Classification of Human Rights
Human rights have been classified as first, second, and third generation rights.
First generation rights.
Civil and political rights, such as the right to life and liberty, freedom of religion, freedom
of movement, freedom of speech and expression, and the right against torture, are first
generation rights.
Mostly negative rights, in that they require the State to refrain from curtailing rights
Second generation rights
Economic, social, and cultural rights, such as the right to education, healthy food, work,
housing, and social security are second generation rights.
Mostly positive rights as they require the State to take active steps to implement the rights
Third generation rights
Right to development, the right to a healthy environment, and collective rights are bracketed
as third generation rights.
Such a classification of human rights militates against the indivisibility and interdependence
of human rights.
The Vienna Declaration and Programme of Action, 1993, urged the international community
to “treat human rights globally in a fair and equal manner, on the same footing, and with the
same emphasis.”
The right to education, which is regarded as both a civil and political right, and as an
economic, social, and cultural right, illustrates the indivisibility of rights.
Implementation of International Human Rights Law under the Constitution of India
As of June 2010, India has ratified the following six international human rights law
covenants:
The Convention on the Elimination of All Forms of Racial Discrimination (“the CERD”);
The Convention on the Elimination of All forms of Discrimination against Women,
1979 (“the CEDAW”);
The Convention on the Rights of the Child, 1989 (“the CRC”); and
The Convention on the Rights of Persons with Disabilities (“the CPRD”).
These constitutional provisions indicate that international law can be incorporated into
Indian law by transformation, and the Supreme Court of India (“the Supreme Court”) has
ruled that the “making of law…is necessary when the treaty or agreement operates to restrict
the rights of citizens or others or modifies the laws of the State. If the rights of the citizen and
others which are justiciable are not affected, no legislative measure is needed to give effect to
the agreement or treaty.” (Maganbhai Ishwarbhai Patel v. Union of India, (1970) 3 SCC 400
In the event of a conflict between domestic law and international conventions, the former
shall prevail. (Gramophone Company of India Ltd. v. Birendra Bahadur Pandey, AIR 1984
SC 667) Courts should interpret domestic legislation in light of international obligations.
(Jolly George Verghese v. Bank of Cochin, AIR 1980 SC 470)
In Vishaka v. State of Rajasthan, AIR 1997 SC 3011, the Supreme Court held that if there is a
void in domestic law, international conventions can be relied on to fill the gap, provided that
they are not inconsistent with the Indian Constitution or with domestic law.
The Supreme Court placed reliance on the CEDAW and proceeded to lay down guidelines to
prevent the sexual harassment of women at the workplace.
Illustration: A young man who was picked up by the police for questioning in connection
with a theft was later found dead near a railway track. The victim’s mother approached the
courts claiming compensation for the violation of the right to life under A.21 of the
Constitution.
A.9(5) of the ICCPR entitles victims of unlawful arrest or detention to an enforceable
right to compensation. Relying on this provision, the court arrived at the position that
monetary compensation can be ordered under Aa.32 and 226 of the Constitution for
contravention of a fundamental right. (Nilabati Behera v. State of Orissa, AIR 1993 SC
1960)
Human Rights and the Constitution
The fundamental rights enshrined in Part III of the Constitution have been described as the
basic human rights by the Supreme Court of India.
The rights have been categorised as right to equality, right to fundamental freedoms, right
against exploitation, right to freedom of religion, cultural and educational rights, and right to
constitutional remedies.
Fundamental rights, which, with some exceptions, are primarily enforceable against the State,
however, are not merely confined to the rights expressly stipulated in Part III of the
Constitution. (Unni Krishnan, J. P. v. State of Andhra Pradesh, 1993 AIR SC 217)
The Supreme Court has creatively interpreted several rights, such as the right to education
(prior to the 86th Amendment to the Constitution), the right to health, the right to
information, the right to food, privacy, and others, within the paradigm of fundamental rights.
A.13 of the Constitution ensures the justiciability and enforceability of the fundamental
rights. The Article declares all pre-Constitutional laws that are inconsistent with fundamental
rights to be void.
A.13(2) further enumerates that the State will “not make any law which takes away or
abridges the rights conferred” by Part III. It further adds that any such law, which is in
contravention of the Constitution, will be declared void.
Fundamental rights, which are enforceable against the State and its instrumentalities,
are understood as vertical in nature. These are as opposed to horizontal rights, such as
the prohibition against child labour, exploitation, and untouchability, which are
enforceable against private individuals and the State.
The violation of fundamental rights can be remedied by filing a writ petition before the
Supreme Court and High Courts under Aa.32 and 226, respectively. Remedies for the
enforcement of fundamental rights and judicial review form an essential component
of the Indian Constitution.
Not Absolute
Fundamental rights are not, however, absolute in nature, and are subject to well-defined
‘reasonable restrictions’. With the exception of the right to life and the protection with
respect to conviction for offences, all other rights may be suspended when a proclmation
of emergency is in effect. (A.359 of the Constitution of India)
Right to Equality
The right to equality and non-discrimination is contained in Aa.14, 15, and 16 of the
Constitution. These provisions are supplementary to each other. A.14, which guarantees
equality before the law and the equal protection of the law to all persons within India, is also
available to non-citizens.
The principle of equality, however, does not imply that every law must have a universal
application for all, despite the different situations, positions, and needs of persons.
The law acknowledges that certain classes of persons require separate treatment. The State
is permitted to make reasonable classifications of persons provided that the classification is
“…based upon some real and substantial distinction bearing a reasonable and just relation
to the object sought to be attained, and the classification cannot be made arbitrarily and
without any substantial basis.” (State of Bombay v. F. N. Balsara, AIR 1951 SC 318)
Formal and Substantive Equality
The Constitution of India recognises both formal and substantive equality. Formal
equality is based on the Aristotelian concept that likes must be treated alike. Equal
treatment of persons not similarly placed results in greater discrimination and inequality.
For instance, a racially neutral law could have an unequal impact on a certain class of
persons. Substantive equality thus focuses on the equality of results, which takes into
perspective the differing social and economic status of persons.
