HUMAN RIGHTS AND THE INDIAN CONSTITUTION
The Indian Constitution sets a framework for human rights, which has been elaborated and implemented through judicial interpretation.
As is commonly understood, human rights are basic rights available to any human being, irrespective of nationality, religion, language, sex, or colour. The Indian Constitution lays down basic human rights, which are available to every Indian citizen. The framers of the Constitution set down the foundational provisions embodied in the Fundamental Rights and Preamble and facilitated by the Directive Principles of State Policy. Fundamental rights are the main provisions that ingrain human rights in India’s core legal text.
The Indian Protection of Human Rights Act, 1993, came into existence on 8th January 1994. The Act provides “for the constitution of a National Human Rights Commission, State Human Rights Commissions in States and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto.” The Act defines human rights as relating to life, liberty, equality, and dignity guaranteed by the Constitution or laid down in International Covenants and enforceable by courts in India.
The Journey of Human Rights in India
Human rights in India are historically embedded in the great religions that originated from the Indian peninsula—Buddhism, Jainism, and Hinduism. They are mentioned in religious texts like the Gita, Vedas, Arthasastra, and Dharmashastra. Later, under the Mughals, enlightened rulers like Akbar the Great and Jahangir were known to have a keen regard for rights and justice in their rule.
With British colonisation came a mix of terrible exploitation and harsh human rights violations, as well as the creation of a legal system. As the East India Company cemented its presence in India, it indiscriminately used force to subdue the massive populace and extract revenues at the point of the bayonet. At the same time, the British imported a legal system that paved the way for modern human rights in India.
The term "human rights" is mentioned in the United Nations Charter, which covers provisions on human rights. In the post-World War II context, the horrors of Nazism and Fascism were still fresh in the minds of world leaders. The drafters of the charter were peering behind the events of the war to its causes, i.e., the dictatorships and authoritarian states that made it possible, which brought human rights into focus.
This led to the promulgation of the 1948 Universal Declaration of Human Rights (UDHR), a milestone document in the history of human rights, drafted by representatives from different legal and cultural backgrounds from all regions of the world. The UDHR sets fundamental human rights for the first time to be universally protected. The UDHR is widely recognised as having inspired and paved the way for adopting more than seventy human rights treaties, which are applied today on a permanent basis at global and regional levels.
India voted to adopt the UDHR on December 10, 1948. Given its experience with British colonial rule and the prevalent human rights violations during the freedom struggle, the newly independent nation needed no lessons on what human rights meant. While international covenants like the UDHR may not be legally binding, they still contributed to the Constitution makers' interpretation of human rights when the Constitution was framed. The Indian Constitution almost entirely adopted the rights laid down in the UDHR through the Fundamental Rights as well as the Directive Principles of State Policy.
However, unexplainably, while the Constitution of India emphasises Fundamental Rights, it does not specifically mention the term “human rights”. It is known that the Constituent Assembly formed an advisory committee chaired by Sardar Patel, Dr BR Ambedkar, BN Rau, KT Shah, Harman Singh, and KM. Munshi to draft a list of rights. However, they failed to agree on the principles.
It must be remembered that while fundamental rights are similar to human rights, they differ in that they have legal sanctions and are enforceable in a court. Further, they are country-specific and drafted with the country's history and culture kept in mind.
Characteristics of Fundamental Rights
The Indian Constitution provides and protects fundamental rights set out in Part III. These rights can be directly enforced against the state in case they are violated. Article 13(2) enshrines the core nature of these rights by prohibiting the state from making any law that violates the Fundamental Rights. This means that if a law or a part of a law infringes the Fundamental Rights, it will be declared void. Additionally, if the void portion cannot be separated from the main Act, the entire Act is to be declared void. This is known as the doctrine of severability.
Many of the civil and political rights in the International Covenant on Political and Civil Rights (ICCPR) 1966 are also incorporated in Part III of the Constitution. However, several of them were not included, which judicial decisions have subsequently added, widening the scope of fundamental rights – particularly through Article 21 – and making fundamental rights more active and meaningful. In the case of Maneka Gandhi v. Union of India, the court observed that the expression "personal liberty" in Article 21 is of the widest ambit and covers a range of rights.
The Parliament has the power and authority to restrict fundamental rights on reasonable grounds. These grounds for restriction are subject to judicial review to ensure they are reasonable. Consequently, fundamental rights are not absolute. Moreover, they can be suspended in national emergencies, though the rights under Articles 20 and 21 will still apply. Fundamental rights are directly enforceable at the Supreme Court if infringed.
Invoking articles 352 and 356 of the Indian Constitution, Indira Gandhi granted herself extraordinary powers and launched a massive crackdown on civil rights and political opposition during the 1975 Emergency. Under Article 352, the president can declare a National Emergency in India when the security of India or a part of it is threatened by war, external aggression, or armed rebellion.
A brief overview of important fundamental rights is as follows:
Article 14 – Right to Equality. This requires that all individuals be treated the same under the law.
