M: 141

ABSTRACT

Human rights are the very basic rights of any human being. Human rights are universal in nature and are observed irrespective of religion, race, caste, sex, etc. Human rights are recognized in international as well as national level. On International level, Universal Declaration of Human Rights deal with Human rights and on National level, different legislation was framed which includes various Human rights. Here in this article, different legislation was discussed and critical analyses were done on those legislation. Inspite of numerous legislation in India, the status of Human rights are not up to the mark. 

HUMAN RIGHTS LEGISLATION IN INDIA- AN APPRAISAL

INTRODUCTION

Human rights are essential for life as human beings and are regarded and are regarded as inalienable as they cannot be taken away and are fundamental rights. Every human being possessed these human rights simply because he or she is a human being, irrespective or we can say regardless of his or her religion, nationality, race, sex, etc. Human rights are universal in nature because they belong to everybody in the world. Human rights are also sometimes called as natural rights or fundamental rights or basic rights. They are considered as natural rights as by their very nature, it belongs to men and women. They are known as fundamental or basic rights as they cannot be taken away by the legislature. Human rights are also known as ‘common rights’ as all the men and women in the world share it as common law in England.[1]

HISTORY OF HUMAN RIGHTS

The basic concept of human rights is more developed in the aftermath of the 2nd world war. The united nation point out the origin of Human Rights in the year 539 B.C. It was said that after the Cyrus the great had conquered Babylon, they set all the slaves free and also declare that they had right to choose their own religion and maintain the racial equality. These rules were recorded on a baled clay cylinder. So, in this way, Cyrus Cylinder’s statement becomes the first human rights declaration in history.[2]

The idea of human right quickly spread to India, Greece and later on in Rome. The most important development since then, are as follows:

  1. 1215: The Magna Carta

It made the king to be the subject of law and new rights were given to people.

  • 1628: The Petition of Right

It frames out the rights available to the people.

  • 1776: The United States Declaration of Independence

It framed certain rights as right to life, liberty and pursuit of happiness.

  • 1789: The Declaration of the rights of man and of the citizens

This document belongs to France which states that all the citizens are equal under the eyes of law.

  • 1948: The Universal Declaration of Human Rights

It is the first document in the history which list down 30 rights which is given to everyone.[3]

UNIVERSAL DECLARATION OF HUMAN RIGHTS

The Universal Declaration of Human Rights was adopted by United Nations General Assembly in Paris on 10th December, 1948. The declaration has been translated into more than 500 languages. The Preamble clearly lays out that it is necessary for the foundation of freedom, peace and justice, to rebel against the tyranny, to maintain friendly relations among the states, to promote social progress, to live a human life with dignity. The Universal Declaration for Human Rights sets out as a common standard for all the people throughout the world.[4]

Following are the clarification of Human Rights into four categories:-

  1. General (Article 1 and 2)
  2. Civil and Political (Article 3 to 21)
  3. Economic, Social and Cultural Rights (Article 22 to 27)
  4. Concluding (Article 28 to 30)

HUMAN RIGHTS AND INDIAN CONSTITUTION

It has been stated that those states which emerged after the adoption of Universal Declaration of Human Rights, their constitutions were inspired by the same. At the time of establishment of Universal Declaration of Human Rights, the Indian constitution was in the process of making. Therefore, the Fundamental Rights and Directive Principles of State Policy in the Indian Constitution are having effect of declaration on it.[5]

  1. FUNDAMENTAL RIGHTS

An individual needs the good environment for his/her overall development and it is also necessary that they must be protected by the state or society. Such rights are part of our Constitution and are known as Fundamental Rights and they are enforceable through the court of law. India had struggled a lot against the British and suffered from number of violation of basic rights. Therefore, the framers of Indian Constitution wanted to provide its citizens some of the Fundamental Rights necessary to maintain the dignity, peace and comfort of an individual. Fundamental Rights are necessary for a proper and harmonious development of a human being and are applicable to all Indian citizens irrespective of their race, sex, caste, creed, place of birth, etc. Fundamental rights are enshrined in part III of the Indian Constitution. (Article 12 to 35).[6]

Fundamental rights are different from the ordinary rights, in the sense that no law, usage, custom, ordinance or order can take away or abridge them. Any law violative of fundamental rights is void. In ADM Jabalpur V/s Shukla[7], Justice Beg observed, “The object of making certain general aspects of rights fundamental is to guarantee them against illegal invasion of these rights by executive, legislature or judicial organ of the state.”