Protective discrimination, like the prohibition on women working at night or in bars, though
it appears to be a positive or a protective step, invariably causes greater hardship and
discrimination against women by denying them their right to livelihood.
Illustration: The Punjab Excise Act, 1914, prohibited women from being employed in
any part of the premises in which liquor or an intoxicating drug was being consumed by the
public. Although the objective of the law was to ensure the safety of women in public
spaces, it reflected gender stereotyping and resulted in “invidious discrimination
perpetrating sexual differences.”
The court struck down the impugned section of the Act as being violative of Aa.19(1)(g), 14,
and 15 of the Constitution.
The Court observed, “Instead of prohibiting women’s employment in the bars altogether the
state should focus on factoring in ways through which unequal consequences of sex
differences can be eliminated. It is the State's duty to ensure circumstances of safety which
inspire confidence in women to discharge the duty freely in accordance to the requirements
of the profession they choose to follow.”(Anuj Garg v. Hotel Association of India, AIR 2008
SC 663)
Non-Discrimination
A.15(1) of the Constitution prohibits the State from discriminating against any citizen on the
grounds of religion, race, caste, sex, place of birth, or any of them. A.15(2) further prohibits
individuals and the State from discriminating on the grounds only of religion, race, caste,
sex, place of birth, or any of them, with regard to access to shops, hotels, and places of public
entertainment, use of wells, tanks, bathing ghats, roads, and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the general public.
The Constitution provides that any law which violates any fundamental right can be struck
down by the Supreme Court or the High Courts. Despite this stipulation, courts have
refrained from striking down or declaring any provision of personal law unconstitutional.
Instead, the Courts have read down and interpreted the provision allegedly in conflict
with fundamental rights, in a manner that it ceases to be in conflict with the fundamental
rights.
In John Vallamattom v. Union of India, AIR 2003 SC 2902, however, the court declared
S.118 of the Indian Succession Act, 1925, which restricted Indian Christians from
bequeathing property for charitable or religious purposes, as being arbitrary, unreasonable,
discriminatory, and therefore unconstitutional and violative of A.14 of the Constitution.
Illustration: AYZ filed a petition to strike down S.6(a) of the Hindu Minority and
Guardianship Act, 1956, and S.19(b) of the Guardian and Wards Act, 1890, as violative of
Aa.14 and 15 of the Constitution. Under Ss.6 (a) and 19(b), only the father of a Hindu minor
could be the natural guardian. The mother could become the natural guardian only
‘after’ the lifetime of the father. The petitioner argued that the provision was discriminatory
towards women and deprived mothers’ guardianship rights, responsibilities, and
authority in relation to her own children during the lifetime of the father.
The court agreed that “…gender equality is one of the basic principles of the Constitution
and in the event the word 'after' is to be read to mean a disqualification of a mother to act as
a guardian during the lifetime of the father, the same would definitely run counter to the
basic requirement of the constitutional mandate and would lead to a differentiation between
male and female.”
The court interpreted the word 'after' to mean not after the death of the father, but in his
absence, temporary or otherwise, or total apathy of the father towards the child, or inability of
the father by reason of ailment to act as a natural guardian. (Githa Hariharan v. Reserve Bank
of India, AIR 1999 SC 1149)
Constitutional Safeguards for Women, Children, Scheduled Castes, Scheduled Tribes, and
Socially and Educationally Backward Classes
Whereas the right to equality prohibits discrimination on the basis of sex or caste, Aa.15(3),
15(4), and 15(5) empower the State to make special provisions for women and children,
socially and educationally backward classes of citizens, and the Scheduled Castes and the
Scheduled Tribes. These provisions seek to eliminate the socio-economic backwardness of
these classes and are a form of positive discrimination. A.16 ensures equality of opportunity
for all citizens in employment or appointment to any office under the State. The Article
enables the State to make employment reservations in government jobs in favour of any
backward classes which have not been adequately represented by the State.
In Indra Sawhney v. Union of India, AIR 1993 SC 477 (Mandal Commission case), the court
addressed the constitutional validity of 27% reservation for socially and educationally
backward classes in civil posts and services in the Government of India. The court laid down
essential rules and limitations on reservations, such as:
Reservation measures can be made by the Legislature by law or by the executive;
A.16(4) is not an exception to A.16(1), and reservation of posts for a certain class is in
the nature of a reasonable classification for ensuring equality of opportunity;
Backwardness under A.16(4) is mainly social and need not be both social and
educational;
The socially advanced members of backward classes, identified as the creamy
layer, should be excluded from the reservations and reservations should not
exceed 50% in any one year; and
Reservations cannot be applied to promotions and merit alone would be considered for
certain posts and services.
Illustration: Rule 13A of the Kerala State Subordinate Services Rules, 1958, made it
obligatory for an employee to pass departmental tests for promotion. On request, the State
introduced Rule 13AA, which further exempted the Scheduled Castes and the Scheduled
Tribes from passing the tests for a period of two years. XYZ was not promoted despite
passing the said test, as opposed to the Scheduled Castes and the Scheduled Tribes who were
promoted, though they had not passed the prescribed tests. XYZ filed a petition challenging
the constitutionality of Rule 13AA on the ground that it was violative of A.16 of the
Constitution. The apex court held that Aa.14 and 16 permit reasonable classification having a
nexus to the objects to be achieved. The court remarked, “[t]he guarantee of equality before
the law or the equal opportunity in matters of employment is a guarantee of something more
than what is required by formal equality. It implies differential treatment of persons who are
unequal.”
The Supreme Court upheld the validity of Rule 13AA justified under A.16(1)of the
Constitution and within the purview of A.16(4). The Court reiterated the necessity of
substantive equality as opposed to formal equality. It observed that equality of opportunity
implies fair opportunity to all sections of society by eradicating the handicaps of a particular
section of the society.
What A.14 or A.16 forbids is hostile discrimination and not reasonable classification.
