover adopted without any
objection: no votes against and only eight abstentions.
As noted above, during the 1950s and 1960s, more and more countries
became independent and joined the UN. In doing so they endorsed the
principles and ideals laid down in the UDHR. This commitment was underlined
in the Proclamation of Teheran of 1968. The Proclamation was adopted by 85
states, of which more than 60 countries did not belong to the Western Group.
The Proclamation stated: ‘The Universal Declaration of Human Rights states a
common understanding of the peoples of the world concerning the inalienable
and inviolable rights of all members of the human family and constitutes an
obligation for the members of the international community.’
The Vienna Declaration and Programme of Action, the results of the 1993
Second World Conference on Human Rights (which was attended by 171
states), once more endorsed and underlined the importance of the UDHR. It
stated that the UDHR 'constitutes a common standard of achievement for all
peoples and all nations’, using the language of the Declaration itself.
The universality of human rights has been, and still is, a subject of intense
debate, including in anticipation of, during and after the 1993 World Conference
on Human Rights. The Vienna document itself states that the universal nature of
human rights is ‘beyond question’. It also says: ‘all human rights are universal’;
adding, however, that ‘the significance of national and regional particularities
and various historical, cultural and religious backgrounds must be borne in
mind’. This national ‘margin of appreciation’, as it is called, does not, however,
according to the Vienna document, relieve states of their duty to promote and
protect all human rights, ‘regardless of their political, economic and cultural
systems’.
Also relevant when considering the universality of human rights is the
increasing number of ratifications of international human rights conventions. In
March 2010, the ICESCR had been ratified by 160 states and the ICCPR by 165
states. Several other UN conventions, as well as conventions Definitions and
Classifications 39 Umbrotið FYRIR GUÐRÚNU - Nota_Layout 1 8.4.2010
11:19 Page 39 of the International Labour Organisation (ILO), have also been
ratified by many states; indeed in some cases by nearly all states. Most
strikingly, the Convention on the Rights of the Child (CRC), adopted in 1989,
has been ratified by 193 states (March 2010).

Human Rights and Interference in Domestic Affairs

In earlier times, whenever human rights violations were openly
condemned by third states, the authorities concerned countered with references
to ‘unacceptable interference in internal affairs’. In more recent years, this
argument has lost ground when human rights are at stake. The Second World
War constituted a turning point in the way the international community regards
its responsibility for the protection of and respect for human rights. The long-
standing principle of state sovereignty vis-à-vis one’s nationals has in the course
of the years been eroded. The UN Charter explicitly proclaimed human rights to
be a matter of legitimate, international concern: ‘[...] the United Nations shall
promote [...] universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex, language or
religion’ (Article 55); and ‘All Members pledge themselves to take joint and
separate action in co-operation with the organisation for the achievement of the
purposes set forth in Article 55’ (Article 56).
These commitments were reaffirmed in the Sixth and Seventh principles
of the Helsinki Final Act of the Conference on Security and Co-operation in
Europe of 1975 (see II§5), and during the Vienna World Conference on Human
Rights of 1993. The traditional (broad) interpretation of the principle of national
sovereignty has thus been limited in two crucial, and related, respects. Firstly,
how a state treats its own subjects is nowadays considered a legitimate concern
of the international community. Secondly, there are now superior international
standards, established by common consent, which may be used for appraising
domestic laws, and the actual conduct of sovereign states within their own
territories, and in the exercise of their internal jurisdiction.
Thus, whether a state has accepted international human rights norms, laid
down in conventions, is relevant but not the only decisive factor: human rights,
as formulated in the UDHR, have become a matter of international concern and
do not fall within the exclusive jurisdiction of states. As stated in the 1993
Vienna Declaration and Programme of Action: ‘[T]he promotion and protection
of all human rights is a legitimate concern of the international community’. In
other words: there is a right to interfere in case of human rights violations.
Interference can be defined, in this context, as any form of international
involvement in the affairs of other states, excluding involvement in which forms
of coercion are used (‘intervention’). The distinction between interference and
intervention is relevant: the fact that the principle of noninterference does not
apply to human rights questions does not mean that states may react to human
rights violations by making use of military means. This could amount to a
violation of the prohibition of use of force, as laid down in the UN Charter
(Article 2(4)). Some human rights experts claim that the United Nations
Security Council should decide that a certain human rights situation poses a
threat to international peace and security and on the basis of that decision
authorise military action for humanitarian purposes, undertaken under the
auspices of the UN.
Types of State Duties Imposed by all Human Rights Treaties:
The tripartite typology
The early 1980s gave rise to a useful definition of the obligations
imposed by human rights treaties, which blurred the sharp dichotomy between
economic, social and ultural rights, and civil and political rights.
Specifically, in 1980, Henry Shue proposed that for every basic right
(civil, political, conomic, social and cultural) there are three types of correlative
obligations: ‘to void depriving’, ‘to protect from deprivation’ and ‘to aid the
deprived.’
Since Shue’s proposal was published, the ‘tripartite typology’ has
evolved and cholars have developed typologies containing more than three
levels. While there is no consensus on the precise meaning of the different
levels, the ‘tripartite typology’ presented by Shue is known today in more
concise terms as the obligations ‘to respect’, ‘to protect’, and ‘to fulfil’.
Obligations to respect: In general, this level of obligation requires the
state to refrain from any measure that may deprive individuals of the enjoyment
of their rights or of the ability to satisfy those rights by their own efforts.
Obligations to protect: This level of obligation requires the state to
prevent violations of human rights by third parties. The obligation to protect is
normally taken to be a central function of states, which have to prevent
irreparable harm from being inflicted upon members of society. This requires
states: a) to prevent violations of rights by any individual or non-state actor; b)
to avoid and eliminate incentives to violate rights by third parties; and c) to
provide access to legal remedies when violations have occurred in order to
prevent further deprivations.
Obligations to fulfill: This level of obligation requires the state to take
measures to ensure, for persons within its jurisdiction, opportunities to obtain
satisfaction of the basic needs as recognised in human rights instruments, which
cannot be secured by personal efforts. Although this is the key state obligation
in relation to economic, social and cultural rights, the duty to fulfill also arises
in respect to civil and political rights. It is clear that enforcing, for instance, the
prohibition of torture (which requires, for example, police training and
preventive measures), the right to a fair trial (which requires investments in
courts and judges), the right of free and fair elections or the right to legal
assistance, entails considerable cost.
The above analysis demonstrates that there is little difference in the
nature of state obligations in regard to different human rights. The three levels
of obligation encompass both civil and political rights and economic, social and
cultural rights, blurring the perceived distinction between them.
 UNIT-2

Human Rights under U.N Charter

The U.N Charter which is supposed to be basic document lays down

provision regarding the purpose of UN their composition, organization and area
of activity. Also provides for the protection and promotion of Human Rights
.The inclusion of Human Rights protection in UN Charter is result of some
political and philosophical reasons. The twentieth century witnessed the tow
devastating World Wars .After First World War League of Nations was
established to establish peace and security in the world. But it failed because the
mechanism it adopted were political in nature and they did not incorporated the
Human Rights mechanism to establish peace and order in the world. Therefore
when Second World War happened, it was though that peace and security could
not be established without protecting the dignity and Human Rights of people.
Therefore framers of the Charter after direct experience of the cause of war, had
made it clear that war could not be banished from international affairs nor
aggression curbed unless intolerance and discrimination were also eradicated.
For this purpose at San Francisco, therefore Justice and International Law, the
self-determination of people, respect for Human Rights and fundamental
freedoms for all were recognized as basic objective through which International
Peace could be ensured. The protection and respect for Human Rights had not
appeared as abstraction. Because the cruelty and injustice, violation of Human
Rights had the inevitable effect of destabilizing the political order and
jeopardizing friendly relations among States. Therefore by inclusion of this
Human rights protection provision in Charter the rights of the individual were
made at International Concerns. This was necessary particularly because of the
events and internal Politics of Nazism and Fascism in Germany and Italy. A lot
of Human rights violations were taken place in these countries but because of
the international Politics and Political scenario the International community
could not handle those situation properly .It was thought , that State has
sovereignty in its internal matter and no State can interfere in domestic matter of
Countries. These things led to ambition of those rulers. So it was felt that even
internal matter may lead to war. Therefore at the time of formation of UN
Charter which were established? For the promotion of peace and security among
nations these provisions regarding protection of Human Rights were included.
However before dealing with Human rights protection in U.N
charter, it is necessary to have a brief discussion of the endeavours and events
which led to the establishment of the United Nations and formation of U.N
Charter which are as follows-

The Declaration of St. James's Palace (12 June 1941)

In June 1941, London was the home of nine exiled governments. The
great British capital had already seen twenty-two months of war and in the
bomb-marked city, air-raid sirens wailed all too frequently. Practically all
Europe had fallen to the Axis and ships on the Atlantic, carrying vital supplies,
sank with grim regularity. But in London itself and among the Allied
governments and peoples, faith in ultimate victory remained unshaken. And,
even more, people were looking beyond military victory to the postwar
future.“Would we win only to live in dread of yet another war? Should we not
define some purpose more creative than military victory? Is it not possible to
shape a better life for all countries and peoples and cut the causes of war at their
roots?” Such were the anxious questions which troubled many minds, not only
in Britain, but in all Allied countries. On the twelfth of that month the
representatives of Great Britain, Canada, Australia, New Zealand and the Union
of South Africa and of the exiled governments of Belgium, Czechoslovakia,
Greece, Luxembourg, the Netherlands, Norway, Poland, Yugoslavia and of
General de Gaulle of France, met at the ancient St. James’s Palace and signed a
declaration.
These sentences from this declaration still serve as the watchwords of
peace: “The only true basis of enduring peace is the willing cooperation of free
peoples in a world in which, relieved of the menace of aggression, all may enjoy
economic and social security. It is our intention to work together, and with other
free peoples, both in war and peace, to this end.

The Atlantic Charter (14 August 1941)

Two months after the London Declaration came the next step to a world
organization, the result of a dramatic meeting between President Roosevelt and
Prime Minister Churchill. In August 1941, the Axis was still very much in the
ascendant, or so it seemed, and the carefully stage-managed meetings between
Hitler and Mussolini, inevitably ending in “perfect accord,” sounded grimly
foreboding. Germany had flung herself against the USSR but the might of this
new ally was yet to be disclosed. And the United States, though giving moral
and material succor, was not yet in the war.
Then, one afternoon, came the news that President Roosevelt and Prime
Minister Churchill were in conference “somewhere at sea”—the same seas on
which the desperate Battle of the Atlantic was being fought— and on August 14
the two leaders issued a joint declaration destined to be known in history as the
Atlantic Charter. This document was not a treaty between the two powers. Nor
was it a final and formal expression of peace aims. It was only an affirmation, as
the document declared, “of certain common principles in the national policies of
their respective countries on which they based their hopes for a better future for
the world.” Of the eight points of the Atlantic Charter, two bear directly on
world organization. “After the final destruction of Nazi tyranny,” reads the sixth
clause, “they hope to see established a peace which will afford to all nations the
means of dwelling in safety within their own boundaries, and which will afford
assurance that all the men in all the lands may live out their lives in freedom
from fear and want.” The seventh clause stated that such a peace should enable
all men to traverse the high seas without hindrance, and the eighth concluded
the document with this outline of peace organization: “They believe that all of
the nations of the world, for realistic as well as spiritual reasons, must come to
the abandonment of the use of force. Since no future peace can be maintained if
land, sea or air armaments continue to be employed by nations which threaten,
or may threaten, aggression outside of their frontiers, they believe, pending the
establishment of a wider and permanent system of general security, that the
disarmament of such nations is essential. They will likewise aid and encourage
all other practicable measures which will lighten for peace-loving peoples the
crushing burden of armaments.” Other points of the Atlantic Charter also
affirmed the basic principles of international justice: no aggrandizement; no
territorial changes without the freely-expressed wishes of the peoples
concerned; the right of every people to choose their own form of government;
and equal access to raw materials for all nations.
A constructive purpose for the future international organization was also
foreshadowed in the fifth clause, which declared that the two statesmen desired
to bring about the fullest collaboration between all nations in the economic field
with the object of securing, for all, improved labor standards, economic
advancement and social security. Coming from the two great democratic leaders
of the day and implying the full moral support of the United States, the Atlantic
Charter created a profound impression on the embattled Allies. It came as a
message of hope to the occupied countries, and it held out the promise of a
world organization based on the enduring verities of international morality. That
it had little legal validity did not detract from its value. If, in the ultimate
analysis, the value of any treaty is the sincerity of its spirit, no affirmation of
common faith between peace-loving nations could be other than
important. Support for the principles of the Atlantic Charter and a pledge of
cooperation to the utmost in giving effect to them, came from a meeting of ten
governments in London shortly after Mr. Churchill returned from his ocean
rendezvous. This declaration was signed on September 24 by the USSR and the
nine governments of occupied Europe: Belgium, Czechoslovakia, Greece,
Luxembourg, the Netherlands, Norway, Poland, and Yugoslavia and by the
representatives of General de Gaulle, of France.

The Declaration of the United Nations (1 January 1942 )

On New Year’s Day 1942, President Roosevelt, Prime Minister
Churchill, Maxim Litvinov, of the USSR, and T. V. Soong, of China, signed a
short document which later came to be known as the United Nations
Declaration and the next day the representatives of twenty-two other nations
added their signatures. This important document pledged the signatory
governments to the maximum war effort and bound them against making a
separate peace.
The complete alliance thus effected was in the light of the principles of
the Atlantic Charter, and the first clause of the United Nations Declaration reads
that the signatory nations had “subscribed to a common program of purposes
and principles embodied in the Joint Declaration of the President of the United
States of America and the Prime Minister of the United Kingdom of Great
Britain and Northern Ireland dated August 14, 1941, known as the Atlantic
Charter.”
Three years later, when preparations were being made for the San
Francisco Conference, only those states which had, by March 1945, declared
war on Germany and Japan and subscribed to the United Nations Declaration,
were invited to take part.
Moscow and Teheran Conference (1943)
Thus by 1943 all the principal Allied nations were committed to outright
victory and, thereafter, to an attempt to create a world in which “men in all
lands may live out their lives in freedom from fear and want.” But the basis for
a world organization had yet to be defined, and such a definition came at the
meeting of the Foreign Ministers of Great Britain, the United States and the
Soviet Union in October 1943. The United States Secretary of State, the
venerable Cordell Hull, made the first flight of his life to journey to Moscow for
the conference. On October 30, the Moscow Declaration was signed by Vyaches
Molotov, Anthony Eden, Cordell Hull and Foo Ping Shen, the Chinese
Ambassador to the Soviet Union.
The Declaration pledged further joint action in dealing with the enemies’
surrender and, in clause 4, proclaimed: “That they [the Foreign Ministers]
recognize the necessity of establishing at the earliest practicable date a general
international organization, based on the principle of the sovereign equality of all
peace-loving states, and open to membership by all such states, large and small,
for the maintenance of international peace and security.”
In December, two months after the four-power Declaration, Roosevelt,
Stalin and Churchill, meeting for the first time at Teheran, the capital of Iran,
declared that they had worked out concerted plans for final victory. As to peace,
the Declaration read: “We are sure that our concord will win an enduring peace.
We recognize fully the supreme responsibility resting upon us and all the United
Nations to make a peace which will command the goodwill of the
overwhelming mass of the peoples of the world and banish the scourge and
terror of war for many generations.

Dumbarton Oaks and Yalta( 1944-1945)

The principles of the world organization-to-be were thus laid down. But it
is a long step from defining the principles and purpose of such a body to setting
up the structure. A blueprint had to be prepared, and it had to be accepted by
many nations. For this purpose, representatives of China, Great Britain, the
USSR and the United States met for a business-like conference at Dumbarton
Oaks, a private mansion in Washington, D. C. The discussions were completed
on October 7, 1944, and a proposal for the structure of the world organization
was submitted by the four powers to all the United Nations governments, and to
the peoples of all countries, for their study and discussion. According to the
Dumbarton Oaks proposals, four principal bodies were to constitute the
organization to be known as the United Nations. There was to be a General
Assembly composed of all the members. Then came a Security Council of
eleven members. Five of these were to be permanent and the other six were to
be chosen from the remaining members by the General Assembly to hold office
for two years. The third body was an International Court of Justice, and the
fourth a Secretariat. An Economic and Social Council, working under the
authority of the General Assembly, was also provided for. The essence of the
plan was that responsibility for preventing future war should be conferred upon
the Security Council. The General Assembly could study, discuss and make
recommendations in order to promote international cooperation and adjust
situations likely to impair welfare. It could consider problems of cooperation in
maintaining peace and security, and disarmament, in their general principles.
But it could not make recommendations on any matter being considered by the
Security Council, and all questions on which action necessary was had to be
referred to the Security Council. The actual method of voting in the Security
Council -- an all-important question -- was left open at Dumbarton Oaks for
future discussion. Another important feature of the Dumbarton Oaks plan was
that member states were to place armed forces at the disposal of the Security
Council in its task of preventing war and suppressing acts of aggression. The
absence of such force, it was generally agreed, had been a fatal weakness in the
older League of Nations machinery for preserving peace. The Dumbarton Oaks
proposals were fully discussed throughout the Allied countries. The British
Government issued a detailed commentary, and in the United States, the
Department of State distributed 1,900,000 copies of the text and arranged for
speakers, radio programs and motion picture films to explain the proposals.
Comments and constructive criticisms came from several governments, e.g.,
Australia, Belgium, Canada, Czechoslovakia, France, the Netherlands, New
Zealand, Norway, Poland, the Union of South Africa, the USSR, the United
Kingdom and the United States.

San Francisco Conference (1944-1945)

Forty-five nations, including the four sponsors, were originally invited to
the San Francisco Conference: nations which had declared war on Germany and
Japan and had subscribed to the United Nations Declaration.
One of these, Poland, did not attend because the composition of her new
government was not announced until too late for the conference. Therefore, a
space was left for the signature of Poland, one of the original signatories of the
United Nations Declaration. At the time of the conference there was no
generally recognized Polish Government, but on June 28, such a government
was announced and on October 15, 1945 Poland signed the Charter, thus
becoming one of the original Members.

Aims and Objectives:- The aims and objectives of the UN are set forth in the
Preamble which states that “We the People of the United Nations are
determined to following objectives:-
1. To save the succeeding generations from the scourge of war.
2. To reaffirm faith in fundamental Human rights and in the dignity and
worth of the human person.
3. To reaffirm faith in the equal rights of men and women.
4. To promote social progress.
 5. To promote economic and social advancement of all the people.
The main significance of preamble is that it reduces the fact that ‘peace is
not mere absence of war’ .it sets before the United Nations the object of
positively achieving peace by recognizing the worth and dignity of the
individual, his fundamental rights and by promoting social progress and better
standards of life.
Apart from this the Charter of U.N enunciates the purposes of the UN,
which is to minimum international peace and security , develop friendly
relations among nations, foster international cooperation in social, economic,
cultural and humanitarian matters develop respect for human rights and
freedom.

Organs of UNO
1. General Assembly
It is the main organ of the UN consisting of representatives of all the
members of the U.N. Each member state has a single vote and all members are
equally placed, unlike in the case of the Security Council. It generally holds
regular annual session in September. Decisions are taken based on simple
majority, but in cases of peace, security, election of new UN members and
budget, a two-thirds majority vote is required.
UN General Assembly elects the ten non-permanent members of the
Security Council. It elects members of The Economic and Social Council
(ECOSOC) and Trusteeship Council. It elects along with the Security Council
Judges of the International Court of Justice. It appoints UN Secretary General,
based on the recommendation of the Security Council. It approves the UN
budget. It receives and considers reports from the other UN organs. General
Assembly has 193 member states.
2. Security Council - It is the main organ of the UN with the basic
responsibility for the maintenance of World Peace. It has 15 countries as
members. Five of them are permanent members - the United States of America,
the United Kingdom, Russia, France and China. The remaining ten are non-
permanent members, who are elected for a two-year term by a two-thirds
majority of the General Assembly. Out of these ten seats, five are allocated to
Afro-Asian region, two seats to Latin America, one seat to Eastern Europe and
remaining two seats to Western Europe and others.
The five permanent members of the Security Council have special voting
rights known as 'Veto' power. Any decision in the Security Council can be taken
only with the support of at least nine members including that of five permanent
members. Thus, no decision can be taken in the Council, even if one permanent
member votes against the proposal.
Decisions taken by the UN Security Council are binding on all the
members of the UN, since the UN charter provides that the Council's decisions
are made in the name of all UN members.
The Council powers include taking decisions to settle disputes among
member states, requisitioning military forces; from the members for peace
keeping operations, approving admission of countries as new members,
recommending to the General Assembly on appointment of Secretary General,
etc., The Nobel Peace Prize was given to the UN Security Council in 1988 for
its role in establishing peace in the World by means of resolution of conflicts.

3. Economic and Social Council - The ECOSOC is the Chief Coordinating

Agency of the UN in the economic and social sectors between the UN and the
specialized institutions of the UN. It consists of 54 members, meets twice a
year. Its main activities include conducting studies and making
recommendations on social, economic, educational, health and related matters
in the world with special focus on the least developed countries. It carries its
activities through nine functional commissions, five regional commissions and
various standing committees. The nine functional commissions were set up to
focus on specific areas like human rights, population and development, social
development, status of women., etc., The main purpose of these commissions
are to assist in raising the level of economic activity in their respective regions
and to strengthen the economic relations of the States among themselves and
with others.

4. The International Court of Justice - The ICJ is established in 1945 by the

UN Charter. It is the main judicial organ of the UNO. It is also commonly
known as the World Court. ICJ has its headquarters at Hague, the Netherland. It
is composed of fifteen judges elected to nine year terms by the United Nations
General Assembly and the United Nations Security Council. It is meant to
adjudicate on the disputes referred to it by the members and to give advisory
opinion on matters referred to it by the UN Security Council or General
Assembly. As stated in the UN Charter, all 193 member states of UN are parties
to the Court's statute. Non-UN members too can become parties to the Court's
statute under the Article 93(2) procedure.

5. Trusteeship Council - The United Nations Trusteeship Council is one of the

six principal organs of the U.N formed in 1945. It was established to ensure that
non-self-governing territories were governed in the best interests of the people
living in there and of international peace and security. Most of the trust
territories were those former mandates of the League of Nations or the
territories taken from nations defeated at the end of the World War II and which
have now attained independence or self-governments, either as separate
countries or by joining their neighbouring independent nations. The Trusteeship
Council was suspended from operation on 1 November 1994 as its mission was
fulfilled. Its future role and existence remains uncertain.
6. Secretariat - The United Nations Secretariat is one of the six principal
organs of the UNO. It is headed by the UN Secretary General. It provides
studies, information, and all facilities needed by United Nations bodies for their
respective meetings. It also carries out tasks as directed by the United Nations
Security Council, the United Nations General Assembly, the United Nations
Economic and Social Council, and other U.N. bodies. The Secretariat carries
out the day-to-day work of the Organization. It services the other principal
organs and carries out tasks as varied as the issues dealt with by the UN:
administering peacekeeping operations, surveying economic and social trends,
preparing studies on human rights, among others.

Human Rights Provisions in UN Charter

The Charter consists of a preamble and a series of articles grouped into
chapters. The preamble consists of two principal parts. The first part
containing a general call for the maintenance of peace and international security
and respect for human rights. The second part of the preamble is a declaration in
a contractual style that the governments of the peoples of the United Nations
have agreed to the Charter.

Chapter I sets forth the purposes of the United Nations, including the
important provisions of the maintenance of international peace and
security.

Chapter II defines the criteria for membership in the United Nations.

Chapters III-XV, the bulk of the document, describes the organs and
institutions of the UN and their respective powers.

Chapters XVI and Chapter XVII describes arrangements for integrating

the UN with established international law.

Chapters XVIII and Chapter XIX provide for amendment and ratification
of the Charter.
The following chapters deal with the enforcement powers of UN bodies:

Chapter VI describes the Security Council's power to investigate and

mediate disputes;

Chapter VII describes the Security Council's power to authorize

economic, diplomatic, and military sanctions, as well as the use of
military force, to resolve disputes;

Chapter VIII makes it possible for regional arrangements to maintain

peace and security within their own region;

Chapters IX and Chapter X describe the UN's powers for economic and
social cooperation, and the Economic and Social Council that oversees
these powers;

Chapters XII and Chapter XIII describe the Trusteeship Council, which
oversaw decolonization;

Chapters XIV and Chapter XV establishes the powers of, respectively,

the International Court of Justice and the United Nations Secretariat.

Chapters XVI through Chapter XIX deal respectively with XVI:

miscellaneous provisions, XVII: transitional security arrangements
related to World War II, XVIII: the charter amendment process, and XIX:
ratification of the charter.

Child labour
The term child labour is often defined as work that deprives children of
their childhood, their potential and their dignity, and that is harmful to physical
and mental development.
It refers to work that:
is mentally, physically, socially or morally dangerous and harmful to
children; and
interferes with their schooling by:
depriving them of the opportunity to attend school;
obliging them to leave school prematurely; or
 Requiring them to attempt to combine school attendance with excessively
long and heavy work.

In its most extreme forms, child labour involves children being enslaved,
separated from their families, exposed to serious hazards and illnesses and/or
left to fend for themselves on the streets of large cities – often at a very early
age. Whether or not particular forms of "work" can be called child labour
depends on the child's age, the type and hours of work performed, the
conditions under which it is performed and the objectives pursued by individual
countries. The answer varies from country to country, as well as among sectors
within countries.
Many consumers in developed countries are outraged to think that the
products such as clothes of household goods they use might be the efforts of
child labour from developing countries. Strong international treaties are taking
place to legalize child labour. Yet long cultural traditions and deprived
economies do not respond readily to moral lectures pushed by international
bodies. Resistant to many comprehensive development strategies, child labour
shows less hope of becoming history.
Not all work done by children should be classified as child labour that is
to be targeted for elimination. Children’s or adolescents’ participation in work
that does not affect their health and personal development or interfere with their
schooling is generally regarded as being something positive. This includes
activities such as helping their parents around the home, assisting in a family
business or earning pocket money outside school hours and during school
holidays. These kinds of activities contribute to children’s development and to
the welfare of their families; they provide them with skills and experience, and
help to prepare them to be productive members of society during their adult life.
.
Minimum Wage Law
To protect the right of labours for fixing minimum wage, ILO has created
Minimum Wage-Fixing Machinery Convention, 1928, Minimum Wage Fixing
Machinery (Agriculture) Convention, 1951 and Minimum Wage Fixing
Convention, 1970 as minimum wage law.

HIV/AIDS
Under the name ILOAIDS, the ILO created the Code of Practice on
HIV/AIDS and the World of Work as a document providing principles for
"policy development and practical guidelines for programmes at enterprise,
community, and national levels." Including:
 prevention of HIV
 management and mitigation of the impact of AIDS on the world of work
 care and support of workers infected and affected by HIV/AIDS
 Elimination of stigma and discrimination on the basis of real or perceived
HIV status.

Indigenous Peoples
ILO-Convention 169 concerns indigenous and tribal peoples in
independent countries. It was adopted on 27 June 1989 by the General
Conference of the ILO at its 76th session. Its entry into force was 5 September
1991.

Migrant workers
As the word "migrant" suggests, migrant workers refer to those who
moves from place to place to do their job.
For the rights of migrant workers, ILO has adopted conventions,
including Migrant Workers (Supplementary Provisions) Convention, 1975 and
United Nations Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families in 1990.

Domestic workers
Domestic workers are those who perform a variety of tasks for and in
other peoples. For example, they may cook / clean the house and look after
children. Yet they are often the ones with the least consideration, excluded from
labour and social protection. This is mainly due to the fact that women have
traditionally carried out the tasks without pay.[42]
For the rights and decent work of domestic workers including migrant
domestic workers, ILO has adopted Convention on domestic workers on 16
June 2011.

United Declaration of Human Rights (1948)

The Universal Declaration of Human Rights, which was adopted by the UN

General Assembly on 10 December 1948, was the result of the experience of the
Second World War. With the end of that war, and the creation of the United
Nations, the international community vowed never again to allow atrocities like
those of that conflict happen again. World leaders decided to complement the
UN Charter with a road map to guarantee the rights of every individual
everywhere. The document they considered, and which would later become the
Universal Declaration of Human Rights, was taken up at the first session of the
General Assembly in 1946. The Assembly reviewed this draft Declaration on
Fundamental Human Rights and Freedoms and transmitted it to the Economic
and Social Council "for reference to the Commission on Human Rights for
consideration . . . in its preparation of an international bill of rights." The
Commission, at its first session early in 1947, authorized its members to
formulate what it termed "a preliminary draft International Bill of Human
Rights". Later the work was taken over by a formal drafting committee,
consisting of members of the Commission from eight States, selected with due
regard for geographical distribution.
In 1950, on the second anniversary of the adoption of the Universal
Declaration of Human Rights, students at the UN International Nursery School
in New York viewed a poster of the historic document. After adopting it on
December 10, 1948, the UN General Assembly had called upon all Member
States to publicize the text of the Declaration and "to cause it to be
disseminated, displayed, read and expounded principally in schools and other
educational institutions, without distinction based on the political status of
countries or territories."
The Commission on Human Rights was made up of 18 members from
various political, cultural and religious backgrounds. Eleanor Roosevelt, widow
of American President Franklin D. Roosevelt, chaired the UDHR drafting
committee. With her were René Cassin of France, who composed the first draft
of the Declaration, the Committee Rapporteur Charles Malik of Lebanon, Vice-
Chairman Peng Chung Chang of China, and John Humphrey of Canada,
Director of the UN’s Human Rights Division, who prepared the Declaration’s
blueprint. But Mrs. Roosevelt was recognized as the driving force for the
Declaration’s adoption.
The Commission met for the first time in 1947. In her memoirs, Eleanor
Roosevelt recalled:
“Dr. Chang was a pluralist and held forth in charming fashion on the
proposition that there is more than one kind of ultimate reality. The
Declaration, he said, should reflect more than simply Werstern ideas and
Dr. Humphrey would have to be eclectic in his approach. His remark,
though addressed to Dr. Humprhey, was really directed at Dr. Malik,
from whom it drew a prompt retort as he expounded at some length the
philosophy of Thomas Aquinas. Dr. Humphrey joined enthusiastically in
 the discussion, and I remember that at one point Dr. Chang suggested
that the Secretariat might well spend a few months studying the
fundamentals of Confucianism!”
The final draft by Cassin was handed to the Commission on Human
Rights, which was being held in Geneva. The draft declaration sent out to all
UN member States for comments became known as the Geneva draft.
The first draft of the Declaration was proposed in September 1948 with
over 50 Member States participating in the final drafting. By its resolution 217
A (III) of 10 December 1948, the General Assembly, meeting in Paris, adopted
the Universal Declaration of Human Rights with eight nations abstaining from
the vote but none dissenting. Hernán Santa Cruz of Chile, member of the
drafting sub-Committee, wrote:
“I perceived clearly that I was participating in a truly significant historic
event in which a consensus had been reached as to the supreme value of
the human person, a value that did not originate in the decision of a
worldly power, but rather in the fact of existing—which gave rise to the
inalienable right to live free from want and oppression and to fully
develop one’s personality. In the Great Hall…there was an atmosphere
of genuine solidarity and brotherhood among men and women from all
latitudes, the like of which I have not seen again in any international
setting.”
The entire text of the UDHR was composed in less than two years. At a
time when the world was divided into Eastern and Western blocks, finding a
common ground on what should make the essence of the document proved to be
a colossal task.

THE FOUNDATION OF INTERNATIONAL HUMAN RIGHTS LAW

The Universal Declaration of Human Rights is generally agreed to be the
foundation of international human rights law. Adopted in 1948, the UDHR has
inspired a rich body of legally binding international human rights treaties. It
continues to be an inspiration to us all whether in addressing injustices, in times
of conflicts, in societies suffering repression, and in our efforts towards
achieving universal enjoyment of human rights.
It represents the universal recognition that basic rights and fundamental
freedoms are inherent to all human beings, inalienable and equally applicable to
everyone, and that every one of us is born free and equal in dignity and rights.
Whatever our nationality, place of residence, gender, national or ethnic origin,
colour, religion, language, or any other status, the international community on
December 10 1948 made a commitment to upholding dignity and justice for all
of us.

Foundation for Our Common Future

Over the years, the commitment has been translated into law, whether in
the forms of treaties, customary international law, general principles, regional
agreements and domestic law, through which human rights are expressed and
guaranteed. Indeed, the UDHR has inspired more than 80 international human
rights treaties and declarations, a great number of regional human rights
conventions, domestic human rights bills, and constitutional provisions, which
together constitute a comprehensive legally binding system for the promotion
and protection of human rights.
Building on the achievements of the UDHR, the International Covenant
on Civil and Political Rights, and the International Covenant on Economic,
Social and Cultural Rights entered into force in 1976. The two Covenants have
developed most of the rights already enshrined in the UDHR, making them
effectively binding on States that have ratified them. They set forth everyday
rights such as the right to life, equality before the law, freedom of expression,
the rights to work, social security and education. Together with the UDHR, the
Covenants comprise the International Bill of Human Rights.
 Over time, international human rights treaties have become more focused
and specialized regarding both the issue addressed and the social groups
identified as requiring protection. The body of international human rights law
continues to grow, evolve, and further elaborate the fundamental rights and
freedoms contained in the International Bill of Human Rights, addressing
concerns such as racial discrimination, torture, enforced disappearances,
disabilities, and the rights of women, children, migrants, minorities, and
indigenous peoples.

Universal Values
The core principles of human rights first set out in the UDHR, such as
universality, interdependence and indivisibility, equality and non-
discrimination, and that human rights simultaneously entail both rights and
obligations from duty bearers and rights owners, have been reiterated in
numerous international human rights conventions, declarations, and resolutions.
Today, all United Nations member States have ratified at least one of the nine
core international human rights treaties, and 80 percent have ratified four or
more, giving concrete expression to the universality of the UDHR and
international human rights.

PREAMBLE
Whereas recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the foundation of
freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in
barbarous acts which have outraged the conscience of mankind, and the advent
of a world in which human beings shall enjoy freedom of speech and belief and
freedom from fear and want has been proclaimed as the highest aspiration of the
common people,
 Whereas it is essential, if man is not to be compelled to have recourse, as
a last resort, to rebellion against tyranny and oppression, that human rights
should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations
between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed
their faith in fundamental human rights, in the dignity and worth of the human
person and in the equal rights of men and women and have determined to
promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in co-
operation with the United Nations, the promotion of universal respect for and
observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the
greatest importance for the full realization of this pledge,
Now, Therefore THE GENERAL ASSEMBLY proclaims THIS
UNIVERSAL DECLARATION OF HUMAN RIGHTS 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.

1. All human beings are born free and equal in dignity and rights (Art 1.)

Civil and Political Rights: - Art 2 to 21 deal with those civil and political
rights which have been generally recognized throughout the world. These are as
follows:
2. Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status (Art 2).
3. Everyone has the right to life, liberty and security of person (Art 3).
4. No one shall be held in slavery or servitude; slavery and the slave trade
shall be prohibited in all their forms (Art 4).
5. No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment (Art 5).
6. Everyone has the right to recognition everywhere as a person before
the law (Art 6).
7. All are equal before the law and are entitled without any discrimination
to equal protection of the law. All are entitled to equal protection against
any discrimination in violation of this Declaration and against any
incitement to such discrimination (Art 7).
8. Everyone has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights granted him by
the constitution or by law (Art 8).
9. No one shall be subjected to arbitrary arrest, detention or exile (Art 9).
10. Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him (Art 10).
11. Art 11(1) Everyone charged with a penal offence has the right to be
presumed innocent until proved guilty according to law in a public trial at
which he has had all the guarantees necessary for his defence.
(2) No one shall be held guilty of any penal offence on account of any act
or omission which did not constitute a penal offence, under national or
international law, at the time when it was committed. Nor shall a heavier
penalty be imposed than the one that was applicable at the time the penal
offence was committed.
12. No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attacks upon his honour and
reputation. Everyone has the right to the protection of the law against
such interference or attacks (Art 12).
13. Art 13(1) everyone has the right to freedom of movement and
residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to
return to his country.
14. Art14 (1) Everyone has the right to seek and to enjoy in other
countries asylum from persecution,
(2) This right may not be invoked in the case of prosecutions genuinely
arising from non-political crimes or from acts contrary to the purposes
and principles of the United Nations
15. Art 15(1) everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the
right to change his nationality.
16. Art 16(1) Men and women of full age, without any limitation due to
race, nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and at its
dissolution.
(2) Marriage shall be entered into only with the free and full consent of
the intending spouses.
(3) The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State.
17. Art 17(1) Everyone has the right to own property alone as well as in
association with others.
(2) No one shall be arbitrarily deprived of his property.
 18. 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 (Art 18).
19. Everyone has the right to freedom of opinion and expression; this
right includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and
regardless of frontiers (Art 19).
20. Art 20 (1) Everyone has the right to freedom of peaceful assembly
and association.
(2) No one may be compelled to belong to an association.
21. Art 21(1) everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of
government; this will shall be expressed in periodic and genuine elections
which shall be by universal and equal suffrage and shall be held by secret
vote or by equivalent free voting procedures

Economic and Social Rights:- Article 22 to 27 of the Declaration deal with

economic and social rights which are as follows:
22. Everyone, 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 (Art 22).
23. Art 23(1) Everyone has the right to work, to free choice of
employment, to just and favourable conditions of work and to protection
against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for
equal work.
(3) Everyone 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.
(4) Everyone has the right to form and to join trade unions for the
protection of his interests.
24. Everyone has the right to rest and leisure, including reasonable
limitation of working hours and periodic holidays with pay (Art 24).
25. Art 25(1) Everyone has the right to a standard of living adequate for
the health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services, and the
right to security in the event of unemployment, sickness, disability,
widowhood, old age or other lack of livelihood in circumstances beyond
his control.
(2) Motherhood and childhood are entitled to special care and assistance.
All children, whether born in or out of wedlock, shall enjoy the same
social protection.
26. Art 26(1) everyone has the right to education. Education shall be free,
at least in the elementary and fundamental stages. Elementary education
shall be compulsory. Technical and professional education shall be made
generally available and higher education shall be equally accessible to all
on the basis of merit.
(2) Education shall be directed to the full development of the human
personality and to the strengthening of respect for human rights and
 fundamental freedoms. It shall promote understanding, tolerance and
friendship among all nations, racial or religious groups, and shall further
the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be
given to their children.
27. Art 27(1) everyone has the right freely to participate in the cultural
life of the community, to enjoy the arts and to share in scientific
advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic production of
which he is the author.
28. Everyone is entitled to a social and international order in which the
rights and freedoms set forth in this Declaration can be fully realized (Art
28).
29. Art 29(1) everyone has duties to the community in which alone the
free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject
only to such limitations as are determined by law solely for the purpose
of securing due recognition and respect for the rights and freedoms of
others and of meeting the just requirements of morality, public order and
the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the
purposes and principles of the United Nations.
30. Nothing in this Declaration may be interpreted as implying for any
State, group or person any right to engage in any activity or to perform
any act aimed at the destruction of any of the rights and freedoms set
forth herein (Art 30).

Legal Effect of the Declaration

 The UDHR, the Magna Carta of rights was one of the first major
achievements of the United Nations in the field of Human Rights. The
Declaration set for the international community a common standard of
achievement. It recognized the inherent dignity and the equal and inalienable
rights of all people in all nations. The human rights in the form of norms
mentioned in the declaration are fundamental in a moral sense and are universal,
indivisible, interdependent and interrelated. It is the duty of the States regardless
of their social, political and economic systems to promote and protect Human
rights. The precise effect of the Declaration was, therefore, to urge States to
establish a system and procedures for the future protection of human rights. It
did not place States under an immediate binding obligation to protect them.
Further, the Declaration is an authorative statement of the meaning of Art 55 of
the UN Charter, which is law: thus the Member States of the United Nations did
reach agreement on a meaning of Art 55 that was relatively specific.

India and the Universal Declaration:- India was a signatory to the Declaration
,The Indian Constitution adopted by the Constituent Assembly on November
26, 1949 which came into force from January 26, 1950 was greatly influenced
by the Declaration .The Preamble of the Constitution stated ‘dignity of the
individuals’ which implied that the worth inherent in the human person was
well recognized. Further, provisions of Part III (Fundamental Rights) and part
IV (DPSP) bear a close resemblance to the UDHR consequently, a number of
fundamental rights were guaranteed to individuals in Part III of the Indian
Constitution which were similar to the provisions of the Declaration is clear
from the following chart:

Name of the Rights UDHR Indian Constitution

Equality before law Art 7 Art 14
Prohibition of Discrimination Art 7 Art 15(1)
Equality of Opportunity Art 21(2) Art 16(1)
Freedom of Speech and Expression Art 19 Art 19(1)(a)
Freedom of peaceful Assembly Art 20(1) Art 19(1)(b)
Right to Form Associations of Union Art 23(4) Art 19(1)(c)
Freedoms of Movement within the Border Art 13(1) Art 19(1)(d)
Protection in respect of Conviction for Offences Art 11(2) Art 20(1)
Protection of Life and Personal Liberty Art 3 Art 21
Protection of Slavery and Forced Labour Art 4 Art 23
Freedom of Conscience and Religion Art 18 Art 25(1)
Remedy for Enforcement of Rights Art 8 Art 32.

International Covenant on Human Rights

The International Bill of Human Rights consists of the Universal

Declaration of Human Rights (UDHR), The International Covenant on Civil
and Political Rights and its optional Protocol, and The International Covenant
on Economic, Social, and Cultural Rights.
First in 1948 came the UDHR, which serves to define the basic human
rights and freedoms to which all individuals are entitled. A declaration is not a
legally binding document, however. For the rights defined in a declaration to
have full legal force, they must be written into documents called conventions
(also referred to as treaties or covenants), which set international norms and
standards. When a government signs a convention, it becomes legally bound to
uphold those standards.
Once the UDHR was drafted and adopted by the UN General Assembly,
work began to codify the rights it contained into a convention. For political and
procedural reasons, these rights were divided between two separate covenants,
each addressing different categories of rights. The International Covenant on
Civil and Political Rights (ICCPR) articulates the specific, liberty-oriented
rights that a state may not take from its citizens, such as freedom of expression
and freedom of movement. The International Covenant on Economic, Social,
and Cultural Rights (ICESCR) addresses those articles in the UDHR that
define an individual’s rights to basic necessities, such as food, housing, and
health care, which a state should provide for its citizens, in so far as it is able.
Both covenants were adopted by the UN in 1966.

Reporting and Monitoring

Every convention contains articles that establish procedures for
monitoring and reporting how states parties, governments that have ratified the
document, are complying with it. Both Covenants, for example, provide for a
body of independent experts to monitor governmental compliance with treaty
provisions. Articles in the ICCPR establish a Human Rights Committee
consisting of 18 independent experts, who examine progress reports from states
that are party to that Covenant. The Committee also can consider complaints of
one member state against another. In addition, the ICCPR provides a complaint
procedure through which individuals can have grievances against their
government heard in an international forum.
When a UN member state ratifies a convention, it agrees to abide by the
provisions of the convention, consent to be monitored, change its laws to
conform to the convention, and report at regular intervals on its progress in
doing so. Relevant parts of these reports are also forwarded to the specialized
UN-affiliated intergovernmental organizations such as the World Health
Organization (WHO) and the International Labor Organization (ILO) for their
review and recommendations.

Steps in the Evolution of Conventions

Before they become codified as binding law, human rights concepts must
pass through a lengthy process that involves consensus building and practical
politics at the international and national levels.
1) Drafted by working groups. The UN General Assembly commissions
working groups consisting of representatives of UN member states, as well as
representatives of intergovernmental and nongovernmental organizations
(NGOs).
2) Adopted by vote of the UN General Assembly.
3) Signed by member states. When member states sign the convention, they are
indicating that they have begun the process required by their government for
ratification. In signing, they are also agreeing to refrain from acts that would be
contrary to the objectives of the convention.
4) Ratified by member states. When a member state ratifies a convention, it
signifies its intention to comply with the specific provisions and obligations of
the document. It takes on the responsibility to see that its national laws are in
agreement with the convention. There is also a process by which states can
ratify the convention, but also indicate their reservations about specific articles.
5) Entered into force. A convention goes into effect when a certain number of
member states have ratified it. For example, the ICCPR and ICESCR were
adopted in 1966; however, they did not enter into force until 1976 when the
specified number of 35 member states had ratified them.

The International Covenant on Civil and Political Rights (1966)

The Covenant on Civil and Political Rights consists of 53 Articles and is
divided into six parts. While in Part I, II,III various rights and freedoms are
enumerated, the other three parts are devoted with implementation procedures
for effective realization of these rights along with the final clauses.
This Covenant was adopted by the United Nations General Assembly on
16 December 1966 and entered into force on 23 March 1976..The Covenant
elaborates further the civil and political rights and freedoms listed in the
Universal Declaration of Human Rights. Under Article 1 of the Covenant, the
states commit themselves to promote the right to self-determination and to
respect that right. It also recognizes the rights of peoples to freely own, trade
and dispose of their natural wealth and resources.
Part II stipulated rights and obligations of the State parties to the
Covenant. It included the obligations of the States to take necessary steps to
incorporate the provisions of the Covenant in the domestic laws and to adopt
such legislative or other measures as may be necessary to give effect to the
rights recognized in the Covenant. The state Parties ensure the equal right of
women and women to the enjoyment of all civil and political rights.

Substantive Rights
Part III deals with the specific rights of the individuals and the obligations
of the State partiers.
Article 2. The right to legal recourse when their rights have been
violated, even if the violator was acting in an official capacity.
Article 3. The right to equality between men and women in the
enjoyment of their civil and political rights.
Article 6 The right to life and survival.
Article [Link] freedom from inhuman or degrading treatment or
punishment.
Article [Link] freedom from slavery and servitude.
Article 9. The right to liberty and security of the person and freedom
from arbitrary arrest or detention.
 Article 11. The freedom from prison due to debt.
Article 12. The right to liberty and freedom of movement
Article 14. The right to equality before the law; the right to be presumed
innocent until proven guilty and to have a fair and public hearing by an
impartial tribunal.
Article 16. The right to be recognized as a person before the law.
Article 17. The right privacy and its protection by the law.
Article 18. The freedom of thought, conscience and religion.
Article 19. The freedom of opinion and expression.
Article 20. Prohibition of propaganda advocating war or national, racial
or religious hatred.
Article 21. The right to peaceful assembly.
Article 22. The right to freedom of association.
Article 23. The right to marry and found a family
Article 24. The rights for children (status as minors, nationality,
registration and name).
Article 25. The right to participate in the conduct of public affairs, to
vote and to be elected and access to public service.
Article 26. The right to equality before the law and equal protection
Article 27. The right, for members of religious, ethnic or linguistic
minorities, to enjoy their culture, practice their religion and use their
language.

The above rights set forth in the Covenant are not absolute and are
subject to certain limitations. While the formulation of the limitations differed
in so far as details are concerned from Articles 2 to 27 , it could be said that by
and large the Covenant provided that rights should not be subjected to any
restrictions except those which were provided by law, , were necessary to
protect national security, public order, public health or morals or the rights and
freedoms of others.

Implementation Procedure- Part IV of the covenant laid down the procedure

for the implementation .A provision was made for the establishment of the
Human Rights Committee which was the monitoring body under the covenant.

International Covenant on Economic, Social and Cultural Rights

(ICESCR)

Cultural Rights (1966), together with the Universal Declaration of Human

Rights (1948) and the International Covenant on Civil and Political Rights
(1966), make up the International Bill of Human Rights. In accordance with the
Universal Declaration, the Covenants recognize that “... the ideal of free human
beings enjoying civil and political freedom and freedom from fear and want can
be achieved only if conditions are created whereby everyone may enjoy his civil
and political rights, as well as his economic, social and cultural rights The
International covenant on Economic, Social and cultural rights is consisted of
31 Articles which are divided in five parts. Part I deals with the All peoples
have the right of self-determination,
Including the right to determine their political status and freely pursue
their economic, social and cultural development as mentioned in Article1 of the
Covenant on Civil and Political Rights. Other rights of the individuals are
enumerated in Part III of the Covenant which included in the following rights

Article 2. Each State Party undertakes to take steps to the maximum of its
available resources to achieve progressively the full realization of the
rights in this treaty. Everyone is entitled to the same rights without
discrimination of any kind.
Article 3. The States undertake to ensure the equal right of men and
women to the enjoyment of all rights in this treaty.
Article 4. Limitations may be placed on these rights only if compatible
with the nature of these rights and solely for the purpose of promoting the
general welfare in a democratic society.
Article 5. No person, group or government has the right to destroy any of
these rights.
Article 6. Everyone has the right to work, including the right to gain
one's living at work that is freely chosen and accepted.
Article 7. Everyone has the right to just conditions of work; fair wages
ensuring a decent living for himself and his family; equal pay for equal
work; safe and healthy working conditions; equal opportunity for
everyone to be promoted; rest and leisure.
Article 8. Everyone has the right to form and join trade unions, the right
to strike. Everyone has the right to social security, including social
insurance.
Article 10. Protection and assistance should be accorded to the family.
Marriage must be entered into with the free consent of both spouses.
Special protection should be provided to mothers. Special measures
should be taken on behalf of children, without discrimination. Children
and youth should be protected from economic exploitation. Their
employment in dangerous or harmful work should be prohibited. There
should be age limits below which child labor should be prohibited.
Article 11. Everyone has the right to an adequate standard of living for
himself and his family, including adequate food, clothing and housing.
Everyone has the right to be free from hunger.
Article 12. Everyone has the right to the enjoyment of the highest
attainable standard of physical and mental health.
 Article 13. Everyone has the right to education. Primary education should
be compulsory and free to all.
Article 14. Those States where compulsory, free primary education is not
available to all should work out a plan to provide such education.
Article 15. Everyone has the right to take part in cultural life; enjoy the
benefits of scientific progress.