In Gokal Nath V/s State of Punjab[8], the earlier Chief Justice Subba Rao had rightly observed, “Fundamental rights are the modern name for what have been traditionally known as natural justice.”

The framers of Indian Constitution were influenced by the concept of human rights and made sure Indian Constitution guaranteed most of the human rights as are contained in Universal Declaration of Human Rights. The Universal Declaration of Human Rights contained civil and political rights which are incorporated in part III of the Indian Constitution and Economic, Social and Cultural Rights which are incorporated in part IV of the Indian Constitution.[9]

Following chart indicates the human rights which are enumerated in Indian Constitution:-

Sr. no.UDHRIndian ConstitutionRights
1Article 3Article 21Right to life, liberty and security of person
2Article 4Article 23Prohibition of Slavery, slavery trade, etc.
3Article 7Article 14, 15(1)Equality before law and non discrimination
4Article 8Article 32Right to effective remedy
5Article 9Article 22Right against arbitrary arrest and detention etc.
6Article 11(2)Article 20 (1)Right against ex post facto laws
7Article 13(1)Article 19 (1) (d)Right to freedom of movement
8Article 18Article 25 (1)Right to freedom of thought, conscience and religion
9Article 19Article 19 (1) (a)Right to freedom of opinion and expression
10Article 20 (1)Article 19 (1) (b)Right to freedom of peaceful assembly and association
11Article 21(1)Article 15(1)Right to equal access to public service
12Article 22Article 29 (1)Right to social Security
13Article 23(4)Article19(1) (C)Right to form and join trade unions[10]

There are certain other human rights which are not enforced in Indian Constitution but are enumerated under Article 21 of the Indian Constitution as this Article is of widest amplitude. They are as follows:

Sr. no.UDHRIndian ConstitutionRights
1Article 13 (2)Article  21Right to leave any country including his own and to return to his country
2Article 12Article 21Right to Privacy
  • ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Sr. no.UDHRIndian ConstitutionRights
1Article 23 (1)Article  41Right to work, to free choice of an employment, to just and favorable conditions of work etc.
2Article 23(2)Article 39(d)Right to equal pay for equal work
3Article 23(3)Article 43Right to just and favorable remuneration
4Article 24Article 43Right to rest and leisure
5Article 25(1)Article 39 (a) and 47Right of everyone a standard of living adequate for his/her family
6Article 26(1)Article 41 and 45Right to education and free education in the elementary and fundamental stages
7Article 28Article 38Right to proper Social order[11]
  • STATUTORY HUMAN RIGHTS LAW

Statutory laws are known to be laws enacted by the legislature. In India, its constitution contains elaborated provisions so as to incorporate maximum number of human rights. Still, Indian government time to time felt a need to enact certain laws which fulfils to provide not only the Socio-economic justice but also to keep on check on the particular issues regarding the human rights of marginalized, weaker and vulnerable sections of the society. Such laws whose aim is to make specific protective and promotive provisions for the human rights specifically for particular group of people are known as statutory human rights law. Out of which the most important legislation is Protection of the Human Rights Act, 1993 under which National Human Rights Commission has been formed.[12]

Following are the statutory provisions regarding human rights in India:-

  1. Protection of Human Rights Act, 1993

The Preamble of the Act makes it clear that the Act of the Protection of Human Rights 1993 provides for the establishment of National Human Rights Commission, Human Rights Commission at State level and Human Rights Court for the better protection of human rights.[13]

Section 2(d) of the Protection of Human Rights Act, 1993 defines the term ‘human rights’ as the rights relating to life and liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts of India.

Section 3 of the Act provides for the constitution of National Human Rights Commission which is constituted by the central government. Article 21 of the Act provides for the constitution of State Human Rights Commission constituted by state government and Article 30 of the Act provides for the establishment of Human Rights Court.[14]

  • Persons with disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1955

It came into force on February 7, 1996. The Act is considered as a significant step to ensure equal opportunity to the people with disabilities. The main aim and objective of the act is to carve out the State’s responsibility towards the prevention of disabilities, protection of rights, provisions of medical care, employment, education, training and rehabilitation of the persons with disabilities. Person with disabilities is defined as a person who is suffering from at least forty percent of any disability as certified by a medical authority.[15]

This act seeks to provide human rights to the disabled person in order to give them equal opportunity and to ensure their full participation in the various activities of life.