Classification is implicit in the concept of equality because equality means equality to all and
not merely to the advanced and educated sections of the society. (State of Kerala & Another
v. N. M. Thomas, AIR 1976 SC 490)
Right to Fundamental Freedoms
A.19 guarantees Indian citizens six rights:
The right to freedom of speech and expression;
The right to peaceful assembly;
The right to form associations or unions;
the right to move freely thoroughout the country;
the right to reside and settle in any part of the country; and
the right to practise any profession and carry on any occupation or business.
These freedoms that are a testament to the democratic values of India are subject to
certain limitations. For instance, the Parliament or the State legislatures can
impose restrictions on the right to freedom of speech and expression, on account of security
of the State, the sovereignty and integrity of India, friendly relations within foreign states,
public order, decency, or morality, or in relation to contempt of court, defamation or
incitement to an offence. The restrictions imposed, however, should be reasonable in nature.
Illustration: AP, a film-maker, made a documentary about the violence and terrorism
in Punjab and efforts made by a group to restore communal harmony. This award winning
documentary, which was submitted to Doordarshan, was not screened on television as it was
found unsuitable. The court held that this violated AP’s right to freedom of
expression and the people’s right to know about the situation in Punjab. The court also
emphasised that the right under A.19(1)(a) could be restricted only on the basis of
grounds listed in A.19(2). (Anand Patwardhan v. Union of India, AIR 1997 Bom 25)
To determine the reasonableness of restriction, factors such as the duration and the extent of
the restrictions, the circumstances under which and the manner in which their imposition has
been authorised, the nature of the right infringed, the underlying purpose of the restrictions
imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion
of the imposition, and the prevailing conditions at the time, must be taken into account. (State
of Madras v. V. G. Row, AIR 1952 SC 196)
Freedom of Speech and Expression
A.19(1)(a) guarantees the right to free speech and expression to all citizens. The right to
freedom of speech and expression comprises the right to express one’s views and opinions,
and to communicate, including through words, action, writing, print, pictures, films,
and movies. The right to free speech and expression forms an inalienable component of
a democratic and free State.
Illustration: The executive passed an order restricting the import of newsprint. Further, a
newsprint policy placed restrictions on page limits. ABC Ltd., a media house, challenged
the constitutionality of the order on the ground that it infringed the right to freedom
of speech and expression and the right to equality. The Court held that the State was
controlling newspapers and interfering with the freedom of press through the newsprint
policy. The direct effect of such a law is the violation of the freedom of speech and
expression. (Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106)
In recent years, the right to information has been recognised as a right inherent in A.19(1)
(a). The Supreme Court has held that the freedom of speech and expression also
includes the right to know, receive, and disseminate information.
(The Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal &
Another, (1995) 2 SCC 161)
Practising any Profession and Carrying on Business
A.19(1)(g) guarantees all citizens the right to practise any profession or to carry on any
occupation, trade or business. The State can, however, impose reasonable restrictions on
the right in the public interest.
Illustration: The State of Maharashtra banned women from dancing in beer bars because the
performances were vulgar, led to sexual exploitation of women, and were likely to
corrupt public morals. The ban, however, exempted three starred and above
establishments, drama theatres, cinema theatres, auditoriums, gymkhanas, and clubs
in order to promote tourism and culture. The ban was challenged as being violative of Aa.19
(1)(a) and 19(1)(g) and also of the right to livelihood flowing from A.21. The court struck
down the ban on the ground that it was unconstitutional and violative of the fundamental
rights of the bar dancers and bar owners to practice an occupation. The court further held that
the exemption granted to a class of establishments was arbitrary and violative of the right to
equality guaranteed under A.14 of the Constitution. It observed that there was no nexus
between the classification and restriction imposed and the object sought to be achieved by the
Act. (Indian Hotels and Restaurants Association and others v. State of Maharashtra,
2006(3) BomCR 705)
Rights Available to Persons Accused of a Crime
A.20 guarantees protection of three different types to persons convicted or accused of a
crime.
First, a person can only be convicted of an act which is an offence under a law in force
at the time of commission, and cannot be subjected to a penalty greater than that
prescribed under the law in force at the time of the commission of the offence.
Second, no person can be “prosecuted and punished for the same offence more than
once”. This is also known as the rule of protection against double jeopardy.
Finally, A.20 provides protection against selfincrimination such that a person accused of a
crime cannot be compelled to be a witness against himself. S.161(2) of the Code of Criminal
Procedure, 1973, provides similar protection against self-incrimination.
Nevertheless, the forceful acquiring of the thumb impression or writing specimen of the
accused does not constitute a violation of the right against self-incrimination.
“Selfincrimination means conveying information based upon the personal knowledge of the
giver and does not include the mere mechanical process of producing documents in court
which do not contain' any statement of the accused based on his personal knowledge.” (Kathi
Kalu Oghad v. Statebbof Bombay, AIR 1961 SC 1808)
The compulsory administration of a polygraph test, narcoanalysis, or brain mapping violates
the right against selfincrimination and the right to privacy, and amounts to cruel, inhuman or
degrading treatment. The coercive use of such techniques violates the right to personal liberty
as they fail to meet the ‘substantive due process’ standard.
(Selvi and Others v. State of Karnataka, AIR 2010 SC 1974)
The Constitution also extends protection to persons who are arrested and/or detained. No
arrested person can be detained in custody unless that person is informed of the grounds
of arrest, the right to consultation, and the right to be defended by a lawyer of her choice.
Further, the detained person must be produced before a Magistrate within 24 hours
of arrest. With a view to check rising incidences of custodial violence, the Supreme Court in
D. K. Basu v. State of West Bengal, AIR 1997 SC 610, laid down guidelines to be followed in
all cases of arrest and detention.
The guidelines required the police to bear accurate, visible and clear signs of identification, to
prepare a memo of arrest attested by a witness indicating the time and date of arrest, to
inform a friend or relative of the detainee of the place of detention, to inform the arrested
person of the right to inform someone about the arrest, to maintain records of the arrest,
and to ensure that the detainee is subjected to medical examination every forty-eight hours
by an approved doctor.