Part II of the Covenant laid down the undertakings of the State parties to
the Covenant. Article II provided that each State Party undertakes to take steps,
individually and through international assistance and co-operation, especially
economic and technical , to the maximum of its available resources, with a view
to achieving progressively the full realization of full rights recognized in the
Covenant by all appropriate measures .It appears from the above provision that
the States are not number under an obligation to abide by the provisions of the
Covenant immediately,i.e., from the date of ratification of the Covenant. Thus,
the Covenant has set the standards which the states parties are required to
achieve in future. Its provisions shall be implemented progressively by the
states depending on the resources available to them. Thus, the Covenant is
essentially a ‘promotional convention’ stipulating objective rather than
standards and requiring implementation over time-rather than all at once.
The importance of the covenants lies in the fact that they recognized the
inherent dignity and of the equal and inalienable rights of all members of the
human family which is the foundation of freedom, justice and peace in the
World. It is an organization of the States to provide these rights to the
individuals as they derive from the inherent dignity of the human person ; and
also because they are essential for the development of one’s personality.

European Convention on Human rights (1950)

 The development of a regional system of human rights protection
operating across Europe can be seen as a direct response to twin concerns. First,
in the aftermath of the Second World War, the convention, drawing on the
inspiration of the Universal Declaration of Human Rights can be seen as part of
a wider response of the Allied Powers in delivering a human rights agenda
through which it was believed that the most serious human rights violations
which had occurred during the Second World War (most notably, the
Holocaust) could be avoided in the future. Second, the Convention was a
response to the growth of Communism in Central and Eastern Europe and
designed to protect the member states of the Council of Europe from communist
subversion. This, in part, explains the constant references to values and
principles that are "necessary in a democratic society" throughout the
Convention, despite the fact that such principles are not in any way defined
within the convention itself.[3]
The Convention was drafted by the Council of Europe after Second
World War in response to a call issued by Europeans from all walks of life who
had gathered at the Hague Congress. Over 100 parliamentarians from the twelve
member states of the Council of Europe gathered in Strasbourg in the summer
of 1949 for the first ever meeting of the Council's Consultative Assembly to
draft a "charter of human rights" and to establish a court to enforce it. British
MP and lawyer Sir David Maxwell-Fyfe, the Chair of the Assembly's
Committee on Legal and Administrative Questions, was one of its leading
members and guided the drafting of the Convention. As a prosecutor at the
Nuremberg Trials, he had seen first-hand how international justice could be
effectively applied. With his help, the French former minister and Resistance
fighter Pierre-Henri Teitgen submitted a report[4] to the Assembly proposing a
list of rights to be protected, selecting a number from the Universal Declaration
of Human Rights just agreed to in New York, and defining how the enforcing
judicial mechanism might operate. After extensive debates,[5] the Assembly sent
its final proposal[6] to the Council's Committee of Ministers, which convened a
group of experts to draft the Convention itself.
The Convention was designed to incorporate a traditional civil liberties
approach to securing "effective political democracy", from the strongest
traditions in the United Kingdom, France and other member states of the
fledgling Council of Europe. The Convention was opened for signature on 4
November 1950 in Rome. It was ratified and entered into force on 3 September
1953. It is overseen and enforced by the European Court of Human Rights in
Strasbourg, and the Council of Europe. Until procedural reforms in the late
1990s, the Convention was also overseen by a European Commission on
Human Rights.
The Convention established the European Court of Human Rights
(ECHR). Any person who feels his or her rights have been violated under the
Convention by a state party can take a case to the Court. Judgments finding
violations are binding on the States concerned and they are obliged to execute
them. The Committee of Ministers of the Council of Europe monitors the
execution of judgments, particularly to ensure payment of the amounts awarded
by the Court to the applicants in compensation for the damage they have
sustained.
The establishment of a Court to protect individuals from human rights
violations is an innovative feature for an international convention on human
rights, as it gives the individual an active role on the international arena
(traditionally, only states are considered actors in international law). The
European Convention is still the only international human rights agreement
providing such a high degree of individual protection. State parties can also take
cases against other state parties to the Court, although this power is rarely used.
The Convention has several protocols, which amend the convention framework.
Convention Articles
As amended by Protocol 11, the Convention consists of three parts. The
main rights and freedoms are contained in Section I, which consists of Articles
2 to 18. Section II (Articles 19 to 51) sets up the Court and its rules of
operation. Section III contains various concluding provisions.
Before the entry into force of Protocol 11, Section II (Article 19) set up
the Commission and the Court, Sections III (Articles 20 to 37) and IV (Articles
38 to 59) included the high-level machinery for the operation of, respectively,
the Commission and the Court, and Section V contained various concluding
provisions.
Many of the Articles in Section I are structured in two paragraphs: the
first sets out a basic right or freedom (such as Article 2(1) – the right to life) but
the second contains various exclusions, exceptions or limitations on the basic
right (such as Article 2(2) – which excepts certain uses of force leading to
death).

Article 1 - Respecting Rights

Article 1 simply binds the signatory parties to secure the rights under the
other Articles of the Convention "within their jurisdiction". In exceptional
cases, "jurisdiction" may not be confined to a Contracting State's own national
territory; the obligation to secure Convention rights then also extends to foreign
territory, such as occupied land in which the State exercises effective control.

Article 2 - Life
Article 2 protects the right of every person to their life. The first
paragraph of the article contains an exception for lawful executions, although
this exception has largely been superseded by Protocols 6 and 13. Protocol 6
prohibits the imposition of the death penalty in peacetime, while Protocol 13
extends the prohibition to all circumstances. (For more on Protocols 6 and 13,
see below.)
The second paragraph of Article 2 provides that death resulting from
defending oneself or others, arresting a suspect or fugitive, or suppressing riots
or insurrections, will not contravene the Article when the use of force involved
is "no more than absolutely necessary".
Signatory states to the Convention can only derogate from the rights
contained in Article 2 for deaths which result from lawful acts of war.
The European Court of Human Rights did not rule upon the right to life
until 1995, when in McCann v. United Kingdom it ruled that the exception
contained in the second paragraph do not constitute situations when it is
permitted to kill, but situations where it is permitted to use force which might
result in the deprivation of life.
The Court has ruled that states have three main duties under Article 2:
1. a duty to refrain from unlawful killing,
2. a duty to investigate suspicious deaths and,
3. in certain circumstances, a positive duty to prevent foreseeable loss of
life.

3. Article 3 - Torture
Article 3 prohibits torture, and "inhuman or degrading treatment or
punishment". There are no exceptions or limitations on this right. This provision
usually applies, apart from torture, to cases of severe police violence and poor
conditions in detention.

4. Article 4 - Servitude
Article 4 prohibits slavery, servitude and forced labour but exempts
labour:
 done as a normal part of imprisonment,
  in the form of compulsory military service or work done as an
alternative by conscientious objectors,
 required to be done during a state of emergency, and
 considered to be a part of a person's normal "civic obligations."

5. Article 5 - Liberty and Security

Article 5 provides that everyone has the right to liberty and security of
person. Liberty and security of the person are taken as a "compound" concept -
security of the person has not been subject to separate interpretation by the
Court.
Article 5 provides the right to liberty, subject only to lawful arrest or
detention under certain other circumstances, such as arrest on reasonable
suspicion of a crime or imprisonment in fulfilment of a sentence. The article
also provides the right to be informed in a language one understands of the
reasons for the arrest and any charge against them, the right of prompt access to
judicial proceedings to determine the legality of one's arrest or detention and to
trial within a reasonable time or release pending trial, and the right to
compensation in the case of arrest or detention in violation of this article.

Article 6 - Fair Trial

Article 6 provides a detailed right to a fair trial, including the right to a
public hearing before an independent and impartial tribunal within reasonable
time, the presumption of innocence, and other minimum rights for those
charged with a criminal offence (adequate time and facilities to prepare their
defence, access to legal representation, right to examine witnesses against them
or have them examined, right to the free assistance of an interpreter).
The majority of Convention violations that the Court finds today are
excessive delays, in violation of the "reasonable time" requirement, in civil and
criminal proceedings before national courts, mostly in Italy and France. Under
the "independent tribunal" requirement, the Court has ruled that military judges
in Turkish state security courts are incompatible with Article 6. In compliance
with this Article, Turkey has now adopted a law abolishing these courts.
Another significant set of violations concerns the "confrontation clause"
of Article 6 (i.e. the right to examine witnesses or have them examined). In this
respect, problems of compliance with Article 6 may arise when national laws
allow the use in evidence of the testimonies of absent, anonymous and
vulnerable witnesses.

Article 7 - Retrospectively
Article 7 prohibits the retrospective criminalisation of acts and omissions.
No person may be punished for an act that was not a criminal offence at the
time of its commission. The article states that a criminal offence is one under
either national or international law, which would permit a party to prosecute
someone for a crime which was not illegal under their domestic law at the time,
so long as it was prohibited by international law. The Article also prohibits a
heavier penalty being imposed than was applicable at the time when the
criminal act was committed.
Article 7 incorporates the legal principle nullum crimen, nulla poena sine
lege into the convention.

Article 8 - Privacy
Article 8 provides a right to respect for one's "private and family life, his
home and his correspondence", subject to certain restrictions that are "in
accordance with law" and "necessary in a democratic society". This article
clearly provides a right to be free of unlawful searches, but the Court has given
the protection for "private and family life" that this article provides a broad
interpretation, taking for instance that prohibition of private consensual
homosexual acts violates this article. This may be compared to the
jurisprudence of the United States Supreme Court, which has also adopted a
somewhat broad interpretation of the right to privacy. Furthermore, Article 8
sometimes comprises positive obligations:[16] whereas classical human rights are
formulated as prohibiting a State from interfering with rights, and thus not to do
something (e.g. not to separate a family under family life protection), the
effective enjoyment of such rights may also include an obligation for the State
to become active, and to do something (e.g. to enforce access for a divorced
parent to his/her child).

Article 9 - Conscience and Religion

Article 9 provides a right to freedom of thought, conscience and religion.
This includes the freedom to change a religion or belief, and to manifest a
religion or belief in worship, teaching, practice and observance, subject to
certain restrictions that are "in accordance with law" and "necessary in a
democratic society".

Article 10 - Expression
Article 10 provides the right to freedom of expression, subject to certain
restrictions that are "in accordance with law" and "necessary in a democratic
society". This right includes the freedom to hold opinions, and to receive and
impart information and ideas, but allows restrictions for:
 interests of national security
 territorial integrity or public safety
 prevention of disorder or crime
 protection of health or morals
 protection of the reputation or the rights of others
 preventing the disclosure of information received in confidence
 maintaining the authority and impartiality of the judiciary
Article 11 - Association
Article 11 protects the right to freedom of assembly and association,
including the right to form trade unions, subject to certain restrictions that are
"in accordance with law" and "necessary in a democratic society".

Article 12 - Marriage
Article 12 provides a right for women and men of marriageable age to
marry and establish a family.
Despite a number of invitations, the Court has so far refused to apply the
protections of this article to same-sex marriage. The Court has defended this on
the grounds that the article was intended to apply only to different-sex marriage,
and that a wide margin of appreciation must be granted to parties in this area.
In Goodwin v United Kingdom the Court ruled that a law which still
classified post-operative transsexual persons under their pre-operative sex,
violated article 12 as it meant that transsexual persons were unable to marry
individuals of their post-operative opposite sex. This reversed an earlier ruling
in Rees v United Kingdom. This did not, however, alter the Court's
understanding that Article 12 protects only different-sex couples.

Article 13 - Effective Remedy

Article 13 provides for the right for an effective remedy before national
authorities for violations of rights under the Convention. The inability to obtain
a remedy before a national court for an infringement of a Convention right is
thus a free-standing and separately actionable infringement of the Convention.

Article 14 - Discrimination
Article 14 contains a prohibition of discrimination. This prohibition is
broad in some ways, and narrow in others. It is broad in that it prohibits
discrimination under a potentially unlimited number of grounds. While the
article specifically prohibits discrimination based on "sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status", the last of
these allows the court to extend to Article 14 protection to other grounds not
specifically mentioned such as has been done regarding discrimination based on
a person's sexual orientation.
At the same time the article's protection is limited in that it only prohibits
discrimination with respect to rights under the Convention. Thus, an applicant
must prove discrimination in the enjoyment of a specific right that is guaranteed
elsewhere in the Convention (e.g. discrimination based on sex - Article 14 - in
the enjoyment of the right to freedom of expression - Article 10).
Protocol 12 extends this prohibition to cover discrimination in any legal
right, even when that legal right is not protected under the Convention, so long
as it is provided for in national law.

Article 15 - derogations
Article 15 allows contracting states to derogate from certain rights
guaranteed by the Convention in time of "war or other public emergency
threatening the life of the nation". Permissible derogations under article 15 must
meet three substantive conditions:
1. there must be a public emergency threatening the life of the nation;
2. any measures taken in response must be "strictly required by the
exigencies of the situation", and
3. the measures taken in response to it, must be in compliance with a
state's other obligations under international law
In addition to these substantive requirements the derogation must be
procedurally sound. There must be some formal announcement of the
derogation and notice of the derogation, any measures adopted under it, and the
ending of the derogation must be communicated to the Secretary-General of the
Council of Europe.
The Court is quite permissive in accepting a state's derogations from the
Convention but applies a higher degree of scrutiny in deciding whether
measures taken by states under a derogation are, in the words of Article 15,
"strictly required by the exigencies of the situation". Thus in A v United
Kingdom, the Court dismissed a claim that a derogation lodged by the British
government in response to the September 11 attacks was invalid, but went on to
find that measures taken by the United Kingdom under that derogation were
disproportionate
In order for a derogation itself to be valid, the emergency giving rise to it
must be:
 actual or imminent, although states do not have to wait for disasters
to strike before taking preventive measures,
 involve the whole nation, although a threat confined to a particular
region may be treated as "threatening the life of the nation" in that
particular region,
 threaten the continuance of the organised life of the community,
 exceptional such that measures and restriction permitted by the
Convention would be "plainly inadequate" to deal with the
emergency.

Article 16 - Aiens
Article 16 allows states to restrict the political activity of foreigners. The
Court has ruled that European Union member states cannot consider the
nationals of other member states to be aliens.
Article 17 - Abuse of Rights
Article 17 provides that no one may use the rights guaranteed by the
Convention to seek the abolition or limitation of rights guaranteed in the
Convention. This addresses instances where states seek to restrict a human right
in the name of another human right, or where individuals rely on a human right
to undermine other human rights (for example where an individual issues a
death threat).

Article 18 - Permitted Restrictions

Article 18 provides that any limitations on the rights provided for in the
Convention may be used only for the purpose for which they are provided. For
example, Article 5, which guarantees the right to personal freedom, may be
explicitly limited in order to bring a suspect before a judge. To use pre-trial
detention as a means of intimidation of a person under a false pretext is
therefore a limitation of right (to freedom) which does not serve an explicitly
provided purpose (to be brought before a judge), and is therefore contrary to
Article 18.

Convention protocols
As of January 2010, fifteen protocols to the Convention have been
opened for signature. These can be divided into two main groups: those
amending the framework of the convention system, and those expanding the
rights that can be protected. The former require unanimous ratification by
member states before coming into force, while the latter require a certain
number of states to sign before coming into force.

Protocol 1 - This Protocol contains three different rights in which the

signatories could not agree to place in the Convention itself. Monaco and
Switzerland have signed but never ratified Protocol 1.
  Article 1 - property
Article 1 provides for the right to the peaceful enjoyment of one's
possessions.
 Article 2 - education
Article 2 provides for the right not to be denied an education and the right
for parents to have their children educated in accordance with their religious and
other views. It does not however guarantee any particular level of education of
any particular quality.
Although phrased in the Protocol as a negative right, in Şahin v. Turkey
the Court ruled that:
"it would be hard to imagine that institutions of higher
education existing at a given time do not come within the scope of the
first sentence of Article 2 of Protocol No 1. Although that Article does
not impose a duty on the Contracting States to set up institutions of
higher education, any State doing so will be under an obligation to
afford an effective right of access to them. In a democratic society, the
right to education, which is indispensable to the furtherance of human
rights, plays such a fundamental role that a restrictive interpretation
of the first sentence of Article 2 of Protocol No. 1 would not be
consistent with the aim or purpose of that provision."
 Article 3 - elections
Article 3 provides for the right to regular, free and fair elections.

Protocol 4 - civil imprisonment, free movement, expulsion

Article 1 prohibits the imprisonment of people for breach of a contract.
Article 2 provides for a right to freely move within a country once lawfully
there and for a right to leave any country. Article 3 prohibits the expulsion of
nationals and provides for the right of an individual to enter a country of his or
her nationality. Article 4 prohibits the collective expulsion of foreigners.
 Spain, Turkey and the United Kingdom have signed but never ratified
Protocol 4. Andorra, Greece and Switzerland have neither signed nor ratified
this protocol.
The United Kingdom's failure to ratify this protocol is due to concerns
over the interaction of Article 2 and Article 3 with British nationality law.
Specifically, several classes of "British national" (such as British National
(Overseas)) do not have the right of abode in the United Kingdom and are
subject to immigration control there. In 2009, the UK government stated that it
had no plans to ratify Protocol 4 because of concerns that those articles could be
taken as conferring that right.

Protocol 6 - Restriction of Death Penalty

Requires parties to restrict the application of the death penalty to times of
war or "imminent threat of war".
Every Council of Europe member state has signed and ratified Protocol 6,
except Russia who has signed but not ratified.

Protocol 7 - Crime and Family

 Article 1 provides for a right to fair procedures for lawfully
resident foreigners facing expulsion.
 Article 2 provides for the right to appeal in criminal matters.
 Article 3 provides for compensation for the victims of miscarriages
of justice.
 Article 4 prohibits the re-trial of anyone who has already been
finally acquitted or convicted of a particular offence (Double
jeopardy).
 Article 5 provides for equality between spouses.
Despite having signed the protocol more than twenty years ago,
Germany, the Netherlands and Turkey have never ratified it. Belgium, which
signed the protocol in 2005, ratified it in 2012, becoming the latest member
state to do so. The United Kingdom has neither signed nor ratified the protocol.

Protocol 12 - discrimination
Applies the current expansive and indefinite grounds of prohibited
discrimination in Article 14 to the exercise of any legal right and to the actions
(including the obligations) of public authorities.
The Protocol entered into force on 1 April 2005 and has (As of July 2009)
been ratified by 17 member states. Several member states — namely Bulgaria,
Denmark, France, Lithuania, Malta, Monaco, Poland, Sweden, Switzerland and
the United Kingdom — have not signed the protocol.[29]
The United Kingdom Government has declined to sign Protocol 12 on the
basis that they believe the wording of protocol is too wide and would result in a
flood of new cases testing the extent of the new provision. They believe that the
phrase "rights set forth by law" might include international conventions to
which the UK is not a party, and would result in incorporation of these
instruments by stealth. It has been suggested that the protocol is therefore in a
kind of catch-22, since the UK will decline to either sign or ratify the protocol
until the European Court of Human Rights has addressed the meaning of the
provision, while the court is hindered in doing so by the lack of applications to
the court concerning the protocol caused by the decisions of Europe's most
populous states — including the UK — not to ratify the protocol. The UK
Government, nevertheless, "agrees in principle that the ECHR should contain a
provision against discrimination that is free-standing and not parasitic on the
other Convention rights".[30] The first judgment finding a violation of Protocol
No. 12 was delivered in 2009 — Sejdić and Finci v. Bosnia and Herzegovina.

Protocol 13 - Complete Abolition of Death Penalty

 Provides for the total abolition of the death penalty. Currently the
majority of the Council of Europe has ratified Protocol 13. Poland and Armenia
have signed but not ratified the protocol, whilst Russia and Azerbaijan have not
signed it.

Procedural and Institutional Protocols

The Convention's provision affecting institutional and procedural matters
has been altered several times by mean of protocols. These amendments have,
with of the exception of Protocol 2, amended the text of the convention.
Protocol 2 did not amend the text of the convention as such, but stipulated that it
was to be treated as an integral part of the text. All of these protocols have
required the unanimous ratification of all the member states of the Council of
Europe to enter into force.

Protocol 11
Protocols 2, 3, 5, 8, 9 and 10 have now been superseded by Protocol 11
which entered into force on 1 November 1998.[33] It established a fundamental
change in the machinery of the convention. It abolished the Commission,
allowing individuals to apply directly to the Court, which was given compulsory
jurisdiction and altered the latter's structure. Previously states could ratify the
Convention without accepting the jurisdiction of the Court of Human Rights.
The protocol also abolished the judicial functions of the Committee of
Ministers.

Protocol 14
Protocol 14 follows on from Protocol 11 in proposing to further
improving the efficiency of the Court. It seeks to "filter" out cases that have less
chance of succeeding along with those that are broadly similar to cases brought
previously against the same member state. Furthermore a case will not be
considered admissible where an applicant has not suffered a "significant
disadvantage". This latter ground can only be used when an examination of the
application on the merits is not considered necessary and where the subject-
matter of the application had already been considered by a national court.
A new mechanism was introduced by Protocol 14 to assist enforcement
of judgments by the Committee of Ministers. The Committee can ask the Court
for an interpretation of a judgment and can even bring a member state before the
Court for non-compliance of a previous judgment against that state. Protocol 14
also allows for European Union accession to the Convention. The protocol has
been ratified by every Council of Europe member state, Russia being last in
February 2010. It entered into force on 1 June 2010.
A provisional Protocol 14bis had been opened for signature in 2009.
Pending the ratification of Protocol 14 itself, 14bis was devised to allow the
Court to implement revised procedures in respect of the states which have
ratified it. It allowed single judges to reject manifestly inadmissible applications
made against the states who have ratified the protocol. It also extended the
competence of three-judge chambers to declare applications made against those
states admissible and to decide on their merits where there already is a well-
established case law of the Court. Now that all Council of Europe member
states have ratified Protocol 14, Protocol 14bis has lost its raison d'être and
according to its own terms ceased to have any effect when Protocol 14 entered
into force on 1 June 2010.
Unit-III
Human Rights and Indian Constitution

Constitution of India is a supreme lex. It is a document having special

entity sanctity which sets out the frame work to cherish the philosophy of
human rights jurisprudence. Historical and geographical factors have been
responsible for the build of the Constitution, which is largest Constitution in the
world. The framers of the Constitution were keen to preserve the democratic
values to which Indians had attached the highest importance in their struggle for
freedom. But they were also keen to make provision considered to be necessary
in the light of the social and economic backwardness of certain sections of the
society. Human Rights, is the product of historical processes, were quite
significant in India’s struggle for independence from the colonial rule. The
Indian Political scene witnessed the gradual, yet inevitable emergence of the
normative aspirations of the people. Free India addressed itself to the
formulations of Human Rights through the legal instrument of the Constitution.
Political Freedom brought into focus the need to change to socio-economic
stability and enjoyment of individual civil and political rights were inseparable.
It is perhaps in this background that the wise founding fathers of Indian
Constitution had the economic and social content of freedom in their minds.
The history of struggle for independence and struggle for basic human
rights can be traced back to formulation of Indian National Congress in 1885,
draft Constitution of the India Bill of 1895 and Moti Lal Nehru Report of
[Link] dream came true 19 years later when India attained Independence.
Therefore, Constitution of India is not only a legislation or Act, but it imbibes
aspirations of the people. The concepts of liberty, equality, dignity and
fraternity have not appeared suddenly but these are the outcome of the struggle
for independence movement evolved after realizing their values during British
Rule. The preamble aims to secure to all its citizens.
 Justice, social, economic and political, liberty of thought, expression,
belief, faith and worship, equality of status and of opportunity and to promote
among them all fraternity assuring the dignity of the individual and the unity
and integrity of the nation.
Thus, the preamble concisely sets out quintessence of human rights which
represents the aspirations of the people, who have established the Constitution.
The preamble to the Constitution is of extreme importance and the Constitution
should be read and interpreted in the light of the grand and noble vision
expressed in the preamble. The Fundamental rights in the Constitution
constitute the Magna Carta of individual liberty and human rights. It is
paramount that court ought to synthesize these twin goals in a spirit of mutual
accommodation and co-existence to sub serve the social ends free from coercion
and exploitation necessary for founding an egalitarian society in India. To be
true, Indian Constitution is a document rich in human rights jurisprudence. The
Preamble to the Constitution of India is aimed as to protect and promote the
human rights of all the people .Various objective of the preamble find their
elaborate expression in various provisions of the Fundamental Rights and
Directive Principles respectively. The objective of fundamental rights is to
strike a balance between a written guarantee of individual rights and the
collective interests of the community. An effort is to be made to achieve
economic independence and “ it needs to be emphasized that the raising of the
economic standards of the people, especially in poorer parts of the economic
standards of the people, especially in poorer parts of the world is of pivotal
importance for the preservation of basic rights and civil liberties. Great
economic disparities are as much a menace to political democracy as are forces
of authoritarianism and dictatorship. A few islands of richness in a vast sea of
poverty, some stray cases of affluence in a vast desert of want and privation
constitute dangerous irritants for the health and the well-being of the nation.
Therefore, the need of the hour is that an earliest effort should be made to
improve the economic conditions of the weaker sections of the population if we
want to put human rights and civil liberties on firm foundations. To quite Justice
H.R Khanna:
“The ramparts of defence against tyranny are ultimately in the hearts of
people. The Constitution, the Courts and the laws can act only as aid to
strengthen those ramparts; they do not and cannot furnish substitutes for
those ramparts. If the ramparts are secure, anyone who dares to tamper
with the liberties of the citizens would do so at his own peril. If, however
the ramparts crack down, no Constitution, no Court of , no Law would be
able to do much in the matter.”
The human rights movement represents the historical journey
travelled by humankind ever since the beginning of an institutionalized political
and social order. Few phenomena have made such a profound impact and a few
movements have acquired such a universal presence and so powerful a potential
in the totality of human experience. Human Rights concept finds expanded
expression and constantly covers new areas as human society continues to
evolve to higher levels of development.
The original content of philosophy of fundamental freedom was
limited to civil and political rights of the individual, often referred to as "first
generation" rights, which in large part call for a negative obligation on
governments to desist from interfering with the exercise of individual liberties.
The expansive nature of the concept of human rights clubbed with the
realization that without guaranteeing economic, social and cultural rights, full
enjoyment of civil and political rights was not possible led to inclusion of
economic, social and cultural rights, popularly described as "second generation"
rights. These "second generation" rights place a more positive duty on
governments to act in order to ensure the realization of these rights.
The concept of human rights in its expanding comprehension,
has now travelled to encompass what are called "third generation" rights which
include : right to self determination, right regarded as belonging to peoples
rather than individuals, right to sovereignty over natural wealth and resources of
the country and, right to development as well as rights of disadvantaged groups
to special protection. Thus the road travelled by human rights movement has
been historic and impressive. For a long time, and till recently, the study and
concern about human rights remained largely confined to international lawyers,
diplomats and statesmen. It is only in the recent decades that these rights are
increasingly becoming the subjects of concern for national lawyers, activists,
reformers, policy makers and other citizenry. This development has largely been
the result of the following .Growing realization of governments, activists, elite,
opinion builders and constitutionalists that constitutions of most of the nations
believing in rule of law incorporate explicitly or implicitly the provisions of
various international covenants on human rights in one way or the other. For
example, the Founding Fathers in India incorporated in the Constitution most of
the rights enumerated in the Universal Declaration in two parts - the
Fundamental Rights and the Directive Principles of State Policy that covered
almost the entire field of Universal Declaration of Human Rights. The first set
of rights enunciated in Articles 2 to 21 of the Declaration and incorporated
under the Fundamental Rights-Articles 12 to 35 of the Constitution and the
second set of rights enunciated in Articles 22 to 28 of the Declaration In the
Cold war era plea for respecting human rights was made more as a tool for
condemning the 'other' - the charges of violations of human rights by nations of
one block were levelled by members of the other bloc frequently and at each
international as well as national fora. Most of the times these charges were
levelled more for serving political interests of one power block against the other
and vice-versa. End of the Cold War led to shift in attention of human rightists
and other from serving the cause of ideological war to relating human rights
movement to issues of social justice, distributive justice and putting check on
the ever-increasing power of the State with potential of its being abused or
excessively used against the individual in the national context as well.
Emergence of new and very powerful movements like feminist
movement, movement for environmental protection and sustainable
development, movement for protection of minorities and indigenous people and
their culture, movement for abolishing of child labour and all forms of
exploitation contributed to taking recourse to human rights concept and its
language more frequently. In fact, these movements have contributed in great
measure to the increasing reliance on human rights concept in national contexts.
All these developments lead us to believe that in the centuries to come the
extent of human development, prosperity and peace would largely depend on
the degree or realization of these rights in different communities on one hand
and global community on the other.
Respect and realization of human rights requires evolving a
culture that is more sensitive to the basic needs of every human being. It
respects the need for ensuring, to everyone, justice social, economic and
political, and provides fair and equal opportunities for growth and development
to every individual and group of people. It protects everyone from being
subjected to the whims of State and its arbitrary exercise of power and use of
force by its agencies. In fact the Founding Fathers while aiming at this goal
gave a detailed constitutional scheme. Unfortunately, despite more than five
decades of its operation the goal of ushering in human rights – culture has still
remained a distant reality. Amongst other causes, lack of recognizing the
significance and importance of education as a key instrument for bringing
changes in social and cultural attitudes and that too in a country like India,
which has a history of feudal and colonial past, and where impoverishment,
ignorance and illiteracy pervade all around, is perhaps the most important
reason responsible for this situation. It is only in the last few years that the
importance of education in relation to human rights has attracted the attention of
national policy-makers, educationists and education planners. However, respect
for human rights as a part of its social philosophy has existed in the Indian ethos
for a long time-despite its aberration intermittently. The goal of evolving human
rights culture requires operating at various levels such as (a) spreading
awareness, amongst masses, of and about these rights and also their duty for
respecting the rights of others, (b) not only creating awareness amongst masses
particularly amongst weaker, poor, and vulnerable groups but also imparting
capacities and confidence in them to stand for protection and preservation of
their rights, (c) requiring many to shed away some of their prejudices and
reforms some of the attitudes which are derogatory to others' dignity, (d)
creating different kind of knowledge, innovating or reforming structures,
methodologies and normative regimes, and imparting new skills and
competencies so that policy making, its enforcement and realization become
more sensitive to the demands of human rights culture, (e) establishing new
structures of accountability and making existing modes of accountability more
effective so that the State, its agencies and its personnel can be easily,
effectively and meaningfully made responsible for human rights violation on
one hand and can be made to internalize respect for these rights on the other.
It hardly needs stressing that the activity called 'education' - an
exercise in assimilating, creating and disseminating knowledge is a powerful
means of influencing and bringing attitudinal change in the citizens in general
as well as professional groups in particular. Being a tool to spread awareness,
information and knowledge amongst its recipient’s education can play a crucial
role at each of the levels mentioned above for the promotion of human rights
culture. But, unfortunately, the education system and more so the higher
education system in India, except in the last few years, has hardly shown any
credible signs of being a partner in the efforts of evolving human rights culture
in the country.
Fundamental Rights of Indian Constitution

Origin and development of Fundamental Rights: - Part III of the Constitution

contains a long list of fundamental rights. This chapter of the Constitution of
India has very well been described as the Magana Carta of India. As early as
1214 the English people exacted an assurance from King John for respect of
their ancient liberties. The Magna Carta is the evidence of their success which is
a written document. This is the first written document relating to the
fundamental rights of citizens. Thereafter from time to time the King had to
accede to many rights to his subjects. In 1689 the Bill of Rights was written
consolidating all important rights and liberties of the English people. In France
Declaration of Rights of Man and Citizen (1789) declared the natural,
inalienable and scared rights of man. Following the spirit of the Magna Carta of
the British and the Declaration of the Rights of Man and Citizen of France, the
Americans incorporated the Bill of Rights in their Constitution. The Americans
were the first to give the Bill of Rights a Constitutional status. Thus when the
Constitution of India was being framed the background for the incorporation of
the Bill of Rights was already present. The framers took inspiration from this
and incorporated a full chapter in the Constitution dealing with Fundamental
Rights. But the declaration of Fundamental Rights in the Indian Constitution is
the most elaborate and comprehensive yet framed by any State.
The inclusion of a chapter on Fundamental Rights in the Constitution of
India is in accordance with the trend of modern democratic thought, the idea
being to preserve that which is an indispensable condition of a free society. The
aim of having a declaration of fundamental rights is that certain elementary
rights, such as, right to life, liberty, freedom of speech, freedom of faith and so
on, should be regarded as inviolable under all conditions and that the shifting
majority in Legislature of the country should not have a free hand in interfering
with these fundamental rights.1 In West Virginia State Board of Education v.
Barnet2 , Justice Jackson explaining the nature and the purpose of the Bill of
Rights observed: "The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place them beyond the
reach of majorities and officials and to establish them as legal principles to be
applied by the courts. One's right to life, liberty and property, to free speech, a
free press, freedom of worship and assembly and other fundamental rights may
not be submitted to vote, the depend on the outcome of no elections".

Need for Fundamental Rights: Fundamental Rights were deemed essential to

protect the rights and liberties of the people against the encroachment of the
power delegated by them to their Government. They are limitations upon all the
powers of the Government, legislative as well as executive and they are
essential for the preservation of public and private rights, notwithstanding the
representative character of political instruments.3
Speaking about the importance of Fundamental Rights in the historic
judgment of Maneka Gandhi Vs. Union of India4 Justice Bhagwati observed:
"These Fundamental Rights represent the basic values cherished
by the people of this country (India) since the Vedic times and they are
calculated to protect the dignity of the individual and create conditions in
which every human being can develop his personality to the fullest extent.
They weave a 'pattern of guarantee' on the basic structure of human
rights, and impose negative obligation on the State not to encroach on
individual liberty in its various dimensions".
These rights are regarded as fundamental because they are most essential
for the attainment by the individual or his full intellectual, moral and spiritual

1
A.K. Gopalan's case AIR 1950 SC 27
2
319 US 624: 87 Led 1928.
3
Hartado v. People of California, 28 Led 232, as per Justice Mathews.
4
AIR 1978 SC 597 at p. 619
status. The negation of these rights will keep the moral and spiritual life stunted
and his potentialities undeveloped. The declaration of fundamental rights in the
Constitution serve as reminder to the Government in power that certain liberties,
assured to the people by the Constitution are to be respected. The danger of
encroachment on citizen's liberties is particularly great in parliamentary system
in which those who form the Government are leaders of the majority party in
the Legislature and can get laws made according to their wishes. The advocates
of inclusion of these rights in the Indian constitution emphasize that their
incorporation in the Constitution vests them with a sanctity which the legislators
dare not to violate so easily.
The object behind the inclusion of the Chapter of Fundamental Rights in
Indian Constitution is to establish 'a Government of law and not of man' a
governmental system where the tyranny of majority does not oppress the
minority. In short, the object is to establish Rule of Law and it would not be
wrong to say that the Indian Constitution in this respect goes much ahead than
any other Constitutions of the world. The object is not merely to provide
security and equality of citizenship of the people living in this land and thereby
helping the process of nayion building, but also and not less important to
provide certain standards of conduct, citizenship, justice and fairplay. They
were intended to make all citizens and persons appreciate that the paramount
law of the land has swept away privileges and has laid down the paramount
perfect equality between one section of the community and another in the matter
of all those rights which are essential and more perfection of man.5

Striking a balance between Individual liberty and Social need: Absolute and
unrestricted individual rights do not, and cannot exist in any modern State.
Unrestricted liberty becomes a licence and jeopardizes the liberty of others.

5
Moti lal v State of Uttar Pradesh, AIR 1951 ALL257.
"Civil liberties as guaranteed by the Constitution imply the existence of an
organized society maintaining public order without which liberty itself would be
lost in the excess of unrestrained abuses".6 If people were given complete and
absolute liberty without any social control the result would be ruin...Law is a
scheme of social control, so that when we are concerned with, we are concerned
only with the question of how much liberty is best...It is obvious that, if
individuals are allowed to have absolute freedom of speech and action the result
would be chaos, ruin and an anarchy. On the other hand, if the State has
absolute power to determine the extent of personal liberty the result would be
tyranny. Hence, the question arises as to how to make a balance between the
conflicting interests of individuals and of the society and particularly in a
Welfare State like ours.
The Indian Constitution attempts to do it by enumerating what are
fundamental rights and by setting limits within which they can be curtailed. The
Constitution permits 'reasonable' restrictions to be imposed on individual's
liberties in the interest of society. In this connection following observations of
Justice Mukherjee in A.K. Gopalan v. State of Madras7, may be quoted:
"There cannot be any such thing as absolute and uncontrolled liberty
wholly freed from restraint, for that would lead to anarchy and disorder.
The possession and enjoyment of all rights are subject to such reasonable
conditions as may be deemed by the governing authority of the country
essential to the safety, health, peace, general order and morals of the
community. In some cases, restrictions have to be placed upon free
exercise of individual rights to safeguard the interest of society, on the
other hand, social control which exists for public good has got to be
restrained, lest it should be misused to the detriment of individual rights
and liberties. Ordinarily, every man has the liberty to render his life as he

6
Fox v. New Hampshire, 1941 312 US 569 at p. 574
7
AIR 1950 SC 27.
 pleases, to say what he will, to go where he will, to follow any trade and
occupation or calling at his pleasure and to do any other thing which he
can lawfully do without any hindrance by any other person. On the other
hand, for the very protection of these liberties the society must arm itself
with certain powers. What the Constitution therefore attempts to do by
declaring the rights of the people is to strike a balance between
individual liberty and social control".
Article. 19 of the Constitution gives a list of individual liberties and
prescribes in the various clauses the restraints that may be placed upon them by
law so that they may not conflict with public welfare or general morality.

New Judicial trend in interpreting of Part III : Maneka Gandhi, AIR

1978 SC 597 followed in Sunil Batra (No. 1) Vs. Delhi Administration, AIR
1978 SC 1675; Sunil Batra (No. 2) Vs. Delhi Administration, AIR 1980 SC
1579; [Link] Vs. State of Maharashtra, AIR 1978 SC 1548;
Hussainara Khatoon (No. 1) Vs. Home Secretary, State of Bihar, AIR 1979
SC 1360; (No. 2) AIR 1979 SC 1369; (No. 3) AIR 1979 SC 1377 and number
of other cases:

(1). Widest interpretation of provisions of Part. III: In Maneka Gandhi's case

the Supreme Court has held that the provisions of Part. III should be given
widest possible interpretation. Delivering the judgment, Justice Bhagwathi said,
"the correct way of interpreting the provisions of Part. III is that attempt og the
court should be to expand the reach and ambit of the fundamental rights rather
than to attenuate their meaning and content". In Gopalan's case the Court had
taken the view that each Article dealt with separate rights and there was no
relation with each other. In other words, they were mutually exclusive. This
view has been held to be wrong in Maneka Gandhi's case where the Court has
taken the view that they are not mutually exclusive but form a single scheme in
the Constitution. Justice. Beg in his judgment said, "Their waters must mix to
constitute that grand flow of unimpeded and impartial justice. Isolation of
various aspects of human freedom for purposes of their protection, is neither
realistic nor beneficial but would defeat the objects of such protection." Further,
the Court held that to be a fundamental right it is not necessary that a right must
be specifically mentioned in a particular Article. Even if it is not mentioned in
any of the Articles specifically, it may be a fundamental right or partakes of the
same basic nature and character as that fundamental right. Every activity which
facilitates the exercise of the named fundamental right may be considered
integral part of that right and hence be a fundamental right. For example, it has
been held that right to travel abroad, speedy trial, free legal aid, protection to
prisoners in jail from degrading and inhumane treatment, etc., though not
specifically mentioned, are fundamental rights under Article 21 of the
Constitution.
The validity of a law infringing fundamental rights can be judged not
only with reference to particular Article under which a law is enacted but also
with reference to other Articles. In Gopalan's case, it was held that the validity
of a deprivation law enacted under Article. 21 must also satisfy the test of
'reasonableness' under Articles 14 and 19 of the Constitution.

(2). Natural justice and due process: In Maneka Gandhi's case the Supreme
Court has held that the 'procedure' depriving a person of his 'life or personal
liberty must be just, fair and reasonable'. It must satisfy the requirement of
natural justice which is an essential component of fair procedure under Article.
21. "Natural justice is a distillate of due process" observed Justice Krishna Iyer.
The concept of natural justice and due process which were rejected in Gopalan's
case forming part of our Constitutional Scheme guaranteeing fundamental
rights. "True, our Constitution has no 'due process' clause or the VIII
Amendment of the American Constitution" Justice Krishna Iyer observed, but
"after Cooper and Maneka Gandhi's cases the consequence is the same".

(3). Prisoners Right and Prison Reforms: The Supreme Court has
considerably widened the scope of Article. 21 and has held that its protection
will be available for safeguarding the fundamental rights of prisoners and for
effecting prison reforms. Convicts are also human beings and until they are
hanged they are entitled to live in jail as human beings and not as slaves.
Inhuman and barbarous treatment with prisoners is a constitutional prohibition.
So, it has been held that the punishment of solitary confinement, hand-cuffing,
harsh labour, degrading jobs and punishments in jail without judicial approval
violate the mandate of Article. 21 of the Constitution. Speedy trial and legal aid
to poor prisoners are constitutional rights available to them and does not depend
upon the mercy of the State.

(4). Expanding role of writ of Habeas Corpus: The dynamic role of judicial
remedies after Sunil Batra's case imparts to the habeas corpus with a versatile
vitality and operational utility as bastion of liberty even within the jails.
Wherever the rights of a prisoner either under the Constitution or under other
law are violated the writ power of the Court can and should run to rescue. The
habeas corpus writ can be issued not only for releasing a person from illegal
detention but also for directing the jail authorities to provide necessary
amenities to prisoners and to protect them from inhuman and barbarous
treatment. In fact, in Sunil Batra (No. 2) the petitioner did not seek his release
from the prison because he was sentenced to life imprisonment and was to
remain in jail but he sought the protection of the court from inhuman and
barbarous treatment with which he was treated by jail authorities. On refusal to
give money the petitioner was beaten and his anus was pierced with a warder's
baton. Batra, a convict under death sentence in Tihar Central Jail, came to know
of this inhuman treatment with the petitioner and brought the incident to the
knowledge of the court through a letter. The court converted this informal
information into the habeas corpus petition and issued directions to jail
authority to release the prisoner from punishment cell and not to subject him
with severity until fair procedure as laid down in Maneka Gandhi's case is
complied with.
In A.B.S.K. Sangh (Rly.) v. Union of India8 it has been held that even
an unregistered association can maintain a petition for relief under Article. 32 of
the Constitution if there is a common grievance. Thus Article. 32 is not
confined to protect only individual's fundamental rights but is capable of doing
justice wherever it is found and the society has an interest in it. "Access to
justice through 'class actions', 'public interest litigation', and 'representative
proceedings' is the modern jurisprudence", declared Justice Krishna Iyer. In the
historic judgment in Judges Transfer case9, the seven-judge Constitution Bench
of the Supreme Court has set at rest the controversy whether a person not
directly involved can move the Court for the redressal of grievances of persons
who cannot approach the Court because of poverty or any other reasons. The
Court held any member of the public having 'sufficient interest' can approach
the Court for enforcing constitutional or legal rights of such persons or group of
persons even through a letter.

(5). Human Rights Jurisprudence: In its recent decisions one finds extensive
references of the Human Rights by the Supreme Court, particularly for
protecting prisoners from various inhuman and barbarous treatment. Today,
human rights jurisprudence in India has Constitutional status, says Justice
Krishna Iyer in Sunil Batra's case. (No. 2).

8
AIR 1981 SC 298,
9
[Link] and others v. President of India and others, AIR 1982 SC 149.
In 1979, India became party to the International Covenant on Civil and Political
Rights. Article. 10 of the International Covenant provide that "All persons
deprived of their liberty shall be treated with humility and with respect for the
inherent dignity of the human persons. Article. 5 of the UN Declarations of
Human Rights, 1948, say, "No one shall be subjected to torture or to cruel
inhuman or degrading treatment or punishment". In Prem Shankar v. Delhi
Administration10, Justice. Krishna Iyer said that in interpreting constitutional
and statutory provisions the Court must not forget the core principle found in
Article. 5 of the UN Declaration of Human Rights, 1948. Homage to human
rights which calls for prisons, prison staff and prisoner’s reform, his Lordship
declared.
This is a welcome trend. It would certainly be able to in calculate a sense
of accountability in public authorities discharging public duties towards the
people and particularly towards the weaker sections of society. This new trend
of interpreting the provisions of the Part III of the Constitution, it is submitted,
would go a long way in protecting fundamental rights of citizens, outside the
prison and within the prison, and securing a social order where individual shall
be free from inhuman and barbarous treatment.

American Constitution: The Constitution of America embodies the Bill of

Rights in the first ten amendments to the Constitution. These rights were
declared in absolute terms. The Constitution contained no limitation on these
rights. But it was soon realized that for the maintenance of public order, to
prevent corruption in the public morale, incitement to crime and the like, some
limitations must of necessity be imposed upon the liberty of the individual. The
Supreme Court, in interpreting the Constitution had, therefore, to invent the
doctrine of 'police power' of the State, under which the State has the inherent

10
AIR 1980 SC 1535.
power to impose such restriction upon the fundamental rights as are necessary
to protect the common good, e.g., public health, safety and [Link] liberty
of an individual must yield to the common good. What is police power is again
a question to be decided by the Court? The Supreme Court of America has
given a very wide meaning to the term 'police power' so as to include everything
that tends to promote the public welfare, e.g., increase the industries of the
State, develop its resources and add to its wealth and prosperity.12
The Indian Constitution does not leave the question of limitation to be
decided by the Judiciary. Limitations are prescribed by the Constitution itself.
In addition to this, the Supreme Court has itself held that the provisions of our
Constitution should be interpreted by the plain words used in the Constitution
and not with reference to the connotation to police power in American
Constitutional Law.13 Our Constitution does not recognize this doctrine of
'police power'. The object of specifying the restrictions in clauses (2) to (6) of
Article. 19 was to define with certainty the limitations that might be imposed
upon the freedoms instead of leaving that to the disposal of the judges.
But what constitutes 'reasonable restriction' is again a matter to be
decided by the courts in each case which comes before it. By the reason of the
word 'reasonable', the Indian Constitution partially imports the American
doctrine. The only difference is that while in the USA the Supreme Court had to
assume the power of reviewing Legislative Acts under the cover of interpreting
the 'due process' clause, the Indian Constitution specifically confers this power
upon the courts by the use of the word 'reasonable' in clauses (2) to (6) of
Article. 19.

11
Giltow v. New York (1925) 268 US 652
12
Day Brite Lighting v. Missouri (1952) 342 US 421.
13
Chiranjit Lal v. Union of India, AIR 1951 SC 42 per Mukherjee. J. at p. 56
Suspension of Fundamental Rights: The Fundamental Rights are not absolute
rights. The Constitution, therefore, provides for the curtailment or the
suspension of the Fundamental Rights in the following circumstances:-
Article 358 provides that when the proclamation of emergency is made
by the President under Article 352 the freedoms guaranteed by Article. 19 are
automatically suspended and would continue to be so for the period of
emergency. The suspension of rights guaranteed by Article. 19 thus remove
restriction on the Legislative and Executive powers of the State imposed by the
Constitution. Any law, executive order made by the State during this period
cannot be challenged on the ground that they are inconsistent with the rights
guaranteed by Article. 19. Such laws shall, however, cease to have effect as
soon as the proclamation ceases and then Article. 19 is automatically revived
and begins to operate. Article. 358, however, makes it clear that things done or
omitted to be done during the emergency cannot be challenged even after the
emergency is over. Article. 359 further empower the President to suspend the
right to move any Court for the enforcement of rights conferred by Part. III of
the Constitution (except Articles. 20 and 21) during the continuance of
emergency. The suspension of the right to move the courts for the enforcement
of the fundamental rights can be done by an order of the President. He may
mention in his order the rights whose enforcement is to be suspended. The order
of the President may extend to the whole or any part of the territory of India. It
is to be noted that while under Article. 358 of the rights conferred by Article. 19
are automatically suspended, the suspension under Article. 359 can only be
brought about by an order of the President.

Classification of Fundamental Rights: The fundamental rights as incorporated

in the Indian Constitution can be classified under the following six groups:
1. Right to equality (Articles. 14-18)
2. Right to Freedom. (Articles. 19-22).
3. Right against exploitation. (Articles. 23-24).
4. Right to freedom of religion. (Articles. 25-28).
5. Cultural and Educational Rights. (Articles. 29-30).
6. Right to Constitutional Remedies. (Articles. 32-35).
The 44th Amendment has abolished the right to property as a fundamental right
as guaranteed by article. 19(1) (f) and Article. 31 of the Constitution, and hence
Article. 19(1) (f) and Article. 31 have been omitted.