  • The National Commission for Minorities Act, 1992

Union Government notified six religious communities as minority communities. They are Muslim, Christian, Sikhs, Buddhists, Zoroastrians (Parsi) and Jains. The Act established a commission known as National Commission for Minorities constituted by the central government. The Act actually strengthened the cause of minorities promulgated by the declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities. The objective of the Act is to ensure the human rights of the minority group in India. Commission looks into the complaint regarding deprivation of rights and safeguards of the minorities.[16]

  • National Commission for Women Act, 1990

The National Commission for Women is established in January 1992 under the National Commission for Women Act, 1990. The objective of the National Commission for women is to provide free voice to the women to raise their issues and safeguards the right of the women in India. The major subjects of their campaign are dowry, equal representation of women in jobs, politics, exploitation of women for labour, religion, police abuse against women, etc. The function of the Commission is to work towards women’s right and take up cases of violation of laws against women.[17]

  • The Child Labour (Prohibition and Regulation) Act, 1986

The act aims to define child as any person who is under the age of fourteen years of age. It prohibits the employment of children in any hazardous place which is listed in Part A of the Schedule of the Act. The Act also provides for the rules framed by appropriate government regarding health and safety of children in those establishments where children are permitted to work.[18]

  • Juvenile Justice (Care and Protection of Children) Act, 2000

Juvenile Justice (Care and Protection of Children) Act, 2000 defines the term child or juvenile. A person who has not completed the age of 18 years is termed as juvenile. It points out two categories of child: Children in need of care and protection and juvenile in conflict with law. The act also establishes Child Welfare Committee for the children in need of care and protection.[19]

CRITICAL ANALYSIS OF HUMAN RIGHTS LEGISLATION IN INDIA

India got freedom, framed its Constitution and administration system. Framers of Indian Constitution tried to list most of the human rights from Universal Declaration of Human Rights, 1948 to incorporate part III of the Constitution of India. Part III of the Constitution of India also declares any laws framed inconsistent with the Fundamental Rights will be considered as void. These Fundamental Rights are enforceable in the court of law. Our Constitution is embellished with the vast range of political, social, economic, cultural and religious rights of citizens. For ensuring equal rights and opportunities of schedule caste, scheduled tribes and other weaker and backward classes of society, few provisions were also inserted. Untouchability is also considered as an offence and is banned. Primary education is free, physical and mental health is recognized as one of the social rights, etc. are the examples to show that the human rights and democracy are inseparable and one cannot achieve without other.[20]

It’s been 72 years of independence, but what is the real status of human rights in India?

In the context of Fundamental rights, the judiciary, free press and voluntary non-government organizations in India have achieved a lot in maintaining and protecting the fundamental rights of the people of India. In Ajay Hasia V/s Khalid Mujib[21], the Supreme Court of India declared that it has a special responsibility to enlarge the range and meaning of the fundamental rights and to advance the human rights jurisprudence.

Broader interpretation is given under Article 14 (Equality before law) and Article 21 (liberty of the person and of the life of the individuals) of Indian Constitution by Indian Judiciary so as to include maximum number of Human Rights. Judiciary plays a very impressive role in protection and promoting the human rights. The entire factors essential for leading a better human conditions such as science and technology, economic development, self sufficiency in food and improvement in health have been focused on.

However, still we have certain contradictions in our society regarding the socio-economic order. The development is not shared equally in our society. India still has 40 % of the population which lives below the poverty line. Basic amenities such as health, education, electricity, drinking water is not available to everyone. Despite having strict laws, child labour and bonded labour still exists. Children are still working in hazardous industries. Women do not have equal rights along with men of the society. Inspite adding in part III of the constitution, many atrocities were reported against the backward classes, ethnic and religious minority groups. India still reported the instances of police, torture and custodial death. India still needs law regarding right to privacy.[22]

Human Rights in India-Status Report 2012 by working group on Human Rights in India and the United Nations also suggests that the Government of India needs to ensure the steps for respect, protection and fulfillment of human rights of people and communities across the country. According to the report, much work has to be done to improve the human rights situation in India. In almost every aspect of the report, the situation in India in gloomy, yet lot of scope of improvement is there.