S.50A, introduced by the Code of Criminal Procedure (Amendment) Act, 2005, incorporates
the guidelines requiring intimation of arrest to a friend, maintaining records of arrest, and
informing the arrested person of the rights available.
The right to free legal aid, which flows from A.21, is a critical right available to accused
persons. The State is under a duty to provide a lawyer to accused persons who are unable to
afford legal services. (Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC
1369)
Illustration: A was accused of committing the offence of criminal intimidation under S.506 of
the Indian Penal Code, 1860. Owing to A’s poor financial condition, A could not afford
the services of a lawyer and remained unrepresented during the trial. A was convicted of the
offence by the trial court. In appeal, the court held that the trial had been vitiated owing to the
denial of free legal assistance to the accused. The court, while setting aside the conviction,
observed that the appellant was not informed of the right to free legal aid. Thus, the appellant
was unrepresented by a lawyer during the trial. (Suk Das v. Union Territory of Arunachal
Pradesh, AIR 1986 SC 991)
Right to Life
The right to life, enshrined in A.21 of the Constitution, a protection available to citizens
and non-citizens, is the most precious of all human rights. The right to life guarantees that
“no person shall be deprived of his life or personal liberty except according to procedure
established by law.” Although the right is subject to limitations established by law, the
court in Maneka Gandhi v. Union of India, AIR 1978 SC 597, has held that the ‘procedure
established by law’ should be ‘fair, just and reasonable, not fanciful, oppressive or arbitrary.’
The Court stipulated that the test of reasonableness of such a law, which deprives
a person of personal liberty, would have to be determined by testing it against Aa.14 and 19.
The Court therefore concluded that Aa.14, 19, and 21 are not mutually exclusive, but
interrelated.
The imaginative interpretation of the expression ‘life’ by Courts further validates
that the right to life, as Bhagwati, J., has observed is ‘the ark of all other rights.’ In Olga
Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, and Francis Coralie Mullin v.
Union Territory of Delhi, AIR 1981 SC 746, the court has reiterated, that A.21 is not
restricted to mere animal existence but includes the right to live life with dignity. Similarly,
in P. Rathinam v. Union of India, (1994) 3 SCC 394, the Court, while referring to various
decisions, reiterated that A.21 means the “…right to live with human dignity and the same
does not merely connote continued drudgery. It takes within its fold some of the finer graces
of human civilisation, which makes life worth living, and that the expanded concept of life
would mean the tradition, culture and heritage of the person concerned.”
A.21 is thus placed at the centre of the fundamental rights. It includes within its fold
various rights, including the right to dignity, environment, health, education, privacy, and
livelihood. In People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301, the
court has ruled that though the right to privacy is not expressly indicated in the Constitution,
“the right to hold a telephone conversation in the privacy of one’s home or office without
interference can certainly be claimed as the right to privacy."
It further ruled, that telephone conversations are a significant element of a person’s life and
at the time of talking on the telephone, a person is exercising her right to freedom of speech
and expression. The court made a reference to India’s obligation under A.17 of the ICCPR
and A.12 of the UDHR. A.21 has been invoked to safeguard the dignity and rights of
prisoners, and persons accused of crimes.
The court has held handcuffing of undertrials accused of a nonbailable offence punishable
with more than three years’ imprisonment, to be inhuman and arbitrary, and a violation of
Aa.14, 19, and 21. A person can be handcuffed only if there is a clear and present danger of
escape. (Prem Shankar v. Delhi Administration, AIR 1980 SC 1535)
Further, the right against torture or cruel, inhuman or degrading treatment has also been
carved out of A.21.
Illustration: M, who was arrested and detained under S.3 of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 (“the COFEPOSA”) filed
a petition challenging the constitutional validity of the provision of a Detention Order
which prevented her from meeting her family more than once a month. Further, the said
Detention Order made it impossible for her to meet her lawyer. The petitioner contended
that the said clause of the Detention Order was arbitrary, unreasonable, and violative of
Aa.14 and 21. The court held that the law of preventive detention has to pass the test not
only of A.22, but also of A.21, to ensure that the law is reasonable, fair, and just.
The court held “the prisoner or detenu has all the fundamental rights and other legal rights
available to a free person, save those which are incapable of enjoyment by reason of
incarceration.” The court remarked that the right to life is not restricted to a physical
existence. “We think that the right to life includes the right to live with human dignity and all
that goes along with it, namely, the bare necessaries of life such as adequate nutrition,
clothing and shelter and facilities for reading, writing and expressing oneself in diverse
forms freely moving about and mixing and commingling with fellow human beings.”
The court upheld the right of the detainee to meet her family and friends. It held the said
clauses to be violative of Aa.14 and 21 and unconstitutional and void as they permitted only
one interview in a month to a detainee and regulated the right of a detainee to have an
interview with a legal adviser of her choice. (Francis Coralie Mullin v. Union Territory of
Delhi, AIR 1981 SC 746)
Illustration: Right to Health D suffered serious injuries after falling off a train. D was denied
treatment in six hospitals on account of either non-availability of a vacant bed or lack of
medical facilities required for the treatment. D contended that the non-availability of medical
facilities had resulted in the denial of D’s fundamental right guaranteed under A.21. The
court declared that A.21 imposes an obligation on the State to safeguard the right to life of
every person. The hospitals run by the State and the medical staff are duty bound to provide
medical treatment to preserve life. The failure to provide timely medical treatment to a person
in need of such treatment results in violation of the right to life guaranteed under A.21. The
court ordered the State to compensate the petitioner for the breach of the right
guaranteed under A.21 of the Constitution. It further directed the State to formulate a plan
for providing services to ensure availability of medical care, and the implementation of the
plan. (Paschim Banga Khet Mazdoor Samity & Others v. State of West Bengal & Another,
AIR 1996 SC 2426)
Right Against Exploitation
Aa.23 and 24 protect the vulnerable from exploitation by the State and by private
individuals. A.23 prohibits trafficking of human beings and other forms of forced labour.