Fundamental Rights available against State and not against private

individuals: Individual needs constitutional protection against the State. The
rights which are given to the citizens by way of fundamental rights as included
in Part. III of the Constitution are a guarantee against State action as
distinguished from violation of such rights from private parties. Private action is
sufficiently protected by the ordinary law of land. In P.D. Shamdasani v.
Central bank of India14 ,the petitioner , in an application under Article 32 of the
constitution, sought the protection of the Court on the ground under Article 32
of the Constitution, sought the protection of the Court on the ground that his
property right under Article 19(1) (f) and 31 were infringed by the Section of
another private person-CBI. The SC dismissed the petition and held: “Neither
Article 19(1) nor Article 31(1) was intended to prevent wrongful individual’s
acts or to provide protection against merely private conduct…. The language
and structure of Article 19 and its setting in part III of the Constitution clearly
show that the Article was intended to protect those freedoms against the State
Action other than in the legitimate exercise of its power to regulate private
rights of property by individuals is not within the purview of the Articles”.

Definition of States (Article 12)- State is defined in the following words under
Art.12.

14
AIR 1952 SC 59.
The State includes,

1. the government and Parliament of India , i.e., Executive and

Legislature of the Union.

2. The Government and the legislature of each State, i.e., Executive and
legislature of States.

3. All Local or other authorities within the territory of India.

4. All local and other authorities under the control of the Government of
India.

(a) Authorities- According to Webster’s dictionary ‘Authority’ means a person

or body exercising power of command.
(b) Local Authorities- This expression refers to the authorities like Panchayat,
Municipal Corporation, District Boards, and Port Trust etc.
(c) Other Authorities- This is the final expression under the definition of states
by Article 12.
The word ‘Authorities’ is not defined in the Indian Constitution , and is subject
to strict as well as liberal interpretation in various cases. In the beginning this
word was tried to be interpreted on the rule of ‘ejusdem generis’(authorities of
a like nature).As this word appears after mentioning of parliament and
Government of India and legislature and government of State and local
authorities it was contented that it could mean authorities of like nature alone.
However this contention was rejected by the apex court in Electricity Board of
Rajasthan v Mohan Lal 15, The SC held that the expression ‘other authorities’
is wide enough to include all authorities created by the Constitution or statute
on whom powers are conferred by law. It is not necessary that the statutory
authority should be engaged in performing governmental or sovereign function
only.

15
AIR 1967 SC 1857.
 In Sukhdev Singh v. Bhagatram16 the SC, following the test laid down in
Electricity Board Rajasthan’s case by 4:1 majority held that ONGC,LIC and
IFC are authorities with in the meaning of Article 12 of the Constitution and
therefore , they are ‘State’. All three statutory Corporations have power to make
regulations under the statute for regulating conditions of service of their
employees. The rules and regulations framed by the above bodies have the force
of law. The terms of contract with a particular employer is prescribed by the
statute itself. These regulations are binding on these bodies. The employers of
these statutory bodies have a statutory status and they are entitled to declaration
of being in employment when their dismissal or removal is in contravention of
statutory provisions. The employees are entitled to claim protection of Article
14 and 16 against the Corporation. Mathew, J., in a separate but concurring
judgment, preferred a broader test if the functions of the Corporation are of
public importance and closely related to governmental functions it should be
treated an agency or instrumentality of government and hence a ‘State’ within
the ambit of Article 12 of the Constitution.
Looking into the concept of welfare state, apex court gave further liberal
interpretation to this word, as in the welfare state, state has to delegate its
various functions on other authorities and they cannot be given liberty to violate
the fundamental right of individuals on technical grounds. In [Link] v
International Airport Authority17, Bhagwati J. observed that the Corporation
acting as instrumentality or agency of government would obviously be subject
to the same limitations in the field of constitutional or administrative law as the
government itself. With a view to stop the invasion by these authorities of
fundamental rights the SC gave the following test for determining whether a

16
AIR 1975 SC1331.
17
AIR 1975 SC 1331.
body is an instrumentality of the state or not in Ajay Hasia v. Khalid Mujith18,
an authority is an instrumentality of State.
(a) if the entire share capital of corporation is held by Government.
(b) if there exists deep and Pervasive State Control( appointment and
removal of members of a society, rules made by society require prior
approval of government).
(c) if functional character of corporation governmental in essence; or the
function is of public importance.
(d) if a department of a government is transferred to a corporation.
Thus all these factors play a significant role in introducing the authority/
corporation under Article 12. However there cannot be conclusive or exhaustive
list of these tests, and these tests are illustrative only. In this society registered
under the Societies Registration Act, 1898 was held as State. Declaring the
question whether the Corporation is created by a Statute or not, immaterial, the
court held that the enquiry has to be not as to how the juristic person is created
but why it has been brought in to existence. In Som Prakash v. UOI 19 ,SC held
that Bharat Petroleum Corporation is a State within the meaning of [Link]
expression ‘other authorities’ is not confined only to statutory corporation alone
but may include a government company , a registered society or bodies which
have some nexus with government.
In Tekraj Vasandi v. Union of India20 ,it has been held that the Institute
of Constitution and Parliamentary Studies is voluntary organization. The object
of the society is not related to governmental business and its functions the
government control is not deep and pervasive.

18
AIR 1981 SC 487.
19
AIR 1981 SC 212.
20
(1988). 1 SCC 236
 In British Broadcasting Corporation v. Johns (Inspector of Taxes)21 it
was said that persons who are created to carry out governmental purposes enjoy
immunity like Crown servants. Government purposes include the traditional
provinces of government as well as non-traditional provinces of government if
the Crown has constitutionally asserted that they are to be within the province
of government. . . . A public authority is a body which has public or statutory
duties to perform and which performs those duties and carries out its
transactions for the benefit of the public and not for private profit.
In B.S. Minhas v. Indian Statistical Institute22. It was held that the
Indian Statistical Institute, a registered society is an instrumentality of the
Central Government and as such is an “authority” within the meaning of Article
12 of the Constitution. The basis was that the composition of Respondent 1 is
dominated by the representatives appointed by the Central Government. The
money required for running the Institute is provided entirely by the Central
Government and even if any other moneys are to be received by the Institute, it
can be done only with the approval of the Central Government, and the accounts
of the Institute have also to be submitted to the Central Government for its
scrutiny and satisfaction. The Society has to comply with all such directions as
may be issued by the Central Government. It was held that the control of the
Central Government is deep and pervasive.
In Central Inland Water Transport Corpn. Ltd. v. Brojo Nath
Ganguly23, it was held that the appellant Company was covered by Article 12
because it is financed entirely by three Governments and is completely under
the control of the Central Government and is managed by the Chairman and
Board of Directors appointed by the Central Government and removable by it

21
(1965)1 Ch. 32.
22
(1983) 4 SCC 582.
23
1986) 3 SCC 156.
and also that the activities carried on by the Corporation are of vital national
importance.
Thus Art 12 cannot be stretched so much as to bring all authorities having
somewhat nexus with government with in the definition of State.
In Mohan Khanna v. NCERT24 , it was held that National Council of
Educational Research and Training is an autonomous body and control of the
government is there only to check proper utilization of the State. There is no
strict scale to determine whether the given authority is a state or not, the
determination on either side rests on various factors which are adjudged by the
court within the broad concept of welfare state.
The question arose whether Judiciary comes under the category of State
or not as per the definition mentioned in Art 12. Judiciary is the prominent
organ of the State. Legislature frames the law and executor organ implements
them and enjoys vast power of delegated legislation as well. One of the most
important functions of Judiciary is to check invasion of fundamental right by
these two organs and their instrumentality. Judiciary is to turn down the rules,
regulations, which are in clear violation of fundamental rights. Inclusion of
Judiciary under Art.12 sets judiciary as the possible violator of fundamental
rights as well. This will naturally give rise to multiplicity of proceeding before
the court. Court being the guardian of the Constitution is not supposed to violate
the fundamental rights.
In Naresh v. State of Maharashtra25 , it was held that even if a Court is
the State, a writ under Art 32 cannot be issued to a High Court of competent
jurisdiction against its judicial orders because such orders cannot be said to
violate the fundamental rights.

24
AIR 1992 SC 76.
25
AIR 1967 SC1.
Article 13. It deals with Laws, which are inconsistent with Fundamental Rights-
Article 13(1) declares that all laws in force in the territory of India immediate
before the commencement of this Constitution shall be void to the extent to
which they are inconsistent with the provisions of part III of the Constitution.
Clause(2) of this Article provides that the State shall not make any law which
takes way or abridges the fundamental rights conferred by part III of the
Constitution; and any law made in contravention of fundamental rights shall to
the extent of contravention, be void. Clause(3) of this Article gives the term
‘law’ a very broad connotation which includes any ordinance, order, byelaw,
rule, regulation, notification, custom or usage having the force of law. Thus not
only the legislative enactment, but anything mentioned here can be challenged
as infringing a fundamental right.

Power of Judicial Review- Art 13 in fact provides for the ‘Judicial’ ‘Review’
of all legislation in India, past as well as future. This power has been conferred
on the High Courts and the Supreme Court of India (Art 226, Art 32) which can
declare a law unconstitutional if it is inconsistent with any of the provisions of
Part III of the Constitution.

Meaning and basis of Judicial Review- Judicial Review is the doctrine under
which legislative and executive actions are subject to review (and possible
invalidation) by the judiciary. A specific court with judicial review power must
annul the acts of the state when it finds them incompatible with a higher
authority (such as the terms of a written constitution). Judicial review is an
example of check and balances in a modern governmental system (where the
judiciary checks the other branches of government). This principle is interpreted
differently in different jurisdictions, which also have differing views on the
different hierarchy of governmental norms. As a result, the procedure and scope
of judicial review differs from country to country and state to state.
 Judicial review is one of the main characteristics of government in the
Republic of the United States and other democratically elected governments. It
can be understood in the context of two distinct—but parallel—legal systems
(civil law and common law), and also by two distinct theories on democracy
and how a government should be set up (the ideas of legislative supremacy and
separation of powers). First, two distinct legal systems, civil Law and common
law, have different views about judicial review. Common-law judges are seen as
sources of law, capable of creating new legal rules, and also capable of rejecting
legal rules that are no longer valid. In the civil-law tradition judges are seen as
those who apply the law, with no power to create (or destroy) legal rules.
Secondly, the idea of separation of powers is another theory about how a
democratic society's government should be organized. In contrast to legislative
supremacy, the idea of separation of powers was first introduced by
Montesquieu; it was later institutionalized in the United States by the Supreme
Court ruling in Marbury v. Madison. Separation of powers is based on the idea
that no branch of government should be more powerful than any other; each
branch of government should have a check on the powers of the other branches
of government, thus creating a balance of power among all branches of
government. The key to this idea is checks and balances. In the United States,
judicial review is considered a key check on the powers of the other two
branches of government by the judiciary (although the power itself is only
implicitly granted). Differences in organizing "democratic" societies led to
different views regarding judicial review, with societies based on common law
and those stressing a separation of powers being the most likely to utilize
judicial review. Nevertheless, many countries whose legal systems are based on
the idea of legislative supremacy have learned the possible dangers and
limitations of entrusting power exclusively to the legislative branch of
government. Many countries with civil-law systems have adopted a form of
judicial review to stem the tyranny of the majority.
 Another reason why judicial review should be understood in the context
of both the development of two distinct legal systems (civil law and common
law) and the two theories of democracy (legislative supremacy and separation of
powers) is that some countries with common-law systems do not have judicial
review of primary legislation. Though a common-law system is present in the
United Kingdom, the country still has a strong attachment to the idea of
legislative supremacy; consequently, the judicial body in the United Kingdom
does not have the power to strike down primary legislation. However, since the
United Kingdom became a member of the European Union there has been
tension between the UK's tendency toward legislative supremacy and the EU's
legal system (which empowers the Court of Justice of the European Union with
judicial review).
In the Indian Constitution there is an express provision for judicial review
and in this sense it is on a more solid footing than it is in America. In the State
of Madras v. V.G. Row26 Patanjali Sastri C.J., observed, “ Our Constitution
contains express provisions for judicial review of legislation as to its conformity
with the Constitution, unlike in America where the SC has assumed extensive
powers of reviewing legislative Acts under cover of the widely interpreted ‘due
process’ clause in the Fifth and fourteenth amendments. If then, the courts in
this country face up to such important and none too easy task, it is not out of
any desire to tilt at legislative authority and a crusader’s spirit , but in discharge
of duty plainly laid upon by the Constitution.
In Shankari Prasad v. Union of India27 In this case first time the
question whether fundamental rights can be amended under Article 368 came
for consideration of the Supreme Court. In that case the Validity of the First
Constitutional Amendment which added Article 31-A and 31-B of the
Constitution was challenged. It was contended that though it may be open to

26
AIR 1952 SC 196.
27
AIR 1951 SC 458.
Parliament to amend the provisions in respect of the fundamental rights, the
amendments, would have to be tested in the light of the provisions contained in
Art.13(2) of the Constitution. The Supreme Court, with a bench of five judges,
unanimously rejected the contention that in so far as the First Amendment took
away or abridged the fundamental rights conferred by Part III it should not be
upheld in the light of the provisions of article 13(2). Shastri J: delivering the
judgment of the court said that although "law" must ordinarily include
constitutional law, there is a clear demarcation between ordinary law, which is
made in the exercise of legislative power, and constitutional law, which is made
in the exercise of constituent power. Dicey defines constitutional law as
including "all rules which directly or indirectly affect the distribution or the
exercise of the sovereign power in the State." The terms of Art 368 arc perfectly
general and empower Parliament to amend the Constitution, without any
exception whatever.
Shastri J. was here implementing Dicey's doctrine of parliamentary
sovereignty. He recognized that an amendment in terms of article 368 was the
"exercise of sovereign constituent power" and that there was no indication that
the constitution-makers intended to make fundamental rights immune from
constitutional amendment. Therefore "law" in article 13 must be taken to mean
rules or regulations made in the exercise of ordinary legislative power and not
amendments to the Constitution made in the exercise of constituent power.
Article 13 (2) did not affect amendments made under article 368.
Notwithstanding the First Amendment, agrarian legislative measures
adopted by the States were effectively challenged in the High Courts and two
further amendments were passed to save the validity of those measures. The
Constitution (Fourth Amendment) Act, 1955, amended article 31-A, while the
Constitution (Seventeenth Amendment) Act, 1964, amended article 31-A, again
and added 44 Acts to the Ninth schedule.
 In Sajjan Singh v. State of Rajasthan,28 The validity of the Seventeenth
Amendment was challenged in this case. The main contention before the five-
judge bench of the Supreme Court was that the Seventeenth Amendment limited
the jurisdiction of the High Courts and, therefore, required ratification by one-
half of the States under the provisions of article 368. The court unanimously
disposed of this contention, but members of the court chose to deal with a
second submission, that the decision in the Shankari Prasad case should be
reconsidered. The Chief Justice (Gajendragadkar C.J.) in delivering the view of
the majority (Gajendragadkar C.J., Wanchoo and Raghubar Dayal JJ.) expressed
their full concurrence with the decision in the earlier case. The words
"amendment of this constitution" in article 368 plainly and unambiguously
meant amendment of all the provisions of the Constitution; it would, therefore,
be unreasonable to hold that the word "law" in article 13(2) took in Constitution
Amendment Acts passed under article 368.
They went on to point out that, even if the powers to amend the
fundamental rights were not included in article 368, Parliament could by a
suitable amendment assume those powers. The Chief Justice also dealt in his
judgment with the wording of article 3lB. That article, he considered, left it
open to the Legislatures concerned to repeal or amend Acts that had been
included in the Ninth Schedule. But the inevitable consequence would be that
an amended provision would not receive the protection of article 31B and that
its validity could be examined on its merits.
Hidayatullah and Mudholkar JJ., in separate judgments, gave notice that
they would have difficulty in accepting the reasoning in Shankari Prasad's case
in regard to the relationship of articles 13 (2) and 368. Hidayatullah J. said that
he would require stronger reasons than those given in that case to make him
accept the view that the fundamental rights were not really fundamental, but

28
(1965) 1 SCR 933.
were intended to be within the power of amendment in common with other parts
of the Constitution. The Constitution gives so many assurances in Part III that it
would be difficult to think that they were the play things of a special majority."
Mudholkar J. took the view that the word "law" in article 13 (2) included an
amendment to the Constitution under article [Link] 368 does not say that
when Parliament makes an amendment to the Constitution it assumes a different
capacity, that of a constituent body. The learned Judge recalled that India had a
written constitution, which created various organs at the Union and State levels
and recognized certain rights as fundamental.
The judgments in Sajjan Singh's case were to provide the outlines of what
was to become, and still is, a national debate on the method by which the Indian
Constitution can be amended as an Indian commentator has pointed out the
doubts expressed by Hidayatullah and Mudholkar JJ. In Sajjan Singh's case
about the correctness of the decision in Shankari Prasad's case were to be
confirmed by the majority in the next case to be considered (Golak Nath's case).
Golak Nath's case was itself to be overruled by a majority in the Keshvananda
bharti’s case, this time in favour of Mudholkar J's view that certain features of
the Constitution were basic and unalterable. The minority judges in
Keshvananda's case were to return to the view of the court in Shankari Prasad's
case and the majority in Sajjan Singh's case.
In Golaknath v. State of Punjab29 The doubts of the minority judges in
Sajjan Singh's case as to the correctness of the decision in Shankari Prasad's
case were raised before a bench of eleven judges of the Supreme Court in this
case, in which the validity of the First and Seventeenth Amendments to the
Constitution in so far as they affected fundamental rights was again challenged.
The Fourth Amendment was also challenged. This time a majority of six judges
to five decided that Parliament had no power to amend any of the provisions of

29
(1967) 2 SCR 762.
Part III, so as to take away or abridge the fundamental rights enshrined therein.
The majority were, however, faced with the problem that, if the First, Fourth
and Seventeenth Amendments were at a late stage to be invalidated, the impact
on social and economic affairs would be chaotic. On the other hand, the court
considered that it had a duty to correct errors in the law. It, therefore, adopted a
doctrine of prospective overruling[4] under which the three constitutional
amendments concerned would continue to be valid, and the decision to the
effect that Parliament had no power to amend the provisions of Part III would
operate for the future only.
Given this "policy and doctrinaire decision to favour Fundamental
Rights", the majority judgment of Subha Rao C.J. proceeded to accept the
following propositions:
(i) Article 368 with its marginal note "Procedure for amendment of the
Constitution" dealt only with the procedure for amendment. Amendment
was a legislative process and the power of Parliament to make
amendments was contained in article 248 and Entry 97 in List I of the
Seventh Schedule (the Union List) which confer residuary legislative
powers on the Union Parliament.
(ii) An amendment to the Constitution, whether under the procedural
require¬ments of article 368 or under any other article, is made as part of
the normal legislative process. It is, therefore, a "law" for the purpose of
article 13(2).
The judgment of three of the dissentients.( Wanchoo, Bhargava and
Mitter JJ.) in the Golak Nath" case was delivered by Wanchoo J. The learned
observed that Art.368 carried the power to amend all parts of the constitution
including the fundamental rights in part III of the constitution. They reaffirmed
the correctness of the decisions in cases of Shankri Prasad and Sajjan singh.
 To get over the decision of the Supreme Court in Golaknath’s case the
Constitution 24th Amendment Act was passed in 1971. The Twenty-fourth
Amendment made changes to articles 13 and 368:
(i) A new clause was added to article 13: "(4) Nothing in this article shall
apply to any amendment of this Constitution made under article 368."
(ii) Amendments were made to article 368:
a) The article was given a new marginal heading: "Power of
Parliament to amend the Constitution and procedure therefore."
b) A new clause was added as clause (I): "(I) Notwithstanding
anything in this Constitution, Parliament may in exercise of its
constituent power amend by way of addition, variation or repeal
any provision of this Constitution in accordance with the procedure
laid down in this article.
c) Another clause was added as clause (3): "(3) Nothing in article
13 shall apply to any amendment under this article."
Another amendment to the old article 368 (now article 368(2)) made it
obligatory rather than discretionary for the President to give his assent to any
Bill duly passed under the article.
The Supreme Court recognized basic structure concept for the first time
in the historic judgment of Kesavananda Bharati case in 1973. Ever since the
Supreme Court has been the interpreter of the Constitution and the arbiter of all
amendments made by parliament. In this case validity of the 25th Amendment
act was challenged along with the Twenty-fourth and Twenty-ninth
Amendments. The court by majority overruled the Golak Nath case which
denied parliament the power to amend fundamental rights of the citizens. The
majority held that article 368 even before the 24th Amendment contained the
power as well as the procedure of amendment. The Supreme Court declared that
Article 368 did not enable Parliament to alter the basic structure or framework
of the Constitution and parliament could not use its amending powers under
Article368 to 'damage', 'weaken', 'destroy', 'abrogate', 'change' or 'alter' the 'basic
structure' or framework of the constitution. This decision is not just a landmark
in the evolution of constitutional law, but a turning point in constitutional
history.
In Kesavananda Bharti v. State of Kerala30 It is a landmark of the
Supreme Court of India, and is the basis in Indian law for the exercise by the
Indian judiciary of the power to judicially review, and strike down, amendments
to the Constitution of India passed by the Indian Parliament which conflict with
or seek to alter the Constitution's basic structure. The judgment also defined the
extent to which the Indian Parliament could restrict the right to property, in
pursuit of land reform and the redistribution of large landholdings to cultivators,
overruling previous decisions that suggested that the right to property could not
be restricted.
Majority Judgement:
Sikri C. J.
Held that the fundamental importance of the freedom of the individual
has to be preserved for all times to come and that it could not be amended
out of existence. According to the learned Chief Justice, fundamental
rights conferred by Part III of the Constitution cannot be abrogated,
though a reasonable abridgement of those rights could be effected in
public interest. There is a limitation on the power of amendment by
necessary implication which was apparent from a reading of the preamble
and therefore, according to the learned Chief Justice, the expression
"amendment of this Constitution", in Article 368 means any addition or
'change in any of the provisions of the Constitution within the broad
contours of the preamble, made in order to carry out the basic objectives
of the Constitution. Accordingly, every provision of the Constitution was

30
AIR 1973 SC 1461.
open to amendment provided the basic foundation or structure of the
Constitution was not damaged or destroyed. Shelat and Grover, JJ. held
that the preamble to the Constitution contains the clue to the
fundamentals of the Constitution. According to the learned Judges, Parts
III and IV of the Constitution which respectively embody the
fundamental rights and the directive principles have to be balanced and
harmonized. This balance and harmony between two integral parts of the
Constitution forms a basic element of the Constitution which cannot be
altered. The word 'amendment' occurring in Article 368 must therefore be
construed in such a manner as to preserve the power of the Parliament to
amend the Constitution, but not so as to result in damaging or destroying
the structure and identity of the Constitution. There was thus an implied
limitation on the amending power which precluded Parliament from
abrogating or changing the identity of the Constitution or any of its basic
features.
Hegde and Mukherjea, JJ.
Held that the Constitution of India which is essentially a social rather than
a political document is founded on a social philosophy and as such has
two main features basic and circumstantial. The basic constituent
remained constant; the circumstantial was subject to change. According
to the learned Judges, the broad contours of the basic elements and the
fundamental features of the Constitution are delineated in the preamble
and the Parliament has no power to abrogate or emasculate those basic
elements of fundamental features. The building of a welfare State, the
learned Judges said, the ultimate goal of every Government .but that does
not mean that in order to build a welfare State, human freedoms have to
suffer a total destruction. Applying these tests, the learned Judges
invalidated Article 31C even in its un-amended form.
Jaganmohan Reddy, J.
Held that the word 'amendment' was used in the sense of permitting a
change, in contradistinction to destruction, which the repeal or abrogation
brings about. Therefore, the width of the power of amendment could not
be enlarged by amending the amending power itself. The learned Judge
held mat the essential elements of the basic structure of the Constitution
are reflected in its preamble and that some of the important features of the
Constitution are justice, freedom of expression and equality of status and
opportunity. The word 'amendment' could not possibly embrace the right
to abrogate the pivotal features and the fundamental freedoms and
therefore, that part of the basic structure could not be damaged or
destroyed. According to the learned Judge, the provisions of Article 31C,
as they stood then, conferring power on Parliament and the State
Legislatures to enact laws for giving effect to the principles specified in
Clauses (b) and (c) of Article 39, altogether abrogated the right given by
Article 14 and were for that reason unconstitutional. In conclusion, the
learned Judge held that though the power of amendment was wide, it did
not comprehend the power to totally abrogate or emasculate or damage
any of the fundamental rights or the essential elements of the basic
structure of the Constitution or to destroy the identity of the Constitution.
Subject to these limitations, Parliament had the right to amend any and
every provision of the Constitution.
Khanna, J.
Broadly agreed with the aforesaid views of the six learned Judges and
held that the word 'amendment' postulated that the Constitution must
survive without loss of its identity, which meant that the basic structure or
framework of the Constitution must survive any amendment of the
Constitution. According to the learned Judge, although it was permissible
to the Parliament, in exercise of its amending power, to effect changes so
as to meet the requirements of changing conditions, it was not permissible
 to touch the foundation or to alter the basic institutional pattern.
Therefore, the words "amendment of the Constitution" in spite of the
width of their sweep and in spite of their amplitude, could not have the
effect of empowering the Parliament to destroy or abrogate the basic
structure or framework of the Constitution.
In Indira Nehru Gandhi v. Raj Narayan - Basic Structure concept
reaffirmed in this case. The Supreme Court applied the theory of basic structure
and struck down Cl(4) of article 329-A,which was inserted by the 39th
Amendment in 1975 on the ground that it was beyond the amending power of
the parliament as it destroyed the basic feature of the constitution. The
amendment was made to the jurisdiction of all courts including SC, over
disputes relating to elections involving the Prime Minister of India.
Basic Features of the Constitution according to the Election case verdict
Again, each judge expressed views about what amounts to the basic structure of
the Constitution: Justice Y.V. Chandrachud listed four basic features which he
considered unamendable:
a) Sovereign democratic republic status.
b) Equality of status and opportunity of an individual.
c) Secularism and freedom of conscience and religion.
d) 'Government of laws and not of men' i.e. the rule of law.
2nd Amendment: After the decision of the Supreme Court in the above case
the constitution (42nd Amendment) Act, 1976 was passed which added two new
clauses, namely, clause (4) and (5) to Art.368 of the Constitution. It declared
that there shall be no limitation whatever on the constituent power of parliament
to amend by way of addition, variation or repeal of the provisions of the
Constitution under this Article. This Amendment would put an end to any
controversy as to which is supreme, Parliament or the Supreme Court. Clause
(4) asserted the supremacy of the parliament. It was urged that Parliament
represents the will of the people and if people desire to amend the Constitution
through Parliament there can be no limitation whatever on the exercise of this
power. This amendment removed the limitation imposed on the amending
power of the Parliament by the ruling of the Supreme Court in Keshvanand
Bharti’s case. It was said that the theory of ‘basic structure’ as invented by the
Supreme Court is vague and will create difficulties. The amendment was
intended to rectify this situation.
In Minerva Mill v. Union of India31 In this case the validity of 42nd
amendment Act was challenged on the ground that they are destructive of the
‘basic structure’ of the Constitution. The Supreme Court by majority by 4 to 1
majority struck down clauses (4) and (5) of the article 368 inserted by 42nd
Amendment, on the ground that these clauses destroyed the essential feature of
the basic structure of the constitution. It was ruled by court that a limited
amending power itself is a basic feature of the Constitution. The historical
Judgement laid down that:
The amendment made to Art.31C by the 42nd Amendment is invalid
because it damaged the essential features of the Constitution. Clauses (4) and
(5) are invalid on the ground that they violate two basic features of the
Constitution viz. limited nature of the power to amend and judicial review. The
courts cannot be deprived of their power of judicial review. The procedure
prescribed by Cl.(2) is mandatory. If the amendment is passed without
complying with the procedure it would be invalid. The Judgment of the
Supreme Court thus makes it clear that the Constitution is Supreme not the
Parliament. Parliament cannot have unlimited amending power so as to damage
or destroy the Constitution to which it owes its existence and also derives its
power.

31
(1980) 3 SCC 625.
 In [Link] kumar v. Union of India32 Article 323-A and 323-B, both
dealing with tribunals, were inserted by the 42nd Amendment. Clause 2(d) of
Art.323-A and Clause 3(d) of 323-B provided for exclusion of the jurisdiction
of the High Court under Art.226 and 227 and the Supreme Court under
[Link] Supreme Court in this case held these provisions as unconstitutional
because they deny judicial review which is basic feature of the Constitution. It
held that the power of judicial review vested in the High court under Art.226
and right to move the Supreme Court under Art.32 is an integral and essential
feature of the Constitution

Doctrine of Severability- When the part of the statute is declared

unconstitutional that a question arises whether the whole of the statute is to be
declared void or only that part which is unconstitutional should be declared as
such. To resolve this problem, the SC has devised the doctrine of severability or
separability. This doctrine means that if an offending provision can be separated
from that which is constitutional then only that part which is offending is to be
declared as void and not the entire statute. Article 13 of the constitution uses the
words” top the extent of such inconsistency be void which means that when
some provision of the law is held to be unconstitutional then only the repugnant
provisions of law in question shall be treated by courts as void and not the
whole statute.33
In R.M.D.C.v. UOI34 in this case , S.2(d) of the Prize Competition Act,
which was broad enough to include competitions of a gambling nature as well
as competitions involving skill, was involved. The SC held that the provisions
of the Act were severable and struck down those provisions which related to
competition involving skill. The Court in R.M.D.C case held that where after

32
(1997) 3 SCC 261.
33
Motor General Traders v State of A.P. (1984) 1 SCC 222.
34
AIR N1957 SC628.
removing the invalid provision what remains constitutes a complete Code there
is no necessity to declare the whole Act invalid. The Supreme Court considered
this doctrine in A.K. Gopalan v. State of Madras(, A.I.R. 1950 S.C 27 and held
that the preventive detention minus section 14 was valid as the omission of the
Section 14 from the Act will not change the nature and object of the Act and
therefore the rest of the Act will remain valid and effective. The doctrine was
applied in D.S. Nakara v. Union of India, AIR 1983 S.C. 130 where the Act
remained valid while the invalid portion of it was declared invalid because it
was severable from the rest of the Act. In State of Bombay v. F.N. Balsara,
A.I.R.l.951 S.C. 318 it was held that the provisions of the Bombay Prohibition
Act, 1949 which were declared as void did not affect the validity of the entire
Act and therefore there was no necessity for declaring the entire statute as
invalid.

Doctrine of Eclipse- The Doctrine of Eclipse is based on the principle that a

law which violates fundamental rights, is not nullity or void ab initio but
becomes, only unenforceable i.e. remains in a moribund condition. "It is over-
shadowed by the fundamental rights and remains dormant, but it is riot dead."
Such laws are not wiped out entirely from the statute book. They exist for all
post transactions and for the enforcement of the rights acquired and liabilities
incurred before the commencement of the Constitution. It is only against the
citizens that they remain in a dormant or moribund condition but they remain in
operation as against non-citizens who are not entitled to fundamental rights.
For solving such a problem, Supreme Court formulated the doctrine of
eclipse in Bhikhaji v. State of M.P35. . In this case the provisions of. C.P. and
Berar Motor Vehicles (Amendment) Act 1948 authorized the State Government
to take up the entire motor transport business in the Province to the exclusion of

35
AIR 1955 S.C.781.
motor transport operators. This provision though valid when enacted, but
became void on the commencement of the Constitution in 1950 as they violated
Article 19(1)(g) of the Constitution. However, in 1951 Clause (6) of Article 19
was amended by the Constitution (1st Amendment Act) so as to authorize. The
Government to monopolize any business. The Supreme Court held that the
effect of the amendment was to remove the shadow and to make the impugned
Act free from blemish or infirmity. It became enforceable against citizens as
well as non-citizens after the constitutional impediment was removed. This law
was eclipsed for the time being by the fundamental rights. As soon as the
eclipse is removed, the law begins to operate from the date of such removal.

Right to Equality

Article 14 Equality before Law- “The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of
India”. Right to equality before the law has been bestowed on every person is
also entitled to the benefits of this article. Equality before the law implies
absence of any special privileges in favour of any [Link].14 is based on
the theory of rule of law. It makes an open commitment to provide equal
protection to all persons within the territory of India in the enjoyment of their
rights and privileges. It is a declaration against all kind of discrimination and
favouratism which may ensure from legislative or executor action of the State.
However Art 14 must not be read as absolute and unqualified bunch of
words provided within the tight framework of literal meaning. Apex Courts has
appreciated in number of cases the ‘typical Scenario’ of India’s social,
economical position while interpreting the Right to Equality, which resulted in
framing of underlying principle for Art.14. In Chiranji Lal Chowdhary v.
UOI36 , in this case Governor General of India promulgated an ordinance, which
purported to make special provision for management and administration of the
Sholapur Spinning Weaving Co. Ltd. On April 7, 1950 ordinance was replaced
by an Act of parliament known as Sholapur Spinning and Weaving Co. Ltd Act.
The constitutional validity of the ordinance and the Act was challenged on
various grounds. One of the grounds of challenge was that the enactment denied
the company and its shareholder equality before law and equal protection of law
and therefore violated Art.14. it was held that Art.14 was not violated even
though the legislature had proceeded against only one company and its
shareholders. Thus, a law may be constitutional even though, it relates to a
single individual if on account of some special circumstances individual may be
treated as class by itself. It is notable that Art.14 forbids class legislation but
does not forbid class classification or differentiation, which rest on reasonable
ground of distinction. For the purpose of classification even a single person may
be treated as a class in himself.
Doctrine of equality cannot be construed as a mandate that every law
must have universal application for all persons, who are not by nature,
attainment, capability, or circumstances in the same position. The varying needs
and other cross factors of the people may look for distinct treatment. However
the classification must be reasonable and not an arbitrary one. To be reasonable
classification must pass successfully the following two tests:
1. The classification must be found on an intelligible differentia which
distinguishes persons or things that are grouped together from others left out of
the group.
2. The differentia must have a rational relation to the object sought to be
achieved by the concerned Act.

36
AIR 1951 SC 41.
 Thus Art.14, forbids class legislation or class discrimination by
conferring privileges or imposing liabilities upon persons arbitrarily selected out
of a large number of other persons. , similarly situated in relation to the
privileges sought to be conferred or the liabilities proposed to be imposed.
However, it does not forbid classification for the purpose of legislation;
provided such classification is not arbitrary as mentioned above. Classification
must be based on some genuine, substantial or reasonable grounds and not
illusory one.
It is notable that there is always presumption in favour of the
constitutionality of an enactment. The burden is upon him who attacks it, to
show that there has been a clear transgression of the constitutional mandate.
Once it is established that there is discrimination, the burden is on the state to
prove that discrimination is based on reasonable classification. It has been held
in Kedar Nath Bajoria v. State of W.B.37, that a classification need not be
scientifically perfect or logically complete. Except that, in order to sustain the
presumption of constitutionality, the court may take into consideration, matter
of common knowledge, matter of common report, and may assume each and
every state of facts which can be conceived existing at the time of legislation.

Law directed against Single Individual - Art. 14 prohibit discriminatory

legislation against a class of individual or single individual, but gives clear way
for discrimination based on reasonable classification. A classification may be
declared as reasonable even though it is directed against a single object of
individual if there are special circumstances applicable to such individual or
object in such a way that such individual or object may be treated as a class in
himself or itself.

37
AIR 1953 SC 404.
 The most important feature of the right to equality is the element of
reasonableness. Classification, which is reasonable, is open to challenge and be
judicially reviewed on this ground alone. In various cases constitutional validity
of legislation, making provision or authorizing the executive to set up special
courts applying a special procedure for trial of criminal offences has been
challenged. In this, respect legislation which give a wide power to the executive
to select cases for special treatment, without indicating the policy may be set
aside as violative of equality. If the guidelines are provided for exercising such
discretion then the provision may be upheld. In State of W.B. v Anwar Ali 38, in
this case the respondent and 49 others persons were charged with various
offence alleged to have been committed by them and they were convicted and
sentenced, by the special court to which cases were sent for trial by the
Government of West Bengal by a notification dated 26th Jan,1950, in exercise of
powers conferred by S.5(1) of the West Bengal Special Courts Act, [Link] a
writ petition under Art.226 respondent challenged, it was held by the majority
that S.5(1) of the Bengal Special Court Act as wholly void:-
(a). It conferred arbitrary powers on government to classify offences or
classes of offences or classes or cases or cases as its pleasure.
(b). The Act provided a procedure which was less advantageous than the
ordinary procedure.
(c). Act did not lay down any policy or guidelines for exercising of
discretion by the government.
The Act was held violative of Art.14 as it enables the application of
different laws to persons similarly circumstances.

38
(1952) SCR 913.
 In Kathi Raining Rawat v. State of Saurashtra39, S.11 of the Saurashtra
State Public Safety measure ordinance 1949 which was similar to S.5(1) of the
West Bengal Special Court Act,1950 was challenged. It referred to four distinct
categories namely, offences, classes of offences, cases, classes of cases and
empowered the State Government to direct any one or more of these categories
to be tried by special courts. The object of the ordinance as set out in its
preamble was to provide for public safety, maintenance of public order and
preservation of peace and tranquility in the State. Thus preamble to the
ordinance had the effect of limiting the application of the Special procedure to a
particular category of offences. It is notable that there was no such guiding
principle in West Bengal Special Court act, 1950. The preamble to that act
merely stated that it was expedient to provide for the speedier trial of certain
offences. As observed by Dias J, the differentia in Saurashtra case had
reasonable relation to the object sought to be achieved that is, maintenance of
public order, preservation of public safety, peace and tranquility in the state.
40
In Maneka Gandhi v. UOI , the Court held that Art.14 requires the
observance of the principle of natural justice, including the requirement of
reasoned decisions. Following observations of Bhagwati J., is worthwhile to
mention her, it must now therefore be taken to be well settled that what Art.14
strike at is arbitrariness, because any action that is arbitrary necessarily involves
negation of equality. The doctrine of classification evolved by court paraphrase
of Art.14 is neither the objective nor the end of that formula. It is merely a
judicial formula for determining whether the legislative or executive action in
question is arbitrary and therefore constituted denial of equality.
In Ajay Hasia [Link] Majib41, SC pointed out that oral test should not
be relied upon as exclusive test, but may be taken into consideration as,

39
AIR 1952 SC 123.
40
AIR 1978 SC248.
41
AIR 1981 SC 487.
supplementary or additional test. In this case, marks allocated for the oral test
were 33.5% of the total marks. The SC held that the selection procedure as an
arbitrary one.
In various cases the legality and scope of administrative discretion, has
been tested by the court. In a legislation there can be provision for its
application or non-application of certain class of cases, or the legislation may be
delegate the power to do so the executive section. Thus, the application or non-
application of an act becomes the subject matter of the discretion of the
government. However it is mandatory on the part of the legislature that it must
lay down any principle or policy for guiding the exercise of discretion in the
matter of selection or classification. Thus, reasonable and non-arbitrary exercise
of discretion is the gist of the law and any unreasonable or arbitrary exercise of
it necessarily violates Art.14.
In D.S. Nakara v. Union of India42, The Government issued an office
memorandum announcing a liberalized pension scheme for retired government
servants but made it applicable to those who had retired after 31 March 1979.
The SC held that the fixing of the cut off date to be discriminatory as violating
Article 14. The revision of pensioners into two classes on the basis of the date
of retirement was not based on any rational principle because a difference of
two days in the matter of retirement could have a traumatic effect on the
pensioner. Such a classification held to be arbitrary and unprincipled as there
was no acceptable or persuasive reason in its favour. The said classification had
no rational nexus with the object sought to achieve.
In Madhu Limaye v. Supdt. Tihar Jail Delhi43, there were Indian and
European Prisoners. Both were treated differently. European gets better diet.
Court held that difference between Indian and Europian prisoners in the matter

42
AIR 1983 SC 130
43
AIR 1975 SC 1505.
of treatment and diet violates right to equality under Article 14 of Indian
prisoners. They all are prisoners they must treat equally.
In Sanaboina Satyanarayan v. Govt. of A.P44, in Andra Pradesh. They
formulate a scheme for prevention of crime against women. In prisons also
prisoners were classify in to two categories first Prisoners guilty of crime
against women and second prisoners who are not guilty of crime against
women. Prisoners who are guilty of crime against women challenge the court
saying that there right to equality are deprived. Court held that there is
reasonable classification to achieve some objective.
In Tamil Nadu Electricity Board v R. Veeraswamy45, the employee was
governed by the contributory provident fund scheme. With effect from 1-7-1986
a scheme was introduced. The question was whether the pension scheme ought
to be applied to those who had already retired before the introduction of the
pension scheme the SC rejected the claim. As per the rules prevalent at the time
the retirees had received all their retiral benefits. If the pension scheme was
made applicable to all past retirees, the resulting financial burden would be
Rs200 Crore which would be beyond the capacity of employer. The reason
given for introducing the scheme was financial constraint- a valid ground. The
court held that retired employees and those who were in employment on 1-7-
1986 can’t be treated alike as they do not belong to one class. Te workmen who
had retired and received all the benefits under the contributory provident fund
scheme cease to be employees of the appellant board w.e.f. the date of their
retirement. They form a separate class. Thus there was no illegality in
introducing the pension scheme and not making it applicable retrospectively to
those who had retired before the date.

44
(2003) 10 SCC 78.
45
AIR 1999 SC 1768.
 In Kumari Shrilekha Vidyarthi v. State of U.P. and Ors46 , The writ
petitioners/appellants had been appointed as Government Counsel (Civil,
Criminal, and Revenue) by the State of U.P. By its circular dated 6.2.1990 the
State terminated the appointment of all Government Counsel with effect from
28.2. 1990 irrespective of the fact whether the term of the incumbent had
expired or was subsisting. At the same time the Government directed
preparation of fresh panels to make appointments in place of existing
incumbents. The appellants challenged the validity of this State action, which
was rejected by the High Court. Before this Court it was contended inter alia on
behalf of the petitioners/appellants that the relationship of the Government
Counsel with the Government was not merely one of client and counsel as in the
case of a private client, but one of status in the nature of public employment or
appointment to a `public office' so that termination of the appointment of a
Government Counsel could not be equated with the termination by a private
litigant of his Counsel's engagement, which was purely contractual without any
public element attaching to it. On behalf of the State it was urged that: (i) the
relationship of the appointees to these offices of Government Counsel in the
districts was purely contractual depending on the terms of the contract and was
in the nature of an engagement of a Counsel by a private party who could be
changed at any time at the will of the litigant, with there being no right in the
counsel to insist on continuance of the engagement; (ii) there was no element of
public employment in such appointments and the provisions in the Legal
Remembrance’s Manual and Section 24 of the Code of Criminal Procedure
were merely to provide for making a suitable choice; (iii) the appointment of a
District Government Counsel was only professional engagement terminable at
will on either side and not appointment to a post under the Government, and the
Government had the power to terminate the appointment at any time `without

46
AIR 1991 SC537.
assigning any cause' and hence this circular did not suffer from the vice of
arbitrariness.
Allowing the writ petitions and the appeals, this Court, HELD:
(1) The provisions in the Legal Remembrance’s Manual clearly show that
the Government Counsel in the districts are treated as law Officers of the
State who are holders of an `office' or `post'. These provisions further
indicate that the appointment and engagement of District Government
Counsel is not the same as that by a private litigant of his counsel and
there is obviously an element of continuity of the appointment unless the
appointee is found to be unsuitable either by his own work, conduct or
age or in comparison to any more suitable candidate available at the place
of appointment.
(2) All Government Counsel are paid remuneration out of the public
exchequer and there is a clear public element attaching to the `office' or
`post'.
(3) Clause 3 of para 7.06 of the L.R. Manual which enables the
Government to terminate the appointment `at any time without assigning
any cause' merely means that the termination may be made even during
the subsistence of the term of appointment, and the expression `without
assigning any cause' means without communicating any cause to the
appointee whose appointment is terminated.
(4) The non-assigning of reasons or the non-communication thereof may
be based on public policy, but termination of an appointment without the
existence of any cogent reason in furtherance of the object for which the
power is given would be arbitrary and, therefore, against public policy.
In Liberty Oil Mills v. Union of India, [1984] 3 SCC 465,
referred to:
(5) In the case of Public Prosecutors, the public element flowing from
statutory provisions in the Code of Criminal Procedure, undoubtedly,
invest the Public Prosecutors with the attribute of holder of a public office
`which cannot be whittled down by the assertion that their' engagement is
purely professional between a client and his lawyer with no public
element attaching to it.
In Mahadeo v. Shantibhai, [1969] 2 SCC 422; Mundrika
Prasad Sinha v. State of Bihar, [1980] 1 S.C.R. 759; Mukul Dalaiand
Others v. Union of India and Others, [1988] 3 SCC 144 and Malloch
v. Aberdeen Corporation, [1971] 2 All ER 1278, referred to:
(6) The presence of public element attached to the `office' or `post' of
District Government Counsel of every category covered by the impugned
circular is sufficient to attract Article 14 of the Constitution and bring the
question of validity of the impugned circular within the scope of judicial
review.
(7) The scope of judicial review permissible in the present case does not
require any elaborate consideration since even the minimum permitted
scope of judicial review on the ground of arbitrariness or
unreasonableness or irrationality once Article 14 is attracted, is sufficient
to invalidate the impugned circular.
(8) Even otherwise and sans the public element so obvious in these
appointments, the appointment and its concomitants viewed as purely
contractual matters after the appointment is made, also attract Article 14
and exclude arbitrariness permitting judicial review of the impugned
State action.
(9) The personality of the State, requiring regulation of its conduct in all
spheres by requirements of Article 14, does not undergo such a radical
change after the making of a contract merely because some contractual
rights accrue to the other party in addition. It is not as if the requirements
of Article 14 and contractual obligations are alien concepts, which cannot
co-exist.
(10) The scope and permissible grounds of judicial review in such
matters, and the relief which may be avail- able are different matters but
that does not justify the view of its total exclusion. This is more so when
the modern trend is also to examine the unreasonableness of a term in
such contracts where the bargaining power is unequal so that these are not
negotiated contracts but standard form con- tracts between unequal’s.
(11) To the extent challenge is made on the ground of violation of Article
14 by alleging that the impugned act is arbitrary, unfair or unreasonable,
the fact that the dispute also falls within the domain of contractual
obligations would not relieve the State of its obligation to comply with
the basic requirements of Article 14.
(12) It is significant to note that emphasis now is on review ability of
every State action because it stems not from the nature of function, but
from the public nature of the body exercising that function; and all
powers possessed by a public authority, howsoever conferred, are
possessed `solely in order that it may use them for the public good'. Jones
v. Swansea City Counsel, [1990] 1 W.L.R. 54, referred to
(13) It can no longer be doubted at this point of time that Article 14 of the
Constitution of India applies also to matters of governmental policy and if
the policy or any action of the Government, even in contractual matters,
fails to satisfy the test of reasonableness, it would be unconstitutional
In Ramana Dayaram Shetty v. The International Airport
Authority of India, [1979] 3 SCR 1014; Kasturi Lal Lakshmi Reddy
v. State of Jammu and Kashmir, [1980] 3 SCR 1338 and Col. A.S.
Sangwan v. Union of India, [1980] Supp. SCC 559, referred to:
(14) The basic requirement of Article 14 is fairness in action by the State
and it is difficult to accept that the State can be permitted to act otherwise
in any field of its activity, irrespective of the nature of its function, when
it has the uppermost duty to be governed by the rule of law. Non-
 arbitrariness, in substance, is only fair play in action. This obvious
requirement must be satisfied by every action of the State or its
instrumentality in order to satisfy the test of validity.

Tax laws with reference to Equality- Ambit of Art.14 cover the tax laws too.
Article 265 provides in simple words that state shall levy or collect tax except
by the authority of law. State has been given abundant powers for purposes of
taxation, and is of wide range and flexibility. State may use discretion in taxing
some person or objects and leaving the rest. In Kerala Hotel and Restaurant
Association v. State of Kerala47 , in this case SC held that the validity of
imposition of sales tax on the sale of cooked food in the more costly eating
places and leaving the modest eating places. The scope for classification
permitted in taxation is greater and unless the classification made can be termed
to be palpably arbitrary it must be left to the legislative wisdom to choose the
yardstick for classification in the background of the fiscal policy of the state. In

Article 15 – Right to Non-Discrimination - 15(1) The State shall not

discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth
or any of them be subject to any disability, liability, restriction or condition with
regard to:
(a) Acess to shops, public restaurants, hotel and place of public
entertainment; or
(b) The use of Wells, Tanks, Bathing Ghats, Roads and Place of Public
Resort maintained wholly or partly out of State funds or dedicated to the
use of general public.