Displacement issues because of infrastructure projects such as dams, mining, environmental conservation projects results in displacement of millions of rural families and most of them have not received rehabilitation. India adopted the United Nation Millennium Declaration in 2000 with the joint efforts to reduce poverty and hunger by 50 % before the year 2015. Yet, India is facing high levels of food insecurity, corruption, discrimination and inefficiency in distribution remains. Despite the significant growth in economic sphere in the last couple of years, India is still having high level of malnourishment.[23]

The country has witnessed an alarming number of farmer suicides since 2001 primarily due to indebtedness and agrarian distress. India ranks second worldwide in farm production regarding hunger among the producers of food are reality in our country.[24] India’s economic policies are steadily eroding human rights. 92-93% of population which belongs to unorganized sector is working in worst condition and living standards.[25]

Despite all the negative aspects, one positive feature is that the citizens of the country are becoming aware about their rights and demands to end all kind of exploitation. Many young men and women are working in Human Right Organizations at grass root level for the protection of human rights of the exploited and deprived sections of the society. People are also becoming aware about environment protection which is itself a valuable human right.[26]

CONCLUSION

At the end, it can be concluded that Indian Government enacted bunch of laws and legislation to incorporate maximum number of human rights. However, inspite of all these legislations discussed above, people are still having issues regarding their basic rights and natural justice. In India, there are certain sections or group of people whose basic rights are violated now and then. However, many organizations are working on this issue; they are educating people about their rights, supporting them in raising their voices against the violation of rights. People are becoming aware about their rights, judiciary is working well in enforcing and implementing those rights, but still India has to go a long way to achieve maximum protection of human rights.


[1] J.E.S. FAWCETT, THE LAW OF NATIONS 151 (Alien Lane, Penguin Press 1968)

[2] A Brief History of Human Rights, ACCIONA (May 15, 2019, 4:26 AM), https://www.activesustainability.com

[3] History of Human Rights, YOUTH FOR HUMAN RIGHTS (May 15, 2019, 04:39 PM), https://www.youthforhumanrights.org

[4] Universal Declaration of Human Rights, UNITED NATIONS (May 15, 2019, 05:02 PM), https://www.un-org/en/universal-declaration-human-rights/index.html

[5] B.N. MANI TRIPATHI, JURISPRUDENCE 476 (17th ed 2006)

[6] Anurag Pandey, Human Rights, Gender and Environment, SCHOOL OF OPEN LEARNING, UNIVERSITY OF DELHI (May 15, 2019, 9.44 PM), https://sol.du.ac.in/

[7] ADM Jabalpur V/s Shukla, (1976) 2 SCC 521, (India)

[8] Golak Nath V/s S.O.Punjab, AIR 1967 SC 1643, 1656 (India)

[9] S.K KAPOOR, INTERNATIONAL LAWS AND HUMAN RIGHTS 885 (Central Law Agency, 16th ed. 2007)

[10] Id at 885-886.

[11] Id at 889

[12] Anurag Pandey, Human Rights, Gender and Environment, SCHOOL OF OPEN LEARNING, UNIVERSITY OF DELHI (May 18, 2019, 7.45 A.M), https://sol.du.ac.in/

[13] Kapoor, Supranote 9, at 916

[14] The Protection of Human Rights Act, 1993 (India).

[15] Priyanka Chaurasia, Presentation on Special Education, SLIDE SHARE (May 18, 2019, 10:18 AM), https://www.slideshare.net

[16] National Commission for Minorities Act, 1992, LAWYERSLAW.ORG (May 18, 2019, 10:45 AM), https://lawyerslaw.org/the-national-commission-for-minorities-act-1992)

[17] National Commission for Women, GKTODAY (May 18, 2019, 10:59 AM), https://www.gktoday.im/gk/national-commission-for-women/

[18] The Child Labour (Prohibition and Regulation) Act, 1986 and Rules, 1986, no. 61 of 1986, Acts of Parliament 1986 (India).

[19] Child Protection and Child Right, CHILDLINE 1098 (May 18, 2019, 7:13 P.M), https://childindia.org.in

[20] Human Rights in India, SCHOOL OF OPEN LEARNING, UNIVERSITY OF DELHI (May 18, 2019, 7:35 P.M), https://sol.du.ac.in

[21] Ajay Hasia V/s Khalid Mujib, AIR 1981  487 at 493 (India)

[22] Human Rights in India, SCHOOL OF OPEN LEARNING, UNIVERSITY OF DELHI (May 18, 2019 8:05 PM), https://sol.du.ac.in

[23] Supranote 20

[24] National Crime Records Bureau, Accidental Deaths and Suicides in India 2010, (May 19, 2019, 11:15 AM) https://ncrb.nic.in/cd-adsi2009/adsi2009-full report.pdf 

[25] Supranote 24

[26] Human Rights in India, SCHOOL OF OPEN LEARNING, UNIVERSITY OF DELHI (May 19, 2019, 11:05 AM), https://sol.du.ac.in