27 Human Rights and Duties as Constitutional Guarantees

Dr. K Sita Manikyam

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AIMS OF THE CHAPTER:

This unit aims to fulfil the following learning objectives:

  • Understanding the ‘human rights-human duties’ dichotomy.
  • Understanding the general connections between Constitutional guarantees under Indian Constitution and the Universal Declaration of Human Rights (UDHR).

1. INTRODUCTION

The notion of Human Rights and Fundamental Rights was known from past civilizations. These Rights have been the concern of all civilizations from the time immemorial. It is visible in Indian culture which has been the product of a synthesis of diverse culture and religions since beginning of the Indus Valley civilization in Indian context. The Babylonian Laws and the Assyrian laws in the Middle East, the “Dharma” of the Vedic period in India and the jurisprudence of Lao-Tze and Confucius in China, comprise championed human rights all through the history of human civilization. The Indian concept perceives the individual, the society and the universe as an organic whole. One and all are a child of God and all fellow beings are connected to one another and set out to a universal family. In this context, Mahatma Gandhi remarks, “I do not want to think in terms of the whole world. My patriotism includes the good of mankind in general. Therefore, my service to India includes the services of humanity.”

2. ORIGIN AND DEVELOPMENT OF HUMAN RIGHTS IN INDIA

2.1. Human Rights in Ancient India

In ancient India, human life was clear in the expression of human dignity. And eventual individual development depended exclusively upon the uplift and improvement of humanity as a whole. The individual not only comprise the right to be treated with equality, but also a duty to strive for the happiness of every other individual. A distinctive feature of Indian culture is its thorough understanding of nature, human values and dignity of man. In ancient India the rule of law was a significant embracing institution to protect the innate of all. The existing rule of law protects the dignity of every individual and the king could not interfere by means of enacting or altering the law substantially at his will.

The individual soul has been the entity in the study of mankind since from pre-historic time. Indian servants and sages categorically uttered the entire mankind forms a single species. And in spite of outer diversities each and every one have the common self-respect which supplies the connection of unity in the minds of its diversity. No individual possibly will claim to be, or to be considered as superior to others. Individuals don’t barely have the right to be treated with parity, but also a duty to attempt for the pleasure of every other individual. India had been the cradle of the various great religions. For at least a thousand years, a figure of religions has thrived in India. Each religion has its own philosophy, divinity, mythology, ceremonies and rituals. In spite of these outward diversities of religious faith and practice, the gigantic bulk of people in India had developed definite common fundamental standards of life based on the principle of human dignity which might sustain and build up into a great extensive society.

2.2. Human Rights in British India

The contemporary account of human rights jurisprudence may be thought to have taken origin in India at the time of the British rule. When the British ruled India, confrontation to foreign rule manifested itself within the form of insisting for fundamental freedoms and the civil and political rights of the people; Indians were disgraced and discriminated against by the Britishers. The freedom movement and the unsympathetic oppressive actions of the British rulers encouraged the struggle for civil liberties and fundamental freedoms. Under the British rule, human rights and egalitarianism was suspect and socialism was an abhorrence. Lord Wellesley condemned the Indians as vulgar, ignorant, rude and stupid and Lord Cornwallis described as a maxim that all native of Hindustan is crooked. The English East India Company debarred Indians from high offices and depressed them of their political, social and economic rights.

Because of the rigid opposition from the people of India that the Charter Act of 1813 was enacted toward promoting the interest and pleasure of the native people of India. Correspondingly, the Government of India Act, 1833 was approved to allow the Indians to benefit from some political rights. The Declaration of Queen Victoria on 1st November 1858 contained some principles of state policy, which were similar to fundamental rights in scenery. The actual demand for fundamental rights came reasonably in the wake of the nationalist movement in Meerat, which coincide with the origin of the Indian National Congress in 1885. The Constitution of India Bill 1895 known as the “Home Rule document” set by the Indian National Congress lined the way for a constitution guaranteeing each and every citizen the basic human rights like freedom of expression, inviolability of one’s own house, right to property and equality before the law.

The Government of India Act, 1915, in pursuance of the demands for fundamental rights, guaranteed equality of opportunity in public services. A succession of resolutions adopted by the National Congress between 1917 and 1919 repeated the insist for civil rights and parity of status with the English.

2.3. Motilal Nehru Committee

In 1925 the Indian National Congress finalizes the draft of the Common Wealth of India adopting a ‘Declaration of Rights.’ The Madras Session of the Congress held in the year 1927 – demand incorporation of a ‘Declaration of Fundamental Rights’ in any future constitutional framework. A committee under the leadership of Motilal Nehru was appointed by the National Congress to revise the fundamental rights. It is fascinating to note that the Constitution of the Republic of India, enacted in 1950, incorporated ten of the nineteen rights enumerated in the Motilal Nehru Committee Report, 1928. The rights emphasized as a result of the Motilal Nehru Committee reports were:

  • Personal liberty, inviolability of dwelling place and property.
  • Freedom of conscience, and of profession and practice of religion.
  • Expression of opinion and the right to assemble peaceably without arms and to form associations.
  • Free elementary education.
  • Equality for all before the law and rights.
  • Right to the writ of Habeas Corpus.
  • Protection from punishment under ex-post facto laws.
  • Non-discrimination against any person on grounds of religion, caste or creed in the matter of public employment.
  • Equality of right in the matter of access to and use of public roads and wells etc.
  • Freedom of combination and association for the maintenance and implementation of labor and economic factors.
  • Right to keep and bear arms.
  • Equality of rights of man and woman.