47
AIR 1990 SC 913.
(3) Nothing in this Article shall prevent the State from making any special
provision for women and children.
(4) Nothing in this Article or clause (2) of Article 29 shall prevent the State
from making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Caste and
Scheduled Tribes.
(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall
prevent the State from making any special provision, by law, for the
advancement of any socially and educationally backward classes of citizens or
for the Scheduled Castes or the Scheduled Tribes in so far as such special
provisions relate to their admission to educational institutions including private
educational institutions, whether aided or unaided by the State, other than the
minority educational institutions referred to in clause (1) of article 30.
Art. 14 grants right to equality to all persons citizens or non-citizen
against the arbitrary action on the part of the state. Art.15 on the other hand
prohibits the discrimination on grounds of religion, race, caste, sex or place of
birth among citizens only. It is notable that any classification on these grounds
only will not be reasonable classification under Art.14, therefore if legislation is
violative of Art.15, then it cannot be saved on the ground of reasonable
classification which is the underlying principle of Art.14.
In Art.15 (1) The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them.
In Nainsuphdas v. State of U.P.48 a law which provided for elections on
the basis of separate electorates for members of different religious communities
was held to be unconstitutional. Similarly, in State of Rajasthan v. Pratap
Singh49, the Supreme Court invalidated a notification under the Police Act of
1861 which declared certain areas as disturbed and made the inhabitants of

48
AIR 1954 SC 384.
49
AIR 1960 SC 1208.
those areas to bear the coat of additional police stationed there but exempted all
Harjans and Muslims. The exemption was given on the basis only of ‘caste’ or
‘religion’ and hence was contrary to Art.15 (1).
The word ‘only’ used in Article 15(1), indicates that discrimination
cannot be made merely on the ground that one belongs to a particular caste, sex,
etc. In other words, if other qualifications are equal, caste, sex, religion etc,
should to be a ground for preference or disability. It follows from this that
discrimination on grounds other than religion; race, caste, sex or place of birth
is not prohibited. It means that discrimination based on any of these grounds
and also on other grounds is not by Article (1).
In D.P. Joshi v. State of M.B50, it was held that a law which
discriminates on the ground of residence does not violate Article 15(1). In that
case a rule of the State medical College requiring a capitation fee from Non-
Madhya Bharat Students for admission in the college was held valid as the
ground of exemption was residence and place of birth. Place of birth is different
from residence. What Art.15(1) , prohibits is discrimination based on place of
birth and not that based on residence. In Pradeep Jain v. UOI 51 , the residential
requirement for admission to medical college was challenged being
discriminatory on the basis of residence. It was held that such requirements are
inconsistent with the idea of Unity and National Integrity. It was further stated
that even though they can be justified under Art.14 (1) and 15(1) it should not
more than 70% at MBBS level. There should be no reservation at M.S. and
M.D. levels.
Clause (2) - Article 15(2) is a specific application of the general
prohibition contained in Article 15(1). Article 15(2) declares that no citizen
shall be subjected to any disability, restriction or condition on grounds only of
religion, race, caste, place of birth or any of them with regard to (a) access to

50
AIR 1960 SC1208.
51
(1984) 3 SC 659.
shops, public restaurants, hotels and places of public entertainment, or (b) the
use of wells, tanks, baths, roads and place of public resort, maintained wholly or
partly out of State funds or dedicated to the use of the general public. A ‘place
of public resort’ means places which are frequented by the public like a public
park, a public road, a public bus, ferry, public urinal or railway, a hospital, etc.
In State of Bombay v. Narasu Apu52, in which validity of Bombay
Prevention of Hindu marriage Act, 1946 was questioned. It was held by J.
Ganjendragadkar (as he then was ) held , “ I would however, like to add that
even if it is held that personal laws fall with in Art.13(1), Iam not satisfied that
the provisions of these personal laws permitting polygamy amount to
discrimination against women only on the ground of sex. It has often
emphasized in interpreting Art.15.(1) that the importance of the word “ only”
should not be minimized; this word can be described as the key word of this
Article.
Clause (3): Special provision for Women and Children- Article 15(3)
is one of the two exceptions to the general rule laid down in clauses (1) and (2)
of Article [Link] provides that nothing in Article 15 shall prevent the State from
making any special provision for women and children. Women and children
require special treatments on account of their very nature. Article 15(3)
empowers the State to make special provisions for them. The reason is that
‘women’ physical structure and the performance of material functions place her
at a disadvantage in the struggle for subsistence and her physical well-being
becomes an object of public interest land care in order to preserve the strength
and vigour of the race53.
In Yusuf Abdul Aziz v. State of Bombay54 , S. 497 of IPC which only
punishes man for adultery and exempts the woman from punishment even

52
AIR 1932 Bom 84.
53
Muller v. Oregon 52 L.E.d.551.
54
AIR 1954 SC321.
though she may be equally guilty as a bettor was held to be valid since the
classification was not based on the ground of sex alone. Similar provisions
apply to children. The provision of free education for children or measure for
prevention of their exploitation would also not come within the inhibition of
Article 15(1). It has, however, been, held that Article 15(3) provides for only
special provisions for the benefits of women and children and does not require
that absolutely identical treatment as those enjoyed by males in similar matters
must be afforded to them.
Clause (4): Special Provision for Advancement of Backward Classes-
Article 15(4) is another exception to clause (1) and (2) of Art.15, it was added
by the Constitution (Ist Amendment Act, 1951), as a result of the decision in
State of Madras v. Champakam Dorairajan55.
In this case the madras government had reserved seats in State Medical
and Engineering College for different Communities in certain proportions on
the basis of religion, race and caste. The State defended the law on the ground
that it was enacted with a view to promote the social justice for all sections of
the people as required by Art.46 of the Directive principle of State Policy. The
SC held that the law void because it classified students on the basis of caste and
religion irrespective of merit. The Directive principle of State Policy cannot
override the Fundamental Rights.
In Balaji v State of Mysore 56, and State of A.P v P. Sagar , it was held
that classification of backwardness on the basis of castes would violate Art
15(1) and (4) . In other words if the reservation is given on the basis of caste
only without taking into consideration social and educational backwardness
then such reservation would be violative of Art 15(1). However if the caste as a
whole is socially and educationally backward ,reservation can be made in

55
AIR 1951 SC 226.
56
AIR 1963 SC 649.
favour of such caste on the ground that it is socially and educationally backward
class of citizens as enshrined under Art 15(4).
Clause (5): Nothing in this article or in sub-clause (g) of clause (1) of
article 19 shall prevent the State from making any special provision, by law, for
the advancement of any socially and educationally backward classes of citizens
or for the Scheduled Castes or the Scheduled Tribes in so far as such special
provisions relate to their admission to educational institutions including private
educational institutions, whether aided or unaided by the State, other than the
minority educational institutions referred to in clause (1) of article 30.

PROTECTIVE DISCRIMINATION AND EQUALITY OF

EMPLOYMENT OPPORTUNITIES

INTRODUCTION
The word “reservation” has attained a particular legal significance in
matters relating to public employment. The concept is founded on separating
individuals or groups having certain characteristics (pertaining to backwardness
as per Articles 15(4) & 16(4)) from the general category of candidates and
conferring on them the benefit of special treatment. It is discrimination made in
favour of the backward classes vis-à-vis the citizens in general and has been
referred to as ‘Compensatory discrimination’ or ‘Positive Discrimination’.

CONSTITUTIONAL MANDATE
The Constitution of India has provided, among other various protections
and safeguards, safeguards for Public employment to the persons belonging to
the Scheduled Castes and Scheduled Tribes, keeping in view the discrimination
and disabilities suffered by these classes to catch up and compete successfully
with the more fortunate ones in the matter of securing public employment.
Specific provisions for reservations in services in favour of the members of
Scheduled Castes and Scheduled Tribes have been made as follows in the
Constitution of India:-

Article 16(1): There shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State.

Article 16(4): Article 16 provides for equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the State,
Nevertheless, “nothing in this Article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the State, is not adequately
represented in the services under the State”.

There have been two Constitution Amendments incorporated in Article 16(4),

they are:-
Article 16 (4-A): “Nothing in this article shall prevent the state from
making any provision for reservation in matters of promotions, with
consequential seniority, to any class or classes of posts in services under the
state in favour of SCs/STs which in opinion of state, are not adequate by
represented in the services under the state.”
The 77th Amendment to the Constitution has been brought into effect
permitting reservation in promotion to the Scheduled Castes and Scheduled
Tribes.
Thus, by amending the Constitution, the Parliament has removed the base
as interpreted by Supreme Court in Indira Sawhney that the appointment does
not include promotion. Article 16(4A) thus revives the interpretation put on
Article 16. Rule of reservation can apply not only to initial recruitments but also
to promotions. But no promotion can be made in promotion posts for the
OBC’s.
 The Supreme Court has emphasized that Article 16(4A) ought to be
applied in such a manner that a balance is struck in the matter of appointments
by creating reasonable opportunities for the reserved classes as well as for the
other members of the society.
Article 16 (4-B): “Nothing in this article shall prevent the State from
considering any unfilled vacancies of a year which are reserved for being filled
up in that year in accordance with any provision for reservation made under
clause (4) or clause (4A) as a separate class of vacancies to be filled up in any
succeeding year or years and such class of vacancies shall not be considered
together with the vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent reservation on total number of
vacancies of that year.”
The Constitution (Eighty- First Amendment) Act, 2000 has added Article
16(4B) to the Constitution. The Amendment envisages that the unfilled reserved
vacancies are to be carried forward to the subsequent years and these vacancies
are to be treated as distinct and separate from the current vacancies during any
year. The rule of 50% reservation laid down by the Supreme Court is to be
applied only to normal vacancies. This means that the unfilled reserved
vacancies can be carried forward from year to year without any limit, and are to
be filled separately from the normal vacancies. This Amendment also modifies
the proposition laid down by the Supreme Court in Indira Sawhney.

Article 335: This article provides that “the claims of the members of the SCs
and STs shall be taken into consideration, consistently with the maintenance of
efficiency of administration in the making of appointments in services and posts
in connection with the affairs of the Union or of a State”.

RESERVATION FOR BACKWARD CLASSES IN INDIA

 ARTICLE 16(4): This clause (4) expressly provides for the reservation of
appointments or posts in favour of any backward class of citizens which, in the
opinion of the state is not adequately represented in the services under the state.
Here the term state denotes both Central and state governments and their
instrumentalities.
The power conferred on the State can only be exercised in favour of a
backward class and therefore, whether a particular class of citizens is backward,
is an objective factor to be determined by the state.
It was held in Triloki Nath v. State of J & K57 that State determination
must be justiciable and may be challenged if it is based on irrelevant
considerations.
In Mohan Kumar Singhania v. Union of India58, explaining the nature
of Article 16(4) the Supreme Court has stated that it is an enabling provision
conferring a discretionary power on the state for making any provision or
reservation of any backward class of citizens which in the opinion of the state is
not adequately represented in the service of the state. Article 16(4) neither
imposes any constitutional duty nor confers any Fundamental Right on any one
for claiming reservation. The state government takes the total population of the
backward class and their representation in the state services and after doing the
necessary exercise makes the reservation and provides the percentage of
reservation for the posts, then the percentage has to be followed strictly.

WHAT ARE “BACKWARD CLASSES” U/Art. 16(4) of the

CONSTITUTION?

There was an overwhelming majority in the nation that was still

backward – socially, economically, educationally, and politically. These victims

57
AIR 1967 SC 1283.
58
AIR 1992 SC 1.
of entrenched backwardness comprise the present scheduled castes (SC),
scheduled tribes (ST) and other backward classes (OBC). Even though, these
classes are generically the "Backward Classes,” the nature and magnitude of
their backwardness are not the same.
The words ' "backward class of citizens" occurring in Article 16 (4) are
neither defined nor explained in the Constitution though the same words
occurring in Article 15 (4) are followed by a qualifying phrase, "Socially and
Educationally'' backward classes. In the course of debate in the Parliament on
the intendment of Article 16 (4), Dr. B.R. Ambedkar, expressed his views that
“backward classes” are which nothing else but a collection of certain castes.
Incidentally, it is also necessary to point out that the Supreme Court in all
its decisions on reservation has interpreted the expression `backward classes' in
Article 16 (4) to mean the "socially and educationally" backward. It also
emphatically rejected "economic backwardness" as the only or the primary
criterion for reservation under article 16 (4) and observed that economic
backwardness has to be on account of social and educational backwardness. The
true meaning of this expression has been considered in a number of cases by the
Supreme Court starting from Balaji to Indira Sawhney.
In M.R. Balaji v. State of Mysore, it was held that the caste of a group of
persons cannot be the sole or even predominant factor though it may be a
relevant test for ascertaining whether a particular class is backward or not. The
two tests should be conjunctively applied in determining backward classes: one,
they should be comparable to the Schedule Castes and Schedule Tribes in the
matter of their backwardness; and, two, they should satisfy the means test, that
is to say, the test of economic backwardness laid down by the State government
in the context of the prevailing economic conditions. Poverty, caste, occupation
and habitation are the principal factors contributing to social backwardness.
In R. Chitralekha and Anr. v. State of Mysore and Ors. and Triloki Nath
v. J & K State and K.C. Vasanth Kumar v. Karnataka
The apex Court explaining the meaning of ‘Class’ observed that “The
quintessence of the definition of “Class” is that a group of persons having
common traits or attributes coupled with retarded social, material (economic)
and intellectual (educational) development in the sense not having so much of
intellect and ability will fall within the ambit of 'any backward class of citizens'
under Article 16 (4) of the Constitution.”
Further in R. Chitralekha v. State of Mysore, it was stated that:
“...what we intend to emphasize is that under no circumstances a "class" can be
equated to a "caste", though the caste of an individual or a group of individual
may be considered along with other relevant factors in putting him in a
particular class.”
In State of Andhra Pradesh v. P. Sagar, it has been observed that:
The expression "class" means a homogeneous section of the people grouped
together because of certain likenesses or common traits and who are identifiable
by some common attributes such as status, rank, occupation, residence in a
locality, race, religion and the like. In determining whether a particular section
forms a class, caste cannot be excluded altogether. But in the determination of a
class a test solely based upon the caste or community cannot also be accepted.
In Triloki Nath v. J & K State (II) Shah, J., speaking for the Constitution
Bench has reiterated the meaning of the word 'class' as defined in the case of
Sagar and added that "for the purpose of Article 16 (4) in determining whether a
section forms a class, a test solely based on caste, community, race, religion,
sex, descent, place of birth or residence cannot be adopted, because it would
directly offend the Constitution.
The expression ‘backward class’ is not used as synonymous with
‘backward caste’ or ‘backward community’. The members of an entire caste or
community may in a social, economic and educational scale of values at a given
time be backward and may on that account be treated as a backward class, but
that is not because they are members of a caste or community, but because they
form a class.
In A. Peeriakaruppan, etc. v. State of Tamil Nadu, the Supreme Court
observed that “A caste has always been recognised as a class. If the members of
an entire caste or community at a given time are socially, economically and
educationally backward that caste on that account be treated as a backward
class. This is not because they are members of that caste or community but
because they form a class.”
Chief Justice Ray in Kumari K.S. Jayasree and Anr. v. The State of
Kerala and Anr. was of the view that “In ascertaining social backwardness of a
class of citizens it may not be irrelevant to consider the caste of the group of
citizens. Caste cannot however be made the sole or dominant test...”
In Indira Sawhney and Ors. Vs. Union of India and Ors., the Court
observed that --
The meaning of the expression “backward classes of citizens” is not
qualified or restricted by saying that it means those other backward classes who
are situated similarly to Scheduled Caste and/or Scheduled Tribes.
Backwardness being a relative term must in the context be judged by the general
level of advancement of the entire population of the country or the State, as the
case may be.
There is adequate safeguard against misuse by the political executive of
the power u/Art. 16(4) in the provision itself. Any determination of
backwardness is neither a subjective exercise nor a matter of subjective
satisfaction. The exercise is an objective one. Certain objective social and other
criteria have to be satisfied before any group or class of citizens could be treated
as backward. If the executive includes, for collateral reasons, groups or classes
not satisfying the relevant criteria, it would be a clear case of fraud on power.
‘Caste’ neither can be the sole criterion nor can it be equated with 'class'
for the purpose of Article 16 (4) for ascertaining the social and educational
backwardness of any section or group of people so as to bring them within the
wider connotation of 'backward class'. Nevertheless 'caste' in Hindu society
becomes a dominant factor or primary criterion in determining the
backwardness of a class of citizens.
Unless 'caste' satisfies the primary test of social backwardness as well as
the educational and economic backwardness which are the established and
accepted criteria to identify the 'backward class', a caste per se without
satisfying the agreed formulae generally cannot fall within the meaning of
'backward class of citizens' under Article 16 (4), save in given exceptional
circumstances such as the caste itself being identifiable with the traditional
occupation of the lower strata - indicating the social backwardness. And ‘Class’
has occupation and Caste nexus; it is homogeneous and is determined by birth.
It further approved Chitralekha case.
Further in case of Jagdish Negi v. State of [Link] [12] Court held
“Backwardness is not a static phenomenon. It cannot continue indefinitely and
the State is entitled to review the situation from time to time.”

PART III OF THE CONSTITUTION IN RELATION TO

RESERVATION IN PUBLIC SERVICES

Article 14 is in general terms whereas Arts. 15 and 16 are of specific

nature. Shortly put the combined effect of Arts. 14, 15 and 16 as far as public
employment is concerned, is that they guarantee non-discriminatory treatment
of citizens in matters relating to public employment. Religion, race, caste, sex,
descent, place of birth, residence or any of them cannot be the basis for
discrimination against a citizen in matters relating to public employment or
office under the state.
 Reservation in favour of backward classes of citizens is dealt with by cl.
(4) of Art.16. It is an enabling provision and is in the nature of a provision or an
exception to cl. (1) of Article 16 of the Constitution?

WHETHER Art.16 (4) AN EXCEPTION TO Art.16 (1)?

Although cl. (4) has an over-riding flavour as the opening words

“Nothing in the Article shall prevent the State from……….”, suggest as
Mudholkar, J. referring to these words in Devdasan pointed out: The over-
riding effect of cl.(4) on cls. (1) and (2) could only extend to the making of a
reasonable number of reservation of appointments and posts in certain
circumstances. That is all”.
The view in [Link] v. Union of India, that Art. 16(4) was an
exception to Art. 16(1) received a severe setback from the majority decision in
State of Kerala v. N.M. Thomas,[14] which held that 16(4) was not an
exception to Art.16(1) but that it was merely an emphatic way of stating a
principle implicit in Art.16(1). The view taken in N.M Thomas has been
accepted as the correct one and by the majority in Indira Sawhney where the
Court pointed out: “Indeed, even without clause (4), it would have been
permissible for the State to have evolved such a classification and made a
provision for reservation of appointments/posts in their favour. Clause (4)
merely puts the matter beyond any doubt in specific terms.”

ARTICLE 16(4) AND ARTICLE 335

Article 335: provides that “the claims of the members of the SCs and STs shall
be taken into consideration, consistently with the maintenance of efficiency of
administration in the making of appointments in services and posts in
connection with the affairs of the Union or of a State”
 There has been some debate as to whether Art.335 had any limiting effect
on the power of reservation conferred by Art. 16 (4). The nine judge bench of
the Supreme Court in Indira Sawhney considered the argument that the mandate
of Art.335 implied that reservation should be read subject to the qualification
engrafted in Art.335 i.e. consistently with the maintenance of efficiency of
administration. Dealing with the argument majority framed an issue as to
whether reservations were anti-meritarian? The majority then observed that
may be efficiency, competence and merit are not synonymous concepts; may be
it is wrong to treat merit as synonymous with efficiency in administration and
that merit is but a component of the efficiency of an administration
Even so the relevance and significance of merit at the stage of initial
recruitment cannot be ignored. It cannot also be ignored that the very idea of
reservation implies selection of a less meritorious person. At the same time, we
recognise that this much cost has to be paid, if the constitutional promise of
social justice is to be redeemed. We also firmly believe that given an
opportunity, members of these classes are bound to overcome their initial
disadvantages and would compete with-and may in some cases, excel members
of open competitor candidates. It is undeniable that nature has endowed merit
upon members of backward classes as much as it has endowed upon members
of other classes and what is required is an opportunity to prove it.
But in case of Article 16, Article 355 would be relevant. It may be
permissible for the government to prescribe a reasonably lower standard for
scheduled castes/Scheduled tribes/backward classes consistent with the
requirements of efficiency of administration. It would not be permissible not to
prescribe any such minimum standard at all. While prescribing the lower
minimum standard for reserved category, the nature and duties attached to the
post and the interest of the general public should also be kept in mind. While on
Article 355, we are of the opinion that there are certain services and positions
where merit alone counts. In such situations, it may not be advisable to provide
for reservations. For example technical post in Research and Development
organisations/departments/institutions, superspecialities in medicine,
engineering etc.

CENT PERCENT RESERVATION NOT PERMISSIBLE:

No cent percent reservation - The state is not entitled to make a cent

percent reservation. That would be violative of Art.16 of the Constitution. The
Supreme Court has ruled time and again, that where there is no only one post in
the cadre, there can be no reservation for the backward class with reference to
that post either for recruitment at the initial stage or filling up a future vacancy
in respect of that post otherwise the same would amount to 100 per cent
reservation. A single promotional post can also not be reserved.
Application of Rotational Rule - In case of Post Graduate Institute of
Medical Education & Research, Chandigarh it has been categorically stated that
unless there is plurality of posts in a cadre, the question of reservation will not
arise because any-attempt at reservation by whatever means and even with
device of rotation of roster in a single post cadre is bound to create 100%
reservation of such post whenever such reservation is to be implemented.

EXTENT OF RESERVATION

The extent of reservation should not exceed 50% - In Indira Sawhney

case the majority pointed out that cl. (4) of Art. 16 spoke of adequate
representation and not proportionate representation-although the proportion of
population of backward classes to the total population would a relevant factor.
After referring to the earlier decisions of the Court, the majority concluded that
the reservation contemplated in cl. (4) of Art. 16 should not exceed 50%.
 It also pointed out that for the purpose of applying the rule of 50%, a year
should be taken as the unit and not the entire strength of the cadre.

CONCEPT OF CREAMY LAYER:

In the Mandal commission case, the Supreme Court has clearly and
authoritatively laid down that the socially advanced members of the backward
class, the “creamy layer”, has to be excluded from the backward class and the
benefit of reservation under Article 16(4) can only be given to a class which
remains after the exclusion of the “creamy layer”. This would more
appropriately serve the purpose and object of Article 16(4).
At present, the benefits of job reservations are most chewed up by the
more effluent sections of the backward class and the benefit of the reservation
policy is not being percolated to the poor and the really backward class amongst
them which makes them poorer and more backward. So, the government must
give effect to the observation made my Supreme Court in Mandal case in order
to achieve social and economic justice for the whole section of backward
classes.

AN EPILOGUE

The reservation policy in India in all sectors has become a disturbing and
cyclical process. Initially with the introduction of constitution it provided
reservation for only SC’s and ST’s but later on OBC were included and now the
other minorities are demanding reservation as well, which would ultimately lead
to a situation where the seats left for the majority would not be proportional
with their population. This therefore, becomes an unending issue, rather than an
equal opportunity issue.
 It’s not that only developing or underdeveloped countries are facing
sociological problems because these problems still persist in the most developed
nation in the world like that of USA. But in USA there is no reservation policy
as such and there is an affirmative action program for the minorities and
especially for the African-Americans. India being a developing country is
slogging in almost all facets to achieve its 2020 mission but for that there is a
serious need for reconsideration of the reservation policy in India because the
reservation policy compromises with the efficiency of a Country by not
sincerely recognizing the merits of backward classes which therefore hamper
the development of a country. Thus reservation alone can’t be a solution and
there must be a swift implementation of affirmative action programme in India
especially when it comes to reservation in employment.
Art 17: Abolition of Untouchability: Untouchability is abolished and its
practice in any form is forbidden. The enforcement of any disability arising out
of Untouchability shall be an offence punishable in accordance with law
Art 18: Abolition of Titles: (1) No title, not being a military or academic
distinction, shall be conferred by the State.
(2) No citizen of India shall accept any title from any foreign State. THE
CONSTITUTION OF INDIA
(3) No person who is not a citizen of India shall, while he holds any office of
profit or trust under the State, accept without the consent of the President any
title from any foreign State.
(4) No person holding any office of profit or trust under the State shall, without
the consent of the President, accept any present, emolument, or office of any
kind from or under any foreign State.

Right to Freedom (Art 19-22)

Freedom of Speech and Expression India v America - A study
 "Give me the liberty to know, to utter, and to argue freely according to
conscience, above all liberties" - John Milton

The essence of free speech is the ability to think and speak freely and to
obtain information from others through publications and public discourse
without fear of retribution, restriction, or repression by the government. It is
through free speech, people could come together to achieve political influence,
to strengthen their morality, and to help others to become moral and enlightened
citizens writes Dheerajendra Patanjali.

Introduction
The freedom of speech is regarded as the first condition of liberty. It
occupies a preferred and important position in the hierarchy of the liberty, it is
truly said about the freedom of speech that it is the mother of all other liberties.
Freedom of Speech and expression means the right to express one's own
convictions and opinions freely by words of mouth, writing, printing, pictures or
any other mode. In modern time it is widely accepted that the right to freedom
of speech is the essence of free society and it must be safeguarded at all time.
The first principle of a free society is an untrammeled flow of words in an open
forum. Liberty to express opinions and ideas without hindrance, and especially
without fear of punishment plays significant role in the development of that
particular society and ultimately for that state. It is one of the most important
fundamental liberties guaranteed against state suppression or regulation.
Freedom of speech is guaranteed not only by the constitution or statutes
of various states but also by various international conventions like Universal
Declaration of Human Rights , European convention on Human Rights and
fundamental freedoms, International Covenant on Civil and Political Rights etc.
These declarations expressly talk about protection of freedom of speech and
expression.
Why to protect freedom of speech?
Freedom of speech offers human being to express his feelings to other,
but this is not the only reason; purpose to protect the freedom of speech. There
could be more reasons to protect these essential liberties. There are four
important justifications for freedom of speech –
1) For the discovery of truth by open discussion - According to it, if
restrictions on speech are tolerated, society prevents the ascertainment and
publication of accurate facts and valuable opinion. That is to say, it assists in the
discovery of truth.
2) Free speech as an aspect of self- fulfillment and development –
freedom of speech is an integral aspect of each individual’s right to self-
development and self-fulfillment. Restriction on what we are allowed to say and
write or to hear and read will hamper our personality and its growth. It helps an
individual to attain self-fulfillment.
3) For expressing belief and political attitudes - freedom of speech
provides opportunity to express one’s belief and show political attitudes. It
ultimately results in the welfare of the society and state. Thus, freedom of
speech provides a mechanism by which it would be possible to establish a
reasonable balance between stability and social change.
4) For active participation in democracy – democracy is most important
feature of today’s world. Freedom of speech is there to protect the right of all
citizens to understand political issues so that they can participate in smooth
working of democracy. That is to say, freedom of speech strengthens the
capacity of an individual in participating in decision-making.

Thus we find that protection of freedom of speech is very much essential.

Protection of freedom of speech is important for the discovery of truth by open
discussion, for self- fulfillment and development, for expressing belief and
political attitudes, and for active participation in democracy. The present study
is intended to present the provisions of the American and Indian Constitution
which recognize the freedom of speech and expression, the basic fundamental
rights of human being. It is also to be examined that what is judicial trend in
interpreting the freedom of speech and expression provisions. The study also
covers the comparison between the approaches of both countries as far as
freedom of speech is concerned.

Freedom of Speech in America

America is leader country as far as protection of freedom of speech and
expression is concerned. It provides very wide interpretation of freedom of
speech to its citizen. Freedom of speech, of the press, of association, of
assembly and petition -- this set of guarantees, protected by the First
Amendment, comprises what we refer to as freedom of expression. However,
initially there was no provision for protecting freedom of speech in American
Constitution, but very soon realizing the importance of freedom of speech it
amended its constitution and pave way for protection of speech and expression.
The first amendment of the American constitution specially provides that -
“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances”.
The above Amendment to the American Constitution is the part of the
United States Bill of Rights. As per the Bill of Rights United States Congress
has been prohibited from making laws, infringe the freedom of speech, infringe
the freedom of the press, limit the right to peaceably assemble, etc. The sum
total of the components of the law of the First Amendment provides a great deal
of protection to freedom of speech. Although, as per the provision, the First
Amendment only explicitly applies to the Congress, the Supreme Court of
America has interpreted it as applying to the executive and judicial branches.
The Supreme Court has interpreted the First Amendment's guarantee of freedom
of speech very expansively, and the constitutional protection afforded to
freedom of speech is perhaps the strongest protection afforded to any individual
right under the Constitution.
We see then that in the United States freedom of speech receives a very
high degree of constitutional protection. It is not untrue to say that the
constitutional protection afforded to freedom of speech is perhaps the strongest
protection afforded to any individual right under the American Constitution, and
the value of freedom of speech generally prevails over other democratic values
such as equality, human dignity, and privacy. American judiciary, too, has
played very important role in broadening the scope of freedom of speech.
In Schenck v. United States was the one of the first important case where
Supreme Court was first requested to strike down a law violating the Free
Speech Clause. It was a case related to Sedition Act of 1918 which criminalized
"disloyal," "scurrilous" or "abusive" language against the government. Supreme
court held in this case “the question in every case is whether the words used are
used in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has
a right to prevent." Thus, in this case court evolved a new doctrine of “clear
and present danger”.
The "clear and present danger" test of Schenck case was extended in
Debs v. United States again by Justice Oliver Wendell Holmes. The case
involved a speech made by Eugene V. Debs, a political activist. Debs had not
spoken any words that posed a "clear and present danger" to the conscription
system, but a speech in which he denounced militarism was nonetheless found
to be sufficient grounds for his conviction. Justice Holmes suggested that the
speech had a "natural tendency" to occlude the draft. The test of clear and
present danger was further upheld by the court in Dennis v. United States. It
was observed by the court that “clear and present danger" test did not require
the government to "wait until the putsch is about to be executed, the plans have
been laid and the signal is awaited", thereby broadly defining the words "clear
and present danger."
Thus, the Supreme Court effectively shaped the First Amendment in such
a manner as to permit a multitude of restrictions on speech. Example such
restriction is providing authority to state to punish words that "by their very
nature, involve danger to the public peace and to the security of the state."
Moreover, Lawmakers were given the freedom to decide which speech would
constitute a danger.

Press and freedom of speech

With regard to press freedom, America has again adopted very liberal
attitude towards it. Freedom of press is the heart of social and political
intercourse. It is the primary duty of the courts to uphold the freedom of press
and invalidate all laws or administrative actions, which interfere with it contrary
to the constitutional mandate. It has provided broad freedom to press (every sort
of publication which affords a vehicle of information and opinion ) to provide
information to public. However, Freedom of the press, like freedom of speech,
is subject to restrictions on bases such as defamation law.
Again, American judiciary has approved content-based regulation.
Content-based regulation of television and radio has been sustained by the
Supreme Court in various cases. For example In Miami Herald Publishing Co.
v. Tornillo the Court unanimously struck down a state law requiring newspapers
criticizing political candidates to publish their responses. The state claimed that
the law had been passed to ensure press responsibility. Finding that only
freedom, and not press responsibility, is mandated by the First Amendment, the
Supreme Court ruled that the government may not force newspapers to publish
that which they do not desire to publish.
Obscenity
Since the freedom of speech is mainly governed by the first amendment
of the constitution and first amendment did not talk about obscenity and
freedom of speech, The Supreme Court has usually refused to give obscenity
any protection. The governments, both federal and state, have been permitted to
make suitable legislation. However, the court from time to time developed
various tests to examine obscenity. In Roth v. United States, Court applied a
new test for obscenity, which was "whether to the average person, applying
contemporary community standards, the dominant theme of the material, taken
as a whole, appeals to the prurient interest." this is known as Ruth test of
obscenity.
The Roth test was further expanded when the Court decided Miller v.
California case. It is commonly known as Miller test. Under the Miller test, a
work is obscene if it would be found appealing to the prurient interest by an
average person applying contemporary community standards depicts sexual
conduct in a patently offensive way and has no serious literary, artistic, political
or scientific value. It thus includes the expression of one’s ideas through any
communicable medium or visible representation, such as gesture, signs and the
like. It very important to note that under Miller test, the “community" standards
are followed, which might be different from the national standard. Thus,
material may be deemed obscene in one locality but not in another. National
standards, however, are applied whether the material is of value

Defamation and freedom of speech

American law also recognizes the liability for defamatory speech or
publication i.e. slander and libel. The nature of American defamation law was
vitally changed by the Supreme Court in 1964, in deciding New York Times
Co. v. Sullivan, The New York Times had published an advertisement
indicating that officials in Montgomery, Alabama had acted violently in
suppressing the protests of African-Americans during the Civil rights
movement. The Montgomery Police Commissioner, L. B. Sullivan, sued the
Times for libel on the grounds that the advertisement damaged his reputation.
The Sullivan case provides the principal doctrinal justification for the
development, although the results had long since been fully applied by the
Court. In Sullivan, Justice Brennan discerned in the controversies over the
Sedition Act a crystallization of ''a national awareness of the central meaning
of the First Amendment,'' which is that the ''right of free public discussion of the
stewardship of public officials . . [is] a fundamental principle of the American
form of government.
This ''central meaning'' proscribes either civil or criminal punishment for
any but the most maliciously, knowingly false criticism of government.
''Although the Sedition Act was never tested in this Court, the attack upon its
validity has carried the day in the court of history. . . . [The historical record]
reflect[s] a broad consensus that the Act, because of the restraint it imposed
upon criticism of government and public officials, was inconsistent with the
First Amendment.'' Supreme Court unanimously overruled the $500,000
judgment against the Times. Justice William J. Brennan suggested that public
officials may sue for libel only if the publisher published the statements in
question with "malice.” The actual malice standard applies to both public
officials and public figures, including celebrities. Though the details vary from
state to state, private individuals normally need only to prove negligence on the
part of the defendant.
Hustler Magazine v. Falwell, extended the "actual malice" standard to
intentional infliction of emotional distress in a ruling which protected a parody.
In the ruling, "actual malice" was described as "knowledge that the statement
was false or with reckless disregard whether or not it was true.” It is clear from
the above discussion that in American people enjoyed real freedom of speech
but at the same time, American judiciary has evolved very fair ground to put
restriction on freedom of speech. These restrictions can be summarized as-
Seditious Speech and Seditious Libel, Fighting Words and Other Threats to the
Peace, Defamation, Group Libel, Hate Speech. Thus Despite the constitutional
guarantee of free speech in the United States, legal systems have not treated
freedom of speech as absolute and have put some obvious restrictions on the
freedom to speech and expression.

Freedom of Speech in India

Freedom of speech enjoys special position as far India is concerned. The
importance of freedom of expression and speech can be easily understand by the
fact that preamble of constitution itself ensures to all citizens inter alia, liberty
of thought, expression, belief, faith and worship. The constitutional significance
of the freedom of speech consists in the Preamble of Constitution and is
transformed as fundamental and human right in Article 19(1) (a) as “freedom of
speech and expression”. Explaining the scope of freedom of speech and
expression Supreme Court has said that the words "freedom of speech and
expression" must be broadly constructed to include the freedom to circulate
one's views by words of mouth or in writing or through audiovisual
instrumentalities. Freedom of Speech and expression means the right to express
one's own convictions and opinions freely by words of mouth, writing, printing,
pictures or any other mode. It thus includes the expression of one's idea through
any communicable medium or visible representation, such as gesture, signs, and
the like.
Moreover, it is important to note that liberty of one must not offend the
liberty of others. Patanjali Shastri,J. in A.K. Gopalan case, observed,“man as a
rational being desires to do many things, but in a civil society his desires will
have to be controlled with the exercise of similar desires by other individuals”.
It therefore includes the right to propagate one's views through the print media
or through any other communication channel e.g. the radio and the television.
Every citizen of this country therefore has the right to air his or their views
through the printing and or the electronic media subject of course to permissible
restrictions imposed under Article 19(2) of the Constitution. In sum, the
fundamental principle involved here is the people's right to know. Freedom of
speech and expression should, therefore, receive generous support from all
those who believe in the participation of people in the administration. We can
see the guarantee of freedom of speech under following heads.

Freedom of Press
Although Article 19 does not express provision for freedom of press but
the fundamental right of the freedom of press implicit in the right the freedom
of speech and expression. In the famous case Express Newspapers (Bombay)
(P) Ltd. v. Union of India court observed the importance of press very aptly.
Court held in this case that –
“In today’s free world freedom of press is the heart of social and
political intercourse. The press has now assumed the role of the publics
educator making formal and non-formal education possible in a large
scale particularly in the developing world, where television and other
kinds of modern communication are not still available for all sections of
society. The purpose of the press is to advance the public interest by
publishing facts and opinions without which a democratic electorate
[Government] cannot make responsible judgments. Newspapers being
purveyors of news and views having a bearing on public administration
very often carry material which would not be palatable to Governments
and other authorities.”
The above statement of the Supreme Court illustrates that the freedom of
press is essential for the proper functioning of the democratic process.
Democracy means Government of the people, by the people and for the people;
it is obvious that every citizen must be entitled to participate in the democratic
process and in order to enable him to intelligently exercise his right of making a
choice, free and general discussion of public matters is absolutely essential.
This explains the constitutional viewpoint of the freedom of press in India.

Obscenity
Freedom of speech, though guaranteed, is not absolute in India. Unlike
the U.S. Constitution, the text of India's Constitution clearly sets out restrictions
on free speech. The freedom of speech guarantee under Article 19(1) (a) can be
subject to reasonable state restriction in the interest of decency or morality.
Obscenity in India is defined as "offensive to modesty or decency; lewd, filthy
and repulsive." It stated that the test of obscenity is whether the publication,
read as a whole, has a tendency to deprave and corrupt those whose minds are
open to such immoral influences, and therefore each work must be examined by
itself.
With respect to art and obscenity, the Court held that "the art must be so
preponderating as to throw obscenity into a shadow or the obscenity so trivial
and insignificant that it can have no effect and may be overlooked." The Court
concluded that the test to adopt in India, emphasizing community mores, is that
obscenity without a preponderating social purpose or profit cannot have the
constitutional protection of free speech.

Right to Information
Right to know, to information is other facet of freedom of speech. The
right to know, to receive and to impart information has been recognized within
the right to freedom of speech and expression. A citizen has a fundamental right
to use the best means of imparting and receiving information and as such to
have an access to telecasting for the purpose. The right to know has, however,
not yet extended to the extent of invalidating Section 5 of the Official Secrets
Act, 1923 which prohibits disclosure of certain official documents. Even, Right
to Information Act-2005, which specially talks about peoples’ right to ask
information from Government official, prohibits discloser of certain documents
under u/s 8 of the Act. These exceptions are generally the grounds of reasonable
restrictions over freedom of speech and expression under Article 19(1) of
Constitution of India. One can conclude that 'right to information is nothing but
one small limb of right of speech and expression.

Grounds of Restrictions
It is necessary to maintain and preserve freedom of speech and expression
in a democracy, so also it is necessary to place some restrictions on this freedom
for the maintenance of social order, because no freedom can be absolute or
completely unrestricted. Accordingly, under Article 19(2) of the Constitution of
India, the State may make a law imposing “reasonable restrictions” on the
exercise of the right to freedom of speech and expression “in the interest of” the
public on the following grounds: Clause (2) of Article 19 of Indian constitution
contains the grounds on which restrictions on the freedom of speech and
expression can be imposed:-
1) Security of State: Security of state is of vital importance and a
government must have power to impose restriction on the activity
affecting it. Under Article 19(2) reasonable restrictions can be imposed
on freedom of speech and expression in the interest of security of State.
However the term “security” is very crucial one. The term "security of
state" refers only to serious and aggravated forms of public order e.g.
rebellion, waging war against the State, insurrection and not ordinary
breaches of public order and public safety, e.g. unlawful assembly, riot,
affray. Thus speeches or expression on the part of an individual, which
incite to or encourage the commission of violent crimes, such as, murder
are matters, which would undermine the security of State.
 2) Friendly relations with foreign states: In the present global
world, a country has to maintain good and friendly relationship with other
countries. Something which has potential to affect such relation ship
should be checked by government. Keeping this thing in mind, this
ground was added by the constitution (First Amendment) Act, 1951. The
object behind the provision is to prohibit unrestrained malicious
propaganda against a foreign friendly state, which may jeopardize the
maintenance of good relations between India, and that state.
No similar provision is present in any other Constitution of
the world. In India, the Foreign Relations Act, (XII of 1932) provides
punishment for libel by Indian citizens against foreign dignitaries. Interest of
friendly relations with foreign States, would not justify the suppression of fair
criticism of foreign policy of the Government. However it is interesting to note
that member of the commonwealth including Pakistan is not a "foreign state"
for the purposes of this Constitution. The result is that freedom of speech and
expression cannot be restricted on the ground that the matter is adverse to
Pakistan.
3) Public Order: Next restriction prescribed by constitution is to
maintain public order. This ground was added by the Constitution (First
Amendment) Act. 'Public order' is an expression of wide connotation and
signifies "that state of tranquility which prevails among the members of
political society as a result of internal regulations enforced by the
Government which they have established."
Here it is pertinent to look into meaning of the phrase
“Public order”. Public order is something more than ordinary maintenance of
law and order. 'Public order' is synonymous with public peace, safety and
tranquility. Anything that disturbs public tranquility or public peace disturbs
public order. Thus communal disturbances and strikes promoted with the sole
object of accusing unrest among workmen are offences against public order.
 Public order thus implies absence of violence and an orderly state of
affairs in which citizens can peacefully pursue their normal avocation of life.
Public order also includes public safety. Thus creating internal disorder or
rebellion would affect public order and public safety. But mere criticism of
government does not necessarily disturb public order.
The words 'in the interest of public order' includes not only such
utterances as are directly intended to lead to disorder but also those that have the
tendency to lead to disorder. Thus a law punishing utterances made with the
deliberate intention to hurt the religious feelings of any class of persons is valid
because it imposes a restriction on the right of free speech in the interest of
public order since such speech or writing has the tendency to create public
disorder even if in some case those activities may not actually lead to a breach
of peace. But there must be reasonable and proper nexus or relationship between
the restrictions and the achievements of public order.
4) Decency or Morality: The way to express something or to say
something should be decent one. It should not affect the morality of the
society adversely. Our constitution has taken care of this view and
inserted decency and morality as a ground. The words 'morality or
decency' are words of wide meaning. Sections 292 to 294 of the Indian
Penal Code provide instances of restrictions on the freedom of speech and
expression in the interest of decency or morality. These sections prohibit
the sale or distribution or exhibition of obscene words, etc. in public
places. No fix standard is laid down till now as to what is moral and
indecent. The standard of morality varies from time to time and from
place to place.
5) Contempt of Court: In a democratic country Judiciary plays
very important role. In such situation it becomes essential to respect such
institution and its order. Thus, restriction on the freedom of speech and
expression can be imposed if it exceeds the reasonable and fair limit and
amounts to contempt of court. According to the Section 2 'Contempt of
court' may be either 'civil contempt' or 'criminal contempt.' But now,
Indian contempt law was amended in 2006 to make “truth” a defence.
However, even after such amendment a person can be punished for the
statement unless they were made in public interest. Again in Indirect Tax
Practitioners Assn. vs [Link], it was held by court that, “Truth based
on the facts should be allowed as a valid defence if courts are asked to
decide contempt proceedings relating to contempt proceeding relating to
a speech or an editorial or article”. The qualification is that such defence
should not cover-up to escape from the consequences of a deliberate
effort to scandalize the court.
6) Defamation: Ones’ freedom, be it of any type, must not affect
the reputation or status another person. A person is known by his
reputation more than his wealth or any thing else. Constitution considers
it as ground to put restriction on freedom of speech. Basically, a
statement, which injures a man's reputation, amounts to defamation.
Defamation consists in exposing a man to hatred, ridicule, or contempt.
The civil law in relating to defamation is still uncodified in India and
subject to certain exceptions.
7) Incitement to an offence: This ground was also added by the
constitution (First Amendment) Act, 1951. Obviously, freedom of speech
and expression cannot confer a right to incite people to commit offence.
The word 'offence' is defined as any act or omission made punishable by
law for the time being in force.
8) Sovereignty and integrity of India- To maintain sovereignty
and integrity of a state is prime duty of government. Taking into it into
account, freedom of speech and expression can be restricted so as not to
permit any one to challenge sovereignty or to permit any one to preach
something which will result in threat to integrity of the country.
 From above analysis, it is evident that Grounds contained in Article 19(2)
show that they are all concerned with the national interest or in the interest of
the society. The first set of grounds i.e. the sovereignty and integrity of India,
the security of the State, friendly relations with foreign States and public order
are all grounds referable to national interest, whereas, the second set of grounds
i.e. decency, morality, contempt of court, defamation and incitement to an
offence are all concerned with the interest of the society.

India and America- A SWOT Analysis

Two great democracies of world America and India very aptly recognizes
the right of freedom of speech and expression. The United States and India
almost have similar free speech provisions in their Constitutions. Article 19(1)
(a) of Indian constitution corresponds to the First Amendment of the United
States Constitution which says, “congress shall make no law… abridging the
freedom of speech or of the press”4. However, the provisions in the US
Constitution have two notable features i.e.
 freedom of press is specifically mentioned therein, and
 no restrictions are mentioned on the freedom of speech.
As far as India is concerned, Supreme Court of India has held that there is
no specific provision ensuring freedom of the press separately. The freedom of
the press is regarded as a “species of which freedom of expression is a genus”.
Therefore, press cannot be subjected to any special restrictions which could not
be imposed on any private citizen,5 and cannot claim any privilege (unless
conferred specifically by law), as such, as distinct from those of any other
citizen.
In the famous case, Express Newspapers (Private) Ltd. v. Union of India,
Justice Bhagwati stated, "[that] the fundamental right to the freedom of speech
and expression enshrined in our constitution is based on (the provisions in)
Amendment I of the Constitution of the United States and it would be therefore
legitimate and proper to refer to those decisions of the Supreme Court of the
United States of America in order to appreciate the true nature, scope and extent
of this right in spite of the warning administered by this court against use of
American and other cases.” Despite similarities in their constitutional
provisions, the United States and India have their own unique jurisprudence on
freedom of speech. Consequently, they differ as to what is and what is not
acceptable free speech. As mentioned, the real difference in freedom of speech
enjoyed in the United States and India is a question of degree. This difference in
degree is attributable to the reasonable restrictions provision and the moral
standard of the communities. India has progressed from an authoritarian system
of control and is now attempting a legislative model of control, quite similar to
that of the United States.
Free speech is meaningless unless it has space to breathe. It is important
to note that false statements made honestly are equally a part of freedom of
speech. The supreme court of India applied the famous doctrine of New York
Times v Sullivan standard of American constitutional law against public
officials. Accordingly, statements made against persons in the public eye cannot
be considered defamatory unless they were made with “actual malice”. The
reason for this is very simple, democratic governance mandates the strict
scrutiny of public official duties.
The consequence of this very high degree of constitutional protection to
freedom of speech in the United States is that ideas most Americans consider
very repugnant, and that may be hurtful to some people, such as racial hatred,
can be expressed freely. At the same time, the expansive protection to freedom
of speech under the First Amendment ensures robust debate on all public issues
and the widest dissemination of all ideas. As stated above, under the First
Amendment, there is no such thing as a "bad idea," and the remedy for bad
speech is said to be "more speech, and not enforced silence. It is part of our
culture that people are "free to speak their mind" and need not fear that they will
be sanctioned for saying something that is offensive or unpopular. The
government is not required to and, more importantly, is not permitted to make
decisions about what ideas may be expressed and what ideas may not be
expressed. The constitutional guarantee of freedom of expression under the First
Amendment then means freedom of expression in the fullest sense. For better or
worse, this is the American way.
However in the case of India constitutional provisions have been widely
influenced by the moral standard of the society. Constitution has tried to adapt
and embody those freedom and restrictions enjoyed by the Indian people from
long time. The provision of freedom of speech and restrictions are the result of
that way of thinking, and this is the Indian way.

Art 20. Protection in respect of conviction for offences: (1) No person shall
be convicted of any offence except for violation of a law in force at the time of
the commission of the Act charged as an offence, nor be subjected to a penalty
greater than that which might have been inflicted under the law in force at the
time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than
once.
(3) No person accused of any offence shall be compelled to be a witness against
himself.

