21 Constitutional Law Perspectives on Human Rights and Duties

Dr. K Sita Manikyam

AIMS OF THE CHAPTER

• Understanding how the Constitution of India incorporates International Human Rights Principles.
• Understanding how the provisions of Constitution under Parts III and IV can be related with the provisions of UDHR, 1948.
• Learning about the role of Indian judiciary in protecting human rights.

1. INTRODUCTION

The Constitution of India in the preamble assure the pride of citizen and this has been well-protected by the Part III (Article 12-35) of the Constitution. Our Constitution not only elaborates the essential human rights in Part III, it also secures them by providing constitutional remedies under Article 32 and 226 of the Constitution. The right to move to the apex court for the enforcement of the basic rights isfundamental as per Article 32.

Part IV (A) of the Constitution embody the Eleven Fundamental Duties of every Indian citizen (Article 51-A). These are: the duties to value the Constitution and its institutions, to live by the dignified morals of the freedom struggle, to defend the sovereignty and integrity of India, to protect the nation, to endorse collective harmony, to relinquish practices offensive to the dignity of women, to conserve the literary heritage, to shield and progress the usual atmosphere, to have kindness for living creatures, to build up the scientific temper, to maintain public property and renounce violence and to struggle towards excellence in all spheres of individual and collective movement. The Eighty-sixth Constitutional Amendment 2002 inserted a new clause (k) in Article 51 (A) instructing “a parent or guardian to provide opportunities for education to his child or, ward between the ages of 6 to 14 years.”

Parts III, IV and IV (a) of the Constitution greatly depend upon the judiciary for their analysis and application. The various ‘reasonable restriction clauses in Part III, Article 21, and the seldom-used Part IV-A have set the scope for judicial interpretation resulting in the Judicial Review of theadministrative and legislative action. Indeed, Article 21 has allowed it to act as acatalyst in prodding the State to put into practice the directive principles in so far as they honestly bear upon “life and personal liberty.”

2. HUMAN RIGHTS AND DUTIES: AN INDIAN CONSTITUTIONAL LAW PERSPECTIVE

At the time when the Universal Declaration of Human Rights was made, the Indian Constitution was in the making. Therefore, the Declaration has its effect on the formulation of Fundamental Rights and Directive Principles of State Policy under the Indian Constitution. It is to be noted that many of the rights incorporated in the Declaration of Human Rights find a place in the Preamble in a concise form. The resolve made in the Preamble regarding rights of individuals finds elaborate expression in Part III i.e., the ‘Fundamental Rights’ and part IV.

‘Directive Principles of State Policy’ of the Indian Constitution. Some of the rights enumerated in Universal Declaration of Human Rights are the essential ingredients of a democratic system and as such naturally find a place in the Indian Constitution and form the basic structure of the same. Judicial activism has greatly contributed to the expansion, protection, and enforcement of Fundamental Rights and further impacted on the justiciability of Directive Principles of State Policy.

2.1. Fundamental rights under Indian Constitution

Fundamental rights are those rights which are necessary for the well-being of a person. Part III of the Indian Constitution contains the list of Fundamental Rights; that guarantees civil liberties to all the citizens of India to be alive in serenity and synchronization without the fear of being censored by others. The Indian Judiciary has the prudence to penalize those violating these fundamental rights under the provisions of the Indian Penal Code. No individual can be deprived of these rights relating to fundamental liberty in the form of human freedoms. It is the judiciary that safeguards these constitutional rights of the citizens. In some outstanding cases, i.e. all through emergency the State can inflict limitations on the enforcement of these fundamental rights.

The Constitution provides for the enjoyment of 6 Fundamental rights. They are:

1. Right to Equality (under Article 14 – Article 18)
2. Right to Freedom (under Article 19 – Article 22)
3. Right against exploitation (under Article 23 – Article 24)
4. Right to Freedom of Religion (under Article 25 – Article 28)
5. Cultural and Educational rights (under Article 29 – Article 30)
6. Right to Constitutional remedies (Article 32)

2.2.Fundamental duties under Indian Constitution

The Fundamental Duties are a narrative feature of the Indian Constitution in recent times. Initially, the Constitution of India did not have these duties. The Forty Second Constitution Amendment Act, 1976 has incorporated ten Fundamental Duties in Article 51(A) of the Constitution of India. The Eighty-Six Constitution Amendment Act, 2002 has added one more Fundamental Duty in Article 51 (A) of the Constitution of India. As a result, there are now 11 Fundamental Duties of the citizen of India.