A.24 prohibits employment of children below 14 years of age in factories, mines or any other
hazardous employment.
In furtherance of the above prohibitions, Parliament enacted laws such as the Immoral
Traffic (Prevention) Act, 1956 (replaced the Suppression of Immoral Traffic in Women and
Girls Act, 1956), to suppress trafficking of women for the purpose of prostitution, the Bonded
Labour System (Abolition) Act, 1976, to prevent the economic exploitation of the vulnerable,
and the Child Labour (Prohibition and Regulation Act), 1986, to prohibit the employment of
children in specified occupations.
Illustration: M was working as a construction labourer and was being paid remuneration
below the minimum wage. This amounts to ‘forced labour’ under A.23, and M has the
right to approach the court under A.32 or A. 226. (People’s Union for Democratic Rights v.
Union of India, AIR 1982 SC 1473 (Asiad case))
Freedom of Religion
" Aa.25 - 28 of the Constitution govern the right to freedom of religion. A.25 guarantees to
every person the freedom of conscience and the right to profess, practise, and propagate
religion freely. This right is subject to public order, morality, and health. This right does not
prevent the State from enacting laws to regulate or restrict any economic, financial,
political, or secular activity associated with religious practice or laws to provide for social
welfare and reform.
The right to propagate religion does not include the right to convert and forceful conversion
interferes with an individual’s ‘freedom of conscience’. (Rev. Stainislaus v. State of Madhya
Pradesh, AIR 1977 SC 908)
Illustration: P, Q, and R, who belonged to the sect of Jehovah’s Witnesses, were expelled
from school because they refused to sing the National Anthem at school. They, however,
would stand respectfully when the Anthem was being sung. The court held that compelling
students to sing the National Anthem would contravene their right to freedom of religion and
the right to freedom of speech and expression. (Bijoe Emmanuel v. State of Kerala, AIR 1987
SC 748)
Cultural and Educational Rights
A.29(1) recognises the right of a section of citizens to conserve their distinct language,
script, or culture. A.29(2) prohibits the denial of admission to citizens in educational
institutions maintained or aided by the State on the basis of religion, race, caste, language,
or any of them. This will not, however, prevent the State from making special provisions for
the advancement of socially and educationally backward or the Scheduled Castes, or the
Scheduled Tribes. A.30 recognises the rights of religion-based or language-based minorities
to establish and administer educational institutions. These provisions were included in the
Constitution with a view to inspire confidence and security among minorities and to “bring
about equality by ensuring the preservation of the minority institutions and by guaranteeing
to the minorities autonomy in the matter of the administration of these institutions.”
(Ahmedabad St. Xaviers’ College Society v. State of Gujarat, AIR 1974 SC 1389)
Directive Principles of State Policy
The Directive Principles are contained in Aa. 36 - 51 of the Constitution. These principles
bear resemblance to the economic, social, and cultural rights contained in the ICESCR, and
require the State to undertake positive measures to promote social justice and economic
welfare. A.37 states that directive principles are not “enforceable in court” but are
“fundamental in…governance” and that the State is dutybound to “apply these principles in
making laws.” The courts have, however, observed that Fundamental Rights and Directive
Principles are supplementary to each other, and have proceeded to read the latter into
fundamental rights. For instance, in Mohini Jain v. State of Karnataka, AIR 1992 SC 1858,
the Supreme Court elevated the State’s duty to provide free education to children (till 14
years of age) contained in A.45 to a Fundamental Right, stating that it flows from
the right to life and dignity. A.21A, introduced by the 86th Amendment to the Constitution in
2002, expressly recognises the right to education. When interpreting fundamental rights,
directive principles must be considered, and they must be harmoniously construed. (In re:
Kerala Education Bill, AIR 1958 SC 956)
Emphasising the interrelationship, the court has observed that “the directive principles
prescribe the goal or end that is to be attained, and fundamental rights are the means to
achieve such end.” (Minerva Mills v. Union of India, AIR 1980 SC 1789)
Illustration: XYZ Municipal Corporation decided to forcibly evict all slum dwellers and
to deport them to their places of origin. This decision was challenged as being violative of
the right to livelihood, freedom of occupation, and due process. The court relied on Aa.39(a)
and 41 which required the State to secure adequate means of livelihood and the right to
work in case of unemployment and held that “…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 A.21.” (Olga Tellis v. Bombay
Municipal
Corporation, AIR 1986 SC 180)
Rights and Safeguards for Women
The CEDAW, which was adopted in 1979 by the United Nations General Assembly, was
ratified by India in 1993 with two declarations regarding Aa.5(a) and 16(1) of the
Convention.
A.5(a) requires State parties to take steps to eliminate prejudices and customary practices
steeped in gender bias and stereotyping. A.16 (1) relates to the elimination of discrimination
against women in matters relating to marriage and family relations.
The CEDAW, which comprises of 30 articles, was drafted with the intention of ending
all forms of discrimination against women in the private and public sphere. The
ratification of the Convention makes it obligatory for States to take appropriate measures
to end discrimination against women and to protect women’s human rights. The
CEDAW also puts in place a common definition of equality and of what constitutes
discrimination against women.
The UNCRPD is another convention which protects the rights of women. The
Convention recognises that girls and women with disabilities face greater risk and
discrimination, as opposed to other women and disabled persons. The Convention adopts
a two-track approach to promoting gender equality and the empowerment of women
with disabilities, thus appreciating and acknowledging the intersections between gender and
disability.
In view of the constitutional guarantees and the duty under the CEDAW, India has enacted
several laws for the protection of women. Some of the rights and safeguards that have
been incorporated in domestic laws, in order to ensure equality and non-discrimination,
include laws on domestic violence, equal remuneration, maternity benefit, and medical
termination of pregnancy.
Likewise, in several landmark cases, courts have taken a gender sensitive
view on cases before them, thus recognising the gender bias and vulnerability
faced by women and ensuring that the special measures required to ensure their rights and
interests are safeguarded. These measures have proved equally essential in promoting,
respecting, and fulfilling the human rights of women.