Article 20 (3) Of Constitution of India and Narco Analysis

In any criminal investigation, interrogation of the suspects and accused
plays a vital role in extracting the truth from them. From time, immemorial
several methods, most of which were based on some form of torture have been
used by the investigating agencies to elicit information from the accused and the
suspects. With the advancement of science and technology, sophisticated
methods of lie detection have been developed which do away with the use of
“third degree torture” by the police. The scientific tools of interrogation namely-
the Lie detector or the Polygraph test, the P300 or the Brain Mapping test and
the Narcoanalysis or the Truth Serum test are the main three tests that have
recently been developed for extracting confessions. These psychoanalytical tests
are also used to interpret the behaviour of the criminal (or the suspect) and
corroborate the investigating officers’ observations.
However, legal questions are raised about the validity of tests like Narco
Analysis, with some upholding its validity in the light of legal principles and
others rejecting it as a blatant violation of constitutional provisions. It has been
alleged that Narco Analysis is a blatant violation of the Article 20(3) of the
Indian Constitution. However, in this age of ever increasing crime rate, such
tests often render a lot of help to the investigation agencies and hence, it is high
time to blend Article 20 (3) with the Narco Analysis.
First, let us understand what Narco Analysis is and how is it conducted.
This will help us to decide whether such tests actually violate Article 20 (3). In
India at Forensic Science Laboratories in Bangalore and Gujarat, Narco
Analysis is conducted by injecting 3 grams of sodium pentothal dissolved in
300 ml of distilled water and this prepared solution is administered
intravenously along with dextrose over a period of 3 hours with the help of
anaesthetist. Obviously this test has some invasion on the body. The rate of
administration is so controlled to drive the suspect slowly into the state of
hypnotic trance. The ECG and blood pressure are monitored continuously
throughout the testing procedure. The revelations made during the hypnotic
trance are recorded both in video and audio cassettes. The questions are
designed carefully and are repeated persistently in order the ambiguities during
drum interrogation. The report prepared by the experts is useful in the process
of collecting the evidence. A person is able to lie by using his imagination. In
the Narco Analysis Test, the subject enters into a “twilight” stage i.e. a stage
between consciousness and unconsciousness. In this state, it becomes difficult
for him to lie and his answers would be restricted to facts he is already aware of.
Prior to the test, Court’s permission and written consent of subject is secured
which are mandatory for conducting the test. The procedure is explained to the
subjects. The test is conducted only in the presence of forensic and medical
experts.
Next, it becomes imperative to analyse Article 20 (3) of the Indian
Constitution. Clause (3) of Article 20 declares that no person accused of an
offence shall be compelled to be a witness against himself. This provision may
be stated to consist of the following three components:
1. it is a right pertaining to a person accused of an offence
2. it is a protection against compulsion to be a witness; and
3. it is a protection against such compulsion resulting in his giving
evidence against himself.
The privilege under clause (3) is confined only to an accused i.e. a person
against whom a formal accusation relating to the commission of an offence has
been levelled which is in the normal course may result in the prosecution. A
person against whom a first information report has been recorded by the police
and investigation has been ordered by the Magistrate can claim the benefit of
the protection. Further, the guarantee in Article 20 (3) is against the compulsion
to be ‘a witness’. In State of Bombay v. Kathi Kalu Oghad a Bench of the
Supreme Court consisting of eleven judges held that: “It is well established that
clause (3) of Article 20 is directed against self-incrimination by the accused
person. Self-incrimination must mean conveying information based upon
personal knowledge of the person giving the information and cannot include
merely the mechanical process of producing documents in court which may
throw a light on any of the points in the controversy, but which do not contain
any statement of the accused based on his personal knowledge.” The third
component of Article 20 (3) is that it is a prohibition only against the
compulsion of the accused to give evidence against himself.
 In Kalawati v H.P. State, the Supreme Court held that Article 20 (3) does
not apply at all to a case where the confession is made by an accused without
any inducement, threat or promise.
Narco Analysis in the light of Article 20(3): The discussion on Article 20
(3) spells out three requirements which must be met with in order to claim
protection under Article 20 (3). If any of these requirements is not met with,
Article 20 (3) cannot be invoked. If Narco Analysis is carried out on an accused,
it definitely fulfils the first requirement of Article 20 (3). However, the question
is whether subjecting a suspect to such a test also fulfils the requirement of
Article 20 (3).
In the case of State of Andhra Pradesh v. Smt. Inapuri Padma and Ors,
the Court by ordering a few suspects to undergo a Narco Analysis test held that
the question of putting the test of testimonial compulsion in case of suspects
does not arise.
Hence, I feel that if a person is suspected to have some information
regarding the commission of an offence, there should be no prohibition on
conducting a Narco Analysis test on him as the protection under Article 20 (3)
is available only to a person accused of an offence. Another requirement of
Article 20 (3) is that there should be no compulsion on the accused to give
testimony against him. However, in Narco Analysis test, the question of
compulsion does not arise because the prior consent of the person who is
supposed to undergo such a test is always taken.
In fact, the Supreme Court in State of Bombay v Kathi Kalu Oghad, held
that there is no compulsion when a police officer, in investigating a crime
against, a certain individual, asks him to do a certain thing. The fact that a
person was in police custody when he made the statement is not a foundation
for an inference that he was compelled to make the statement. The mere
questioning of an accused by a police officer, resulting in a voluntary statement,
which may ultimately turn out to be incriminatory, is not compulsion.
Considering, all these we can easily conclude that Narco Analysis does not
violate Article 20 (3) to the extent that the person undergoing such a test is not
compelled to do so, rather it is done with the consent of the person who has full
knowledge of such a test.
The third requirement of Article 20 (3) is that the there should be
compulsion to give evidence against oneself. Only incriminatory statements are
hit by Article 20(3). Whether a statement is incriminatory or not can be
ascertained only after the test is conducted and not before it. Hence, I do not see
any reason to prohibit such a test because there are enough protections available
under the Indian Evidence Act, under Criminal Procedure Code and Article
20(3), to prevent inclusion of any incriminating statement if one comes out after
administration of the test. By conducting Nacrco Analysis, the investigating
agencies might discover some information which will help them in the
investigation of the crime and thus find out the true culprit. In case, during the
test, the accused makes a statement that is incriminatory that need not be made
admissible in the Court as it is against Article 20 (3), but the rest of the
information can definitely be used by the investigating agencies to solve the
case. The above discussion very clearly suggests that Narco Analysis test can be
conducted without violating Article 20 (3).
The Indian Courts have so far refused to admit the Narco Analysis as
evidence, but Narco Analysis is being carried out by the investigators. The
reason is that although confession made to the police or in the presence of
police is not admissible in Courts, the information is admissible by which an
instrument or object used in commission of crime is discovered. This is clear
from the wording of Section 27 of the Indian Evidence Act, 1872. Section 27 of
the Indian Evidence Act, 1872 is founded on the principle that if the confession
of the accused is supported by the discovery of a fact, the confession may be
presumed to be true, and not to have been extracted. It comes into operation
only: (i) if and when certain facts are deposed to as discovered in consequence
of information received from an accused person in police custody; and (ii) if the
information relates distinctly to the fact discovered. If the self incriminatory
information given by an accused person is without any threat that will be
admissible in evidence and will not be hit by Article 20 (3).
Section 156 (1) of the Code of Criminal Procedure which reads “Police
officer's power to investigate cognizable cases” states that any officer in charge
of a police station without the order of a Magistrate can investigate any
cognizable case which a Court has power to inquire into or try under the
provisions of Chapter XIII. “Investigation” as defined in Section 2 (h) of Cr.P.C
includes all the proceedings under the Code of Criminal Procedure for the
collection of evidence conducted by a Police Officer or by any person (other
than a Magistrate) who is authorised by a Magistrate in that behalf. Thus,
collection of evidence by Police Officer is permitted under law. Conducting
Narcoanalysis Test on accused is in the process of such evidence by the
investigating agency. The Karnataka High Court also made a similar
observation in the case of Smt. Selvi and Ors v. State by Koramangala Police
Station. This provision is also constitutionally valid.
Let us now understand the approach of the judiciary towards Narco
Analysis. In the unreported case of Ramchandra Ram Reddy v The State of
Maharashtra, the Court posed with the question whether P-300, Lie Detector
and Narco Analysis tests are violative of Article 20(3) observed:
“The question which falls for consideration therefore, is whether
such statement can be forcibly taken from the accused by requiring him to
undergo the Truth Serum Test against his will. It will be seen that such
statement will attract the bar of Article 20(3) only if it is inculpating or
incriminating the person making it. Whether it is so or not can be
ascertained only after the test is administered and not before. In our
opinion therefore, there is no reason to prevent administration of this test
also because there are enough protections available under the Indian
 Evidence Act, under Criminal Procedure Code and under the
Constitution (Article 20(3), to prevent inclusion of any incriminating
statement if one comes out after administration of the test………… In so
far as the third test (Narco Analysis) is concerned enough protection
exists, recourse to which can be taken if and when the investigating
agency seeks to introduce such statement as evidence.”
The Court dismissed the petitions filed against these tests and held that
these tests do not compel the accused or witness to incriminate himself and
there is therefore no question of violation of Article 20(3) of the Constitution.
In Smt. Selvi and Ors v. State by Koramangala Police Station , the Court
observed that the field of criminology has expanded rapidly during the last few
years, and the demand for supplemental methods of detecting deception and
improving the efficiency of interrogation have increased concomitantly. Narco
analysis for criminal interrogation is a valuable technique, which would
profoundly affect both the innocent and the guilty and thereby hasten the cause
of justice. Further observed that enough protections exist to which recourse can
be had by accused if and when the investigating agency seeks to introduce into
evidence the information or statement obtained under Narco-analysis Test, if the
same is found inculpatory or confession. That apart, statement or information by
accused in the said test may even show their innocence or may lead to discovery
of a fact or object material in the crime. If so, it is not at all hit by Article 20(3).
In the case of Rojo George v. Deputy Superentendent of Police, the
Court while allowing a Narco Analysis test observed that in present days the
techniques used by the criminals for commission of crime are very sophisticated
and modern. The conventional method of questioning may not yield any result
at all. That is why the scientific tests like polygraph, brain mapping, narco
analysis, etc. are now used in the investigation of a case. When such tests are
conducted under strict supervision of the expert, it cannot be said that there is
any violation of the fundamental rights guaranteed to a citizen of India.
 In Santokben Sharmanbhai Jadeja v. State of Gujarat, the Court while
upholding the order for conducting a Narco Analysis on the accused Santokben
Sharmanbhai Jadeja, observed that “when after exhausting all the possible
alternatives to find out the truth and nab the criminal/accused and when it is
found by the prosecuting agency that there is no further headway in the
investigation and they are absolutely in dark, there is a necessity of such a test.
On the basis of revelations and/or the statement recorded while
conducting/performing the Narco Analysis Test, prosecuting agency may have
some clues which would further help and/or assist the Investigating Agency to
further investigate the crime and at this stage, there will not be any bar of
Article 20(3) of the Constitution of India and merely conducting/performing of a
Narco Analysis Test on the accused, the protection guaranteed under Article
20(3) of the Constitution of India is not violated. As stated above, only and only
at the stage when the prosecuting agency is likely to use such statement as
evidence and if it is inculpating and incriminating the person making it, it will
attract the bar of Article 20(3).” The Court further observed that various
provisions under the Criminal Procedure Code right from Sections 156 to 159
and other related provisions, collection of evidence by the police officer is
permitted under the Law. Conducting the Narco Analysis test on accused is to
be considered as process of collection of such evidence by the Investigating
Agency. The Investigating Agency cannot be prevented to interrogate the
accused at the stage of investigation and restraining the Investigating Agency to
further investigate the crime through the aforesaid two tests would tantamount
to interfere with the right of the Investigating Agency to investigate the crime of
which it is statutorily authorized.
In Dinesh Dalmia v State, the Court observed that where the accused had
not allegedly come forward with the truth, the scientific tests are resorted to by
the investigation agency. Such a course does not amount to testimonial
compulsion. From the above discussion, it is very evident that conducting a
Narco Analysis test does not violate Article 20 (3) per se. Only after conducting
the test, if the accused divulges information which is incriminatory, then it will
be hit by Article 20(3). Other information divulged during the test can help the
investigation. Thus, there is no reason why we should prohibit such a test on
grounds of unconstitutionality.
In fact, the revelations made during the Narco analysis have been found
to be of very useful in solving sensational cases of Mumbai serial train blasts,
blasts at Delhi, Malegoan and more recently in Hyderabad and in various other
sensational cases of National and International ramifications. In most of these
cases, the revelations made have led to the discovery of incriminating
information’s favouring probative truth and consequently recoveries have been
made in large number of cases U/s 27 of IEA. Thus, Narco Analysis is proving
to be a useful tool in the field of criminal investigation. However, the legal
hurdles in use of this technique should be removed first before its application. It
is high time that we blend this test with Article 20(3) in such a manner that no
questions are raised as to its constitutional validity. For this purpose, it is
essential that the Union Government should come out with certain guidelines
which are to be strictly followed while conduction such a test.
1. The permission of the Court and the written consent of the person
undergoing such a test should be made compulsorily.
2. The person who is supposed to undergo such a test must be given all
the necessary details about the test before he is asked to sign the consent
form.
3. Control and supervision of the forensic laboratories should be made
under the autonomous bodies like NHRC and the States Human Rights
Commissions.
4. NHRC has suggested that at the time of polygraph test a forensic
psychologist, a psychiatrist and an anaesthetist should remain present.
Similar team can be directed to remain present at the time of Narco
 Analysis with the additional safeguard of entire proceeding audio and
videotaped
In conclusion, I would like to quote, Dr. R.E. House’s address to the First
Annual Meeting of the Eastern Society of Anaesthetists in 1925 about the role
of his scopolamine tests:
" ... Society has the right to be protected against the criminal, and all of
society's rights are manifestly superior to those of the criminal. There can
be no gainsaying the fact that a suspect is either innocent or guilty, and
no one knows the truth better than does the suspect himself. It, therefore,
stands to reason, that where there is a safe and humane measure existing
to evoke the truth from the consciousness of the suspect, that society is
entitled to have the truth........... If society has the right to take property,
liberty, and life for its protection, then society has the right to make, by
trained men, the use of truth serum legal. The framers of the Bill of Rights
believed the rights of society were paramount to the rights of the
criminal. It was an instrument for the protection of the innocent and not
intended for the acquittal of the guilty".
Art 21 Protection Of Life And Personal Liberty: No person shall be
deprived of his life or personal liberty except according to procedure established
by law.
Though the phraseology of Article 21 starts with negative word but the
word No has been used in relation to the word deprived. The object of the
fundamental right under Article 21 is to prevent encroachment upon personal
liberty and deprivation of life except according to procedure established by law.
It clearly means that this fundamental right has been provided against state only.
If an act of private individual amounts to encroachment upon the personal
liberty or deprivation of life of other person. Such violation would not fall under
the parameters set for the Article 21. in such a case the remedy for aggrieved
person would be either under Article 226 of the constitution or under general
law. But, where an act of private individual supported by the state infringes the
personal liberty or life of another person, the act will certainly come under the
ambit of Article 21. Article 21 of the Constitution deals with prevention of
encroachment upon personal liberty or deprivation of life of a person.
The state cannot be defined in a restricted sense. It includes Government
Departments, Legislature, Administration, Local Authorities exercising
statutory powers and so on so forth, but it does not include non-statutory or
private bodies having no statutory powers. For example: company, autonomous
body and others. Therefore, the fundamental right guaranteed under Article 21
relates only to the acts of State or acts under the authority of the State which are
not according to procedure established by law. The main object of Article 21 is
that before a person is deprived of his life or personal liberty by the State, the
procedure established by law must be strictly followed. Right to Life means the
right to lead meaningful, complete and dignified life. It does not have restricted
meaning. It is something more than surviving or animal existence. The meaning
of the word life cannot be narrowed down and it will be available not only to
every citizen of the country.
As far as Personal Liberty is concerned, it means freedom from physical
restraint of the person by personal incarceration or otherwise and it includes all
the varieties of rights other than those provided under Article 19 of the
Constitution. Procedure established by Law means the law enacted by the State.
Deprived has also wide range of meaning under the Constitution. These
ingredients are the soul of this provision. The fundamental right under Article
21 is one of the most important rights provided under the Constitution which
has been described as heart of fundamental rights by the Apex Court.
The scope of Article 21 was a bit narrow till 50s as it was held by the
Apex Court in Gopalans case that the contents and subject matter of Article 21
and 19 (1) (d) are not identical and they proceed on total principles. In this case
the word deprivation was construed in a narrow sense and it was held that the
deprivation does not restrict upon the right to move freely which came under
Article 19 (1) (d). at that time Gopalans case was the leading case in respect of
Article 21 along with some other Articles of the Constitution, but post Gopalan
case the scenario in respect of scope of Article 21 has been expanded or
modified gradually through different decisions of the Apex Court and it was
held that interference with the freedom of a person at home or restriction
imposed on a person while in jail would require authority of law. Whether the
reasonableness of a penal law can be examined with reference to Article 19, was
the point in issue after Gopalans case.
In the case of Maneka Gandhi v. Union of India, the Apex Court opened
up a new dimension and laid down that the procedure cannot be arbitrary, unfair
or unreasonable one. Article 21 imposed a restriction upon the state where it
prescribed a procedure for depriving a person of his life or personal liberty. This
view has been further relied upon in a case of Francis Coralie Mullin v. The
Administrator, Union Territory of Delhi and others as follows:
“Article 21 requires that no one shall be deprived of his life or
personal liberty except by procedure established by law and this
procedure must be reasonable, fair and just and not arbitrary, whimsical
or fanciful. The law of preventive detention has therefore now to pass the
test not only for Article 22, but also of Article 21 and if the constitutional
validity of any such law is challenged, the court would have to decide
whether the procedure laid down by such law for depriving a person of
his personal liberty is reasonable, fair and just.”
In another case of Olga Tellis and others v. Bombay Municipal
Corporation and others, it was further observed :
“Just as a mala fide act has no existence in the eye of law, even so,
unreasonableness vitiates law and procedure alike. It is therefore
essential that the procedure prescribed by law for depriving a person of
his fundamental right must conform the norms of justice and fair play.
 Procedure, which is just or unfair in the circumstances of a case, attracts
the vice of unreasonableness, thereby vitiating the law which prescribes
that procedure and consequently, the action taken under it.”
As stated earlier, the protection of Article 21 is wide enough and it was
further widened in the case of Bandhua Mukti Morcha v. Union of India and
others in respect of bonded labour and weaker section of the society. It lays
down as follows:
“Article 21 assures the right to live with human dignity, free from
exploitation. The state is under a constitutional obligation to see that
there is no violation of the fundamental right of any person, particularly
when he belongs to the weaker section of the community and is unable to
wage a legal battle against a strong and powerful opponent who is
exploiting him. Both the Central Government and the State Government
are therefore bound to ensure observance of the various social welfare
and labour laws enacted by Parliament for the purpose of securing to the
workmen a life of basic human dignity in compliance with the directive
principles of the state policy.”
The meaning of the word life includes the right to live in fair and
reasonable conditions, right to rehabilitation after release, right to live hood by
legal means and decent environment. The expanded scope of Article 21 has
been explained by the Apex Court in the case of Unni Krishnan v. State of A.P.
and the Apex Court itself provided the list of some of the rights covered under
Article 21 on the basis of earlier pronouncements and some of them are listed
below:
(1) The right to go abroad.
(2) The right to privacy.
(3) The right against solitary confinement.
(4) The right against hand cuffing.
(5) The right against delayed execution.
 (6) The right to shelter.
(7) The right against custodial death.
(8) The right against public hanging.
(9) Doctors assistance.
It was observed in Unni Krishnans case that Article 21 is the heart of
Fundamental Rights and it has extended the Scope of Article 21 by observing
that the life includes the education as well as, as the right to education flows
from the right to life.
As a result of expansion of the scope of Article 21, the Public Interest
Litigations in respect of children in jail being entitled to special protection,
health hazards due to pollution and harmful drugs, housing for beggars,
immediate medical aid to injured persons, starvation deaths, the right to know,
the right to open trial, inhuman conditions in aftercare home have found place
under it. Through various judgments the Apex Court also included many of the
non-justifiable Directive Principles embodied under part IV of the Constitution
and some of the examples are as under:
(a) Right to pollution free water and air.
(b) Protection of under-trial.
(c) Right of every child to a full development.
(d) Protection of cultural heritage.
Maintenance and improvement of public health, improvement of means
of communication, providing human conditions in prisons, maintaining hygienic
condition in slaughter houses have also been included in the expanded scope of
Article 21. this scope further has been extended even to innocent hostages
detained by militants in shrine who are beyond the
control of the state.
The Apex Court in the case of S.S. Ahuwalia v. Union of India and
others it was held that in the expanded meaning attributed to Article 21 of the
Constitution, it is the duty of the State to create a climate where members of the
society belonging to different faiths, caste and creed live together and, therefore,
the State has a duty to protect their life, liberty, dignity and worth of an
individual which should not be jeopardized or endangered. If in any
circumstance the state is not able to do so, then it cannot escape the liability to
pay compensation to the family of the person killed during riots as his or her life
has been extinguished in clear violation of Article 21 of the Constitution.
While dealing with the provision of Article 21 in respect of personal
liberty, Hon'ble Supreme Court put some restrictions in a case of Javed and
others v. State of Haryana, AIR 2003 SC 3057 as follows:
“at the very outset we are constrained to observe that the law laid
down by this court in the decisions relied on either being misread or read
divorced of the context. The test of reasonableness is not a wholly
subjective test and its contours are fairly indicated by the Constitution.
The requirement of reasonableness runs like a golden thread through the
entire fabric of fundamental rights. The lofty ideals of social and
economic justice, the advancement of the nation as a whole and the
philosophy of distributive justice- economic, social and political- cannot
be given a go-by in the name of undue stress on fundamental rights and
individual liberty. Reasonableness and rationality, legally as well as
philosophically, provide colour to the meaning of fundamental rights and
these principles are deducible from those very decisions which have been
relied on by the learned counsel for the petitioners.”
The Apex Court led a great importance on reasonableness and rationality
of the provision and it is pointed out that in the name of undue stress on
Fundamental Rights and Individual Liberty, the ideals of social and economic
justice cannot be given a go-by. Thus it is clear that the provision Article 21 was
constructed narrowly at the initial stage but the law in respect of life and
personal liberty of a person was developed gradually and a liberal interpretation
was given to these words. New dimensions have been added to the scope of
Article 21 from time to time. It imposed a limitation upon a procedure which
prescribed for depriving a person of life and personal liberty by saying that the
procedure which prescribed for depriving a person of life and personal liberty
by saying that the procedure must be reasonable, fair and such law should not
be arbitrary, whimsical and fanciful. The interpretation which has been given to
the words life and personal liberty in various decisions of the Apex Court, it can
be said that the protection of life and personal liberty has got multi-dimensional
meaning and any arbitrary, whimsical and fanciful act of the State which
deprived the life or personal liberty of a person would be against the provision
of Article 21 of the Constitution.
Article 21 is one of the shortest in the Constitution over which there took
place one of the longest and most thorough-going discussions in the Constituent
Assembly. It enacts that "no person shall be deprived of his life or personal
liberty except according to procedure established by law." The Article as it
stands now is a revised version of what it originally was in the Draft
Constitution, according to which "no person was to be deprived of his life or
liberty without due process of law".
The Drafting Committee gave two reasons for this change. First, the word
"liberty" should be qualified by the word "personal" in order to avoid the
possibility of too wide an interpretation which might include even the freedom
already dealt with under Article 19. Secondly, the expression "procedure
established by law" is more definite and such a provision finds place in the
same context in the Japanese Constitution of 1946.
The key word in Article 21 is "law". What does it mean, law enacted by a
competent legislative body or fundamental or natural law? This was the
question that confronted the Supreme Court soon after the inauguration of the
Constitution. The question was discussed at length in A. K. Gopalan vs. the
State of Madras wherein Chief Justice Kania said that there was no ambiguity
in the meaning of the Article:
 "Normally read, and without thinking of other Constitutions, the
expression 'procedure established by law' must mean procedure
prescribed by the law of the State. To read the word 'law' as meaning
rules of natural justice will lead one in difficulties because the rules of
natural justice as regards procedure are nowhere defined and, in my
opinion, the Constitution cannot be read as laying down a vague
standard. This is particularly so when in omitting to adopt 'due process of
law' it was considered that the expression 'procedure established by law'
made the standard specific."
This opinion of the Chief Justice was supported by four other Judges of
the Court. The importance of the right embodied in Article 21, even if it does
not place limitations on legislative power, is indicated by Justice Mukherjea in
the same case in the following words:
"The fundamental rights not merely impose limitations upon the
legislature, but they serve as checks on exercise of executive powers as
well, and in the matter of depriving a man of his personal liberty, checks
on the high-handedness of the executive in the shape of preventing them
from taking any step, which is not in accordance with law, could certainly
rank as fundamental rights.
In the Constitution of various other countries, the provisions
relating to protection of personal liberty are couched very much in the
same language as in Article 21.
It is all a question of policy as to whether the legislature or the
judiciary would have the final say in such matters and the Constitution
makers of India deliberately decided to place these powers in the hands
of the legislature. Article 31 of the Japanese Constitution, upon which
Article 21 of our Constitution is modeled, also proceeds upon the same
principle."
 There have been numerous other decisions of the Supreme Court where
the Court has emphasised and re-emphasised its liberal outlook on the question
of protection of life and personal liberty. The following may specifically be
pointed out:
• That imprisonment of a poor person for non-payment of debts
amounted to deprivation of his personal liberty. (Jolly George
Verghese vs. Bank of Cochin, AIR 1980 SC 470);
• That under the Bonded Labour System (Abolition) Act, 1976 it is
not enough merely to identify and release bonded labourers but it is
more important that they should be suitably rehabilitated to meet the
plainest requirement of Article 21 (Neeraja Chowdhari vs. State of
M.R, AIR 1984 SC 1099);
• That the expression 'deprivation of personal liberty' is not limited
to bodily restraint or confinement to prison and that 'life' means
something more than mere animal existence (Kharak Singh vs. State
of U.P., AIR 1963 SC 1295);
• That the 'right to privacy' would have to go through a process of
case by case development (Govind vs. State of M.P., AIR 1975 SC
1379): this right is available even to a woman of easy virtue, and no
one can invade her privacy (State of Maharashtra vs. Madhulkar
Narain, AIR 1991 SC 207);
• That so long as surveillance by police officers is for the purposes of
preventing crimes and confined to the limits prescribed by law, a
person cannot complain against the inclusion of his name in the
surveillance register but if it is excessive and goes beyond the
prescribed limits, its validity may be challenged as infringing the
right of privacy of a citizen as his Fundamental Right to personal
liberty under Article 21 and freedom of movement under
Article (19) (1) (d) (Malak Singh vs. State of Punjab, AIR 1981 SC
760);
• That refusal to grant bail in a murder case without reasonable
ground would amount to deprivation of personal liberty under
Article 21 (Babu Singh vs. State of U.P., AIR 1978 SC 527);
• That protection of Article 21 is available even to convicts in jails
(D.B.M. Patnaik vs. State of A.P., AIR 1974 SC 2092);
• That if by imposing solitary confinement there is total deprivation
of camaraderie amongst co-prisoners, commingling and talking and
being talked to, it would offend Article 21 (Sunil Batra (No. 1) vs.
Delhi Administration, AIR 1978 SC 1575);
• That a detune can be subjected only to such restrictions on his
personal liberty as are authorised by or under the law of preventive
detention; imposition of any unauthorised restriction will violate
Article 21 (State of Maharashtra vs. Prabhakar Pandurang, AIR
1986 SC424);
• That the 'right to travel abroad' is part of a person's 'personal
liberty' which is a comprehensive term (Satwant Singh vs. Assistant
Passport Officer, AIR SC 1836);
• That it is the professional obligation of all doctors, whether
government or private, to extend medical aid to the injured
immediately to preserve life without waiting for legal formalities to
be complied with by the police under Cr.P.C. (Parmanand Katara vs.
Union of India, AIR 1989 SC 2039);
• That when one seeks relief for breach of Article 21, one must
confine oneself to some direct, overt and tangible act which threatens
the fullness of life or the lives of others in the community
(Ramsharan Autrynuprasi vs. Union of India, AIR 1989 SC 549 and
552);
 • That compelling a person to live in subhuman conditions also
amounts to the taking away of his life, not by execution of a death
sentence but by a slow and gradual process of robbing him of all his
human qualities and graces, a process which is much more cruel than
sending a man to the gallows (Sankar Banerji vs. Durgapur Project
Ltd., AIR 1988 Cal. 136).
To sum up: Article 21 gives protection to life and personal liberty to the
extent therein mentioned. It does not recognise the right to life and personal
liberty as an absolute right but limits the scope of the right itself. The absolute
right is, by the definition in the article, qualified by the risk of its being taken
away in accordance with the procedure established by law.
It is this circumscribed right which is substantively protected by Article
21, as against the executive as well as the legislature, for the Constitution has
conditioned its deprivation by the necessity for a procedure established by law
made by the legislature.
While sub-clauses 2 to 6 of Article 19 have put a limit on the fundamental
right of a citizen, Article 21 along with Article 22 puts a limit on the power of
the State given under Article 246, read with the legislative lists. Under the
Constitution, life and personal liberty are balanced by restrictions on the rights
of the citizens as laid down in Article 19, and by the checks put upon the State
by Article 21 and 22.

Art 22. Protection against Arrest and Detention in certain cases

(1) No person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such arrest nor shall he
be denied the right to consult, and to be defended by, a legal practitioner
of his choice
(2) Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of twenty four
hours of such arrest excluding the time necessary for the journey from the
place of arrest to the court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority of a
magistrate
(3) Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for
the time being is an enemy alien; or (b) to any person who is arrested or
detained under any law providing for preventive detention
(4) No law providing for preventive detention shall authorise the
detention of a person for a longer period than three months unless (a) an
Advisory Board consisting of persons who are, or have been, or are
qualified to be appointed as, Judges of a High Court has reported before
the expiration of the said period of three months that there is in its
opinion sufficient cause for such detention:
(5) When any person is detained in pursuance of an order made under
any law providing for preventive detention, the authority making the
order shall, as soon as may be, communicate to such person the grounds
on which the order has been made and shall afford him the earliest
opportunity of making a representation against the order
(6) Nothing in clause ( 5 ) shall require the authority making any such
order as is referred to in that clause to disclose facts which such
authority considers to be against the public interest to disclose
(7) Parliament may by law prescribe
(a) the circumstances under which, and the class or classes of
cases in which, a person may be detained for a period longer than
three months under any law providing for preventive detention
without obtaining the opinion of an Advisory Board in accordance
with the provisions of sub clause (a) of clause ( 4 );
 (b) the maximum period for which any person may in any class or
classes of cases be detained under any law providing for
preventive detention; and
(c) the procedure to be followed by an Advisory Board in an
inquiry under sub clause (a) of clause ( 4 ) Right against
Exploitation

Constitutional Protection on Labour Law’s

Art 14 of the Indian Constitution explains the concept of Equality before
law. The concept of equality does not mean absolute equality among human
beings which is physically not possible to achieve. It is a concept implying
absence of any special privilege by reason of birth, creed or the like in favour of
any individual, and also the equal subject of all individuals and classes to the
ordinary law of the land. As Dr. Jennings puts it: "Equality before the law
means that among equals the law should be equal and should be equally
administered, that like should be treated alike. The right to sue and be sued, to
prosecute and be prosecuted for the same kind of action should be same for all
citizens of full age and understanding without distinctions of race, religion,
wealth, social status or political influence” It only means that all persons
similarly circumstance shall be treated alike both in the privileges conferred and
liabilities imposed by the laws. Equal law should be applied to all in the same
situation, and there should be no discrimination between one person and
another. As regards the subject-matter of the legislation their position is the
same. Thus, the rule is that the like should be treated alike and not that unlike
should be treated alike.
In Randhir Singh v. Union of India the Supreme Court has held that
although the principle of 'equal pay for equal work' is not expressly declared by
our Constitution to be a fundamental right, but it is certainly a constitutional
goal under Articles 14, 16 and 39 (c) of the Constitution. This right can,
therefore, be enforced in cases of unequal scales of pay based on irrational
classification. The decision in Randhir Singh's case has been followed in a
number of cases by the Supreme Court.
In Dhirendra Chamoli v. State of U.P.[2] it has been held that the
principle of equal pay for equal work is also applicable to casual workers
employed on daily wage basis. Accordingly, it was held that persons employed
in Nehru Yuwak Kendra in the country as casual workers on daily wage basis
were doing the same work as done by Class IV employees appointed on regular
basis and, therefore, entitled to the same salary and conditions of service. It
makes no difference whether they are appointed in sanctioned posts or not. It is
not open to the Government to deny such benefit to them on the ground that
they accepted the employment with full knowledge that they would be paid
daily wages. Such denial would amount to violation of Article 14. A welfare
State committed to a socialist pattern of society cannot be permitted to take such
an argument.
In Daily Rated Casual Labour v. Union of India;[3] it has been held that
the daily rated casual labourers in P & T Department who were doing similar
work as done by the regular workers of the department were entitled to
minimum pay in the pay scale of the regular workers plus D.A. but without
increments. Classification of employees into regular employees and casual
employees for the purpose of payment of less than minimum pay is violative of
Articles 14 and 16 of the Constitution. It is also opposed to the spirit of Article
7 of the International Covenant of Economic, Social and Cultural Rights 1966.
Although the directive principle contained in Articles 38 and 39 (d) is not
enforceable by virtue of Article 37, but they may be relied upon by the
petitioners to show that in the instant case they have been subjected to hostile
discrimination: Denial of minimum pay amounts to exploitation of labour. The
government cannot take advantage of its dominant position. The government
should be a model employer.
 In F.A.I.C. and C.E.S. v. Union of India[4]- the Supreme Court has held
that different pay scales can be fixed for government servants holding same post
and performing similar work on the basis of difference in degree of
responsibility, reliability and confidentiality, and as such it will not be violative
of the principle of equal pay for equal work, implicit in Article 14. The Court
said, "Equal pay must depend upon the nature of the work done. It cannot be
judged by the mere volume of work. There may be qualitative difference as
regards reliability and responsibility. Functions may be the same but the
responsibilities make a difference. Equal pay for equal work is a concomitant of
Article 14 of the Constitution. But it follows naturally that equal pay for
unequal work will be a negation of the right". Accordingly, the court held that
different pay scales fixed for Stenographers Grade I working in Central
Secretariat and those attached to the heads of subordinate offices on the basis of
recommendation of the Third Pay Commission was not violative of Article 14.
Although the duties of the petitioners and respondents are identical, their
functions are not identical. The Stenographers Grade I formed a distinguishable
class as their duties and responsibilities are of much higher nature than that of
the stenographers attached to the subordinate offices.
In Gopika Ranjan Chaudhary v. Union of India[5] the Armed Forces
controlled by NEFA were re-organized as a result of which a separate unit
known as Central Record and Pay Accounts Office was created at the head
quarters. The Third Pay Commission had recommended two different scales of
pay for the ministerial staff, one attached to the headquarters and the other to the
Battalions/units. The pay scales of the staff at the headquarters were higher than
those of the staff attached to the Battalions/units. It was held that this was
discriminatory and violative of Article 14 as there was no difference in the
nature of the work, the duties and responsibilities of the staff working in the
Battalions/units and those working at the headquarters. There was also no
difference in the qualifications required for appointment in the two
establishments. The services of the staff from Battalions/units are transferable to
the Headquarters.
In Mewa Ram v. A.I.I. Medical Science,[6] the Supreme Court has held
that the doctrine of 'equal pay for equal work' is not an abstract doctrine .
Equality must be among equals, unequals cannot claim equality. Even if the
duties and functions are of similar nature but if the educational qualifications
prescribed for the two posts are different and there is difference in measure of
responsibilities, the principle of equal pay for equal work would not apply.
Different treatment to persons belonging to the same class is permissible
classification on the basis of educational qualifications.
In State of Orissa v. Balaram Sahu[7] the respondents, who were daily
wagers or casual workers in Rengali Power Project of State of Orissa in appeal
claimed that they were entitled to equal pay on the same basis as paid to regular
employees as they were discharging the same duties and functions. The
Supreme Court held that they were not entitled for equal pay with regularly
employed permanent staff because their, duties and responsibilities were not
similar to permanent employees. The duties and responsibilities of the regular
and permanent employees were more onerous than that of the duties of. N.M.R.
workers whose employment depends on the availability of the work. The Court
held that although equal pay for equal work is a fundamental right under Article
14 of the Constitution but does not depend only on the nature or the volume of
work but also on the qualitative difference as regards reliability and
responsibility. Though the functions may be the same but the responsibilities do
make a real and substantial difference. They have failed to prove the basis of
their claim and in such situation to claim parity with pay amounts to negation of
right of equality in Article 14 of the Constitution. However, the Court said that
State has to ensure that minimum wages are prescribed and the same is paid to
them.
Art 19 (1) (c) speaks about the Fundamental right of citizen to form an
associations and unions.. Under clause (4) of Article 19, however, the State
may by law impose reasonable restrictions on this right in the interest of public
order or morality or the sovereignty and integrity of India. The right of
association pre-supposes organization. It as an organization or permanent
relationship between its members in matters of common concern. It thus
includes the right to form companies, societies, partnership, trade union,[8] and
political parties. The right guaranteed is not merely the right to form association
but also to continue with the association as such. The freedom to form
association implies also the freedom to form or not to form, to join or not to
join, an association or union.
In Damayanti v. Union of India[9], The Supreme Court held that "Under
the right to form an association", the Court said, "necessarily 'implies that the
person forming the association have also the right to continue to be associated
with only those whom they voluntarily admit in the association. Any law by
which members are introduced in the voluntary association without any option
being given to the members to keep them out, or any law which takes away the
membership of those who have voluntarily joined it, will be a law violating the
right to form an association".
In Balakotiah v. Union of India,[10] the services of the appellant were
terminated under Railway Service Rules for his being a member of Communist
Party and a trade unionist. The appellant contended that the termination from
service amounted in substance to a denial to him the right to form association.
The appellant had no doubt a fundamental right to from association but he had
no fundamental right to be continued in the Government service. It was,
therefore, held that the order terminating his services was not in contravention
of Article 19(1)(c) because the order did not prevent the appellant from
continuing to be in Communist Party or trade unionist.. The right to form union
does not carry with it the right to achieve every object. Thus the trade unions
have no guaranteed right to an effective bargaining or right to strike or right to
declare a lock-out. Right to life, includes right to the means of livelihood which
make it possible for a person to live—The sweep of the right to life, conferred
by Article 21 is wide and far reaching. 'Life' means something more than mere
animal existence. It does not mean merely that life cannot be extinguished or
taken away as, for example, by the imposition and execution of the death
sentence, except according to procedure established by law. That is but one
aspect of the right to life. An equally important facet of that right is the right to
livelihood because, no person can live without the means of living, that is, the
means of livelihood. If the right to livelihood is not treated as a part of the
constitutional right to life, the easiest way of depriving a person of his right to
life would be to deprive him of his means of livelihood to the point of
abrogation. Such deprivation would not only denude the life of its effective
content and meaningfulness but it would make life impossible to live. There is
thus a close nexus between life and the means of livelihood and as such that,
which alone makes it possible to live, leave aside what makes life livable, must
be deemed to be an integral component of the right of life. In Maneka Gandhi’s
case the Court gave a new dimension to Article 21. It held that the right to 'live'
is not merely confined to physical existence but it includes within its ambit the
right to live with human dignity.
Elaborating the same view the Court in Francis Coralie v. Union
Territory of Delhi[11] said that the right to live is not restricted to mere animal
existence. It means something more than just physical survival. The right to
'live' is not confined to the protection of any faculty or limb through which life
is enjoyed or the soul communicates with the outside world but it also includes
"the right to live with human dignity", and all that goes along with it, namely,
the bare necessities of life such as, adequate nutrition, clothing and shelter and
facilities for reading, writing and expressing ourselves in diverse forms, freely
moving about and mixing and commingling with fellow human being.
 In State of Maharashtra v. Chandrabhan[12] the Court struck down a
provision of Bombay Civil Service Rules, 1959, which provided for payment of
only a nominal subsistence allowance of Re. 1 per month to a suspended
Government Servant upon his conviction during the pendency of his appeal as
unconstitutional on the ground that it was violative of Article 21 of the
Constitution.
In Olga Tellis v. Bombay Municipal Corporation,[13]popularly known
as the 'pavement dwellers case' a five judge bench of the Court has finally ruled
that the word 'life' in Article 21 includes the 'right to livelihood' also. The court
said :"It does not mean merely that life cannot be extinguished or taken away as,
for example, by the imposition and execution of death sentence, except
according to procedure established by law. That is but one aspect of the right to
life. An equally important facet of that right is the right to livelihood because no
person can live without the means of livelihood. If the right to livelihood is not
treated as a part of the constitutional right to life, the easiest ways of depriving a
person of his right to life would be to deprive him of his means of livelihood. In
view of the fact that Articles 39((a).and 41 require the State to secure to the
citizen an adequate means of livelihood and the right to work, it would be sheer
pedantry to exclude the right to livelihood from the content of the right to life."
In Delhi Development Horticulture Employee's Union v. Delhi
Administration,[14]the Supreme Court has held that daily wages workmen
employed under the Jawahar Rozgar Yojna has no right of automatic
regularization even though they have put in work for 240 or more days. The
petitioners who were employed on daily wages in the Jawhar Rozgar Yojna
filed a petition for their regular absorption as a regular employees in the
Development Department of the Delhi Administration. They contended that
right to life, includes the right to livelihood and therefore, right to work. The
Court held that although broadly interpreted and as a necessary logical
corollary, the right to life would include the right to livelihood and therefore
right to work but this country has so far not found feasible to incorporate the
right to livelihood as a fundamental right in the Constitution. This is because the
country has so far not attained the capacity to guarantee it, and not because it
considers it any the less fundamental to life. Advisedly therefore it has been
placed in the chapter on Directive Principles, Article 41 of which enjoins upon
the State to make effective provision for securing the same, "within the limits of
its economic capacity and development".
In D.K. Yadav v. J.M.A. Industries,[15] The Supreme Court has held that
the right to life enshrined under Article 21 includes the right to livelihood and
therefore termination of the service of a worker without giving him reasonable
opportunity of hearing in unjust, arbitrary and illegal. The procedure prescribed
for depriving a person of livelihood must meet the challenge of Article 14 and
so it must be right, just and fair and not arbitrary, fanciful or oppressive. In the
instant case, the appellant was removed from service. By the management of the
M/s. J.M.A. Industries Ltd. on the ground that he had willfully absented from
duty continuously for more than 8 days without leave or prior permission from
the management arid, therefore, "deemed to have left the service of the
company under clause 12(2)(iv) of the Certified Standing Order. But the
appellant contended that despite his reporting to duty every day he was not
allowed to join duty without assigning any reason. The Labour Court upheld the
termination of the appellant from service as legal. The Supreme Court, held that
the right to life enshrined under Article 21 includes right to livelihood and
'therefore' before terminating the service of an employee or workman fair play
requires that a reasonable opportunity should be given to him to explain his
case. The procedure prescribed for depriving a person of livelihood must meet
the requirement of Article 14, that is, it must be right, just and fair and not
arbitrary, fanciful or oppressive. In short, it must be in conformity of the rules
of natural justice, Article 21 clubs life with liberty, dignity of person with
means of livelihood without which the glorious content of dignity of person
would be reduced to animal existence. The Court set aside the Labour Court
award and ordered his reinstatement with 50 percent back wages.
The principles contained in Articles 39(a) and 41 must be regarded as
equally fundamental in the understanding and interpretation of the meaning and
content of fundamental rights. If there is an obligation upon the State to secure
to the citizens an adequate means of livelihood and the right to work, it would
be sheer pedantry to exclude the right to livelihood from the content of the right
to life. The State may not, by affirmative action, be compellable to provide
adequate means of livelihood or work to the citizens. But, any person, who is
deprived of his right to livelihood except according to just and fair procedure
established by law, can challenge the deprivation as offending the right to life
conferred by Article 21.
In State of Maharashtra v. Manubhai Pragaji Vashi,[16] the Court has
considerably widened the scope of the right to free legal aid. The right to free
legal aid and speedy trial are guaranteed fundamental rights under Art. 21. Art
39A provides "equal justice" and "free legal aid". It means justice according to
law. In a democratic policy, governed by rule of law, it should be the main
concern of the State to have a proper legal system. The crucial words are to
"provide free legal aid" by suitable legislation or by schemes" or "in any other
way" so that opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilities. These words in Art. 39A are of very
wide import. In order to enable the State to afford free legal aid and guarantee
speedy trial vast number of persons trained in law are needed. Legal aid is
regarded in many forms and at various stages, for obtaining guidance, for
resolving disputes in courts, tribunals or other authorities. It has manifold facets.
The need for a continuing and well-organized legal education is absolutely
necessary in view of the new trends in the world order, to meet the ever-
growing challenges. The Legal education should be able to meet the ever-
growing demands of the society. This demand is of such a great dimension that
sizeable number of dedicated persons should be properly trained in different
branches of law every year. This is not possible unless adequate number of
well-equipped law colleges are established. Since a sole Government law
college cannot cater to the needs of legal education in a city like Bombay it
should permit private colleges with necessary facilities to be established. For
this, it should afford grants-in-aid to them so that they should function
effectively and in a meaningful manner. For this, huge funds are needed. They
should not be left free to hike the fees to any extent to meet their expenses. In
absence of this the standard of legal education and the free legal scheme would
become a farce. This should not be allowed to happen. The Court therefore
directed the State to afford grant-in-aid to them in order to ensure that they
should function effectively and turn out sufficient number of law graduates in al
branches every year which will in turn enable the State to provide free legal aid
and ensure that opportunities for securing justice are not denied to any citizen
on account of any disability. Article 21 read with Art. 39A casts a duty on the
State to afford grants-in-aid to recognized private law colleges in the State of
Maharashtra, similar to the faculties, viz. Art, Science, Commerce, etc. The
words used in Art. 39A are of very wide importance. The need for a continuing
and well-organized legal education is absolutely essential for the purpose. The
State of Maharashtra had denied grants-in-aid of the private recognized Law
Colleges on the ground of paucity of funds. The Court held that this could not
the reasonable ground for denial of grant-in-aid to such colleges.
The Articles 21, 23, 24, 38, 39, 39-A, 41, 42, 43, 43-A and 47 of the
Constitution, are calculated to give an idea of the conditions under which labour
can be had for work and also of the responsibility of the Government, both
Central and State, towards the labour to secure for them social order and living
wages, keeping with the economic and political conditions of the country and
dignity of the nation.
 Articles 21, 23 and 24 form part of the Fundamental Rights guaranteed
under Part III of the Constitution. Articles 38, 39, 39-A, 41, 42, 43, 43-A and 47
form part of the Directive Principles of State Policy under Part IV of the
Constitution.
Article 23 of the Constitution prohibits traffic in human being and beggar
and other similar forms of forced labour. The second part of this Article
declares that any contravention of this provision shall be an offence punishable
in accordance with law. Clause (2) however permits the State to impose
compulsory services for public purposes provided that in making so it shall not
make any discrimination on grounds only of religion, race, caste or class or any
of them. 'Traffic in human beings' means selling and buying men and women
like goods and includes immoral traffic in women and children for immoral or
other purposes.[17]Though slavery is not expressly mentioned in Article 23, it
is included in the expression 'traffic in human being'. Under Article 35 of the
Constitution Parliament is authorized to make laws for punishing acts prohibited
by this Article. In pursuance of this Article Parliament has passed the
Suppression of Immoral Traffic in Women and Girls Act, 1956, for punishing
acts which result in traffic in human beings. Article 23 protects the individual
not only against the State but also private citizens. It imposes a positive
obligation on the State to take steps to abolish evils of "traffic in human beings"
and beggar and other similar forms of forced labour wherever they are found.
Article 23 prohibits the system of 'bonded labour' because it is a form of force
labour within the meaning of this Article. "Beggar" means involuntary work
without payment. What is prohibited by this clause is the making of a person to
render service where he was lawfully entitled not to work or to receive
remuneration of the services rendered by him. This clause, therefore, does not
prohibit forced labour as a punishment for a criminal offence. The protection is
not confined to beggar only but also to "other forms of forced labour". It means
to compel a person to work against his will.
In Peoples Union for Democratic Rights v. Union of India,[18] the Supreme
Court considered the scope and ambit of Article 23 in detail. The Court held
that the scope of Article 23 is wide and unlimited and strikes at "traffic in
human beings" and "beggar and other forms of forced labour" wherever they are
found. It is not merely "beggar" which is prohibited by Article 23 but also all
other forms of forced labour, "Beggar is a form of forced labour under which a
person is compelled to work without receiving any remuneration. This Article
strikes at forced labour in whatever form it may manifest itself, because it is
violative of human dignity and contrary to basic human values. The practice of
forced labour is condemned in almost every international instrument dealing
with human rights. Every form of forced labour "beggar" or other forms, is
prohibited by Article 23 and it makes no difference whether the. person who is
forced to give his labour or service to another is paid remuneration or not. Even
if remuneration is paid, labour or services supplied by a person would be hit By
this Article, if it is forced labour, e.g., labour supplied not willingly but as a
result of force or compulsion, this Article strikes at every form of forced labour
even if it has its origin in a contract voluntarily entered into by the person
obligated to provide labour or service. If a person has contracted with another to
perform service and there is a consideration for such service. In the shape of
liquidation of debt or even remuneration he cannot be forced by compulsion of
law, or otherwise to continue to perform such service as it would be forced
labour within the meaning of Article 23. No one shall be forced to provide
labour or service against his will even though it be under a contract of service.
The word "force" was interpreted by the court very widely. Bhagwati, J. said,
'The word 'force' must therefore be construed to include not only physical or
legal force but also force arising from the compulsion of economic
circumstances which leaves no choice of alternatives to a person in want and
compels him to provide labour or service even though the remuneration
received for it is less than the minimum wage.
 In Sanjit Roy v. State of Rajasthan,[19] has been held that the payment
of wages lower than the minimum wages to the person employed on Famine
Relief Work is violative of Art. 23. Whenever any labour or service is taken by
the State from any person who is affected by drought and scarcity condition the
State cannot pay him less wage than the minimum wage on the ground that it is
given them to help to meet famine situation. The State cannot take advantage of
their helplessness.
In Deena v. Union of India,[20] it was held that labour taken from
prisoners without paying proper remuneration was "forced labour" and violative
of Art. 23 of the Constitution. The prisoners are entitled to payment of
reasonable wages for the work taken from them and the Court is under duty to
enforce their claim.
Article 24 of the Constitution prohibits employment of children below 14
years of age in factories and hazardous employment. This provision is certainly
in the interest of public health and safety of life of children. Children are assets
of the nation. That is why Article 39 of the Constitution imposes upon the State
an obligation to ensure that the health and strength of workers, men and women,
and the tender age of the children are not abused and that citizens are not forced
by economic necessary to enter avocations unsuited to their age or strength.
In People's Union for Democratic Rights v. Union of India,[21] it was
contended that the Employment of Children Act, 1938 was not applicable in
case of employment of children in the construction work of Asiad Projects in
Delhi since construction industry was not a process specified in the schedule to
the Children Act. The Court rejected this contention and held that the
construction work is hazardous employment and therefore under Art. 24 no
child below the age of 14 years can be employed in the construction work even
if construction industry is not specified in the schedule to the Employment of
Children Act, 1938. Expressing concern about the 'sad and deplorable omission',
Bhagwati, J., advised the State Government to take immediate steps for
inclusion of construction work in the schedule to the Act, and to ensure that the
constitutional mandate of Article 24 is not violated in any part of the country. In
yet another case the Court has reiterated the principle that the construction work
is a hazardous employment and children below 14 cannot be employed in this
work.
In M. C. Mehta v. State of Tamil Nadu [22], the Supreme Court has held
that children below the age of 14 years cannot be employed in any hazardous
industry. Exhaustive guidelines was laid down as to how State Authorities
should protect economic, social and humanitarian rights of millions of children,
working illegally in public and private sections. The court issued directions to
implement directions:
(1) A survey about the child labour within 6 months.
(2) 'The Court identified nine industries first where the work could be
taken up namely—the match industry in, the Diamond Polishing Industry
etc.
(3) The employments given could be in the industry where the child is
employed, a public sector undertaking, and could be manual in nature
inasmuch as the child in question must be engaged in doing manual work.
The undertaking chosen for employment shall be one which is nearest to
the place of residence of the family.
(4) In those cases where no alternative employment is available, to the
adult- member of child's family the parent would be paid income from
interest of Rs. 25,000 the employment given or payment made would
cease if the child is not sent for education by parents. -
(5) On discontinuance of the employment his education could be ensured
until they complete the age of 14 years and shall be free as required by
Art. 45 of the Constitution. It would-be the duty of the Inspectors to see
that this call of the Constitution is carried out.
 (6) The Secretary of the Ministry of Labour of the Union of India would
apprise the Court within one year about the compliance of the directions
of the Court in this regard.
It is true that a declaration of fundamental rights is meaningless unless
there is an effective machinery for the enforcement of the rights. It is remedy
which makes the right real. If there is no remedy there is no right at all. It was,
therefore, in the fitness of the things that our Constitution-makers having
incorporated a long list of fundamental rights have also provided for an
effective remedy for the enforcement of these rights under Article 32 of the
Constitution. Article 32 is itself a fundamental right. Article 226 also empowers
all the High Courts to issue the writs for the enforcement of fundamental rights.
Article 32 (1) guarantees the right to move the Supreme Court by "appropriate
proceedings" for the enforcement of the fundamental rights conferred by Part III
of the Constitution. Clause (2) of Art. 32 confers power on the Supreme Court
to issue appropriate directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo-warranto and certiorari for the
enforcement of any of the rights conferred by Part III of the Constitution. Under
clause (3) of Art. 32 Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or of the powers exercisable
by the Supreme Court under clause (2). Clause (4) says that the right guaranteed
by Article 32 shall not be suspended except as otherwise provided for the
Constitution. Art 32 thus provides for an expeditious and inexpensive remedy
for the protection of fundamental rights from legislative and executive
interference.
Under Art. 32 (1) the Supreme Court's power to enforce fundamental
right is widest. There is no limitation in regard to the kind of proceedings
envisaged in Art. 32 (1) except that the proceeding must be "appropriate" and
this requirement must be judged in the light of the purpose for which the
proceeding is to be taken, namely, enforcement of fundamental rights. It is not
obligatory for the Court to follow adversary system. The Constitution-makers
deliberately did not lay down any particular form of proceeding for enforcement
of fundamental right nor did they stipulate that such proceeding should conform
to any rigid pattern or a straight-jacket formula because they knew that in a
country like India where there is so much of poverty, ignorance, illiteracy,
deprivation and exploitation, any insistence on a right formula of proceeding for
enforcement of fundamental right would become self-defeating.
It is clear from Article 32 (1) that whenever there is a violation of a
fundamental right any person can move the Court for an appropriate remedy.
Traditional rule of locus standi that a petition under Article 32 can only be filed
by a person whose fundamental right is infringed has now been considerably
relaxed by the Supreme Court in its recent rulings. The Court now permits
public interest litigations or social interest litigations at the instance of 'public
spirited citizens' for the enforcement of Constitutional and other legal rights of
any person or group of persons who because of their poverty or socially or
economically disadvantaged position are unable to approach the Court for relief.
Once the fundamental rights of the laborers is infringed, they could approach
the Supreme Court by issuing writ under Art 32 and 226.
Articles 38, 39, 39-A, 41, 42, 43, 43-A and 47 of the Constitution
embody the Directive Principles of State Policy which though cannot be
enforced through a court of law are nevertheless fundamental in the governance
of the country, casting a duty on the State to apply those principles in making
laws. The directive principles are therefore subordinate to the fundamental
rights guaranteed under Part III of the Constitution[23].
Under these articles it is the duty of the State to promote the welfare of
the people, by securing and protecting a social order in which justice social,
economic and political shall inform all the institutions of the national life; to
make effective provision for securing the right to work, education and public
assistance in cases of employment, etc., subject to limits of its economic
capacity to make provision for just and humane condition of work and for
maternity relief; to endeavor, to secure by suitable legislation or economic
organization to all workers work, living wage, conditions of work ensuring a
decent standard of life and full enjoyment of leisure and social and cultural
opportunities, to promote cottage industries on an individual or cooperative
basis in rural areas, and to raise the level of nutrition and the standard of living
and improve public health etc.
To achieve the above object the State is duty-bound to direct its policy
towards securing an adequate means of livelihood for all citizens; to so
distribute the ownership and control of the material resources of the community
as best to subserve the common good; to avoid concentration of wealth and
means of production to the common detriment; to secure equal pay for equal
work both for men and women; to prevent abuse of health and strength of
workers, men, women and children of tender age and to protect children and
youth against exploitation and against moral and material abandonment.
With the onward march of civilization, our notions as to the scope of the
general interest of the community are fast changing and widening with result
that our old and narrower notions as to the sanctity of the private interest of the
individual can no longer stem the forward flowing tide of time and must
necessarily give way to the broader notions of general interest of the
community. The emphasis is unmistakably shifting from the individual to the
community. This modern trend in the social and political philosophy is well
reflected and given expression in our Constitution[24]. The Directive Principles
of State Policy, though not strictly enforceable in courts of law, are yet
fundamental in the governance in the country. Provisions contained in the
chapter on Directive Principles of State Policy cannot be enforced by courts.
But while considering the question of enforcement of fundamental rights of a
citizen it is open to the court to be guided by the Directive Principles to ensure
that in doing justice the principles contained therein are maintained.
Fundamental rights, and the directive principles constitute "conscience of the
Constitution". The Constitution aims at bringing about a synthesis between
'Fundamental Rights and Directive Principles of State Policy' by giving to the
former a place of pride and to the latter a place of permanence, together they
form core of the Constitution. They constitute its true conscience and without
faithfully implementing the Directive Principles it is not possible to achieve the
welfare State contemplated by the Constitution.
The view that the principles contained in Articles 39(a) and 41 must be
regarded as equally fundamental in understanding and interpreting the meaning
and content of fundamental rights is in consonance with the following
observations of Chinnappa Reddy, J. in Randhir Singh v. Union of India[25],
in the context of the concept of 'equal pay for equal work' in service
jurisprudence:
"It is true that the principle of 'equal pay for equal work' is not
expressly declared by our Constitution to be fundamental right. Article
39(J) of the Constitution proclaims 'equal pay for equal work for both
men and women' as a Directive Principle of State Policy… Directive
Principles, as has been pointed out in some of the judgments of this
Court, have to be read into the fundamental rights as a matter of
interpretation... Construing Articles 14 and 16 in the light of the
Preamble and Article 39(d) we are of the view that the principle 'equal
pay for equal work' is deducible from those Articles."
Article 39 specifically requires the State to direct its policy towards
securing the following principles:
(a) Equal right of men and women to adequate means of livelihood.
(b) Distribution of ownership and control of the material resources of the
community to the common good,
(c) To ensure that the economic system should not result in concentration
of wealth and means of production to the common detriment.
 (d) Equal pay for equal work for both men and women.
(e) To protect health and strength of workers and tender age of children
and to ensure that they are not forced by economic necessity to enter
avocations unsuited to their age or strength.
(f) That children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against moral
and material abandonment.
Clause (f) was modified by the Constitution (42nd Amendment) Act,
1976 with a view to emphasize the constructive role of the State with regard to
children.
In M. C. Mehta v. State of Tamil Nadu,[26] it has been held that in view
of Art. 39 the employment of children within the match factories directly
connected with the manufacturing process of matches" and fireworks cannot be
allowed as it is hazardous. Children can, however, be employed in the process
of packing but it should be done in area away from the place of manufacturing
to avoid exposure to accidents.
In another landmark judgment in M. C. Mehta v. State of T. N. known as
(Child Labour Abolition case) a three Judges Bench of the Supreme Court held
that children below the age of 14 years cannot be employed in any hazardous
industry, or mines or other work. The matter was brought in the notice of the
Court by public spirited lawyer Sri M. C. Mehta through a public interest
litigation under Art. 32. He told the Court about the plight of children engaged
in Sivakasi Cracker Factories and how the constitutional right of these children
guaranteed by Art. 24 was being grossly violated and requested the Court to
issue appropriate directions to the Governments to take steps to abolish child
labour.
The Court issued the following directions—
(1) The Court directed for setting up of Child Labour Rehabilitation
Welfare Fund and asked the offending employers to pay for each child a
compensation of Rs. 20,000 to be deposited in the fund and suggested a
number of measures to rehabilitate them in a phased manner.
(2) The liability of the employer would not cease even if after the child is
discharged from work, asked the Government to ensure that an adult
member of the child's family gets a job in a factory or anywhere in lieu of
the child.
(3) In those cases where it would not be possible to provide jobs the
appropriate Government would, as its compensation, deposit, Rs. 5000 in
the fund for each child employed in a factory or mine or in any other
hazardous employment. The authority concerned has two options : either
it should ensure alternative employment for the adult whose name would
be suggested by the parent or the guardian of the child concerned or it
should deposit a sum of Rs. 25,000 in the fund.
(4) In case of getting employment for an adult the parent or guardian shall
have to withdraw his child from the job. Even if no employment would be
provided, the parent shall have to see that his child is-spared from the
requirement of the job as an alternative source of income interest—
income from deposit of Rs. 25000—would become available to the
child's family till he continues his study upto the age of 14 years.
(5) As per Child Labour Policy of the Union Government the Court
identified some industries for priority action and the industries so
identified are namely. The Match industry in Sivakashi, Tamil Nadu;
Diamond Polishing Industry in Surat, Gujarat; the Precious Stone
Polishing Industry in Jaipur, Rajasthan; the Glass Industry in Firozabad;
the Brass-ware Industry Moradabad; the Hand made carpet Industry in
Mirzapur, Bhadohi and the Lock making Industry in Aligarh in Uttar
Pradesh; the Slate Industry in Manakpur, Andhra Pradesh and the Slate
 Industry in Mandsaur, Madhya Pradesh for priority action by the
authorities concerned.
(6) The employment so given could be in the industry where the child is
employed a public sector undertaking, and would be manual is nature
inasmuch as the child in question must be engaged in doing manual work
the undertaking chosen for employment shall be one which is nearest to
the place of residence of the family.
(7) For the purpose of collection of funds, a district could be the unit of
collection so that the executive head of the district keeps watchful eye on
the work of the inspectors. In view of the magnitude of the task, s
separate cell in the labour Department of the appropriate Government
would be created. Overall monitoring by the Ministry of Labour of the
Union Government would be beneficial and worthwhile.
(8) The Secretary of the Ministry of Labour of the Union Government is
directed to file an affidavit within a month before the Court about the
compliance of the directions issued in this regard.
(9) Penal provisions contained in the 1986 Act will be used where
employment of a child labour prohibited by the act, is found.
Pursuant to Article 39 (d), Parliament has enacted the Equal
Remuneration Act, 1976. The directive contained in Article 39 (d) and the Act
passed thereto can be judicially enforceable by the court.
In Randhir .Singh v. Union of lndia, the Supreme Court has held that the
principle of "Equal pay for equal work though not a fundamental right" is
certainly a constitutional goal and, therefore, capable of enforcement through
constitutional remedies under Article 32 of the Constitution. The doctrine of
equal pay for equal work is equally applicable to persons employed on a daily
wage basis. They are also entitled to the same wages as other permanent
employees in the department employed to do the identical work[27].
 However, the doctrine of 'equal pay for equal work' .cannot be put in a
strait jacket. This right, although finds place in Article 39, is an accompaniment
of equality clause enshrined in Articles 14 and 16 of the Constitution.
Reasonable classification, based on intelligible criteria having -nexus with the
object sought to be achieved is permissible. Accordingly, it has been held that
different scales of pay in the same cadre of persons doing similar work can be
fixed if there is difference in the nature of work done and as regards reliability
and responsibility.
In State of A.P. v. V. G. Sreenivasa Rao,[28] it has been held that giving
higher pay to a junior in the same cadre is not illegal and violative of Articles
14, 16 and 39 (d) if there is rational basis for it.
Article 43 requires the State to take steps, by suitable legislation or in any
other way to secure the participation of workers in the management of
undertakings, establishments or other organizations engaged in any industry.
Article 41 directs the State to ensure the people within the limit of its economic
capacity and development: (a) employment, (b) education, and (c) public
assistance in cases of unemployment, old age, sickness and disablement and in
other cases of undeserved want. Article 42 directs the State to make provision
for securing just human conditions and for maternity relief. Article 43 requires
the State to try to secure by suitable legislation or economic organization or in
any other way, to all workers, agricultural, industrial or otherwise, a living
wage, conditions of work ensuring a decent standard of life and full enjoyment
of leisure and social and cultural opportunities, and in particular, the State shall
endeavor to promote cottage industries on an individual or co- operation basis in
rural areas.
Article 43 refers to a "living wage" and not "minimum wage". The
concept of living wage includes in addition to the bare necessities of life, such
as food, shelter and clothing, provisions for education of children and insurance
etc.
 Article 45 required the State to make provision within 10 years for free
and compulsory education for all children until they complete the age of 14
years. The object was to abolish illiteracy from the country.
In a landmark judgment in Unni Krishnan v. State of A.P.[29] the
Supreme Court has held that the "Right to education" upto the age of 14 years is
a fundamental right within the meaning of Article 21 of the Constitution, but
thereafter the obligation of the State to provide education is subject to the limits
of its economic capacity. "The right to education flows directly from right to
life", the Court declared.
Article 47 imposes duty upon the State to raise the level of nutrition and
the standard of living of its people and the improvement of public health. In
particular, the State should bring about prohibition of the consumption except
for medicinal purposes of intoxicating drinks and of drugs which are injurious
to health. Article 46 enjoins the States to promote with special care the
education and economic interest of the weaker sections of the people, and in
particular of the Scheduled Castes and Scheduled Tribes, and to protect them
from social injustice and of all forms of exploitation. Article 39-A directs the
State to ensure that the operation of the legal system promote justice, on a basis
of equal opportunities and shall, in particular, provide free legal aid, by suitable
legislation or schemes or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other
disabilities. This article was added to the Constitution pursuant to the new
policy of the Government to give legal aid to economically backward classes of
people.
Articles 226 and 227.—The power of superintendence under Article 227
is of an administrative as well as of judicial nature. If necessary, the High Court
can interfere with the administrative orders of inferior courts.
 The judicial orders of the courts and tribunals are equally amenable to the
supervisory jurisdiction of the High Court and it is in regard to such orders that
the power of the High Court has frequently been invoked. The following
principles with reference to the exercise of superintending power over judicial
orders may be laid down:
(1) Article 227 does not invest the High Court with an unlimited
prerogative to interfere in case where a wrong decision has been arrived
at by judicial or quasi-judicial tribunals on a question of fact or law. In
the words of the Supreme Court "unless there was any grave miscarriage
of justice or flagrant violation of law calling for intervention, it is not for
the High Court under Articles 226 and 227 of the Constitution to
interfere".14 The power, therefore, has to be used sparingly and only in
exceptional cases.
(2) In exercising the supervisory power the High Court does not act
as an appellate tribunal. It will not review or reweigh the evidence upon
which determination of the inferior tribunal purports to be based or to
correct errors of law in the decision except where such error is patent on
the face of the record; the question in the case was whether on the facts of
the case the dismissal of the employee was wrongful or justified. The
Supreme Court held that the High Court could not interfere with the
decision of the tribunal.15
(3) The principal grounds for interference under Article 227 are the
following—
(a) want or excess of jurisdiction;
(b) failure to exercise jurisdiction;
(c) violation of procedure or disregard of principles of
natural justice. For an error of law apparent on the face of
the record or a plain error of law the High Court would not
interfere under Article 227.
 The law in the matter of limits of the jurisdiction of the High Court in the
exercise of its power under Articles 226 and 227 of the Constitution is well-
settled. The following propositions must be taken as well-settled:
(1) Certiorari will be issued for correcting errors of jurisdiction, as when
an inferior court or tribunal acts without jurisdiction or in excess of it or
fails to exercise it.
(2) Certiorari will also be issued when the court or tribunal acts illegally
in the exercise of its undoubted jurisdiction as when it decides without
giving an opportunity to the parties to be heard or violates the principles
of natural justice.
(3) Further a writ of certiorari could be issued to correct an error of law.
But it is essential that it must be something more than a mere error; it
must be one which must be manifest on the face of the record.
(4) The court issuing a writ of certiorari acts in exercise of a supervisory
and not appellate jurisdiction.
One consequence of this is that the court will not review findings of fact
reached by the inferior court or tribunal even if they are erroneous. This is on
the principle that a court which has jurisdiction over a subject-matter has
jurisdiction to decide it wrong as well as right and when the legislature does not
choose to confer a right of appeal against that decision it would be defeating its
purpose and the policy, if a superior court were to rehear the case on the
evidence and substitute its own finding in certiorari.
The discretion could only be interfered with in a case in which the
authority, vested with the discretion, acts not upon judicial principles but
arbitrarily and capriciously.