The following are the Eleven Fundamental Duties of every citizen of India:

• To abide by the Constitution and respect the National Flag and the National Anthem;
• To cherish and follow the noble ideals which inspired our national struggle for freedom;
• To uphold and protect the sovereignty, unity, and integrity of India;
• To defend the country and render national service when called upon to do so;
• To promote harmony and the spirit of common brotherhood amongst all people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women;
• To value and preserve the rich heritage of our composite culture;
• To protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures;
• To develop the scientific temper, humanism and the spirit of inquiry and reform;
• To safeguard public property and to abjure violence;
• To strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavor and achievement.”
• To provide opportunities for education by the parent the guardian, for his child, or award between the ages of 6-14 years.

A scrutiny of the above duties reveals that they are pertinent only to citizens and not to the aliens. It is assumed that an inhabitant of India while enjoying fundamental rights, ought to perform these duties. Although there is no provision in the constitution for direct enforcement of any of these duties. The courts are guided by these duties while interpreting diverse laws. These duties have purity as these are included in the Directive Principles of State policy.

3. JUDICIAL ACCEPTANCE OF HUMAN DUTIES

Part IV-A, which deals with fundamental duties of the citizens, was added by the Constitution (Forty-Second Amendment) Act, 1976, in accordance with the recommendations of the Swaran Singh Committee. It thus brought the Constitution of India in line with Article 29 (1) of the Universal Declaration of Human Rights, 1948.

When the court is called ahead to give effect to the directive principles and the fundamental duty, the court is not to wave its shoulders and say that priorities are a matter of policy and so it is an issue for the policy-making power. Practically speaking, these duties are ethical and societal obligations of Indian citizens to develop into accountable citizens and build up the country. The fundamental duties can be promoted by constitutional means and can be forced only by constitutional methods. Constitutional enactment of fundamental duties must be used by courts as a tool to tap, in State action which is diverting away from constitutional values. The fundamental duties enjoined on citizens under Article 51-A should also guide the legislative and executive actions of nominated or non-elected institutions and organizations of the citizens together with the municipal bodies.

As the Verma Committee (1999) on fundamental duties said essentially all that is contained in the fundamental duties is just a codification of tasks integral to the Indian way of life. A scrutiny of the clauses of Article 51-A indicates that a number of these clauses basically refer to such values which have been a part of the Indian tradition, mythology, religion, and practices. Although the fundamental duties were inserted during the emergency and very noble in the literal sense, cannot either be part of a Constitution or a statute nor give any locus standing. They cannot be enforced by a court, but only by constitutional methods. Nevertheless, fundamental duties, though not enforceable by mandamus or any other legal remedy still provide a valuable guide and aid to interpretation of constitutional and legal issues. In thecase of doubt or choice, people’s wish as manifested through Article 51-A can be served as a guide not only for resolving the issue but also for constructing or molding the relief to be given by the courts.

In AIIMS Student’s Union vs AIIMS1, a three-Judge Bench of the Supreme Court made it clear that fundamental duties, though not enforceable by a writ of the court, yet provide valuable guidance and aid to interpretation and resolution of constitutional and legal issues. Again in L.K. Koolwal v. the State of Rajasthan2 the Court held Article 51-A is the duty of the citizens however Article 51-A gives a right to the citizens to move the court for the enforcement of the duty cast on State, instrumentalities, agencies, departments, local bodies and statutory authorities created under the law of the State. The Hon’ble Court on similar occasion also stated that the collective duties of the citizens imply the duty of the State.

However, this is not denying that the State does not have duties. If the State does not have duties, then it is under Parts III and IV of the Constitution, namely, fundamental rights and directive principles, where analogous negative and positive duties lie in the State. Moreover, the scrutiny of the Court that fundamental duty gives the citizens the authority to move the court is also not totally undersized of errors. Taking into consideration, that the fundamental duties are not executable, how can courts overlook about making decisions, even consider petitions under it? And if the society does have to move the court to request the State to do its duty it would relatively do it by way of a petition under Article 32 or 226 as an issue of their rights rather than the duty of the State. In Article 51-A under Part IVA, the Constitution of India spells out only eleven fundamental duties to the citizen.

4. JUDICIAL ACCEPTANCE OF HUMAN RIGHTS

Article 51 of the Constitution of India directs the state to try to foster respect for international law and treaty obligations. The Charter of the United Nations and varied resolutions, declarations, covenants and conventions on human rights form the body of international law and India is a party to most of the human rights treaties.

To give a reliable analysis of the Constitution is the mission of the higher judiciary. The highest legal organ of the state is the Supreme Court of India and the elucidation given by this Court is obligatory on all authorities in India. As an effect of a variety of declarations, conventions, charters, covenants, and resolutions, international human rights have come into survival. International law, nevertheless, does not turn out to be a part of Indian law unless built- in by parliamentary legislation. Therefore, the purpose of international human rights norms in the national jurisdiction is reliant on an amalgamation of these norms in themunicipal organization. Where such individual rights have been included in Indian law, the courts have no complexity in enforcing them. For example, the protection of the Human Rights Act, 1993 gives recognition to the rights of life, liberty, equality, and dignity of an individual and embody in them the international covenants. India is also a party to conventions on Elimination of All Forms of Discrimination, 1966; Suppression and Punishment of the Crime of Apartheid, 1973; Prevention and Punishment of the Crime of Genocide, 1948; Elimination of All Forms of Discrimination against Women, 1979; and Rights of the Child, 1989.