The Simon Commission, selected by the British Government in 1927, Though, totally rejected the demands uttered by the Nehru Committee reports. Afterward The Government of India Act, 1935 was passed exclusive of any bill of rights greatly to the disappointment of the Indian leaders. It was the ‘Sapru Committee’ of 1945 that consequently stressed the require for a written code of fundamental rights and the Constituent Assembly raise a powerful command for the insertion of human rights in the Constitution.

2.4. Constituent Assembly and Human Rights

The Indian Constitution was framed by the Constituent Assembly of India, which met for the first time on December 9, 1946. The Constitution of India gives primary importance to human rights. The demand for a declaration of fundamental rights arose as of four factors.

  1. Lack of civil liberty in India during the British rule.
  2. Deplorable social conditions, particularly affecting the untouchables and women.
  3. The existence of different religious, linguistic, and ethnic groups encouraged and exploited by the Britishers.
  4. Exploitation of the tenants by the landlords.

The Constituent Assembly built-in the Constitution of India the matter of the right proclaimed and adopted by the General Assembly in the Universal Declaration of Human Rights. Further on 10th December 1948, when the Constitution of India was in the structure, the General Assembly proclaimed and adopted the Universal Declaration of Human Rights, which definitely influenced the framing of India’s Constitution. Viewed from the Indian perspective, human rights have been synthesized, like it is being, not as an integrated stuff by the Preamble promises and various Constitutional clauses of the National Charter of 1950.

Human Rights and The Indian Constitution the Constitution of the Republic of India which came into force on 26th January 1950 with 395 Articles and 8 Schedules, is one of the most detailed fundamental laws eternally adopted. The Preamble to the Constitution declares India to be a Sovereign, Socialist, Secular and Democratic Republic. The term ‘democratic’ denotes that the Government gets its power from the will of the people. It gives a sensation that they all are equal “irrespective of the race, religion, language, sex and culture.” The Preamble to the Constitution pledges justice, social, economic and political, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and fraternity assuring the self-esteem of the individual and the unity and integrity of the nation.

2.5. Modern Rights in Modern India

The framers of the Indian Constitution, 1950 were motivated by the motivating goals set out in the Universal Declaration of Human Rights, 1948. The preamble to the Constitution of India, 1950 underlines the call for secure to all its citizens justice, liberty, equality and also the dignity of the personality as important ideals. A number of civil and political rights such as the right to equality, freedom of speech, right to life and personal liberty, the right to free primary education, right to practice and propagation of religion etc., be provided as fundamental rights. A number of economic, social and cultural rights like the right to education, health and work have been provided under the provision of Directive Principles of State Policy, which are fundamental in the supremacy of the country. The legislative body has enacted a range of legislations which seek out to protect and promote the right of the susceptible sections of the society like the disable, the scheduled castes and scheduled tribes, women and children. As far as women are concerned, the legislations wrap issues such as dowry harassment, immoral traffic, prevention of sati and female feticide.

The parliament enacted the Protection of Human Rights Act 1993 which provides for the constitution of the National Human Rights Commission, the State Human Rights Commission and Human Rights Courts, which are constituted for the better fortification of human rights as well as for matters associated therewith or subsidiary thereto National Commission on Human Rights was set up in India on September, 27, 1997.

3. HUAMN RIGHTS AND DUTIES GUARANTEED UNDER INDIAN CONSTITUTION

3.1. UDHR and the Fundamental Rights of Indian Constitution

The Universal Declaration of Human Rights established by the General Assembly on 10th December, 1948, constituted a significant event of the first enormity. It was an encouragement for all the States to value some basic rights. It enumerates the political, civil, economic, social and cultural rights of man. It is a proposal of man’s absolute rights and fundamental freedoms. Most of the Human Rights in Universal Declaration are integrated as fundamental rights. Rights in part III of the Constitution of India, which was adopted in 26th, November, 1949 came into force on 26 January, 1950. The following table shows the similarity in a variety of provisions of the Universal Declaration of Human Rights and Part III.

 

3.2. Civil and Political Rights

 

The subsequent table shows that various Civil and Political rights enshrined in the UDHR too mentioned in Part III of Indian Constitution as Fundamental Rights. However, there are certain rights which are contained in the UDHR but not expressly mention in the Constitution. These rights are;

 

 

3.3. Economic, Social and Cultural Rights

 

The following table shows that most of the economic, social and cultural rights proclaimed in the UDHR have been incorporated in Part IV of the Indian Constitution. In deference of the above rights of express mention does not mean that these rights have not been included in the Indian Constitution. As a matter of fact, the above rights are either subsume in the existing rights or have been expressed in a slight diverse scope.

 

4. CONCLUSION

 

The Indian Constitution is a text wealthy in human rights jurisprudence. This is a sophisticated charter on human rights eternally framed by any State in the world. Part Ill of the Indian Constitution may well characterize as the ‘Magna Carta’ of India. The Judiciary of India plays a considerable role in protecting human rights. The Indian Courts have become the courts of the poor and the stressed masses and left open their portals to the deprived, the unaware, the illiterates, the demoralized, the have-nots, the handicapped and the half-hungry, half-naked countrymen.

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Reference

  1. Basu D, Commentary on The Constitution of India (Sarkar 1968)
  2. Jain M, Indian Constitutional Law (Wadhwa and Company 2003)
  3. Pylee M.V., An Introduction to Constitution of India (Vikas Publishing 2003)
  4. Sen D, A Comparative Study of The Indian Constitution (Longmans 1967)
  5. Parekh P, Human Rights Year Book 2012-13 (International Institute of Human Rights Society 2012)
  6. Annas G, ‘The Universal Declaration of Human Rights’ (1998) 3 Health and Human Rights