Right to Freedom of Religion (25-28)

India is a multireligious state. Besides Hindus, there are Muslims, Sikhs,
Christians and many others residing in our country. The Constitution guarantees
to every person freedom of conscience and the right to practice and propagate
any religion.
It also permits every religious group, the right to manage its own affairs
in matters of religion. Every religious sect has the right to establish and
maintain in situations for religious and charitable purposes. Each religious
group is also free to purchase and manage its movable and immovable property
in accordance with law, for the propagation of its religion. Our Constitution lays
down that no religious education can be imparted in any educational institution
which is wholly maintained out of the state funds. This restriction does not
apply to those educational institutions which are not wholly maintained out of
State funds. But, even in those institutions, no child can be compelled to receive
religious instructions against his /her wishes.
Right to Freedom of Religion is not absolute. It can be restricted on the
grounds of public order, morality and health. The state shall not impose
restrictions arbitrarily.

The right to freedom of religion is a fundamental right guaranteed under

Article 25 of the Constitution of India. Article 25 reads as follows:-

Article 25. (1). Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom of
conscience and the right freely to profess, practise and propagate religion.

Article 25. (2). Nothing in this article shall affect the operation of any existing
law or prevent the State from making any law: -

(a) Regulating or restricting any economic financial political or other secular

activity which may be associated with religious practice;

b) Providing for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections of
Hindus.

This Article guarantees that every person in India shall have the freedom of
conscience and shall have the right to profess, practise and propagate religion,
subject to the restrictions that may be imposed by the State on the following
grounds, namely:-

(1) Public order, morality and health;

(2) Other provisions of the Constitution;
(3) Regulation of non-religious activity associated with religious practise;
(4) Social welfare and reform;
(5) Throwing open of Hindu religious institutions of a public character to all
classes of Hindus.

Secularism under the Constitutional Framework of India

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India

into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and
to secure to all its citizens:
JUSTICE, social, economic and political.
LIBERTY of thought, expression, belief, faith and worship.
EQUALITY of status and opportunity, and to promote among all;
FRATERNITY assuring the dignity of the individual and the unity of the
Nation"
IN OUR CONSTITUENT ASSEMBLY this 26/11/1949, do HEREBY ADOPT,
ENACT AND GIVE TO OURSELVES THIS CONSTITUTION'.
The Preamble to the Constitution of India signifies that India is a secular state.
The Preamble reflects the way of life adopted by Indian citizens for themselves
after independence. In fact every civilization has also been a mirror of way of
life as well as reflecting movement of human spirit. Religion in each
civilizastion has indicated about the faith of human beings in absolute values
and a way of life to realize them.
 Religious faith is continuously providing the passion to preserve in the
way of life and if it declines, obedience degenerates into habit and habit slowly
withers way. Therefore laws, customs, conventions and fashions etc. are not the
only means of social control but the religion and morality also formulate and
shape the human behavior. Religion and morality are the most influential forces
of social control as well as the most effective guides of the human behavior.
The social life of a man in addition of its economics, political, philosophical,
scientific and other aspects, has also religious aspects. Religion is the major
concern of man. Man is always having religious quest which makes him able to
become a restless creature even beyond the satisfaction of his physical needs.
Religion revolves around man’s faith in the supernatural forces. Religion is
concrete experience which is associated with emotions, especially with fear,
awe or reverence. Many societies have a wide range of institutions connected
with religion and a body of special officials, with forms or worship, ceremonies,
sacred objects titles, pilgrimages, and the like. Looking at the definition of
religion by Ogburn, "Religion is an attitude towards super human power, it may
be submitted that religion explains the relation of man with god and also
elaborate rules of conduct." Further Maxmuller defines, "Religion as a mental
faculty or disposition which enables man to apprehend the infinite." Maxmuller
has attempted to define religion as a matter of belief in supernatural forces. Man
believes that he is at the mercy of the supernatural forces and shows his
subordination to them by means of prayers, hymns, and other acts, man believes
that his disrespect and negligence towards religion would bring disaster so he
engaged in endless endeavour to adjust himself with the supernatural. He
attempts to do only the acts which are righteous and sacred to please the
supernatural. Behaving in accordance with the norms laid down by religion is
righteous and going against them is ‘sinful’
The same approach can also be seen in the views expressed by the
supporters of ‘functional theory’. According to Kingslay Davis, Religion is the
part of society. It is common to the group; its beliefs and practices are acquired
by each individual as a member of the group. The worship of gods is a public
matter supported by the community and performed for communal purposes. The
other supporters of functional theory also confirm the same view that religion is
a universal, permanent, pervasive and perennial institution and it has a vital
function in maintaining the social system as a whole. There are many religions
in the world and the questions at this juncture arise-
- Which religion should be followed by a person?
- Can a State compel its citizens to follow a particular religion?
- Can a State have its own religion?
- Can a Government of a State give preferential treatment to the followers
of a particular religion?
The answer to all these questions is negative if the has adopted the theory
of secularism. A secular state is neither supposed to compel its citizens to adopt
a particular religion nor it can give preferential treatment to the followers of
particular religion. Secularism eliminates God from the matters of the state.
India is a secular country. The term ‘secular’ denotes the threefold
relationship among man, state and religion. The word Secular has not been
defined or explained under the Constitution in 1950 or in 1976 when it was
made part of the preamble. A Secular State means that the one that protects all
religions equally and does not uphold any religion as the State religion. Unlike
in England where the Queen is the Head of the Protestant Church in India there
is no provision to make any religion the 'established Church'. The state observes
an attitude of neutrality and impartiality towards all religions. It is assumed that
the secular state, howsoever constructed, will minimally have to contend with
and respond to each of the demands of equality, liberty and neutrality. The
liberal claim rests on the impossibility of different religious communities in the
same democratic polity to live together in harmony, without some model of
secularism that embodies the normative force of liberty, equality and neutrality.
Random House Dictionary defines the term secularism As a system of social or
political philosophy that rejects all forms of religious faiths. In the words of
Asgar Ali Engineer, Secularism means liberation of politics from the hegemony
of religion. Oxford Advanced Learner’s Dictionary defined the term secularism,
as Belief that morality and education etc. should not be based on religion.
Donald E. Smith, Professor of Political Science in Pennsylvania
University provided what he regarded as a working definition of a secular state.
This was in his book India as a Secular State. "The secular State is a State
which guarantees individual and corporate freedom of religion, deals with the
individual as a citizen irrespective of his religion, is not constitutionally
connected to a particular religion, nor does it seek to promote or interfere with
religion".
The definition given by Smith reflects three aspects of secularism in the
form of inter-related relations as:
- Religion and Individual
- Individual and State
- State and Religion
These relations can be comprehensively elaborate by this triangle. These
three associates are the three sides of a tri-angle, touching each other necessarily
at three points and creating their mutually related angles. These three sets of
angular relationship contain the total of religious freedom available in a society.
First of all these three angles, reflects the relationship between the
religion and individuals. This relation contains’ positive freedom of religion’
which implies ‘reasonable unrestrained liberty of believing & practicing one’s
religion.’ In other words, every person should be free to follow any religion, and
to act upon its teachings and reject all other without any interference from the
state. Religious freedom is the soul of principle of liberty enshrined in the
Preamble to the Constitution of India.
 The second angular relation reflects the relationship between the state and
individual. It contains ‘negative freedom of religion.’ By ‘negative freedom of
religion’ mean ‘absence of restrains, discriminations, liabilities and disabilities
which a citizen might have been otherwise subject to.’
The third angular relation which emanates from the relationship between
the state and its religion. It contains ‘neutral freedom of religion.’ It implies that
state has no religion of its own and attitude of indifference towards all the
religions by the state.
India is a secular state. The idea of secularism is one of the basic features
of the Indian constitution. The Supreme Court in St. Xavier’s College Vs. State
of Gujrat observed, India is a secular state, secularism eliminates god from the
matter of the state affairs, and ensures that none shall be discriminated against
on the ground of religion.

Positive freedom of religion: Religion and Individual

One of the basic civil liberties of an individual is the liberty of his mind
and his conscience. Preservation of liberty of the mind, conscience and thought
being the greatest liberty alone can make possible and meaningful other
liberties. If the mind and conscience of human is in chain, all the other liberties
would become meaningless. A free mind and a free conscience, therefore is the
essential, integral and indispensable foundation of all other civil liberties.
The Constitution of India, being the supreme law of the nation recognizes
the religious liberty of both the individuals as well as associations of individual
united by common beliefs, practices & discipline. The individual and collective
aspects of freedom of religion can be summarized in this order:

Individual Freedom of Religion - The Constitution of India recognizes the

freedom to profess, practice and propagate the religion under Article 25. Part (1)
of Article 25 secures to every freedom of conscience: and the right to (i) profess
religion; (ii) practice religion; and (iii) propagate religion. The term ‘religion’
has not defined in the constitution but the meaning given by the Supreme Court
of India to the religion can be referred here, the Supreme Court in
Commissioner, H.R.E. Vs. L.T. Swammiar held:
“Religion is a matter of faith with individuals or communities and
it is not necessarily theistic. A religion has its basis in a system of beliefs
or doctrines, which are regarded by those who profess that religion as
conducive to their spiritual well being. A religion may not only lay down
a code of ethnical rules for its followers to accept, it might prescribe
rituals and observances, ceremonies and modes of worship, which are
regarded as integral parts of religion and these forms and observance
might extend even to matters of food and dress.”
The freedom of religion guarranted under Indian constitution is not
confined to its citizens but extends to ‘all persons including aliens.’
This point, was underlined by the Supreme Court in RatiLal Panchand
Vs. State of Bombay as it is very important because substantial number of
foreign Christian missionaries in India were engaged at that time in propagating
their faith among the adherents of other religions.
The Constitution thus declares that every person has a fundamental right
not only to hold whatever religious belief commend themselves to his
judgement, but also to express his beliefs in such overt acts, as are prescribed by
his religion and propagate its tenets among others. The exercise of this right is,
however subject to ‘public order, morality and public health.’ Here the
constitution succinctly expresses the limitations on religious liberty that has
been evolved by judicial pronouncements in the United States and Australia. In
fact, the framers of the Indian constitution attempted to establish a delicate
balance between ‘essential interference and impartial interference’ on the part of
the state. They kept in consideration the possibilities of arising out of
circumstances in which the government may have to impose restraints on the
freedoms of individuals in collective interests.
Accordingly Article 25 (2) provides broad sweeping power of
interference to the state in religious matters. This Article imposes drastic
limitations on the rights guaranteed under Article 25(1) and reflects the peculiar
needs of Indian society. It is important to mention here that law providing for
the very extensive supervision by the state about temple administration has been
enacted by virtue of this provision. Here it would not be out place to state that
the extensive modification Hindu personal law (marriage, divorce, adoption,
succession etc.) has been effected by legislation based on the provision
permitting measures of social welfare and social reform. There is an interesting
case on the validity of the Bombay Prevention of Hindu Bigamous Marriages
Act of 1946, where the validity was upheld by the Bombay High Court. Chief
Justice Chagla (Muslim, later appointed as Indian Ambassador to US) delivered
his judgement as follows: it is only with very considerable hesitation that I
would like to speak bout Hindu religion, but it is rather difficult to accept the
proposition that polygamy is an integral part of Hindu religion. It is perfectly
true that Hindu religion recognizes the necessity of a son for religious efficacy
and spiritual salvation. That same religion also recognizes the institution of
adoption. Therefore the Hindu religion provides for the continuation of the line
of a Hindu male within the framework of monogamy.
The learned judge went on to argue, that even assuming that polygamy is
a recognized institution according to Hindu religious practice, the right of the
state to enact this legislation could not be disputed. The enforcement of
monogamy among Hindu is a measure of social reform which the state is
empowered to legislate by Article 25 (2) (b) ‘notwithstanding the fact that it
may interfere with the right of a citizen freely to profess, practice and propagate
religion.
 The same constitutional provision permits legislation opening Hindu
religious institutions of a public character to all classes and sections of India.
Harijan temple entry laws have been enacted by many of the state legislatures.
The Central Untouchability (Offences) Act of 1955 provides that any attempt to
prevent Harijans from exercising their right to enter the temple is punishable
with imprisonment or fine or with both. Therefore it must be clear that a secular
civil law is equally applicable to all Indian citizens.

Collective Freedom of Religion - Religious denominations as well as

individuals have certain important rights spelt out under Article 26. The term
‘religious denomination’ has not been defined under the Constitution. The
Hon’ble Supreme Court has accepted the definition given in Oxford Dictionary,
that defines as ‘a collection of individuals classed together under the same name
a religious sect of body having a common faith and organization and designated
by a distinctive name.’ The Supreme Court in number of cases held that Arya
Smaj, Anandmarga, Vaishanave, The followers of Madhawacharya and other
religious teachers, though not separate religions, yet these are separate religious
denomination and enjoys the protection under Article 26 of the Constitution.
The right under Article 26(a) is a group right and is available to every
religious denomination. Clause (b) of Article 26 guarantees to every religious
denomination the right to manage its own affairs in matters of religion. The
expression ‘matters of religion’ includes ‘religious practices, rites and
ceremonies essential for the practicing of religion.’
An important case that involved the right of a religious denomination to
manage its own affairs in matters of religion was Venkataramana Devaru Vs.
Stae of Mysore. In this matter, Venkatramana temple was belonging to the
Gowda Saraswath Brahman Community. The Madras Temple Entry
Authorization Act, supported by Article 25(2)(b) of the Constitution, threw
open all Hindu public temples in the state to Harijans. The trustees of this
denominational temple refused admission to Harijans on the ground that the
caste of the prospective worshipper was a relevant matter of religion according
to scriptural authority, and that under Article 26(b) of the Constitution they had
the right to manage their own affairs in matters of religion. The Supreme Court
admitted that this was a matter of religion, but when it faces conflict with
Article 25(2) (b), it approved a compromise arrangement heavily weighted in
favour of rights of Harijans and a token concession to the right of a religious
denomination to exercise internal autonomy
Further Article 26© and (d) recognize the right of a religious
denomination to own, acquire and administer movable and immovable property
in accordance with law. However it was held in Surya Pal Singh Vs. State of
U.P. that this guarantee did not imply that such property was not liable to
compulsory acquisition under the U.P. Abolition of Zamindari Act. Similarly in
Orissa, land reforms resulted in the expropriation of a village and surrounding
agricultural land dedicated to the maintenance of a Hindu deity. Since
compensation was paid, the High Court held that there was only a change in the
form of the property.

Article 30 deals with another aspect of collective freedom of religion:

(1) All minorities, whether based on religion or language, shall have the
right to establish and administer educational institutions of their choice.
(2) The state shall not, in granting aid to educational institutions,
discriminate against any educational institution on the ground that it is
under the management of a minority, whether based on religion or
language.
The object behind Article 29 & 30 is the recognition and preservation of
the different types of people, with diverse languages and different beliefs, which
constitute the essence of secularism in India.
Negative Freedom of Religion: Individual and State
The second component of secular state, the concept of citizenship is
based on the idea that the individual, not the group is the basic unit. The
individual is confronted by the state which imposes duties and responsibilities
upon him; in return the state guarantees rights and grants privileges to the
individual. The sum of these individual- state relationships constitutes the
meaning of citizenship. There are numbers of provisions dealing with citizen’s
relations with state in social spheres. The provisions based on non
discrimination in political functions have also been dealt with under the
Constitution.

Neutral Freedom of Religion: State & Religion

Separation of state and religion is the third principle of secular state that
preserves the integrity of the other two relationships, freedom of religion and
citizenship. Here one must be conscious about the relationship of the religion
and the state. The institution of religion came in existence prior to state. It came
into being to establish a social order in ancient times because at that time there
was neither any law nor any institution like state was in existence. The main
purpose of institution of religion was to regulate the activities of individual on
the basis of religion and religion was the supreme law. The institution of state
came too much later- so in present scenario, the society is based on the delicate
balance maintained between both of these institutions namely state and religion.
Both are independent in their spheres and it must be so, because centralization
of powers in one agency would lead to anarchism. Once the principle of
separation of state and religion is abandoned, the way is open for state
interference in the individual’s religions liberty, and for state discrimination
against him if he happens to dissent from the official creed.
 Earlier religion was considered superior to state, because it played an
important role in regulating actions of human beings and it was the way for
human beings towards the god but in present scenario, it must be kept in mind
that the first role is being played by the state and as regards to the relation of
individual with god, the domain is totally free. The religion has become
subordinate in these days and the state is the main unit of the society. So there
are number of important areas in which state interference in religious matter is
permitted by the Constitution.

Is India a Secular State

Looking at the various constitutional provisions, the answer is ‘Yes’. The
ideals of secular state have clearly been embodied under the Indian Constitution
and the provisions are being implemented in substantial measure. But the
circumstances after independence have posed a challenge before secularism of
India for a number of times. Sometimes it is also alleged that by Uniform Civil
Code, the existence of minorities in India is in danger or it is an assault on the
identity of minorities. India being still a traditional society that contains not one,
but many traditions owing their origin in part to the different religions that exist
here. While India carries with it many traditions it has managed to retain the
secular character of its polity, while in many countries especially from the third
world, a secular authority has crumbled in face of conflicting traditions. In sum
up, it may be submitted that it is beyond the scope of this paper to outline the
implications of the conceptual failings of secularism in India; nonetheless we
must attempt to raise issues and questions for continuing study of the problem.
Clearly the judiciary in India is a significant site where contests under the
banner of secularism have been taking place over the last fifty and odd year.
Though the judiciary is trying to strike the balance in a harmonious way but the
people of India should not forget the dream of framers of the constitution and
the ancient philosophy of ‘Sarva Dharma Sambhavah’.
Public Interest Litigation
Judiciary, being the sentinel of constitutional statutory rights of citizens
has a special role to play in the constitutional scheme. It can review legislation
and administrative actions or decisions on the anvil of constitutional law. For
the enforcement of fundamental rights one has to move the Supreme Court or
the High Courts directly by invoking Writ Jurisdiction of these courts. But the
high cost and complicated procedure involved in litigation, however, makes
equal access to jurisdiction in mere slogan in respect of millions of destitute and
underprivileged masses stricken by poverty, illiteracy and ignorance. The
Supreme Court of India, pioneered the Public Interest Litigation (PIL) thereby
throwing upon the portals of courts to the common man.
Till 1960s and seventies, the concept of litigation in India was still in its
rudimentary form and was seen as a private pursuit for the vindication of private
vested interests. Litigation in those days consisted mainly of some action
initiated and continued by certain individuals, usually, addressing their own
grievances/problems. Thus, the initiation and continuance of litigation was the
prerogative of the injured person or the aggrieved party. Even this was greatly
limited by the resources available with those individuals. There was very little
organized efforts or attempts to take up wider issues that affected classes of
consumers or the general public at large. However, all these scenario changed
during Eighties with the Supreme Court of India led the concept of public
interest litigation (PIL). The Supreme Court of India gave all individuals in the
country and the newly formed consumer groups or social action groups, an
easier access to the law and introduced in their work a broad public interest
perspective.

Legal History - The Indian PIL is the improved version of PIL of U.S.A.
According to “Ford Foundation” of U.S.A., “Public interest law is the name
that has recently been given to efforts that provide legal representation to
previously unrepresented groups and interests. Such efforts have been
undertaken in the recognition that ordinary marketplace for legal services fails
to provide such services to significant segments of the population and to
significant interests. Such groups and interests include the proper
environmentalists, consumers, racial and ethnic minorities and others”. The
emergency period (1975-1977) witnessed colonial nature of the Indian legal
system. During emergency state repression and governmental lawlessness was
widespread. Thousands of innocent people including political opponents were
sent to jails and there was complete deprivation of civil and political rights. The
post emergency period provided an occasion for the judges of the Supreme
Court to openly disregard the impediments of Anglo-Saxon procedure in
providing access to justice to the poor.
Public Interest Litigation popularly known as PIL can be broadly defined
as litigation in the interest of that nebulous entity: the public in general. Prior to
1980s, only the aggrieved party could personally knock the doors of justice and
seek remedy for his grievance and any other person who was not personally
affected could not knock the doors of justice as a proxy for the victim or the
aggrieved party. In other words, only the affected parties had the locus standi
(standing required in law) to file a case and continue the litigation and the non-
affected persons had no locus standi to do so. And as a result, there was hardly
any link between the rights guaranteed by the Constitution of Indian Union and
the laws made by the legislature on the one hand and the vast majority of
illiterate citizens on the other. The traditional view in regard to locus standi in
Writ jurisdiction has been that only such persons who: a) Has suffered a legal
injury by reason of violation of his legal right or legally protected interest; or b)
Is likely to suffer a legal injury by reason of violation of his legal right or
legally protected interest. Thus before a person acquired locus standi he had to
have a personal or individual right which was violated or threatened to be
violated. He should have been a “person aggrieved” in the sense that he had
suffered or was likely to suffer from prejudice, pecuniary or otherwise.
However, all these scenarios gradually changed when the post emergency
Supreme Court tackled the problem of access to justice by people through
radical changes and alterations made in the requirements of locus standi and of
party aggrieved. The splendid efforts of Justice P N Bhagwati and Justice V R
Krishna Iyer were instrumental of this juristic revolution of eighties to convert
the Apex Court of India into a Supreme Court for all Indians. Justice V. R.
Krishna Iyer and P. N. Bhagwati recognized the possibility of providing access
to justice to the poor and the exploited people by relaxing the rules of standing.
In the post-emergency period when the political situations had changed,
investigative journalism also began to expose gory scenes of governmental
lawlessness, repression, custodial violence, drawing attention of lawyers,
judges, and social activists. PIL emerged as a result of an informal nexus of pro-
active judges, media persons and social activists. This trend shows stark
difference between the traditional justice delivery system and the modern
informal justice system where the judiciary is performing administrative judicial
role. PIL is necessary rejection of laissez faire notions of traditional
jurisprudence.
The first reported case of PIL in 1979 focused on the inhuman conditions
of prisons and under trial prisoners. In Hussainara Khatoon v. State of Bihar,
the PIL was filed by an advocate on the basis of the news item published in the
Indian Express, highlighting the plight of thousands of undertrial prisoners
languishing in various jails in Bihar. These proceeding led to the release of
more than 40,000 undertrial prisoners. Right to speedy justice emerged as a
basic fundamental right which had been denied to these prisoners. The same set
pattern was adopted in subsequent cases.
 A new era of the PIL movement was heralded by Justice P.N. Bhagawati
in the case of S.P. Gupta v. Union of India. In this case it was held that “any
member of the public or social action group acting bonafide” can invoke the
Writ Jurisdiction of the High Courts or the Supreme Court seeking redressal
against violation of a legal or constitutional rights of persons who due to social
or economic or any other disability cannot approach the Court. By this
judgment PIL became a potent weapon for the enforcement of “public duties”
where executed in action or misdeed resulted in public injury. And as a result
any citizen of India or any consumer groups or social action groups can now
approach the apex court of the country seeking legal remedies in all cases where
the interests of general public or a section of public are at stake.
In 1981 the case of Anil Yadav v. State of Bihar, exposed the brutalities
of the Police. Newspaper report revealed that about 33 suspected criminals were
blinded by the police in Bihar by putting the acid into their eyes. Through
interim orders Supreme Court directed the State government to bring the
blinded men to Delhi for medical treatment. It also ordered speedy prosecution
of the guilty policemen. The court also read right to free legal aid as a
fundamental right of every accused. Anil Yadav signalled the growth of social
activism and investigative litigation.
In Citizen for Democracy v. State of Assam, the S. C. declared that the
handcuffs and other fetters shall not be forced upon a prisoner while lodged in
jail or while in transport or transit from one jail to another or to the court or
back.

Meaning and Definition - According to Black's Law Dictionary - "Public

Interest Litigation means a legal action initiated in a court of law for the
enforcement of public interest or general interest in which the public or class of
the community have pecuniary interest or some interest by which their legal
rights or liabilities are affected."
 In the case of People’s Union for Democratic Rights v. Union of India, it
was held that “Public Interest Litigation which is a strategic arm of the legal aid
movement and which is intended to bring justice within the reach of the poor
masses, who constitute the low visibility area of humanity, is a totally different
kind of litigation from the ordinary traditional litigation which is essentially of
an adversary character where there is a dispute between two parties, one making
a claim or seeing relief against the other and that other opposing such claim or
relief. Public interest litigation is brought before the court not for the purpose of
enforcing the right of one individual against another as happens in the case of
ordinary litigation, but it is intended to promote and vindicate public interest
which demands that violations of constitutional or legal rights of large numbers
of people who are poor, ignorant or in a socially or economically disadvantaged
position should not go unnoticed and un-redressed.
That would be destructive of the Rule of Law which forms one of the
essential elements of public interest in any democratic form of government. The
Rule of Law does not mean that the protection of the law must be available only
to a fortunate few or that the law should be allowed to be prostituted by the
vested interests for protecting and upholding the status quo under the guise of
enforcement of their civil and political rights. The poor too have civil and
political rights and the Rule of Law is meant for them also, though today it
exists only on paper and not in reality.”

Concept of PIL - According to the jurisprudence of Article 32 of the

Constitution of India, “The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by this part is
guaranteed”. Ordinarily, only the aggrieved party has the right to seek redress
under Article 32.
 In 1981, Justice P. N. Bhagwati in S. P. Gupta v. Union of India,
articulated the concept of PIL as follows –
“Where a legal wrong or a legal injury is caused to a person or to
a determinate class of persons by reason of violation of any constitutional
or legal right or any burden is imposed in contravention of any
constitutional or legal provision or without authority of law or any such
legal wrong or legal injury or illegal burden is threatened and such
person or determinate class of persons by reasons of poverty,
helplessness or disability or socially or economically disadvantaged
position unable to approach the court for relief, any member of public
can maintain an application for an appropriate direction, order or writ in
the High Court under Article 226 and in case any breach of fundamental
rights of such persons or determinate class of persons, in this court under
Article 32 seeking judicial redress for the legal wrong or legal injury
caused to such person or determinate class of persons.”
The rule of locus standi have been relaxed and a person acting bonafide
and having sufficient interest in the proceeding of Public Interest Litigation will
alone have a locus standi and can approach the court to wipe out violation of
fundamental rights and genuine infraction of statutory provisions, but not for
personal gain or private profit or political motive or any oblique consideration.
The Supreme Court in Indian Banks’ Association, Bombay and ors v.
M/s Devkala Consultancy Service and Ors., held that –
“In an appropriate case, where the petitioner might have moved a
court in her private interest and for redressal of the personal grievance,
the court in furtherance of Public Interest may treat it a necessity to
enquire into the state of affairs of the subject of litigation in the interest of
justice. Thus a private interest case can also be treated as public interest
case”.
 In Guruvayur Devaswom Managing Commit. And Anr. v. C.K. Rajan
and Ors, the Supreme Court held,
“The Courts exercising their power of judicial review found to its
dismay that the poorest of the poor, depraved, the illiterate, the urban
and rural unorganized labour sector, women, children, handicapped by
'ignorance, indigence and illiteracy' and other down trodden have either
no access to justice or had been denied justice. A new branch of
proceedings known as 'Social Interest Litigation' or 'Public Interest
Litigation' was evolved with a view to render complete justice to the
aforementioned classes of persona. It expanded its wings in course of
time. The Courts in pro bono publico granted relief to the inmates of the
prisons, provided legal aid, directed speedy trial, maintenance of human
dignity and covered several other areas. Representative actions, pro bono
publico and test litigations were entertained in keeping with the current
accent on justice to the common man and a necessary disincentive to
those who wish to by pass the, real issues on the merits by suspect
reliance on peripheral procedural shortcomings… Pro bono publico
constituted a significant state in the present day judicial system.
They, however, provided the dockets with much greater
responsibility for rendering the concept of justice available to the
disadvantaged sections of the society. Public interest litigation has come
to stay and its necessity cannot be overemphasized. The courts evolved a
jurisprudence of compassion. Procedural propriety was to move over
giving place to substantive concerns of the deprivation of rights. The rule
of locus standi was diluted. The Court in place of disinterested and
dispassionate adjudicator became active participant in the dispensation
of justice”.
Writ Jurisdiction under Articles 32 and 226 of the Constitution of India,
1950.
 The Writ Jurisdiction of Supreme Court can be invoked under Article 32
of the Constitution for the violation of fundamental rights guaranteed under Part
– III of the Constitution. Any provision in any Constitution for Fundamental
Rights is meaningless unless there are adequate safeguards to ensure
enforcement of such provisions. Since the reality of such rights is tested only
through the judiciary, the safeguards assume even more importance. In addition,
enforcement also depends upon the degree of independence of the Judiciary and
the availability of relevant instruments with the executive authority. Indian
Constitution, like most of Western Constitutions, lays down certain provisions
to ensure the enforcement of Fundamental Rights. These are as under:
(a) The Fundamental Rights provided in the Indian Constitution are
guaranteed against any executive and legislative actions. Any executive
or legislative action, which infringes upon the Fundamental Rights of any
person or any group of persons, can be declared as void by the Courts
under Article 13 of the Constitution.
(b) In addition, the Judiciary has the power to issue the prerogative
writs. These are the extra-ordinary remedies provided to the citizens to
get their rights enforced against any authority in the State. These writs are
- Habeas corpus, Mandamus, Prohibition, Certiorari and Quo-warranto.
Both, High Courts as well as the Supreme Court may issue the writs.
(c) The Fundamental Rights provided to the citizens by the
Constitution cannot be suspended by the State, except during the period
of emergency, as laid down in Article 359 of the Constitution.
(d) A Fundamental Right may also be enforced by way of normal
legal procedures including a declaratory suit or by way of defence to legal
proceedings.
However, Article 32 is referred to as the "Constitutional Remedy" for
enforcement of Fundamental Rights. This provision itself has been included in
the Fundamental Rights and hence it cannot be denied to any person. Dr.
[Link] described Article 32 as the most important one, without which
the Constitution would be reduced to nullity. It is also referred to as the heart
and soul of the Constitution. By including Article 32 in the Fundamental Rights,
the Supreme Court has been made the protector and guarantor of these Rights.
An application made under Article 32 of the Constitution before the Supreme
Court, cannot be refused on technical grounds. In addition to the prescribed five
types of writs, the Supreme Court may pass any other appropriate order.
Moreover, only the questions pertaining to the Fundamental Rights can be
determined in proceedings against Article 32. Under Article 32, the Supreme
Court may issue a Writ against any person or government within the territory of
India. Where the infringement of a Fundamental Right has been established, the
Supreme Court cannot refuse relief on the ground that the aggrieved person may
have remedy before some other court or under the ordinary law.
The relief can also not be denied on the ground that the disputed facts
have to be investigated or some evidence has to be collected. Even if an
aggrieved person has not asked for a particular Writ, the Supreme Court, after
considering the facts and circumstances, may grant the appropriate Writ and
may even modify it to suit the exigencies of the case. Normally, only the
aggrieved person is allowed to move the Court. But it has been held by the
Supreme Court that in social or public interest matters, any one may move the
Court. A Public Interest Litigation can be filed before the Supreme Court under
Article 32 of the Constitution or before the High Court of a State under Article
226 of the Constitution under their respective Writ Jurisdictions. There are
mainly five types of Writs – (i) Writ of Habeaus Corpus, (ii) Writ of
Mandamus, (iii) Writ of Quo-Warranto, (iv) Writ of Prohibition, and (v) Writ of
Certiorari.
(I) Writ of Habeas Corpus: It is the most valuable writ for personal
liberty. Habeas Corpus means, "Let us have the body." A person, when arrested,
can move the Court for the issue of Habeas Corpus. It is an order by a Court to
the detaining authority to produce the arrested person before it so that it may
examine whether the person has been detained lawfully or otherwise. If the
Court is convinced that the person is illegally detained, it can issue orders for
his release
(II) The Writ of Mandamus: Mandamus is a Latin word, which means
"We Command". Mandamus is an order from a superior court to a lower court
or tribunal or public authority to perform an act, which falls within its duty. It is
issued to secure the performance of public duties and to enforce private rights
withheld by the public authorities. Simply, it is a writ issued to a public official
to do a thing which is a part of his official duty, but, which, he has failed to do,
so far. This writ cannot be claimed as a matter of right. It is the discretionary
power of a court to issue such writs.
(III) The Writ of Quo-Warranto: The word Quo-Warranto literally
means "by what warrants?" It is a writ issued with a view to restraining a person
from acting in a public office to which he is not entitled. The Writ of quo-
warranto is used to prevent illegal assumption of any public office or usurpation
of any public office by anybody. For example, a person of 62 years has been
appointed to fill a public office whereas the retirement age is 60 years. Now, the
appropriate High Court has a right to issue a Writ of quo-warranto against the
person and declare the office vacant.
(IV) The Writ of Prohibition: Writ of prohibition means to forbid or to
stop and it is popularly known as 'Stay Order'. This Writ is issued when a lower
court or a body tries to transgress the limits or powers vested in it. It is a Writ
issued by a superior court to lower court or a tribunal forbidding it to perform
an act outside its jurisdiction. After the issue of this Writ proceedings in the
lower court etc. come to a stop. The Writ of prohibition is issued by any High
Court or the Supreme Court to any inferior court, prohibiting the latter to
continue proceedings in a particular case, where it has no legal jurisdiction of
trial. While the Writ of mandamus commands doing of particular thing, the Writ
of prohibition is essentially addressed to a subordinate court commanding
inactivity. Writ of prohibition is, thus, not available against a public officer not
vested with judicial or quasi-judicial powers. The Supreme Court can issue this
Writ only where a fundamental right is affected.
(V) The Writ of Certiorari: Literally, Certiorari means to be certified.
The Writ of Certiorari is issued by the Supreme Court to some inferior court or
tribunal to transfer the matter to it or to some other superior authority for proper
consideration. The Writ of Certiorari can be issued by the Supreme Court or any
High Court for quashing the order already passed by an inferior court. In other
words, while the prohibition is available at the earlier stage, Certiorari is
available on similar grounds at a later stage. It can also be said that the Writ of
prohibition is available during the tendency of proceedings before a sub-
ordinate court, Certiorari can be resorted to only after the order or decision has
been announced. There are several conditions necessary for the issue of Writ of
Certiorari, which are as under:
(a) There should be court, tribunal or an officer having legal authority to
determine the question of deciding fundamental rights with a duty to act
judicially.
(b) Such a court, tribunal or officer must have passed an order acting
without jurisdiction or in excess of the judicial authority vested by law in
such court, tribunal or law. The order could also be against the principle
of natural justice or it could contain an error of judgment in appreciating
the facts of the case.