Violence Against Women Violence against women (“VAW”) is the most common and
prevalent form of human rights violations. VAW includes, but is not limited to,
physical, sexual, mental, reproductive, and economic abuse. Violence can take place
within the private sphere or in the public sphere.
Ss.375 - 376 of the Indian Penal Code,1860 (“the IPC”) cover sexual violence against
women. The IPC defines rape as sexual intercourse with a woman without her consent. Valid
consent forms an essential ingredient for sexual intercourse to not qualify as rape. The IPC
covers rape in situations of custody and care and also instances of gang rape. S.114-A of the
Indian Evidence Act, 1872, presumes lack of consent in cases where sexual intercourse by the
accused is proved and the woman denies giving consent. Such situations include rape in
custody and care, such as in jails, hospitals, and care institutions, rape by public servants, and
even instances of gang rape.
The Protection of Women from Domestic Violence Act, 2005 (“the PWDVA”), was
passed in 2006. The PWDVA protects women against violence in the private sphere, and has
been one of the most significant victories in women’s human rights in India. The PWDVA
provides women suffering from domestic violence with civil reliefs like a maintenance
order, protection order, residence order, custody order, compensation order, and
interim and ex parte orders.
Illustration: M and her mother worked in a coffee estate. M was raped by the accused in
the estate. The trial court convicted the accused under S.376 of the Indian Penal Code
and sentenced him to seven years of imprisonment. The High Court confirmed the
sentence on reappraisal and re-appreciation of the entire evidence on record. In an appeal to
the Supreme Court, the accused contended that the prosecution had not examined any
independent witnesses to prove the guilt of the accused beyond reasonable doubt and that
the medical examination did not find physical injury on M. The court declared the mere lack
of injuries on the body of the accused or of M could not lead to the inference that the accused
did not commit forcible sexual intercourse. The court ruled that though the medical report
does not disclose any evidence of sexual intercourse, the sole testimony of the
prosecutrix, “…which is found to be cogent, reliable, convincing and trustworthy has to be
accepted.” The Supreme Court dismissed the appeal and upheld the conviction and
sentence awarded by the trial court and confirmed by the High Court. (B. C. Deva v.
State of Karnataka, (2007) 12 SCC 122) The Supreme Court in Bharwada Bhoginbhai
Hirjibhai v. State of Gujarat, AIR 1983 SC 753, similarly observed that, “Corroboration is
not the sine qua non for a conviction in a rape [Link] the Indian setting, refusal to act on the
testimony of a victim of sexual assault, in the absence of corroboration as a rule, is adding
insult to injury.”
Illustration: AYZ filed a writ petition challenging the constitutionality of the PWDVA, on the
grounds that it is ultra vires the Constitution, as it accords protection solely to women and not
men, in violation of A.14 of the Constitution. The court observed that the classification of
persons for the purpose of bringing them under a well defined class is not denial of equal
treatment merely because the law does not apply to other persons. The Court held that the
challenge to the Domestic Violence law was misconceived and devoid of any merit. (Aruna
Parmod Shah v. Union of India, OI, WP, (Crl.) 425/2008, High Court of Delhi)
Some of the other laws protecting the rights of women in public and private spheres, in
addition to the above, are the Maternity Benefit Act, 1961, the Equal Remuneration Act,
1976, the Dowry Prohibition Act, 1961, and the Preconception and Pre-Natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994.
Rights and Safeguards for Children
A.15(3) of the Constitution allows the State to frame special provisions for women and
children. The proviso to S.160(1) of the Code of Criminal Procedure, 1973, requiring
children below 15 years of age to be questioned only in their homes and not in
police stations, is in keeping with A.15(3).
Further, the Directive Principles require the State to frame policies to safeguard the health
of children, protect them from abuse, and to secure the right to education for them.
Right to Education
The 86th Amendment to the Constitution led to the introduction of the right to free and
compulsory education for children between the ages of six to fourteen years. The Right of
Children to Free and Compulsory Education Act, 2009, which came into force on April 1,
2010, gives effect to this constitutional guarantee. This right is also available to
children with disabilities. Substantial obligations have been placed on the Central
and state governments to ensure that children belonging to weaker sections or
disadvantaged groups are not discriminated against or prevented from pursuing
elementary education. Schools have been expressly prohibited from charging a
capitation fee or subjecting children to a screening process.
Protection against Child Labour
In furtherance of A.24, the Child Labour (Prohibition and Regulation) Act, 1986,
prohibits the employment of children in specified occupations such as those concerned
with automobiles, workshops and garages, mines, handling of toxic or explosive
substances, or workshops wherein processes such as beedi-making, carpet weaving, cement
manufacture, cloth printing, building and construction, are carried out. This prohibition does
not, however, apply to household enterprises and government schools. The Act also
prescribes the hours and period of work, weekly holidays, health, and safety measures that
must be observed in non-prohibited occupations. Similarly, provisions contained in laws
including the Factories Act, 1948, the Mines Act, 1952, and the Beedi and Cigar Workers
(Conditions of Employment) Act, 1966, prohibit the employment of children.
The Juvenile Justice (Care and Protection of Children) Act, 2000, criminalises the
exploitation of a juvenile or child employee. Juvenile Justice System India’s obligations
under the CRC led to the revision of the law relating to juvenile justice. The Juvenile Justice
Act, 2000 (“the JJ Act”), which replaced the Juvenile Justice Act, 1986, consolidated the law
relating to juveniles in conflict with the law, and children in need of care and protection. It
provides for care, protection, treatment, and rehabilitation measures to promote the well-
being of children. The Act has incorporated one of the core principles contained in the CRC,
which is that “the best interests of the child shall be a primary consideration”.
The JJ Act sets out a “child-friendly” procedure to be followed while dealing with juveniles
in conflict with the law and children in need of care and protection. The former has been
defined to mean, “A juvenile who is alleged to have committed an offence and has not
completed the eighteenth year of age as on the date of commission of such offence”.