Smt. Nilabati Behera & Lalita Behera vs. State of Orissa &Ors.3 the Supreme Court asserted the jurisdiction of the judiciary as “protector of civil liberties” under the obligation “to repair damage caused by officers of the State to fundamental rights of the citizens”, holding the State responsible to pay compensation to the near and dear ones of a person who has been deprived of life by their wrongful action, reading into Article 21 the “duty of care” which could not be denied to anyone. For this purpose, the court referred to Article 9 (5) of the International Covenant on Civil and Political Rights, 1966 which lays down that “anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation”

Similarly, In Vishaka & Ors. vs. State of Rajasthan & Ors., 4 Supreme Court said that “gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognized basic human right. The common minimum requirement of this right has received global acceptance. In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein and for the formulation of guidelines to achieve this purpose…. in the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly, guidelines and norms are hereby laid down for strict observance at all workplaces or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 for enforcement of the fundamental rights and it is further emphasized that this would be treated as the law declared by the Supreme Court under Article 141 of the Constitution.”

Further, in Apparel Export Promotion Council v. A.K. Chopra5, a two-Judge Bench of the Supreme Court yet again dealt with a case of sexual harassment of a lady secretary by her male superior. The court relied on the Convention on Elimination of All Forms of Discrimination against Women, 1979 and other international instruments on human rights.

This approach was once more evidenced in Chairman, Rly. Board Vs Chandrima Das6, In this case, a woman tourist of Bangladesh was raped in the Railway Guest House by the employees of the railway board. The petition on her behalf was filed by an Advocate of Calcutta High Court. The Supreme Court apprehended that our Constitution in Part III guarantees all the basic and fundamental human rights set out in the Universal Declaration of Human Rights, 1948 to its people and other personnel, i.e., aliens and that It will be appropriate for the court to refer to international human rights norms while interpreting the national constitution.

In Guruvayoor Devaswom Managing Committee v. C.K. Rajan7, the court said that it will not hesitate to invoke international conventions on human rights to protect group rights of people. It is not only the “first generation” and the “second generation” human rights which have been accepted and applied by the Indian Court, but the “third generation or solidarity right” has also been recognized.

Further in N D Jayal. V. The Union of India8, a three- judge Bench of the Supreme Court has accepted the right to development as an integral part of human right. The Constitution of India also does not expressly provide for the right of privacy. But the Indian judiciary has traced this right in Article 21 of the Constitution. In District Registrar and collector, Hyderabad. v. Canara Bank9, the Supreme Court has invoked Article 12 of the UDHR, 1948 and Article 17 of the International Covenant on Civil and Political Rights, 1966, in upholding the right of privacy.

The Indian Supreme Court has followed two lines of reading in support of applying international human rights norms in its domestic jurisdiction. Firstly, the fundamental rights which are guaranteed by the Constitution can be interpreted in the light of international human rights norms, since these norms indicate the currently accepted view of the content of the various fundamental rights of part III of the Constitution of India. Secondly, the court has also said that international covenants declaring universal fundamental rights can be used by the courts as a legitimate guide in developing common law.

5. CONCLUSION

The Constitution prescribes fundamental rights such as impartiality facing the law. Neither the Union nor the State legislative, executive or judiciary can act in breach of these fundamental rights. Fundamental duties were supplementary to the Constitution in 1977. Among these are duties to stand for the Constitution and value its morals and institutions, the National Flag and the National Anthem, to write and safeguard the prosperous heritage of our amalgamated culture, to defend and develop the national environment as well as forests, lakes, rivers and wild life and to have the kindness for living creations and to endeavor towards superiority in all spheres of personality and cooperative action. Rights and duties go side by side. Rights without duties are worthless. Hon’ble Supreme Court of India and the court has even relied on international human rights law to protect the fundamental rights of the people and has in some cases tried to interpret the collective fundamental duty of the society as the duty of the state.

Reference

• Basu D, Commentary on The Constitution of India (Sarkar 1968)
• Jain M, Indian Constitutional Law (Wadhwa and Company 2003)
• Pylee M.V., An Introduction to Constitution of India (Vikas Publishing 2003)
• Sen D, A Comparative Study of The Indian Constitution (Longmans 1967)
• Tinker H, ‘The Constitution of India: A Comparative Study and India’s Constitution in The Making’ (1961) 37 International Affairs.