Subjects of Public Interest Litigation - Public Interest Litigation is meant for

enforcement of fundamental and other legal rights of the people who are poor,
weak, ignorant of legal redressal system or otherwise in a disadvantageous
position, due to their social or economic background. Such litigation can be
initiated only for redressal of a public injury, enforcement of a public duty or
vindicating interest of public nature. It is necessary that the petition is not filed
for personal gain or private motive or for other extraneous consideration and is
filed bona fide in public interest. The following are the subjects which may be
litigated under the head of Public Interest Litigation:
(I) The matters of public interest: Generally they include
(i) bonded labour matters
(ii) matters of neglected children
(iii) exploitation of casual labourers and non-payment of wages to
them (except in individual cases)
(iv) matters of harassment or torture of persons belonging to
Scheduled Castes, Scheduled Tribes and Economically Backward
Classes, either by co-villagers or by police
(v) matters relating to environmental pollution, disturbance of
ecological balance, drugs, food adulteration, maintenance of
heritage and culture, antiques, forests and wild life,
(vi) petitions from riot victims and
(vii) other matters of public importance.
(II) The matters of private nature: They include
(i) threat to or harassment of the petitioner by private persons,
(ii) seeking enquiry by an agency other than local police,
(iii) seeking police protection,
(iv) land lord tenant dispute
(v) service matters,
(vi) admission to medical or engineering colleges,
(vii) early hearing of matters pending in High Court and
subordinate courts and are not considered matters of public
interest.
(III) Letter Petitions: Petitions received by post even though not in
public interest can be treated as writ petitions if so directed by the
 Hon’ble Judge nominated for this purpose. Individual petitions
complaining harassment or torture or death in jail or by police,
complaints of atrocities on women such as harassment for dowry, bride
burning, rape, murder and kidnapping, complaints relating to family
pensions and complaints of refusal by police to register the case can be
registered as writ petitions, if so approved by the concerned Hon’ble
Judge. If deemed expedient, a report from the concerned authority is
called before placing the matter before the Hon’ble Judge for directions.
If so directed by the Hon’ble Judge, the letter is registered as a writ
petition and is thereafter listed before the Court for hearing.

Procedure for Filing Public Interest Litigation -

(a) Filing - Public Interest Litigation petition is filed in the same manner,
as a writ petition is filed. If a PIL is filed in a High Court, then two (2) copies of
the petition have to be filed (for Supreme Court, then (4)+(1)(i.e.5) sets) Also,
an advance copy of the petition has to be served on each respondent, i.e.
opposite party, and this proof of service has to be affixed on the petition.
(b) Procedure - A Court fee of Rs. 50, per respondent (i.e. for each
number of party, court fees of Rs 50) have to be affixed on the petition.
Proceedings, in the PIL commence and carry on in the same manner, as other
cases. However, in between the proceedings if the Judge feels that he may
appoint the commissioner, to inspect allegations like pollution being caused,
trees being cut, sewer problems, etc. After filing of replies, by opposite party, or
rejoinder by the petitioner, final hearing takes place, and the judge gives his
final decision.

Against whom Public Interest Litigation can be filed - A Public Interest

Litigation can be filed against a State/ Central Govt., Municipal Authorities, and
not any private party. The definition of State is the same as given under Article
12 of the Constitution and this includes the Governmental and Parliament of
India and the Government and the Legislature of each of the States and all local
or other authorities within the territory of India or under the control of the
Government of India. According to Art.12, the term “State” includes the
Government and Parliament of India and the Government and the Legislatures
of each of the States and all local or other authorities within the territory of
India or under the control of the Government of India. Thus, the authorities and
instrumentalities specified under Art.12 are –
• The Government and Parliament of India
• The Government and Legislature of each of the States
• All local authorities
• Other authorities within the territory of India or under the Government
of India.
In Electricity Board, Rajasthan v. Mohan Lal, the Supreme Court held
that “other authorities would include all authorities created by the Constitution
of India or Statute on whom powers are conferred by law”.
However, “Private party” can be included in the PIL as “Respondent”,
after making concerned state authority, a party. For example- if there is a
Private factory in Delhi, which is causing pollution, then people living nearly,
or any other person can file a PIL against the Government of Delhi, Pollution
Control Board, and against the private factory. However, a PIL cannot be filed
against the Private party alone.

Aspects of Public Interest Litigation –

(a) Remedial in Nature: Remedial nature of PIL departs from traditional
locus standi rules. It indirectly incorporated the principles enshrined in the part
IV of the Constitution of India into part III of the Constitution. By riding the
aspirations of part IV into part III of the Constitution had changeth the
procedural nature of the Indian law into dynamic welfare one. Bandhu Mukti
Morcha v. Union of India, Unnikrishnan v. State of A.P., etc were the obvious
examples of this change in nature of judiciary.
(b) Representative Standing: Representative standing can be seen as a
creative expansion of the well-accepted standing exception which allows a third
party to file a habeas corpus petition on the ground that the injured party cannot
approach the court himself. And in this regard the Indian concept of PIL is
much broader in relation to the American. PIL is a modified form of class
action.
(c) Citizen standing: The doctrine of citizen standing thus marks a
significant expansion of the court’s rule, from protector of individual rights to
guardian of the rule of law wherever threatened by official lawlessness.
(d) Non-adversarial Litigation: In the words of Supreme Court in
People’s Union for Democratic Rights v. Union of India, “We wish to point out
with all the emphasis at our command that public interest litigation…is a totally
different kind of litigation from the ordinary traditional litigation which is
essentially of an adversary character where there is a dispute between two
litigating parties, one making claim or seeking relief against the other and that
other opposing such claim or resisting such relief”. Non-adversarial litigation
has two aspects:
1. Collaborative litigation: In collaborative litigation the effort is from
all the sides. The claimant, the court and the Government or the public
official, all are in collaboration here to see that basic human rights
become meaningful for the large masses of the people. PIL helps
executive to discharge its constitutional obligations. Court assumes three
different functions other than that from traditional determination and
issuance of a decree. (i). Ombudsman- The court receives citizen
complaints and brings the most important ones to the attention of
responsible government officials. (ii) Forum – The court provides a
forum or place to discuss the public issues at length and providing
 emergency relief through interim orders. (iii) Mediator – The court comes
up with possible compromises.
2. Investigative Litigation: It is investigative litigation because it works
on the reports of the Registrar, District Magistrate, comments of experts,
newspapers etc.
(e) Crucial Aspects: The flexibility introduced in the adherence to
procedural laws. In Rural Litigation and Entitlement Kendra v. State of U.P.,
Supreme Court rejected the defense of Res Judicta. Court refused to withdraw
the PIL and ordered compensation too. To curtail custodial violence, Supreme
Court in Sheela Barse v. State of Maharashtra, issued certain guidelines.
Supreme Court has broadened the meaning of Right to live with human dignity
available under the Article 21 of the Constitution of India to a greatest extent
possible.
(f) Relaxation of strict rule of Locus Standi: The strict rule of locus
standi has been relaxed by way of (a) Representative standing, and (b) Citizen
standing. In [Link] v. State of Bihar, Supreme Court held that a
petitioner, a professor of political science who had done substantial research and
deeply interested in ensuring proper implementation of the constitutional
provisions, challenged the practice followed by the state of Bihar in
repromulgating a number of ordinances without getting the approval of the
legislature. The court held that the petitioner as a member of public has
‘sufficient interest’ to maintain a petition under Article 32.
The rule of locus standi have been relaxed and a person acting bonafide
and having sufficient interest in the proceeding of Public Interest Litigation will
alone have a locus standi and can approach the court to wipe out violation of
fundamental rights and genuine infraction of statutory provisions, but not for
personal gain or private profit or political motive or any oblique
consideration…court has to strike balance between two conflicting interests:
 (i) nobody should be allowed to indulge in wild and reckless allegations
besmirching the character of others; and
(ii) avoidance of public mischief and to avoid mischievous petitions
seeking to assail, for oblique motives, justifiable executive and the
legislature. It is depressing to note that on account of trumpery
proceedings initiated before the courts, innumerable days are wasted,
which time otherwise could have been spent for the disposal of cases of
genuine litigants. Though the Supreme Court spares no efforts in
fostering and developing the laudable concept of PIL and extending its
ling arm of sympathy to the poor, ignorant, the oppressed and the needy
whose fundamental rights are infringed and violated and whose
grievances go unnoticed, unrepresented and unheard.
(g) Epistolary Jurisdiction: The judicial activism gets its highest bonus
when its orders wipe some tears from some eyes. This jurisdiction is somehow
different from collective action. Number of PIL cells was open all over India for
providing the footing or at least platform to the needy class of the society.

Factors that have contributed to growth of PIL - Among, the numerous

factors that have contributed to the growth of PIL in this country, the following
deserve special mention:
• The character of the Indian Constitution. Unlike Britain, India has a
written constitution which through Part III (Fundamental Rights) and Part IV
(Directive Principles of State Policy) provides a framework for regulating
relations between the state and its citizens and between citizens inter-se.
• India has some of the most progressive social legislation to be found
anywhere in the world whether it be relating to bonded labor, minimum wages,
land ceiling, environmental protection, etc. This has made it easier for the courts
to haul up the executive when it is not performing its duties in ensuring the
rights of the poor as per the law of the land.
 • The liberal interpretation of locus standi where any person can apply to
the court on behalf of those who are economically or physically unable to come
before it has helped. Judges themselves have in some cases initiated suo moto
action based on newspaper articles or letters received.
• Although social and economic rights given in the Indian Constitution
under Part IV are not legally enforceable, courts have creatively read these into
fundamental rights thereby making them judicially enforceable. For instance the
"right to life" in Article 21 has been expanded to include right to free legal aid,
right to live with dignity, right to education, right to work, freedom from
torture, bar fetters and hand cuffing in prisons, etc.
• Sensitive judges have constantly innovated on the side of the poor. for
instance, in the Bandhua Mukti Morcha case in 1983, the Supreme Court put the
burden of proof on the respondent stating it would treat every case of forced
labor as a case of bonded labor unless proven otherwise by the employer.
Similarly in the Asiad Workers judgment case, Justice P.N. Bhagwati held that
anyone getting less than the minimum wage can approach the Supreme Court
directly without going through the labor commissioner and lower courts
• In PIL cases where the petitioner is not in a position to provide all the
necessary evidence, either because it is voluminous or because the parties are
weak socially or economically, courts have appointed commissions to collect
information on facts and present it before the bench.

Mechanism for protection of Human Rights through PIL – Features of PIL

through the mechanism of PIL, the courts seek to protect human rights in the
following ways:
1) By creating a new regime of human rights by expanding the meaning
of fundamental right to equality, life and personal liberty. In this process, the
right to speedy trial, free legal aid, dignity, means and livelihood, education,
housing, medical care, clean environment, right against torture, sexual
harassment, solitary confinement, bondage and servitude, exploitation and so on
emerge as human rights. These new re-conceptualised rights provide legal
resources to activate the courts for their enforcement through PIL.
2) By democratization of access to justice. This is done by relaxing the
traditional rule of locus standi. Any public spirited citizen or social action group
can approach the court on behalf of the oppressed classes. Courts attention can
be drawn even by writing a letter or sending a telegram. This has been called
epistolary jurisdiction.
3) By fashioning new kinds of relief’s under the court’s writ jurisdiction.
For example, the court can award interim compensation to the victims of
governmental lawlessness. This stands in sharp contrast to the Anglo-Saxon
model of adjudication where interim relief is limited to preserving the status quo
pending final decision. The grant of compensation in PIL matters does not
preclude the aggrieved person from bringing a civil suit for damages. In PIL
cases the court can fashion any relief to the victims.
4) By judicial monitoring of State institutions such as jails, women’s
protective homes, juvenile homes, mental asylums, and the like. Through
judicial invigilation, the court seeks gradual improvement in their management
and administration. This has been characterized as creeping jurisdiction in
which the court takes over the administration of these institutions for protecting
human rights.
5) By devising new techniques of fact-finding. In most of the cases the
court has appointed its own socio-legal commissions of inquiry or has deputed
its own official for investigation. Sometimes it has taken the help of National
Human Rights Commission or Central Bureau of Investigation (CBI) or experts
to inquire into human rights violations. This may be called investigative
litigation.
Conclusion - Public Interest Litigation is working as an important instrument of
social change. It is working for the welfare of every section of society. It’s the
sword of every one used only for taking the justice. The innovation of this
legitimate instrument proved beneficial for the developing country like India.
PIL has been used as a strategy to combat the atrocities prevailing in society.
It’s an institutional initiative towards the welfare of the needy class of the
society. In Bandhua Mukti Morcha v. Union of India, Supreme Court ordered
for the release of bonded labourers. In Murli S. Dogra v. Union of India, the
Supreme Court banned smoking in public places. In a landmark judgment of
Delhi Domestic Working Women’s Forum v. Union of India, Supreme Court
issued guidelines for rehabilitation and compensation for the rape on working
women. In Vishaka v. State of Rajasthan, Supreme court has laid down
exhaustive guidelines for preventing sexual harassment of working women in
place of their work
It would be appropriate to conclude by quoting Cunningham, “Indian PIL
might rather be a Phoenix: a whole new creative arising out of the ashes of the
old order.”
PIL represents the first attempt by a developing common law country to
break away from legal imperialism perpetuated for centuries. It contests the
assumption that the most western the law, the better it must work for economic
and social development such law produced in developing states, including India,
was the development of under developed men.
The shift from legal centralism to legal pluralism was prompted by the
disillusionment with formal legal system. In India, however instead of seeking
to evolve justice- dispensing mechanism ousted the formal legal system itself
through PIL. The change as we have seen, are both substantial and structural. It
has radically altered the traditional judicial role so as to enable the court to bring
justice within the reach of the common man.
 Further, it is humbly submitted that PIL is still is in experimental stage.
Many deficiencies in handling the kind of litigation are likely to come on the
front. But these deficiencies can be removed by innovating better techniques. In
essence, the PIL develops a new jurisprudence of the accountability of the state
for constitutional and legal violations adversely affecting the interests of the
weaker elements in the community. We may end with the hope once expressed
by Justice Krishna Iyer, “The judicial activism gets its highest bonus when its
orders wipe some tears from some eyes”.
Unit –IV
The Protection of Human Rights Act,1993
Human rights is the most fundamental of all rights, are the rights people
have simply because they are people. These rights belong to each person: man,
woman and child. They are the rights to life. Liberty child. They are the rights
to life, liberty including all the political, civil, Social, economic and cultural
rights necessary for people to live dignified lives without human rights. people
cannot live as human beings. Human rights are those requirements that allow us
to develop to the fullest extent and satisfy our basis human needs. They are
ideals based on humanity is increasing and persistent demand for dignity,
respect, justice, protection and freedom for decent human existence. The
essential elements of all human rights are that they belong to everyone and they
are unalienable birth rights of all members of the human family.
Human rights effect the daily lives of each individual. They are to be
enjoyed by al without discrimination with regard to race, gender, language,
religion, political, social or national origin, property, birth or other status. In
other words - it does not matter what color a person is or what country a person
belongs to or what religion he or she believes in.
All of them share the same human right as human rights belongs to all of
us. It is in comber on all of us to protect the human rights. Human rights are
about caring for other people in the same way that we would wish them to care
for us. Each individual needs to be treated as special and unique. Human rights
are for everybody. Even for those people you disagree with or whom you
actually dislike.
The underlying principles of the global human rights struggle include the
following recognition of the equality and dignity of all individuals, recognition
of cultural diversity as a fundamental human value, recognition and guarantee
of the fundamental equality of all persons in human rights without
discrimination with regard to race, creed color, nationality, ancestry, language,
gender, place of origin or other status.

Meaning of human Rights - Human rights are those basic or fundamental

rights which are quite essential for sustaining the life including the substance
required for making the meaningful. The protection of Human Rights Act.
1993 tells the human rights or Section 2 (d).
“Human rights” means the rights relating to life, liberty, equality
and dignity of the individual guaranteed by the constitution or
embodies in the International covenants are enforceable by courts in
India.
This section doesn’t enlist the human rights specifically, but gives an
inclusive definition. The reason of not choosing exhaustive pattern may be
simplicity. convenience, compatibility, further prospects etc.
The section makes it clear that the rights relating to life, liberty, equality,
and dignity of the individual, as guaranteed by the constitution are included in
the category of “Human rights” we know. The constitution of India through
Article 32 guarantees the fundamental rights as enshrined under part III of the
Constitution. The cumulative effect of these two provisions is that all the
fundamental rights relating to life, liberty, equality and dignity are included in
human rights.
For instance Article 21 (right to life and personal liberty). Article 19
(freedom of speech and expression freedom to assemble peacefully and without
arms, freedom to form association or unions, freedom to move freely
throughout the territory of India and freedom to reside and settle in any part of
the territory of India). Article 17 (Abolition of untouchability) etc. are
fundamental as well as human rights.
However, all fundamental rights are not human rights.
 Not only the said rights, but the said section 2(d) also included those
rights which are conferred by the International covenants and are enforceable by
the Indian courts. All human rights are not necessarily fundamental or
constitutional rights, because even the legal rights as conferred by the
international covenants are also part of the human rights.
In P.T Munichikkanna Reddy V. Revamma Air – 2007 SC 1753, 1761.,
wherein it has been held that the right of property is now considered to be not
only a constitutional right but only a human right. Further, human rights have
been historically considered in the realm of individual rights, such as, right to
health, right to livelihood, right to shelter and employment, etc. But now human
rights are gaining a multifaceted dimension. Right of property is also considered
very much a part of the new dimension. Even claim of adverse possession has to
be read in that context. However, in the expanded jurisprudence of the European
court of Human rights, the court has taken an unkind view to the concept of
adverse possession.
Supreme court observed that adverse possession is a right which comes
into play not just because someone losses his right to reclaim the property out of
continuous and willful neglect but also on accounts of possessor’s positive
intent to dispossess.
The human rights that everyone has and everyone equally by virtue of
their very humanity. They are grounded in our appeal to human nature. As such,
their main implications and characteristic features may be enumerated as under:
1. It means in the first place, that everybody has them. The subject of
human rights is not the members of this or that society but of the
community of humankind. There is no question about full membership
in this community for example, for children or the insane and there is
some doubt as to whatever gouts can count as members in the sense of
themselves being subjects of Human Rights. But the basic justification,
for holding human rights is belonging to the human race.
2. The objects of human rights, like those of plain rights, are of great
importance. But just as rights may be said to override other
considerations, human rights may be said to override mere rights. The
human rights to life may be judged to out rank in a situation where there
is a contest between them, a right under a particular civil law, say, to the
use of land among trumps, it may be side, human rights are the coloured
cards. And this is what is meant by reference to human rights as absolute
rights. It does not mean that human rights are indivisible. Even the ace
of trumps may be topped by a joker (the right not to be tortured for
example) against the need to know where the nuclear bomb has been
planted in the underground of by decision to play another game (the
transition for example from place to war). It means only that they are in
general of the greatest importance.
3. The exercise of human rights might have a more restricted range
that that of civil rights. We referred earlier to claiming, asserting
demanding enjoying protecting and enforcing a right. In the case of
human rights the assertive and of this spectrum is the most prominent.
For very often human rights are appealed to when the claim they
encompass are not locally acknowledge in positive law.
4. There is the question of the location of the duties that correlate with
human rights. In this regard it has been argued that there are universal
human rights in a strong and a weak sense.
Rights in the strong sense are held against everybody else. Rights
in a weak sense are held against a particular Section of humanity.
Everyone has a right to life against everyone else. There is general duty to
respect it. But if everybody holds, say economic and social rights, it is
against a particular government: duties are laid only on the responsible
authorities. Thus, all basic human rights are said to have three correlative
 duties-duties to avoid depriving duties to protect from deprivation and
duties to aid the deprived.
According to circumstances the duty bearers may be different
(individuals, responsible nations, exploitative companies) and the
particular duty varied by aid in a natural disaster, avoidance of
deprivation in a monopolistic Market. But basic rights trigger all these
kinds of duty.
5. What is characteristic of the justification of human rights? It is not
an appeal to this statute or that contract, for if the rights in question were
written into the statutes or contracts, those provisions under municipal
law would by them selves be a sufficient justification. The justification of
human right moves up one level to regional international law (e.g. the
European convention on Human Rights) or two levels to global
international law (e.g. International covenant on civil and political Rights
and International covenant on Economic, Social and Cultural Rights), so
that the appeal is that standards internationally recognized should be met
by domestic practice. And there is a level above these which is the
ultimate justification of human rights. It is the level at which what is
appealed to is not any kind of positive law, but is what ought by some
rational calculation to prevail.

Powers of the Act - Section 37 of the protection of human Rights Act. 1993
empowers the Government to constitute one or More Special investigative
teams consisting of such Police Officers as it thinks necessary for the purpose of
investigation and prosecution of offences arising out of violations of human
rights. The commission’s power to utilize the services of any officer or
investigating agency of the Government for conducting any investigation
pertaining to the inquiry is however made dependent on the concurrence of the
Government.
 The Human Rights constituted under section 30 of the Protection of
Human Rights Act. 1993 is competent to entertain any complaint or take
cognizance of any case complaining violation of rights to privacy due to
obtrusive surveillance of police and give appropriate relief both under criminal
as well as Civil law. Human Rights court is also competent to award
compensation under section 357, Cr. P.C.

Objectives - The main objective of protection of Human Rights Act 1993 is

protecting human beings from violations. Without Human rights there would be
either no if or a meaning less life. The rights relating to life, liberty equality and
dignity of the individual as guaranteed by the constitution are also included in
the category of “Human Rights”. Human Rights are the rights and freedoms of
all human beings.
Human rights Act 1993 have been active in protecting human rights and
in preventing their infringement. But it is a tragedy that almost every day the
rights of millions of people, particularly of the weak and marginalized are being
violated. The violation have been taking a number of forms such as terrorism,
communal riots, racial discrimination, atrocities committed against poorer
sections of people, custodial violence, suppression of the rights of Minorities,
environmental pollution etc. A geographically and demographically vast,
Socially plural and culturally diverse nation like India has been experiencing the
violation of human rights almost every day across its region, classes and gender.
India has a given human rights and fundamental rights.
In other words, human rights being external part of nature of human
beings are essential for individuals to develop their personality, human qualities
their intelligence talent and conscience and the enable them to satisfy their
spiritual and other higher needs there are inalienable rights which belong
equally to all members of human family and as such. Should be protected by the
rule of law if man is not to be compelled to have recourse as a last resort to
rebellion against tyranny and oppression.
Human Rights as such are incorporated in various International Human
rights the international covenant on Economics, Social and cultural rights
regional human rights treaties, such as the European convention on Human
Rights and Fundamental Freedoms the American convention on Human, the
African charter on Human and People’s Rights subsidiary instruments. Such as
the Helsinki Final Act and National constitutions, legislation and even judicial
pronoun cements. The range of human rights as contained in these instruments
treaties and National legislation is very wide and covers variety of rights
including traditional civil and Political rights on one hand newly developed
economic, Social and Cultural rights on the other.
The purpose of securing human rights as such is to provide protection to
these rights against the abuse of power committed by the organs of state to
establish institution for the promotion of living condition beings and for the
development of their personality and at the same time to provide effective
remedial measures for obtaining redress in the event of those rights are violated.
Human rights are important to the stability and development of all the
countries around the world.
Human Rights and National Security are at times perceived to be odds with
one another. When Government officials speak about national security their
arguments rest primarily upon the primarily upon the premise that protecting
human rights and civil liberties is at times subservient to protection national
security.
The international human rights frame work. Conventions or teaties to
which India was signatory or ratifying party also justified the limitations on
governmental power However the contemporary reality of Indian executive
governance demonstrates the weakness and inadequacies of the treaties and
convention as a result, Police, Military and paramilitary forces continue to
violate human rights. This problem underscore the need to developed a culture
amongst law enforcement officials that respects human rights as a sin qua non
for the preservation of law passing certain laws under the guise of protecting
national security in India offers an occasion to examine the human rights
understanding in a constitutional sense. These laws granted significant powers
to the Indian executive, thus providing greater opportunity for abuse & violation
of fundamental rights.

Filing Complaint - The complaint can be moved by the victim himself or

herself. It can be moved even by any other person on behalf of the victim. The
complaint should specifically disclose (1) violation of human rights or abetment
thereof or (1) negligence in the prevention of such violations by a public
servant. The action can be taken even against the public servant who has the
duty to prevent such a violation. The format of complaints is given at the end of
article. Though this format is not Mandatory, but it still becomes convenient for
the commission to proceed in presence of the information given in the format.

Limitation for filing Complaint - The period of limitation to file complaint

starts on the date on which the act violating the commission of human right is
committed. The National commission or the state commission can entertain the
complaint within one year from the day when the said Act was actually
committed (Section 36).
The complaint can be moved by the victim himself or herself. It can be
moved even by any other person on behalf of the victim. The format of
complaint is given at the end of Article through this format is not Mandatory but
it still becomes convenient for the commission to proceed in presence of the
information given in the format.
Then National Human Rights Commission (NHRC) or the state
commission can entertain the complaint within one year from the day when the
said Act was actually committed, NHRC has the powers to do inquiry suo motu
or upon the complaint against the violation of Human Rights. During the
process of inquiry, the commission has the power of a civil court trying a suit
under the code of civil procedure 1908.

Analysis of Protection Human Rights - The objective assessment of the

protection of human rights endeavors must come from the people of India
whom it seeks to serve in all of their rich diversity and varying circumstances.
Not unexpectedly, given the seriousness of the issues that the protection of
human Rights Act has faced and the variety of expectations concerning it,
diverse views have been expressed on the worth of the Act efforts. An
institution that was unknown ten years ago is not very much part of the life of
the nation and increasingly of consequence to the quality of its governance. The
performance of a national institution has to be assessed in term of not only its
successes in achieving its stated objectives but also the constraints within which
it has worked.
A pertinent question here is whether the protection Human rights Act
1993 as the requisite powers to fulfill its functions as a national institution with
a statutory basis. Compared to the institution of similar nature around the world
it has a relatively heavy case load that is it handles a larger number of
complaints of violation of human rights, of negligence in preventing such
violation. And dealing with complaints is only one of the 10 Major functions
assigned to the under section 12 of the Act. Its ambit ranges from reviewing
safeguards for the protection of human rights and performing such other
functions as it may consider necessary for the promotion of human rights.
However, year after year the protection of human rights Act has been
complaining of a lack of response from the union government to its pleas to
amend the law so as to realize its objective of “better Protection of human
rights and for Matters connected there with or incidental there to”.
 Each day, hundreds of our compatriots such the intervention of the Act
for the redressal of their grievances, stemming from what they perceive to be
the violation of their human rights. They belong to all parts of India and to all of
its communities. Within the past ten years, there can be no doubt that the
awareness of the rights guaranteed by the constitution and included in the
international instruments to which India is a state party has increased
dramatically. Such critics are entitled to their views, but they appear to be Mis-
informed about the provisions of the protection of Human Rights Act. 1993
which expressly preclude the commission from inquiring into any matter
“Which is pending before a state commission under any law for the time being
enforce” or to inquire into any matter “after the expiry of one year from the
date on which the act constituting the violation of human rights is alleged to
have been committed”. They also appear to be unaware that the commission
sought an amendment to these provisions of the Act, along with others, over
three ago, but that its recommendations in this respect are yet to be acted upon.
The Human Rights are a sort of special Moral entitlement. They belong to
an individual as a consequence of being at different place differently. In India,
human right now days is a burning issue. The act passed to protect the human
rights that is protection of Human Rights Act, 1993 was passed very recently
with a view to prevent human rights violations. The setting up of the Protection
of Human Rights Act, 1993, is an important development in the question for
human rights in India. The appointment of such commission can make a plat
from for institutionalizing the concept of human rights in addition to the
provision of fundamental rights as enshrined in the constitution of India.
It is very necessary to protect the interests of people like SC, ST, Etc
because these people from the vulnerable section of the Society. Also, the
procedure followed in NHRC and SHRCs needs to simplify a bit so that
everyone including the vulnerable sections can access it. The concept of
separate human rights courts which is coming up nowadays can perhaps help in
more efficient protection of human rights of the vulnerable sections of the
society.

Origin, Role and Functions of National Human Rights Commission

(NHRC)
1. Set up in October, 1993 under the Protection of Human Rights Act, 1993
2. Autonomous - operational & financial autonomy.
3. Independence through appointment and dismissal of its Members - own
mechanism for disposal of com-plaints - pluralistic composition
4. Chairperson - retired Chief Justice of the Supreme Court - four Members -
two from the Judiciary (one retired Judge of the Supreme Court and the other
retired Chief Justice of a High Court) - other two Members appointed from
persons having knowledge of or practical experience in matters relating to
human rights.
5. Chairpersons of the National Commission for Women, the National
Commission for Minorities and the National Commission for Scheduled Castes
and Scheduled Tribes - deemed to be the Members of the Commission.
6. Embodies a true National Human Rights Institution as outlined in the Paris
Principles
7. Appointment of Chairperson/Members - based on recommendations of a
Committee consisting of the Prime Minister, Speaker of the House of the
People, Minister In-charge of the Home Affairs in the Gov-ernment of India, the
Leader of Opposition in the House of the People, the Leader of Opposition in
the Council of States and the Deputy Chairman of the Council of States.
8. Enjoys financial autonomy - gets consolidated grants-in-aid from the Central
Government - spent by the Commission as it thinks fit for performing the
functions under the PHR Act.
9. Independent to recruit its own staff for proper functioning.
10. The Chief Executive Officer - designated as the Secretary General - officer
of the rank of Secretary to the Government of India.
11. Investigative Department - headed by an officer of the rank of Director
General of Police.
12. Every proceeding - deemed to be a judicial proceeding - u/s 193 and 228 for
the purpose of Section 196 of the Indian Penal Code.

Powers of NHRC
» As vested in a Civil Court trying suit under Civil Procedure Code, 1908.
» To regulate its own procedure for disposal of complaints
» To utilise the services of any officer or investigation agency of the
Central/State Government - with con-currence - for conducting any
investigation pertaining to any inquiry.
» Make recommendations to the concerned Government authority suggesting
action to be taken against guilty public servant
» Recommend payment of relief/compensation to the victims
» Approach the Supreme Court or High Courts for appropriate
directions/orders/writs.
» Communicate the inquiry report - petitioner/victim/representative -
Government authority for comments/ action taken/proposed.

Functions of NHRC
» Inquiry - on petition or suo moto - against complaint of violation of human
rights/abetment of violation/ negligence in prevention of violation - by a public
servant.
» Intervention - any proceeding before a court with its approval - involving
allegation of violation of human rights.
» Visit - any jail/other institution - persons detained/lodged for
treatment/reformation - study living condi-tions of inmates - make
recommendations.
» Review - safeguards under the Constitution/any law - for protection of human
rights - recommend mea-sures - effective implementation.
» Review - factors - also acts of terrorism - inhibit the enjoyment of human
rights - recommend appropriate remedial measures.
» Study treaties/international instruments on human rights - make
recommendations for effective imple-mentation.
» Undertake and promote research in the field of human rights.
» Spread human rights literacy - promote awareness of safeguards available for
protection - publications, media, seminars, and other means.
» Encourage efforts of non-governmental organisations/institutions working in
the field of human rights.
» Other functions considered necessary for promotion of human rights.
» Responsibility of Government authority.
» The Central Government/State Government/Authority has to indicate its
comments including action taken on the report/recommendations of the
Commission within a period of one month in respect of complaints against
public servants other than members of the armed forces.
» In respect of complaints against members of the armed forces, the Central
Government has to indicate action taken on the recommendations within three
months to the Commission.
» Issue of the one-year limitation period.
» Purpose - not to have another judicial body - an institution which will give
sharper focus on the allegation of violation of human rights and provide quicker
redressal - other redressal mechanism - District Courts to the Supreme Court -
always available to the people - Commission's role not to replace these
mechanisms.
Important Steps Taken by NHRC
» Asked all State Governments to report the cases of custodial deaths or rapes
within 24 hours of occur-rence failing which it would be assumed that there was
an attempt to suppress the incident.
» Undertaken visits to detention centres.
» Suggested legislative and other measures to improve conditions in prisons and
lock-ups.
» Frequently taken up issues of child labour and child prostitution.
» Instituted efforts with police, para-military forces and the Army to impart
human rights education to the staff and officers - include human rights in the
curriculum during initial/in-service training.
» Entered into a Memorandum of Understanding with National Law School of
India University, Bangalore creation of a Chair on Human Rights.
» Assumed the Chair of the International Coordinating Committee of National
Institutions in 1996 - contin-ues to hold this position.

Evaluation - The National Human Rights Commission has pursued its mandate
and priorities with determination and considerable success. During the period
April 1998 - March 1999 the NHRC considered 53711 complaints. Out of these,
32172 complaints were dismissed. 10718 complaints were transmitted to the
concerned authority of the Central/State Governments with appropriate
direction. The Commission took cognizance of 10821 cases for the inquiry.

National Commission for Minorities (NCM)

The Union Government set up the National Commission for Minorities
(NCM) under the National Commission for Minorities Act, 1992. Five religious
communities, viz; Muslims, Christians, Sikhs, Buddhists and Zoroastrians
(Parsis) have been notified as minority communities by the Union Government.
UN Declaration - The NCM adheres to the UN Declaration of 18 December
1992 which states that "“States shall protect the existence of the National or
Ethnic, Cultural, Religious and Linguistic identity of minorities within their
respective territories and encourage conditions for the promotion of that
identity.”
1. Constitution of the National Commission for Minorities.- The
Central Government shall constitute a body to be known as the National
Commission for Minorities to exercise the powers conferred on, and to perform
the functions assigned to, it under this Act.
The Commission shall consist of a Chairperson, [a Vice Chairperson and
five] Members to be nominated by the Central Government from amongst
persons of eminence, ability and integrity; Provided that five Members
including the Chairperson shall be from amongst the Minority communities.
2. Term of office & conditions of service of Chairperson &
Members.- The Chairperson and every Member shall hold office for a term of
three years from the date he assumes office.
The Chairperson or a Member may, by writing under his hand addressed
to the Central Government, resign from the office of Chairperson or, as the case
may be, of the Member at any time.
The Central Government shall remove a person from the office of
Chairperson or a Member referred to in sub-section (2) if that person - becomes
an undercharged insolvent and is convicted and sentenced to imprisonment for
an offence which in the opinion of the Central Government involves moral
turpitude, becomes of unsound mind and stands so declared by a competent
court. refuses to act or becomes incapable of acting. is, without obtaining leave
of absence from the Commission, absent from three consecutive meetings of the
Commission or has, in the opinion of the Central Government, so abused the
position of Chairperson, or Member, as to render that person’s continuance in
office detrimental to the interests of Minorities or the public interest: Provided
that no person shall be removed under this clause until that person has been
given a reasonable opportunity of being heard in the matter.
A vacancy caused under sub-section (2) or otherwise shall be filled by
fresh nomination.
The salaries and allowances payable to, and the other terms and
conditions of service of, the Chairperson and Members shall be such as may be
prescribed.
3. Officers and other employees of the Commission.- The Central
Government shall provide the Commission with a Secretary and such other
officers and employees as may be necessary for the efficient performance of the
functions of the Commission under this Act.
The salaries and allowances payable to, and the other terms and
conditions of service of, the officers and other employees appointed for the
purpose of the Commission shall be such as may be prescribed.
4. Salaries and allowances to be paid out of grants.- The salaries and
allowances payable to the Chairperson and Members and the administrative
expenses, including salaries, allowances and pensions payable to the officers
and other employees referred to in section 5, shall be paid out of the grants
referred to in sub-section (1) of section 10.
5. Vacancies, etc. not to invalidate proceedings of the Commission.-
No act or proceeding of the Commission shall be questioned or shall be invalid
merely on the ground of the existence of any vacancy or defect in the
constitution of the Commission
6. Procedure to be regulated by the Commission.- The Commission
shall meet as and when necessary at such time and places as the Chairperson
may think fit.
The Commission shall regulate its own procedure.
 All orders and decisions of the Commission shall be authenticated by the
Secretary or any other officer of the Commission duly authorized by the
Secretary on his behalf.
7. Functions and powers
The Commission has the following functions:
(i) Evaluate the progress of the development of Minorities under the
Union and States.
(ii) Monitor the working of the safeguards provided in the Constitution
and in laws enacted by Parliament and the State Legislatures.
(iii) Make recommendations for the effective implementation of
safeguards for the protection of the interests of Minorities by the
Central Governments or the State Governments.
(iv) Look into specific complaints regarding deprivation of rights and
safeguards of the Minorities and take up such matters with the
appropriate authorities.
The Commission has the following powers:
(i) Summoning and enforcing the attendance of any person from any
part of India and examining him on oath.
(ii) Requiring the discovery and production of any document.
(iii) Receiving evidence on affidavit.
(iv) Requisitioning any public record or copy thereof from any court or
office.
(v) Issuing commissions for the examination of witnesses and
documents.

Current Commission: The current commission constituted in 2010 (sixth to

date) consists of:
Wajahat Habibullah - Chairman
Dr H.T. Sangliana - Vice Chairperson
 Harvendra singh Hanspal - Member
Spalzes Angmo - Member
Syeda Bilgrami Imam - Member
Vinod Sharma - Member
The commission also employs other officers as well.

National Commission on Scheduled Caste

National Commission for Scheduled Castes is an Indian statutory
body established with a view to provide safeguards against the exploitation
of Scheduled Castes and to promote and protect their social, educational,
economic and cultural interests, special provisions were made in the
Constitution.

Commission for SCs and STs

The first Commission for SC and ST was set up in August, 1978 with
Shri Bhola Paswan Shastri as Chairman and other four Members. In 1987, the
Commission for SCs and STs was renamed as the National Commission for
Scheduled Castes and Scheduled Tribes and it was set up as a National Level
Advisory Body to advise the Government on broad policy issues and levels of
development of Scheduled Castes and Scheduled Tribes.

The second Commission was constituted in October, 1995 with Shri H.

Hanumanthappa as Chairman.

The third Commission was constituted in December, 1998 with Shri

Dileep Singh Bhuria as the Chairman.

The fourth Commission was constituted in March, 2002 with Dr. Bizay
Sonkar Shastri as the Chairperson.
 Consequent upon the Constitution (Eighty-Ninth Amendment) Act, 2003
the erstwhile National Commission for Scheduled Castes & Scheduled Tribes
has been replaced by (1) National Commission for Scheduled Castes and
(2) National Commission for Scheduled Tribes.

National Commission for Scheduled Castes

The first National Commission for Scheduled Castes was constituted on

2004 with Suraj Bhan as the Chairperson.

The Second National Commission for Scheduled Castes in series was

constituted on May, 2007 with Buta Singh as the Chairperson.
The Third National Commission for Scheduled Castes has been
constituted on October 2010 with [Link] as the Chairperson.

Functions

 To investigate and monitor all matters relating to the safeguards provided for
the Scheduled Castes under this Constitution or under any other law for the
time being in force or under any order of the Government and to evaluate the
working of such safeguards;

 To inquire into specific complaints with respect to the deprivation of rights

and safeguards of the Scheduled Castes;

 To participate and advise on the planning process of socio-economic

development of the Scheduled Castes and to evaluate the progress of their
development under the Union and any State;

 To present to the President, annually and at such other times as the

Commission may deem fit, reports upon the working of those safeguards;

 To make in such reports recommendations as to the measures that should be

taken by the Union or any State for the effective implementation of those
safeguards and other measures for the protection, welfare and socio-
economic development of the Scheduled Castes; and

 To discharge such other functions in relation to the protection, welfare and

development and advancement of the Scheduled Castes as the President
 may, subject to the provisions of any law made by Parliament, by rule
specify.

 To make in such reports recommendations as to the measures that should be

taken by the Union or any State for the effective implementation of those
safeguards and other measures for the protection, welfare and socio-
economic development of the Scheduled Castes; and

 To discharge such other functions in relation to the protection, welfare and

development and advancement of the Scheduled Castes as the President
may, subject to the provisions of any law made by Parliament, by rule
specify.

Art. 338. 1[National Commission for Scheduled Castes.]

3[(1) There shall be a Commission for the Scheduled Castes to be known
as the National Commission for the Scheduled Castes.
(2) Subject to the provisions of any law made in this behalf by
Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson
and three other Members and the conditions of service and tenure of office of
the Chairperson, Vice-Chairperson and other Members so appointed shall be
such as the President may by rule determine.]
(3) The Chairperson, Vice-Chairperson and other Members of the
Commission shall be appointed by the President by warrant under his hand and
seal.
(4) The Commission shall have the power to regulate its own procedure.
(5) It shall be the duty of the Commission-
(a) To investigate and monitor all matters relating to the
safeguards provided for the Scheduled Castes 4[* * *] under this
Constitution or under any other law for the time being in force or
under any order of the Government and to evaluate the working of
such safeguards;
 (b) To inquire into specific complaints with respect to the
deprivation of rights and safeguards of the Scheduled Castes 4[* *
*];
(c) To participate and advise on the planning process of
socio-economic development of the Scheduled Castes 4[* * *] and
to evaluate the progress of their development under the Union and
any State;
(d) To present to the President, annually and at such other
times as the Commission may deem fit, reports upon the working
of those safeguards;
(e) To make in such reports recommendations as to the
measures that should be taken by the Union or any State for the
effective implementation of those safeguards and other measures
for the protection, welfare and socio-economic development of the
Scheduled Castes 4[* * *]; and
(f) To discharge such other functions in relation to the
protection, welfare, development, and advancement of the
Scheduled Castes 4[* * *] as the President may, subject to the
provisions of any law made by Parliament, by rule specify.
(6) The President shall cause all such reports to be laid before each House
of Parliament along with a memorandum explaining the action taken or
proposed to be taken on the recommendations relating to the Union and the
reasons for the non-acceptance, if any, of any of such recommendations.
(7) Where any such report, or any part thereof, relates to any matter with
which any State Government is concerned, a copy of such report shall be
forwarded to the Governor of the State who shall cause it to be laid before the
Legislature of the State along with a memorandum explaining the action taken
or proposed to be taken on the recommendations relating to the State and the
reasons for the non-acceptance, if any, of any of such recommendations.
 (8) The Commission shall, while investigating any matter referred to in
sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of
clause (5), have all the powers of a civil court trying a suit and in particular in
respect of the following matters, namely: -
(a) Summoning and enforcing the attendance of any person from
any part of India and examining him on oath;
(b) Requiring the discovery and production of any document;
(c) Receiving evidence on affidavits;
(d) Requisitioning any public record or copy thereof from any
court or office;
(e) Issuing commissions for the examination of witnesses and
documents;
(f) Any other matter which the President may, by rule, determine.
(9) The Union and every State Government shall consult the Commission
on all major policy matters affecting Scheduled Castes 4[* * *].]
(10) In this article, references to the Scheduled Castes 4[* * *] shall be
construed as including references to such other backward classes as the
President may, on receipt of the report of a Commission appointed under clause
(1) of article 340, by order specify and also to the Anglo-Indian community.

National Commission for Scheduled Tribe

THE CONSTITUTION (EIGHTY-NINTH AMENDMENT) ACT, 2003
[28th September, 2003.]
BE it enacted by Parliament in the Fifty-fourth Year of the Republic of
India as follows:
1. Short title and commencement.- (1) This Act may be called the
Constitution (Eighty-ninth Amendment) Act, 2003.
(2) It shall come into force on such date as the Central Government may,
by notification in the Official Gazette, appoint.
2. Amendment of article 338. - In article 338 of the Constitution,-
(a) for the marginal heading, the following marginal heading shall be
substituted, namely:-
"National Commission for Scheduled Castes.";
(b) for clauses (1) and (2), the following clauses shall be substituted,
namely:-
"(1) There shall be a Commission for the Scheduled Castes to be known
as the National Commission for the Scheduled Castes.
(2) Subject to the provisions of any law made in this behalf by
Parliament, the Commission shall consist of a Chairperson, Vice-
Chairperson and three other Members and the conditions of service and
tenure of office of the Chairperson, Vice-Chairperson and other Members
so appointed shall be such as the President may by rule determine."; (c) in
clauses (5), (9) and (10), the words "and Scheduled Tribes", wherever
they occur, shall be omitted.
3. Insertion of new article 338A. - After article 338 of the Constitution,
the following article shall be inserted, namely:-
"338A. National Commission for Scheduled Tribes.-(1) There shall be
a Commission for the Scheduled Tribes to be known as the National
Commission for the Scheduled Tribes.
(2) Subject to the provisions of any law made in this behalf by
Parliament, the Commission shall consist of a Chairperson, Vice-
Chairperson and three other Members and the conditions of service and
tenure of office of the Chairperson, Vice-Chairperson and other Members
so appointed shall be such as the President may by rule determine.
(3) The Chairperson, Vice-Chairperson and other Members of the
Commission shall be appointed by the President by warrant under his
hand and seal.
(4) The Commission shall have the power to regulate its own procedure.
(5) It shall be the duty of the Commission-
(a) to investigate and monitor all matters relating to the
safeguards provided for the Scheduled Tribes under this
Constitution or under any other law for the time being in force or
under any order of the Government and to evaluate the working of
such safeguards;
(b) to inquire into specific complaints with respect to the
deprivation of rights and safeguards of the Scheduled Tribes;
(c) to participate and advise on the planning process of
socio-economic development of the Scheduled Tribes and to
evaluate the progress of their development under the Union and
any State;
(d) to present to the President, annually and at such other
times as the Commission may deem fit, reports upon the working
of those safeguards;
(e) to make in such reports recommendations as to the
measures that should be taken by the Union or any State for the
effective implementation of those safeguards and other measures
for the protection, welfare and socio-economic development of the
Scheduled Tribes; and
(f) to discharge such other functions in relation to the
protection, welfare and development and advancement of the
Scheduled Tribes as the President may, subject to the provisions of
any law made by Parliament, by rule specify.
(6) The President shall cause all such reports to be laid before each House
of Parliament along with a memorandum explaining the action taken or
proposed to be taken on the recommendations relating to the Union and
the reasons for the non-acceptance, if any, of any of such
recommendations.
(7) Where any such report, or any part thereof, relates to any matter with
which any State Government is concerned, a copy of such report shall be
forwarded to the Governor of the State who shall cause it to be laid before
the Legislature of the State along with a memorandum explaining the
action taken or proposed to be taken on the recommendations relating to
the State and the reasons for the non-acceptance, if any, of any of such
recommendations.
(8) The Commission shall, while investigating any matter referred to in
sub-clause (a) or inquiring into any complaint referred to in sub-clause
(b) of clause (5), have all the powers of a civil court trying a suit and in
particular in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person
from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any
court or office;
(e) issuing commissions for the examination of witnesses
and documents;
(f) any other matter which the President may, by rule,
determine.
(9) The Union and every State Government shall consult the Commission
on all major policy matters affecting Scheduled Tribes."