The JJ Act stipulates the orders that can be passed by the Juvenile Justice Board (“the
JJB”). No order sentencing the juvenile to death or imprisonment can be passed.
It is notable that the claim of juvenility can be raised “at any stage, even after final disposal
of the case” (S.7A, JJ Act). Furthermore, in cases pending before the JJ Act, 2000, came
into effect, courts can continue with the proceedings and upon arriving at the conclusion that
the offence has been committed, should forward the juvenile to the JJB for orders (S.20, JJ
Act).
Illustration: D was 16 years, 10 months, and 20 days old when he allegedly kidnapped and
murdered a person. The offence was committed in 1995 when the Juvenile Justice
Act, 1986, was in force. This Act defined “juvenile” to mean “a boy who has not
attained the age of sixteen years…” In 2003, D was convicted and sentenced to life
imprisonment. In his appeal, D claimed that since he was a “juvenile in conflict with law”,
the sentencing would have to be in accordance with the 2000 Act (the JJ Act). The court held
that on a combined reading of Ss. 7 and 20 of the JJ Act, it was clear that if a person was
below the age of 18 years on the date of the commission of the offence, the JJ Act, would
apply. (Imtiyaz Hussain v. State of Maharashtra, (2008) 110 BomLR 1645)
“Child in need of care and protection” has been broadly defined to include orphaned,
abandoned, or surrendered child; child who is or is likely to be subjected to abuse, neglect,
sexual abuse, or trafficking; a child who is terminally ill or child with disabilities and no
caregiver; or a child who is a victim of armed conflict, civil commotion or natural disaster.
Such a child can be brought before the Child Welfare Committee, which can pass orders to
place the child in a children’s home or shelter home to secure her safety and well-being.
The JJ Act is a secular legislation, and provides for adoption, foster care, sponsorship, or
placement at an after-care organisation with the aim of securing the rehabilitation and social
integration of children residing in children’s or special homes.
Illustration: Mr. and Mrs. V, a Hindu couple wished to adopt S, a girl child who had been
surrendered to a nursing home by her parents at birth. They also had a daughter of their
own. The adoption was challenged as being in contravention of the Hindu Adoption and
Maintenance Act, 1956 (“the HAMA”), which prohibits a person having a living daughter
from adopting a daughter. Unlike the HAMA, under S.41(6)(b) of the JJ Act, a person having
a biological son or daughter can adopt a child of the same sex. The court adopted a
harmonious construction of these two laws and held that where a child falls within the
description of “orphaned, abandoned or surrendered child,” the provisions of the JJ
Act would apply. (In re: Adoption of Payal, 2009 (111) BomLR 3816)
The Juvenile Justice (Care and Protection) Rules, 2007, (“the Rules”) set out 14
principles, which the Child Welfare Committee and Juvenile Justice Board must abide by
while implementing the Rules. Some of the key principles are the presumption of
innocence, right to be heard, best interest, safety, family responsibility, equality and
nondiscrimination, right to privacy and confidentiality, institutionalisation to be a step
of last resort, repatriation and restoration, and a fresh start.
Principle of Best Interest of the Child
The key principles entrenched in the CRC are the principles of non-discrimination, best
interest, child participation, and the right to life. The principle of best interest of the child
is also contained in the Hindu Minority and Guardianship Act, 1956, and the Guardians
and Wards Act, 1890, and has been regularly relied on by courts while deciding on custody
matters.
Illustration: A filed a habeas corpus petition before the court seeking custody of his
daughter, claiming that she had been abducted by B, his wife, and her parents. A
also alleged that B was suffering from a mental ailment which rendered her unsuitable
for custody. The court observed that “in case of dispute between the mother and father
regarding the custody of their child, the paramount consideration is welfare of the child and
not the legal right of either of the parties.” Applying this principle, the court allowed B to
retain the custody of the child. (Rajesh K. Gupta v. Ram Gopal Agarwala, AIR 2005 SC
2426)
Protection Against Violence
The provisions of the CRC require India to enact laws and take other appropriate
measures to protect children from “all forms of physical or mental violence, injury or abuse,
neglect or negligent treatment, maltreatment or exploitation including sexual abuse…”
Further, the CRC expressly prohibits a child from being subjected to torture or inhuman
treatment. The dignity of the child must be respected and secured.
Illustration: S, an eleven-year-old girl, was made to crouch in an uncomfortable position
under the hot sun for two consecutive days in school as punishment for failure to recite
alphabets. She later slipped into a coma and passed away. Corporal punishment in schools
is an affront to the dignity of a child and interferes with the right to education flowing
from the right to life. (Parent’s Forums for Meaningful Education v. Union of India, AIR
2001 Del 212)
The Indian legal framework does not provide for child sexual abuse as a distinct offence. It
is dealt with under provisions relating to rape, hurt, and outraging the modesty of a
woman.
Taking into account the unease and discomfort faced by a child victim of sexual abuse, the
apex court has laid down that along with rape trials, the trial of the offences of outraging
the modesty of a woman (S. 345, IPC) and unnatural sexual offences (S.377, IPC) shall
be held in-camera. Further, while holding the trial of child sexual abuse or rape, a screen
should be placed so that the victim cannot see the accused and the victim should be
allowed sufficient breaks while giving testimony.
Questions relating to the incident must be given in writing to the Presiding Officer who
must then put it to the victim, “in a language which is clear and is not embarrassing.”
(Sakshi v. Union of India, AIR 2004 SC 3566)
Applicability and Enforcement of Human Rights
Right to Constitutional Remedies
A.32 of the Constitution encompasses the critical right to a remedy for violation of
fundamental rights. A.32(1) guarantees the right to approach the Supreme Court directly
and A.32(2) empowers the court to issue directions or orders or writs such as habeas
corpus, mandamus, certiorari, quo warranto, and prohibition. The High Court can also be
approached under A.226. This right may, however, be suspended by way of a
presidential order when a proclamation of emergency under A.352 of the Constitution is
in effect.
A petition may be filed by the person whose rights have been violated or any public
spirited individual. The court may also exercise its suo motu powers and take
cognizance of a violation. Public Interest Litigation In cases where the enforcement of a
fundamental right is involved, a public interest litigation (“a PIL”) can be filed in the
Supreme Court under A.32. A writ petition can be filed in the High Court under A.226 on
many grounds, aside from the violation of a Fundamental Right.
PILs, which have been used to protect the rights of the disadvantaged and to ensure
access to justice, relax the traditional concept of locus standi, which permits only persons
whose rights have been affected to approach the Court. Following the Emergency of
1975-1977, non-adversarial litigation has emerged as a custodian of the basic human
rights of the people.
From upholding the personal liberty of undertrials
(Hussainara Khatoon & Others v. Home Secretary, State of Bihar, 1979 AIR 1819),
rehabilitation of child prostitutes
(Gaurav Jain v. Union of India, AIR 1997 SC 3019),
to the release of bonded labour
(Bandhua Mukti Morcha v. Union of India, (1984) 2 SCR 67),
the PIL has served as a “strategic arm of the legal aid movement.” (People’s
Union for Democratic Rights v. Union of India, AIR 1982 SC 1473)
The Supreme Court further relaxed rules of procedure by treating letters
reporting the violation of fundamental rights as writ petitions.
Right to Compensation for Violation of Fundamental Rights While the Constitution does not
expressly provide for the right to compensation for violation of fundamental rights, the
Supreme Court has, in pursuance of its powers under A.32, ordered compensation to redress
violations, especially civil and political rights violations.
Illustration: R was detained for more than 14 years in jail after he had been acquitted. R
filed a habeas corpus petition seeking his release and claimed compensation for the
illegal detention. Ordering compensation, the court observed, “the refusal of this Court to
pass an order of compensation in favour of the petitioner will be doing mere lip-service to his
fundamental right to liberty which the State Government has so grossly violated. A.21
which guarantees the right to life and liberty will be denuded of its significant content if the
power of this Court were limited to passing orders to release from illegal detention.”
(Rudul Sah v. State of Bihar, AIR 1983 SC 1086)
Illustration: Ms. C, a citizen of Bangladesh, was gang-raped by employees of the Indian
Railways. A petition was filed under A.226 claiming compensation. The court held that A.
21, which is available to non-citizens as well, had been violated and that “[w]here public
functionaries are involved and the matter relates to the violation of the fundamental rights or
the enforcement of public duties, the remedy would still be available under the Public Law
notwithstanding that a suit could be filed for damages under Private Law.”
(Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988)
Compensation is not, however, ordered in every case of violation of fundamental rights.
For instance, in cases involving custodial violence or death, compensation can be
ordered if the violation of A.21 is “patent and incontrovertible”, is “gross and of a magnitude
to shock the conscience of the court”, and has resulted in death or is supported by medical
report, disability, or scars.” (Sube Singh v. State of Haryana, (2006) 3 SCC 178)
Quasi-Judicial Bodies And Remedies
India established the National Human Rights Commission (“the NHRC”) in 1993 under the
Protection of Human Rights Act, 1993. The establishment of an impartial and
autonomous body for protection and fulfilment of human rights was a consequence
of growing human rights violence and domestic and international pressure. The
NHRC has been vested with the power to investigate cases of human rights violations,
to inspect existing mechanisms to protect human rights, to sensitise the government to
its domestic and international obligations, to spread human rights awareness, and to work
with civil society organisations and intervene in court proceedings.
In the Gujarat Best Bakery case, the NHRC proactively filed a petition before the Supreme
Court to transfer riot cases outside Gujarat for a fair and impartial trial and to ensure safety of
witnesses. It further prayed for the setting aside of the trial court order in the Best Bakery
case, which had wrongly acquitted all the accused in the case, and sought directions for
further investigation by an independent agency and also retrial of the case in a court
located outside Gujarat. The NHRC can take suo motu action and is vested with the power
to intervene in court proceedings. Complaints can be registered with the NHRC by or on
behalf of any person whose human rights have been violated. The complaint can be filed free
of cost, thus eradicating any economic barriers to access to justice. In addition to the NHRC,
States are under a duty to set up State Human Rights Commissions, which would work in
conjunction with the NHRC and provide relief in different States with regard to human rights
violations. In addition to the NHRC, there is the National Commission for Women (“the
NCW”), the National Minorities Commissions (“the NCM”), the National Commission for
Protection of Child Rights (“the NCPCR”), the National Commission for Scheduled Castes
(“the NCSC”), the National Commission for Scheduled Tribes (“the NCST”), and the
National Commission for Backward Classes (“the NCBC”). There are similar bodies at the
state level.
International Monitoring System
International human rights law covenants include provisions for scrutiny of a State’s
compliance under the instrument. For instance, State Parties are required to submit
periodic reports to the treaty body constituted under the respective conventions on the
measures taken to implement the rights contained in the relevant convention including
the ICCPR, the ICESCR, the CEDAW, and the CPRD. Civil society organisations can also
submit alternate or shadow reports to shed light on a State’s compliance with a particular
treaty. The treaty body then scrutinises the report submitted, and offers its
recommendations in the form of “concluding observations”. While this is not of any binding
value, it creates a moral obligation on the state to address the concerns.
Select treaty bodies such as the Human Rights Committee, the Committee on CEDAW, and
the Committee against Torture, can also receive complaints of human rights violations
from individuals. India has, however, not ratified the relevant instruments that make it
permissible for individuals to access the complaints’ mechanisms of treaty bodies.
In 2006, the United Nations General Assembly adopted a resolution under which the Human
Rights Council was constituted as a subsidiary organ of the General Assembly.
The Council has been vested with the responsibility of promoting and protecting human
rights and fundamental freedoms. The Council has been empowered to examine
gross and systematic violations and make recommendations thereon. Significantly,
through the Universal Periodic Review mechanism, the Council can undertake a
review of the human rights record of all countries that are members of the United
Nations..