STATEMENT OF OBJECTS AND REASONS

The National Commission for the Scheduled Castes and Scheduled Tribes
came into being consequent upon passing of the Constitution (Sixty-fifth
Amendment) Act, 1990. The said Commission was constituted on
12.3.1992 replacing the Commission for the Scheduled Castes and
Scheduled Tribes set up under the Resolution of 1987. Under article 338
of the Constitution, the National Commission for the Scheduled Castes
and Scheduled Tribes was established with the objective of monitoring all
the safeguards provided for the Scheduled Castes and the Scheduled
Tribes under the Constitution or other laws.
2. Geographically and culturally, the Scheduled Tribes are different from
the Scheduled Castes and their problems are also different from the
Scheduled Castes. In October 1999, a new Ministry of Tribal Affairs was
created to provide a sharp focus to the welfare and development of the
Scheduled Tribes. It was felt necessary that the Ministry of Tribal Affairs
should co-ordinate all activities relating to the Scheduled Tribes as it
would not be administratively feasible for the Ministry of Social Justice
and Empowerment to perform this role. Now, in order to safeguard the
interests of the Scheduled Tribes more effectively, it is proposed to also
set up a separate National Commission for the Scheduled Tribes by
bifurcating the existing National Commission for the Scheduled Castes
and Scheduled Tribes. The new Commission for the Scheduled Tribes
shall consist of a Chairperson and two other Members and the National
Commission for the Scheduled Castes shall consist of a Chairperson,
Vice-Chairperson and three other Members. Accordingly, article 338 of
the Constitution is required to be modified by amending articles 338 and
inserting new article 338A.
3. The Bill seeks to achieve the aforesaid object.
Unit-V
Women and Human Rights at International Law

The development in the last 50 years of the principles that comprise

human rights law has had a major impact on international humanitarian law and
indeed on international law generally [1] In more recent years, the movement
for recognition of the equal rights of women has been exerting its own influence
on human rights law and to some effect [2]. In 1979, for example, the
international community adopted the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW), to which 155 States are
now party. Consideration is currently being given to the adoption of an Optional
Protocol that will allow for individual and group complaints to be brought
before the CEDAW Committee. Governmental and non-governmental
organizations have increasingly focused on women’s human rights. As a result,
a wide range of studies, reports and recommendations on various aspects of the
issue is available. The topic of women is thus firmly established on the
international human rights agenda.
So much human suffering in today’s world occurs, however, in situations
of armed conflict, where to a large extent human rights are in abeyance, leaving
individuals to rely solely on the protection offered by international humanitarian
law [3]. And women are major victims in these situations [4]. There is now
evidence, moreover, that women experience conflict in a different way to men
[5], a phenomenon that is confirmed by those working in the field. This
distinctive experience, although its effects differ widely across cultures
depending upon the role of women in each society, is related to the particular
vulnerability of this group when armed conflict breaks out. War exacerbates the
inequalities that exist in different forms and to varying degrees in all societies,
and women make up 70 per cent of the world’s population living in poverty [6].
They are, moreover, generally disadvantaged in terms of education and are
considerably less mobile because of their traditional role in caring for others [7].
Perhaps most significantly, women are generally excluded from access to power
structures and participation in decision-making with regard to armed conflict.
They are therefore unable to draw attention to the particular difficulties they
experience in conflict situations and, moreover, are powerless to recommend
any preventive action.
Against that background, the present article considers the extent to which
the focus on women’s human rights and the advances made in the protection of
women under human rights law has had an impact on international humanitarian
law. As will become apparent, this impact can be seen primarily in
developments regarding the criminalization and punishment of sexual violence
against women in armed conflicts. Broader consideration has yet to be given to
the question of women, armed conflict and humanitarian law.
The provisions of the law of armed conflict relating to women at the time
of the adoption of the Universal Declaration of Human Rights.
There were occasional references to the protection of women in some of
the earliest documents of the law of armed conflict. For example, Article XLVII
of the Lieber Code punished those responsible for the rape of inhabitants of a
hostile country. Until recently, however, sexual violence against women was
never taken seriously. Rape was not listed as a war crime at Nuremberg, despite
the high incidence of sexual violence during the Second World War.
Indictments before the Tokyo Tribunal did contain charges of rape and some
individuals were convicted for their failure to ensure that subordinates complied
with the law. Moreover, the occupying powers included rape as a war crime in
the charters of their national courts set up to try offences committed in
Germany, although no prosecutions were ever undertaken on this basis.
Generally, however, rape and sexual violence against women were regarded as
an inevitable aspect of armed conflict and seldom if ever prosecuted.
 The four 1949 Geneva Conventions, which at the time of their adoption
were the major instruments protecting the victims of armed conflict (and with
their two 1977 Protocols remain so today), contain some 19 provisions that are
specifically relevant to women. The scope of these rules is somewhat limited
and many of them are in fact designed to protect children. Overall, the aim of
the Conventions is to provide special protection for pregnant women, nursing
mothers and mothers in general and to address the vulnerability of women to
sexual violence in times of armed conflict.
Significantly, Article 27(2) of the Fourth Geneva Convention contains the
first provision specifically dealing with rape and requires that “women shall be
especially protected against any attack on their honor, in particular against
rape, enforced prostitution, or any form of indecent assault”. Although this
article constitutes a long overdue recognition that rape is unacceptable in times
of armed conflict, the extent and gravity of the practice are not acknowledged
since the provision falls outside the system of grave breaches of international
humanitarian law (under this system States are obliged to seek out and punish
persons responsible for failing to observe certain designated provisions of the
Conventions). Article 27(2) has also been criticized on the grounds that, like
many of the provisions relating to women, it categorizes rape as an attack on the
victim’s honor and thus does not reflect the seriousness of the offence of sexual
violence. Apart from the protection afforded under such articles, which is
clearly valuable as far as it goes, any indication that the difficulties women
experience in armed conflicts might be distinctive and encompass wider issues
than their roles as mothers and victims of sexual violence is not discernible in
the provisions of the Geneva Conventions.
To what extent were the provisions of the 1977 Protocols relating to
women influenced by the human rights movement?
The movement to bring about further improvements in international
humanitarian law that culminated in the adoption by States of the 1977
Protocols owed a great deal to developments in the area of human rights. Gerald
Draper wrote that progress in the law of armed conflict “had come perilously
close to stagnation before the impact of the movement for a regime of human
rights was brought to bear”. As early as 1956, the ICRC had completed a set of
Draft Rules for the limitation of dangers incurred by the civilian population in
time of war. No action was taken on these rules. The question of further revision
of the law of armed conflict was shelved by the international community until
the work on human rights in peacetime undertaken by the United Nations
Commission on Human Rights and the UN General Assembly began to expand
logically into concern for human rights in armed conflict. The International
Conference on Human Rights held in Tehran in 1968 can be seen as a watershed
in this relationship [16]. The final outcome of these initiatives was the adoption
of the two 1977 Protocols, which have a distinct human rights flavor. The
Protocols merge the respective principles of the so-called law of The Hague and
law of Geneva and focus on the protection of civilians.
What is the approach of the Protocols to women victims of armed
conflict? Does the emphasis on protection that underpinned the negotiations
leading up to the adoption of these instruments and is reflected in their final text
extend to a recognition of the distinctive difficulties women experience in times
of armed conflict?
Overall, the approach to women remains unchanged in the provisions of
the Protocols. The focus continues to be on protection for pregnant women and
mothers. In the context of sexual violence, Article 76 of Protocol I contains the
important comprehensive provision specifically protecting women against rape,
although this practice is still not designated as a grave breach. There is no
recognition, either in the travaux préparatoires or in the provisions themselves,
of the other distinctive problems women face in armed conflicts.

Women and human rights

 It would be misleading to represent the existing body of human rights law
as a satisfactory regime from the perspective of women. Commentators have
convincingly demonstrated the limitations of this law, which does not
adequately take into account the reality of women’s experience of the world .
However, it is in the context of human rights law rather than humanitarian law
that more progress has been made in recognizing and attempting to meet the as
yet unaddressed needs of women.
This attention to women’s human rights has had substantial implications
for international humanitarian law. Indeed, the fact that violence against women
and strategies to contain it have been the focus of much of the work of human
rights agencies concerned with this group has led to a consideration of the issue
in connection with armed conflicts, where so much of t he violence against
women occurs. What have been some of the results of this work?
The 1993 Vienna Declaration and Programme of Action, adopted by the
United Nations World Conference on Human Rights, confirmed that “violations
of the human rights of women in situations of armed conflict are violations of
the fundamental principles of human rights and humanitarian law” and that
they require a “particularly effective response”. The Programme of Action also
stressed that “the equal status of women and the human rights of women”
should be “integrated into the mainstream of United Nations system-wide
activity” and “form an integral part of United Nations human rights activities.”
This growing movement to address the problem saw the adoption by the
General Assembly in December 1993 of the Declaration on the Elimination of
Violence Against Women. The Declaration expressly recognizes that women in
situations of armed conflict are especially vulnerable to violence.
Another important development in the context of women and human
rights during armed conflicts has been the appointment of Special Rapporteurs
with mandates covering certain aspects of women’s experience of armed
conflict. In 1994 the United Nations Commission on Human Rights appointed
Radhika Coomaraswamy as the Special Rapporteur on violence against women,
with a mandate covering situations of armed conflict. In January 1998 the
Special Rapporteur submitted her report on the subject, in which she
recommended, in the context of international wars, that the Geneva Conventions
be re-examined and re-evaluated so as to “incorporate developing norms against
women during armed conflict” . Additionally, in 1995 the United Nations Sub-
Commission on Prevention of Discrimination and Protection of Minorities
appointed Linda Chavez as Special Rapporteur on the situation of systematic
rape, sexual slavery and slavery-like practices during periods of armed conflict.
The Fourth UN World Conference on Women, held in Beijing in 1995,
recognized the seriousness of armed conflict and its impact on the lives of
women. The Beijing Declaration referred to the determination of the
participating States to “ensure respect for international law, including
humanitarian law, in order to protect women and girls in particular”. The
Conference’s Platform for Action identified women and armed conflict as one
of the twelve critical areas of concern to be addressed by Member States, the
international community and civil society. A remedial strategy identified in the
Platform was to “increase the participation of women in conflict resolution at
decision-making levels and protect women living in situations of armed and
other conflicts or under foreign domination”.
The process of identifying women’s particular difficulties and
demonstrating the failure of the law to acknowledge them is thus considerably
more advanced within human rights bodies than within organizations focusing
solely on armed conflict. Of-course action plans, recommendations and
proposals need to be implemented if they are to be of lasting value. Progress is
slow and at times disheartening. There are, however, positive signs. Of
particular significance in this context is the very effective work at the grass
roots level of the UN High Commissioner for Refugees in relation to refugee
women.
 All these efforts, whilst groundbreaking in nature, have focused almost
exclusively on sexual violence. The broader context of the problem has been
largely ignored. However, an exception to this limited view is evident, for
example, in the work of the Economic and Social Council, particularly in
relation to Palestinian women and children in occupied territories.

The impact on international humanitarian law of developments in women’s

human rights
There is no doubt that the work of human rights organizations has had a
considerable impact on the approach taken to the protection of women in times
of armed conflict. A change of emphasis over recent years can be discerned in
the work of the ICRC in this context. The protection of women victims of
conflict has always been part of the ICRC’s mandate. Traditionally, however,
women have been subsumed under the general category of civilians or under the
separate category of “women and children”. This has occurred despite the fact
that the needs of these various categories of victims are not identical.
Over the years, the ICRC has been active in attempts to mitigate the
horrors of conflict for women. For example, efforts were made during the
Second World War to ensure the lawful treatment of women prisoners of war.
In the post-war period as well, from time to time the ICRC made efforts to
ensure that women were treated humanely in various conflict situations.
However, in the context of sexual violence — the most obvious way in which
women experience conflict — the silence was deafening, despite the appalling
reality of this practice in all armed struggles.
The invisibility of women and sexual violence rapidly came to an end
with the events that took place during the armed conflict in the former
Yugoslavia. Although sexual violence against women had been on the agenda
of human rights bodies for some years, it was this conflict that galvanized the
international community into action and led to the most significant development
of humanitarian law attributable to the growing emphasis on women’s human
rights: the inclusion of rape within the system of grave breaches.
In 1993, as a response to the findings of widespread violations of
international humanitarian law in the former Yugoslavia, including rape and
many other forms of sexual violence against women, the Security Council set
up the International Criminal Tribunal for the former Yugoslavia (ICTY) to
prosecute persons responsible for such acts. One of the issues to be resolved
was the place of rape within the Statute of the ICTY. In 1992, in the context of
what constituted a grave breach of international humanitarian law, the ICRC
had declared that the phrase common to the Geneva Conventions and their
Protocols, “wilfully causing great suffering or serious injury to body or health”,
obviously covered not only rape but also any other attack on a woman’s dignity.
This added weight to the argument that prevailed with the Commission of
Experts set up by the Security Council to consider the question of the
establishment of the ICTY, namely that rape and other sexual assaults, although
not specifically designated as grave breaches in the Conventions and Protocols,
constituted “torture or inhumane treatment” and acts that “wilfully caused great
suffering or serious injury to body or health” and were thus punishable as grave
breaches under the Conventions.
In the Statute of the ICTY, however, rape is only specifically punishable
as a crime against humanity and, to constitute such a crime, it must be directed
against the civilian population as a whole: for it to occur on an individual basis
is not sufficient. The practice of the Office of the Prosecutor has nevertheless
been to charge defendants with sexual violence as a war crime and a grave
breach.
Although the precedential value of the ICTY is limited both by its origin
as a Security Council measure and by its geographical scope, the normative
effect of these initiatives is much more widespread. Consequently, it will now
be difficult to maintain that rape and various forms of sexual violence against
women committed in international armed conflicts are not grave breaches of
treaty rules. This is a major development of humanitarian law and it can be
attributed to the growing recognition that women’s human rights call for the
prosecution of crimes of sexual violence committed in armed conflicts.
Doubts have nevertheless been expressed, in the context of the Rwandan
conflict, as to whether the Yugoslav experience indicates a lasting reversal of
the long tradition of silence and inaction in relation to sexual violence against
women in armed conflicts. The Special Rapporteur on Violence Against
Women, after hearing of the levels of sexual violence in the Rwandan conflict
was, in her words, “absolutely appalled that the first indictment on the grounds
of sexual violence at the International Tribunal for Rwanda (ICTR) was issued
only in August 1997, and then only after heavy international pressure from
women’s groups”.
Despite these reservations, the criminalization of sexual violence against
women in internal armed conflicts by the Statute of the ICTR is an important
development, and owes much to the work of human rights activists and
commentators. International humanitarian law has traditionally distinguished
between international and internal armed conflicts, concentrating on the former.
However, the redrawing of the boundaries of human rights law has been integral
to the implementation of women’s human rights and the influence of this
approach is now being felt in humanitarian law. Any consideration of violence
against women naturally encompasses international and internal armed conflicts
without distinction (an increasingly unreal division in any context). The Statute
of the ICTR reflects this view by providing both that rape is punishable as a
crime against humanity and that the practice falls within the Tribunal’s
jurisdiction since, in common with enforced prostitution and indecent assault, it
is specifically designated as a crime under Article 3 common to the Geneva
Conventions. Breaches of Article 3, the so-called “mini code” for internal armed
conflicts, have traditionally not been regarded as constituting war crimes.
 Further developments in humanitarian law relating to the enforcement of
the provisions protecting women against sexual violence have their genesis in
the Yugoslav conflict and the practice of the ICTY. It has long been recognized
in the context of women’s human rights that, to be effective, any enforcement
regime for prohibitions on sexual violence in armed conflicts must incorporate
procedural reforms. This view is slowly gaining broader acceptance within the
international community and some progress has been made in taking into
account the particular concerns of women in the prosecution of sexual offences.
Such matters as the anonymity of witnesses and victims in trials for sexual
assault and provision for their support and counseling have been addressed by
the ICTY. However, these changes have not been readily accepted. For
example, there is a perceived conflict between the demands of a fair trial and the
protection of women as victims and witnesses. The two are not necessarily
inconsistent: what is required is an appropriate balance between them.
Recognition has also been given to the importance of equal gender distribution
in the composition of enforcement tribunals and their support staff.
The scrutiny by human rights groups of sexual violence against women in
armed conflicts has translated into a new perception that such acts must be
addressed by mainstream bodies dealing with the enforcement of international
humanitarian law. The inclusion, within the definition of war crimes and as
serious violations of Article 3 common to the Geneva Conventions, of several
forms of sexual violence against women was considered during the negotiations
of the Statute for the International Criminal Court. Other issues of concern to
women in relation to the enforcement process in general were also discussed in
this context, such as the gender balance of the Court, protection for witnesses
and victims, and the investigation of crimes of sexual violence. The
Commission on the Status of Women, at its March 1988 meeting called on
States to support these initiatives in relation to the future International Criminal
Court.
 The ICRC has given increasing recognition to the fact that the situation of
women in armed conflicts poses distinctive challenges for humanitarian law. In
1993 the Final Declaration of the International Conference for the Protection of
War Victims expressed alarm at “the marked increase in acts of sexual violence
directed notably against women and children” and reiterated that “such acts
constitute[d] grave breaches of international humanitarian law” [38]. In 1995
the 26th International Conference of the Red Cross and Red Crescent adopted
by consensus a resolution dealing separately with sexual violence against
women [39], which condemned this practice, reaffirmed that rape in the conduct
of hostilities was a war crime and highlighted the importance of enforcing the
relevant provisions and the need to train those involved in such processes.
Moreover, there is growing acknowledgement of the broader nature of the
problem, which has not previously been apparent in the work of human rights
bodies. For example, recent ICRC publications emphasize that armed conflict
exacerbates inequalities which already exist in different forms and to varying
degrees in all societies.

Children and Human Rights

Introduction - It was not until the late nineteenth century that a nascent
children’s rights’ protection movement countered the widely held view that
children were mainly quasi-property and economic assets. In the United States,
the Progressive movement challenged courts’ reluctance to interfere in family
matters, promoted broad child welfare reforms, and was successful in having
laws passed to regulate child labor and provide for compulsory education. It
also raised awareness of children’s issues and established a juvenile court
system. Another push for children’s rights occurred in the 1960s and 1970s,
when children were viewed by some advocates as victims of discrimination or
as an oppressed group. In the international context, “[t]he growth of children’s
rights in international and transnational law has been identified as a striking
change in the post-war legal landscape.” The purpose of this overview is to
describe some of the provisions of certain major international legal instruments
on children’s rights that form part of that landscape.

Global International Documentation

Declaration of the Rights of the Child 1959 - The U.N. Declaration of the
Rights of the Child (DRC) builds upon rights that had been set forth in a League
of Nations Declaration of 1924. The Preamble notes that children need “special
safeguards and care, including appropriate legal protection, before as well as
after birth,” reiterates the 1924 Declaration’s pledge that “mankind owes to the
child the best it has to give,” and specifically calls upon voluntary organizations
and local authorities to strive for the observance of children’s rights.[3] One of
the key principles in the DRC is that a child is to enjoy “special protection” as
well as “opportunities and facilities, by law and by other means,” for healthy
and normal physical, mental, moral, spiritual, and social development “in
conditions of freedom and dignity.” The “paramount consideration” in
enacting laws for this purpose is “the best interests of the child,” a standard
echoed throughout legal instruments on children’s rights. Among other DRC
principles, a child is entitled to a name and nationality; to adequate nutrition,
housing, recreation, and medical services; to an education; and, for the
handicapped, to “special treatment, education and care”. Other principles are
on protection against neglect, cruelty and exploitation, trafficking, underage
labor, and discrimination.

Minimum Age Convention 1973 - The aim of the Minimum Age Convention
(MAC) is to establish a general instrument on the subject of the minimum age
of employment with a view to achieving the total abolition of child labor
(Preamble). Thus, each State Party is to “pursue a national policy designed to
ensure the effective abolition of child labor and to raise progressively the
minimum age for admission to employment to a level consistent with the fullest
physical and mental development of young persons” (article 1). States Parties
must specify a minimum age for admission to employment or work, subject to
certain exceptions set forth in the MAC. That minimum may not be less than the
age of completion of compulsory schooling and, in any case, less than fifteen
years, but it may initially be set at fourteen years if a state’s economy and
educational facilities are insufficiently developed (article 2). Exceptions to the
age limits may also be permitted for light work or for such purposes as
participation in artistic performances (articles 7 and 8). If the employment may
be hazardous to a young person’s health, safety, or morals, the minimum age is
generally not to be less than eighteen years (article 3(1)).

U.N. Convention on the Rights of the Child 1989 - The Convention on the
Rights of the Child (CRC) is the most comprehensive document on the rights of
children.[7] Based purely on the number of substantive rights it sets forth, as
distinct from implementation measures, it is the longest U.N. human rights
treaty in force and unusual in that it not only addresses the granting and
implementation of rights in peacetime, but also the treatment of children in
situations of armed conflict. The CRC is also significant because it enshrines,
“for the first time in binding international law, the principles upon which
adoption is based, viewed from the child’s perspective.” The CRC is primarily
concerned with four aspects of children’s rights (“the four ‘P’s”): participation
by children in decisions affecting them; protection of children against
discrimination and all forms of neglect and exploitation; prevention of harm to
them; and provision of assistance to children for their basic needs.[9] For the
purposes of the CRC, a child is defined as “every human being below the age of
eighteen years unless under the law applicable to the child, majority is attained
earlier” (article 1).
 Key accomplishments of the CRC have been described as five-fold. It
creates new rights for children under international law that previously had not
existed, such as the child’s right to preserve his or her identity (articles 7 and 8),
the rights of vulnerable children like refugees to special protection (articles 20
and 22), and indigenous children’s right to practice their culture (articles 8 and
30). In some instances, this innovation takes the form of child-specific versions
of existing rights, such as those in regard to freedom of expression (article 13)
and the right to a fair trial (article 40). In addition, the CRC enshrines in a
global-treaty, rights that hitherto had only been found in case law under regional
human rights treaties (e.g., children’s right to be heard in proceedings that affect
them) (article 12). The CRC also replaced non-binding recommendations with
binding standards (e.g., safeguards in adoption procedures and with regard to
the rights of disabled children) (articles 21 and 23). New obligations are
imposed on States Parties in regard to the protection of children, in such areas
as banning traditional practices prejudicial to children’s health and offering
rehabilitative measures for victims of neglect, abuse, and exploitation (articles
28(3) and 39). Finally, the CRC sets forth an express ground obligating States
Parties not to discriminate against children’s enjoyment of CRC rights.[10] The
right to participate in proceedings, it is argued, “together with the principles of
non-discrimination in Article 2 and provision for the child’s best interests in
Article 3, form the guiding principles of the Convention, which reflect the vision
of respect and autonomy which the drafters wished to create for all children.”
Optional Protocols to the CRC on Sex Trafficking, Armed Conflict
The United Nations adopted two protocols to the CRC on May 25, 2000,
the Optional Protocol to the CRC on the Sale of Children, Child Prostitution,
and Child Pornography 2000 (Sex Trafficking Protocol) and the Optional
Protocol to the Convention on the Rights of the Child on the Involvement of
Children in Armed Conflict (Child Soldiers Protocol). The Sex Trafficking
Protocol[12](STP) addresses the problem of sex trafficking, one among many
purposes for which children are bought and sold, including, in addition, forced
labor, adoption, participation in armed conflicts, marriage, and organ trade. The
Preamble refers to achieving “the purposes of the CRC” and to the need for
States Parties to implement specific provisions, among them CRC articles 34
and 35 on broad protections against child trafficking, sexual exploitation, and
abuse. The Preamble also reflects CRC language in regard to protecting children
from economic exploitation and performance of hazardous or harmful work. In
addition, it recognizes “that a number of particularly vulnerable groups,
including girl children, are at greater risk of sexual exploitation” and are
disproportionately represented among the sexually exploited, and expresses
concern over “the growing availability of child pornography on the Internet
and other evolving technologies.” The STP defines and prohibits the sale of
children, child prostitution, and child pornography; obliges States Parties to
make certain acts punishable under their criminal law; sets forth the bases for
States Parties to assert jurisdiction over actionable practices, and strengthens
their ability to pursue extradition of offenders. The STP also provides for
protection of and assistance to the victimized children in the criminal justice
process, the best interests of the child being the guiding principle in the
children’s judicial treatment. For purposes of prevention and redress of
offenses, the victims must have access to procedures to seek compensation for
damages from those legally responsible (article 9(4)). The STP also has
provisions on strengthening international cooperation in regard to sex
trafficking involving children and on reporting requirements for States Parties
(article 12).
The Child Soldiers Protocol reaffirms in its Preamble that “the rights of
children require special protection,” notes “the harmful and widespread impact
of armed conflict on children,” and condemns their being targeted in such
situations. It also refers to inclusion as a war crime in the Rome Statute of the
International Criminal Court “the conscripting or enlisting children under the
age of 15 years or using them to participate actively in hostilities in both
international and non-international armed conflicts.” The Preamble takes note
of the definition of a child in article 1 of the CRC and expresses the conviction
that raising the age of possible recruitment will contribute effectively to
implementing the principle of the best interests of the child as a primary
consideration in all actions concerning children.[16] The Child Soldiers
Protocol extends the minimum age requirement for direct participation in armed
conflict and conscription to eighteen (articles 1 and 2, respectively) and forbids
rebel or other non-governmental armed forces “under any circumstances,” to
recruit or to use in hostilities persons under that age (article 4). It does not
prescribe the age eighteen minimum for voluntary recruitment, but requires
States Parties to raise the minimum age for it from fifteen (as set out in article
38, paragraph 3, of the CRC; i.e., to sixteen years of age) and to deposit a
binding declaration setting forth the minimum age permitted for voluntary
recruitment and describing safeguards adopted to ensure voluntariness (article
3(1-3), in part).[17] The Child Soldiers Protocol requires States Parties to take
“all feasible measures to ensure” the demobilization or release from service of
children recruited into armed conflict or used in hostilities and, “when
necessary,” to accord “all appropriate assistance” for the children’s
rehabilitation and social reintegration (article 6(1) and (3)).

Regional Documentation
African Charter on the Rights and Welfare of the Child 1990 - The African
Charter on the Rights and Welfare of the Child (ACRWC), the first regional
treaty on children’s rights, builds on the 1979 Declaration on the Rights and
Welfare of the African Child,[19] but most of its provisions are modeled after
those of the CRC. “The main difference lies in the existence of provisions
concerning children’s duties [in article 31], in line with the African Human
Rights Charter” (seebelow).[20] The Preamble states that “the child occupies a
unique and privileged position in the African society” and requires legal
protection as well as “particular care with regard to health, physical, mental,
moral and social development.” A child is defined as “every human being
below the age of 18 years” (article 2). The ACRWC sets forth the principles of
non-discrimination and the best interests of the child and also provides that
children have an inherent right to life, protected by law. The death sentence is
not to be applied to crimes committed by children (articles 3-5). Children have a
right to a name and nationality as well as to freedom of expression, association
and peaceful assembly; thought, religion, and conscience; privacy; education;
and rest and leisure (articles 6-12).[21] Special measures of protection are to be
taken for handicapped children and children should enjoy physical, mental, and
spiritual health (articles 13-14). Children should also be protected against all
forms of economic exploitation and from performing work likely to be
hazardous (article 15) and against all forms of torture, maltreatment, and abuse
(article 16); harmful social and cultural practices (article 21); all forms of sexual
exploitation or abuse (article 27); the use of narcotics and illicit drugs (article
28); and abduction, sale, trafficking, and use in begging (article 29).

European Convention on the Exercise of Children’s Rights 1996 – The

European Convention on the Exercise of Children’s Rights (ECECR) stresses in
the Preamble the aim of promoting the rights and “best interests” of
children.[22] To that end, it states that children should have the opportunity to
exercise their rights, particularly in family proceedings affecting them; they
should be provided with relevant information (defined as information
appropriate to the child’s age and understanding, given to enable the child to
exercise his or her rights fully, unless contrary to the welfare of the child) and
their views should be given “due weight”; and, “where necessary,” States as
well as parents, should engage in the protection and promotion of those rights
and best interests (Preamble). The ECECR applies to children who have not
reached the age of eighteen (article 1(1)). The ECECR procedural rights
include the child’s right to be informed and to express his or her views in
proceedings; the right to apply for the appointment of a special representative;
and “other possible procedural rights,” e.g., the right to apply to be assisted by
an appropriate person of their choice to help them express their views, the right
to appoint their own representative, and the right to exercise some or all of the
rights of parties to the proceedings (articles 3-5).

Specific Provisions in Other International and Regional Instruments

Universal Declaration of Human Rights 1948 – The Universal Declaration of

Human Rights contains two articles that specifically refer to children. Article
25(2) states: “[m]otherhood and childhood are entitled to special care and
assistance. All children whether born in or out of wedlock shall enjoy the same
social protection.” Article 26 calls for the right to education for all, and deals
both with access to and the aims of education. Thus, education is to be free, at
least in the elementary and fundamental stages; elementary education is to be
compulsory; and education should be “directed to the full development of the
human personality and to the strengthening of respect for human rights and
fundamental freedoms.” Nevertheless, “parents have a prior right to choose the
kind of education that shall be given to their children.”

International Covenant on Economic, Social and Cultural Rights 1966 –

The Preamble to the International Covenant on Economic, Social and Cultural
Rights (ICESCR), insofar as it recognizes the indivisibility of human rights, is
applicable to children’s rights as well. Thus, it notes that “recognition of the
inherent dignity and of the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in the world” and
that “these rights derive from the inherent dignity of the human person.”[26]
Specific references to children are found in articles 10 and 12. Under article 10,
“the widest possible protection and assistance should be accorded to the family,
… particularly for its establishment and while it is responsible for the care and
education of dependent children” (item 1, in part). It further stipulates that
“special measures of protection and assistance” should be taken on behalf of
the young without any discrimination; that they should be protected from
economic and social exploitation; that employing them in morally or medically
harmful or dangerous work or in work likely to hamper their normal
development should be punishable by law; and that age limits should be set
below which the paid employment of child labor is prohibited and punishable
by law (item 3). Article 12 addresses the right of all to “enjoyment of the
highest attainable standard of physical and mental health,” to be fully realized
by, among other measures, States Parties’ providing “for the reduction of the
stillbirth-rate and of infant mortality and for the healthy development of the
child” (item 2(a)). The ICESCR also provides for the right of everyone to
education (article 13(1)) and stipulates “primary education shall be compulsory
and available free to all” (article 13(2a)).

International Covenant on Civil and Political Rights 1966 – The

International Covenant on Civil and Political Rights (ICCPR) contains general
provisions from which children are entitled to benefit as well as certain specific
provisions on safeguards for children in the administration of justice and as
members of a family unit. Thus, article 2 obliges States Parties “to respect and
to ensure to all individuals within its territory and subject to its jurisdiction”
the rights recognized in the ICCPR, “without distinction of any kind” to adopt
laws to give effect to those rights; and to provide effective remedies where there
are violations. Article 14(1) incorporates a more specific reference to rights of
the young: “any judgement rendered in a criminal case or in a suit at law shall
be made public except where the interest of juvenile persons otherwise requires
or the proceedings concern matrimonial disputes or the guardianship of
children.” Furthermore, criminal proceedings “should take account of
[juveniles’] age and the desirability of promoting their rehabilitation” (article
14(4)) and the penal system should segregate juvenile offenders from adults and
accord them treatment “appropriate to their age and legal status” (article
10(3)).[28] Like the ICESCR, the ICCPR recognizes the family as entitled to
societal and state protection (article 23(1)), and so States Parties are to respect
the liberty of parents to ensure their children’s religious and moral education in
conformity with their own convictions (article 18(4)). If a marriage is dissolved,
provision must be made for the protection of any children (article 23(4)).
Article 24 of the ICCPR is specifically devoted to children. It stipulates that
“every child shall have, without any discrimination as to race, colour, sex,
language, religion, national or social origin, property or birth, the right to such
measures of protection as are required by his status as a minor, on the part of
his family, society and the State.” It further prescribes that every child must be
registered immediately after birth and have a name and that every child has the
right to acquire a nationality.

European Convention on Human Rights 1950 – The Convention for the

Protection of Human Rights and Fundamental Freedoms, also known as the
European Convention on Human Rights (ECHR), the first international human
rights agreement to establish supervisory and enforcement machinery, obliges
States Parties to “secure everyone within their jurisdiction” the rights and
freedoms it sets forth (article 1). The ECHR uses throughout the term
“everyone” (or, where appropriate, “no one”); as a result, children have
successfully brought suit either on their own behalf or as co-applicants with
their parents.[30] Specific references to the young are found in two articles of
the ECHR and concern legal proceedings. Article 5(1)(d), on the lawful
procedures for depriving a minor of his or her liberty, permits the lawful
detention of a minor for the purpose of educational supervision or for bringing
him before the competent legal authority. Article 6(1) stipulates that everyone is
entitled to a fair and public hearing and that judgment will be pronounced
publicly, but the hearing may be held in private when required by the interests
of juveniles or the protection of the parties’ private life. Protocol No. 7 to the
ECHR provides that while spouses enjoy equality of rights and responsibilities
in their relations with their children, this does not prevent States “from taking
such measures as are necessary in the interests of the children” (article 5).

African Charter on Human and People’s Rights 1981 (Banjul Charter) and
Protocol – The African Charter on Human and People’s Rights (hereinafter
ACHPR) (also known as the Banjul Charter) encompasses civil and political as
well as economic, social, and cultural rights. In regard to children, it emphasizes
the rights of the family and of duties towards the family rather than the rights
and duties of individual family members, which can be viewed as a reflection of
African customary law. Thus, the ACHPR makes it incumbent on the individual
“to preserve the harmonious development of the family and to work for the
cohesion and respect of the family; to respect his parents at all times, to
maintain them in case of need” (article 29(1)). The ACHPR does not set forth
any additional specific rights for children, relying instead on existing
international protections regarding children’s rights[33] (in article 18(3)). As in
other international human rights documents, however, rights in the ACHPR are
mentioned in connection with “the individual” or “every individual.”
The Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa[34] makes numerous specific references to children,
and to girls in particular. The Preamble calls for the condemnation and
elimination of “any practice that hinders or endangers the normal growth and
affects the physical, emotional and psychological development of women and
girls.” States Parties are to enact and implement legislative measures to
prohibit all forms of such harmful practices (article 2(1)(b)); protect women and
girls against rape and all other forms of violence, including trafficking; and
“ensure that in times of conflict and/or war, such acts are considered war
crimes and are punished as such” (article 4(c) and (d)). States Parties should
also condemn harmful practices such as medicalization of female genital
mutilation and scarification that affect the fundamental human rights of women
and girls and are contrary to recognized international standards, and take
measures against them, such as rehabilitation of the victims and granting of
asylum to those at risk (article 6(b-d)). States Parties should afford effective
protection to women and children in emergency and conflict situations (article
11(4)) as well. In furtherance of the right to education and training, “all
appropriate measures” should be taken to eliminate discrimination against
women and girls, with specific positive action to be taken to promote girls’
education and training “at all levels and in all disciplines” as well as their
retention in schools and other training institutions (article 12).

American Convention on Human Rights (Pact of San José, Costa Rica) –

The American Convention on Human Rights (ACHR) obliges States Parties to
respect the rights and freedoms recognized in its provisions and “to ensure to
all persons subject to their jurisdiction the free and full exercise of those rights
and freedoms, without any discrimination for reasons of race, color, sex,
language, religion, political or other opinion, national or social origin,
economic status, birth, or any other social condition”. The term “person” used
in the ACHR means “every human being” (article 1). Thus, every person has
the right to a legal personality, to life, to humane treatment, to personal liberty,
and to a fair trial, among many other rights set forth. However, parents or
guardians “have the right to provide for the religious and moral education of
their children or wards that is in accord with their own convictions” (article
12(4)), and “public entertainments may be subject by law to prior censorship
for the sole purpose of regulating access to them for the moral protection of
childhood and adolescence,” notwithstanding the right to freedom of thought
and expression (article 13(4). The ACHR stipulates that provision must be made
for the protection of children “solely on the basis of their own best interests”
when a marriage is dissolved and that equal rights must be recognized by law
for children born in and out of wedlock (article 17(4) & (5)). Everyone also has
the right to a given name and to the surnames of one or both parents (article 18).
The ACHR has a separate provision on the rights of the child: “every minor
child has the right to the measures of protection required by his condition as a
minor on the part of his family, society, and the state (article 19).” This article
is listed among those that may not be suspended in time of war, public danger,
or other emergency (article 27(2)).

Convention on the Elimination of all Forms of Discrimination against

Women 1979 - The Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) has been described as an
international bill of rights for women. It defines what constitutes discrimination
against women and establishes an agenda for States Parties to act to end it. The
Preamble, in invoking the Universal Declaration of Human Rights, notes its
affirmation of the principle of the inadmissibility of discrimination and its
proclamation “that all human beings are born free and equal in dignity and
rights and that everyone is entitled to all the rights and freedoms set forth
therein, without distinction of any kind, including distinction based on sex.”
This kind of statement forms the backdrop for certain rights set forth in
CEDAW, even though girls specifically are mentioned only once: the obligation
of States Parties to ensure the reduction of female student drop-out rates and the
organization of programs for girls and women who have left school prematurely
(article 10, in part). States Parties are also to take appropriate steps “to modify
the social and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and all other practices
which are based on the idea of the inferiority or the superiority of either of the
sexes or on stereotyped roles for men and women” (article 5(a)). CEDAW
refers to the interests of children being paramount in relation to the common
responsibility of men and women for their children’s upbringing and
development (article 5(b)) as well as in regard to States Parties’ ensuring the
same rights and responsibilities between men and women as parents in matters
relating to their children and in matters of guardianship, wardship, trusteeship,
and adoption of children (article 16 (1)(d) and (f)). CEDAW also proscribes
betrothal and marriage of children and calls for action to specify a minimum age
for marriage and to make marriage registration compulsory (article 16(2)).

Child Protection and Placement Agreements

Hague Convention on Jurisdiction, etc., for the Protection of Children 1996
– The Hague Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in Respect of Parental Responsibility and
Measures for the Protection of Children (1996 Convention) covers a wide range
of civil child protection measures, “from orders concerning parental
responsibility and contact to public measures of protection or care, and from
matters of representation to the protection of children’s property”. The
Preamble confirms “that the best interests of the child are to be a primary
consideration.” Article 2 stipulates that the Convention is applicable “to
children from the moment of their birth until they reach the age of 18 years.”
The 1996 Convention provides a structure to resolve disputes over contact and
custody issues when parents are separated and living in different countries and
has uniform rules to determine which country’s authorities are competent to
take the necessary protection measures. Provisions on recognition and
enforcement ensure that primacy be given to decisions taken by the authorities
of the country where the child has his or her habitual residence, reinforcing
provisions of the 1980 Hague Convention (see below). There are also provisions
on cooperation procedures to better protect unaccompanied minors who cross
borders and are in vulnerable situations and children placed in alternative care
across frontiers. The latter includes arrangements such as foster care and the
Islamic law institution of Kafala, a functional equivalent of adoption falling
outside the scope of the 1993 Intercountry Adoption Convention (see below).

Hague Convention on Jurisdiction, etc., Relating to Adoptions 1965 – The

Hague Convention on Jurisdiction, Applicable Law and Recognition of Decrees
Relating to Adoptions (1965 Convention), the first Hague Convention on the
issue, apparently has no contracting parties at present. The Convention is
applicable “to all international adoptions, not only where a child originated
from another country but also to adoptions where the only international aspect
is the foreign nationality of the child.”[42] It has been characterized as
incorporating four important provisions. The authorities are not to grant an
adoption “unless it will be in the interest of the child.” Before granting an
adoption, the authorities should conduct “a thorough inquiry” relating to the
adopter(s), the child, and the child’s family. The inquiry should be carried out
“as far as possible… in cooperation with public or private organizations
qualified in the field of inter-country adoptions” and with the help of specially
trained or qualified social workers (article 6). Furthermore, the national law of
the child is to be applied in decisions pertaining to consent and consultation
issues, rather than that of the adopter, family, or spouse (article 5, paragraph 1).
The 1965 Convention also allows States Parties to make a declaration at the
time of signature, ratification, or accession but revocable at any time, specifying
provisions of domestic law prohibiting adoptions founded upon certain
specified grounds, e.g., the existence of a previous adoption of the child or the
age of the adopter and that of the child (article 13).
European Convention on the Adoption of Children 1967 – The European
Convention on the Adoption of Children (ECAC) applies to the legal adoption
of children under the age of eighteen, not currently or previously married, and
not deemed in law to have come of age earlier (article 3). Its provisions are only
minimum standards; States Parties may adopt provisions more favorable to the
adopted child (article 16).[45] The ECAC ensures that national child protection
laws apply not only to adoptions of children from the States Parties, but also to
those of children from other States. The essential provisions are on adoption
practices that each Party should undertake to incorporate in national legislation.
Under them, adoption must be granted by a judicial or administrative authority
in order to be valid (article 7) and the competent authority should not grant an
adoption unless it “will be in the interest of the child” (article 8(1)). The
authority is to make appropriate inquiries into such matters as the child’s views
with respect to the adoption and the mutual suitability of the child and the
adopter (article 9). After the adoption, the child should generally be able to
acquire the adopter’s surname and be treated as having rights of succession
(article 10 (3) and (5)). States Parties should prohibit any improper financial
advantage arising from a child being given up for adoption (article 15). Four
supplementary provisions, requiring only the States’ Parties’ consideration,
stipulate, inter alia, that provision be made to enable adoption to be completed
without the adopter’s identity being disclosed to the child’s family (article
20(1)) and to require or permit adoption proceedings to take place in camera
(article 20(2)). Children are not accorded the right to know the identity of their
former parents.

Inter-American Convention on Conflict of Laws Concerning the Adoption

of Minors 1984 – The Inter-American Convention on Conflict of Laws
Concerning the Adoption of Minors (IAC) applies to the adoption of minors in
the form of full adoption, adoptive legitimation, and “other similar institutions”
when the domicile of the adopter and the habitual residence of the adoptee are
in different States Parties (article 1). Such adoptions are irrevocable (article 12).
A State Party may declare that the IAC also applies to “any other form of
international adoption of minors” (article 2); revocation of such adoptions will
be governed by the law of the adoptee’s habitual residence at the time of
adoption (article 12). The IAC states that the law of the minor’s habitual
residence also governs capacity, consent, and other requirements for adoption,
as well as adoption procedures and formalities (article 3). The IAC protects the
identity of the birth parents, with certain exceptions regarding medical data
(article 7). The adoptee and the adopter (and the adopter’s family) generally
have the same rights of succession as those of legitimate family members
(article 11). In cases where conversion of a simple adoption into full adoption,
adoptive legitimation, or similar institutions is permitted, the adoptee’s consent
is required if he or she is over fourteen years of age (article 13, paragraph 2)). If
an adoption is annulled, the minor’s interests are to be protected (article 14).
Although the IAC terms and the laws applicable under it are to be interpreted
“consistently and in favor of the validity of the adoption and the best interests of
the adoptee” (article 19), a State Party’s authorities may refuse to apply those
laws when they are “manifestly contrary to its public policy” (article 18).

Hague Convention on the Protection of Children in Inter-Country

Adoption 1993 – The Hague Convention on the Protection of Children and
Cooperation in Respect of Intercountry Adoption (1993 Convention), has three
stated aims: to establish safeguards to ensure that intercountry adoptions are in
the best interest of the child and in accordance with the child’s fundamental
rights; to establish a system of safeguards to avoid abuses such as trafficking in
children; and to secure recognition in States Parties of adoptions made in
accordance with the Convention (article 1). The underlying principle of the
1993 Convention is that “although it is difficult to define the best interests of the
child, the child’s interests should always take priority over those of the
prospective adopters,” but the application of this principle has proved
problematic.[49] The 1993 Convention asserts that authorities must ensure,
taking into account the age and degree of maturity of the child, that he or she
has been counseled and informed of the effects of the adoption and of his or her
consent to the adoption, where such consent is required; that consideration has
been given to the child’s wishes and opinions; that the child’s consent to the
adoption has been given freely, in the required legal form, and in writing; and
that consent has not been induced by payment or compensation of any kind
(article 4(d)). Information on the child’s origin, in particular the identity of the
parents as well as the medical history, should be preserved, but access by the
child to that information is permitted only insofar as it is allowed by the law of
the State where it is held (article 30). Personal data gathered or transmitted
under the 1993 Convention’s provisions is to be used “only for the purposes for
which they were gathered or transmitted,” without prejudice to article 30
(article 31).[50]

Hague Convention on the Civil Aspects of International Child Abduction

1980 – The Hague Convention on the Civil Aspects of International Child
Abduction (1980 Convention) governs issues related to parental kidnapping or
the removal of children under the age of sixteen across international borders and
involving the jurisdiction of different countries’ courts. Its stated objectives are
to secure the prompt return of children wrongfully removed to or retained in any
contracting state and to ensure that the rights of custody and of access under the
law of one contracting state are effectively respected in the other contracting
states (article 1). Removal or retention of a child is deemed wrongful if: a) it is
in breach of custody rights attributed to a person, an institution, or any other
body, either jointly or alone, under the law of the State in which the child was
habitually resident immediately before the removal or retention; and b) at the
time of removal or retention those rights were exercised, or would have been
but for the removal or retention (article 3, paragraph 1).

The European Convention Concerning the Custody of Children 1980 – The

European Convention on the Recognition and Enforcement of Decisions
Concerning the Custody of Children (the Luxembourg Convention) seeks to
protect the rights of custody and access to children in the international context.
It calls upon the central authorities designated by States Parties to provide “free,
prompt, non-bureaucratic assistance” in determining the whereabouts and
restoring custody of an improperly removed child.[53] They must also avoid
prejudice to the interests of the child or of the applicant in restoring child
custody, among other requirements. Like the 1980 Convention, the Luxembourg
Convention defines a child as being under the age of sixteen (article 1(a)).
Also, under both instruments, the right of action lies with the custody
holder.[54] The Luxembourg Convention uses the term “improper removal” to
refer to “the removal of a child across an international frontier in breach of a
decision relating to his custody” given in a State Party and enforceable in that
State (article 1(d)), in contrast to the 1980 Convention’s term “wrongful
removal or retention” of a child and the CRC’s term “the illicit transfer and
non-return of children abroad” (article 11).

Worst Forms of Child Labour Convention 1999 – The Worst Forms of Child
Labour Convention (WFCLC) refers in the Preamble to the need to adopt new
instruments for the prohibition and elimination of the worst forms of child
labour, “to complement the Convention and the Recommendation Concerning
Minimum Age for Admission to Employment, 1973, which remain fundamental
instruments on child labour.” For the purposes of the WFCLC, the term “child”
applies to all persons under the age of eighteen (article 2). The “worst forms of
child labour” comprise:
 (a) all forms of slavery or practices similar to it, such as the sale and
trafficking of children and forced labor (including forced recruitment for
armed conflict); (b) the use, procuring, or offering of a child for
prostitution or for pornography or pornographic performances;
(c) the use, procuring, or offering of a child for illicit activities such as
drug trafficking; and
(d) work that is likely to harm children’s health, safety, or morals (article
3).
Each State Party is to adopt measures:
 to prevent the engagement of children in the worst forms of child labor;
 to provide direct assistance for the removal of children from such labor
and for their rehabilitation and social integration;
 to ensure access to free basic education and, wherever possible and
appropriate,
 to vocational training for all children removed from the worst forms of
child labor; to identify and reach out to children at special risk; and
 to take account of the special situation of girls (article 7(2))