Article 15 – Prohibition of Discrimination. This prohibits discrimination of any kind based on religion, race, place of birth, caste, or gender. It also enables the government to create special provisions for women, children, and backward classes, thereby allowing affirmative action.
Article 16—Equal Opportunity in Public Employment requires the state to provide equal employment opportunities without discrimination. However, it can make special provisions for backward classes.
Article 19—Right to Freedom. This guarantees six freedoms: speech and expression, assembly, formation of associations and unions, movement freely, residence, and profession.
Article 20 – Protection of Citizens in Case of Conviction for Offences. This offers three kinds of protections in criminal prosecution: protection against retrospective criminal legislation, double jeopardy (being tried for the same offence twice), and self-incrimination (being compelled to provide incriminating evidence against oneself).
Article 21 – Right to Life. This prohibits the state from depriving an individual of his life and personal liberty except by lawful procedure. However, the concept of “life” and “liberty” have been interpreted to encompass a range of rights.
Article 21-A – free and compulsory education for children aged 6-14.
Article 22—Protection against Arrest and Detention. This article protects against arbitrary arrest and detention and provides procedural safeguards in case of arrest.
Article 25 – Freedom to Profess, Practice and Propagate one’s religion.
Article 32 – Right to Constitutional Remedies. This provides certain remedies in case fundamental rights are violated, namely writs, which enable the courts to pass an order to rectify a violated fundamental right.
Extended Rights. Some major aspects of fundamental rights that judicial interpretations have extended include the right to live with human dignity, to clean air, water, and environment, freedom from noise pollution, the right to a speedy trial and free legal aid, the right to livelihood, the right to food and medical care, and the right to privacy.
Some Landmark Judicial Decisions
In the landmark case of Kesavananda Bharati v. State of Kerala (1974), the Supreme Court held that Parliament does not have the power to amend the basic structure of the Constitution. However, the Parliament can amend any part of the Constitution, including all the fundamental rights provided to it as per the ‘Doctrine of Basic Structure’ of the Constitution, which was developed in this case.The Supreme Court decided constitutional changes cannot alter the basic structure or core tenets. The specific features constituting the basic structure have been elaborated through subsequent decisions. These include features like the sovereignty of India, democracy, secularism, the fact that it is a republic, free and fair elections, and judicial review.
Indira Nehru Gandhi vs. Raj Narain. This case pertained to election disputes involving then Prime Minister Indira Gandhi and the 39th Amendment to the Constitution. In its judgment, the Supreme Court added key features to the list of “basic structure” features. These included rule of law, democracy, and judicial review.
Maneka Gandhi v. Union of India. The context for this case was that Maneka Gandhi’s passport was confiscated in “public interest” and justified based on a procedure. The Supreme Court held that due “procedure” under Article 21 could not be arbitrary, unfair, oppressive, or unreasonable.
Human Rights Protection
The Indian Constitution provides the legal foundations for human rights. Judicial interpretation has brought the Constitution to life, fleshing out the matter and scope of fundamental rights and expanding their ambit to include important rights like the right to privacy and the right to live with dignity.
Moreover, enforcement through judicial decisions and legal remedies like writs plays an important role in protecting human rights at the ground level. It gives teeth to the Constitutional provisions for human rights.
Additionally, doctrines like the basic structure doctrine and the doctrine of severability ensure the primacy of fundamental rights and the Constitution's core tenets and character and prevent them from being overridden by judicial decisions or laws.
While constitutionally, adequate safeguards exist to secure human rights in India, due to the large size of the country and the disparate internal disturbances/ rebellions that have threatened to break the union of India, there have been regular allegations of human rights violations, both in the domestic media and internationally.
The Hindu (23 Apr 24) quotes the U.S. State Department’s 2023 Human Rights Report (HRR). This country-wise compilation of human rights practices has flagged “credible reports” of more than a dozen different kinds of human rights abuses in India, including extrajudicial killings, enforced disappearances, arbitrary arrest or detention, torture to coerce confessions, repeated imposition of Internet shutdowns and blocked telecommunications, surveillance of civil society activists and journalists, intimidation and Internet trolling of human rights defenders, punishment of family members for alleged offences by a relative, and “crimes involving violence or threats of violence targeting members of ethnic and caste minorities”, among others. In a section titled ‘Transnational repression’, the HRR referred to reports of the Indian government engaging in repression of “journalists, members of diaspora, civil society activists, and human rights defenders.” The Indian government trashed the report, and its official spokesperson said, “This report is deeply biased and reflects a very poor understanding of India. We attach no value to it.”
The Human Rights Watch, in its World Report 2024, has highlighted alleged incidents of human rights violations. These allegations include police abuses against low-income communities, extrajudicial killings and immunity enjoyed by security forces personnel, violations of minority rights, etc.
Assessment
The Indian Constitution reflects international human rights jurisprudence, particularly through the fundamental rights embodying abstract human rights in a concrete and legally enforceable form.
However, they have been brought to life, safeguarded, and enforced through judicial decisions that have expanded their scope and helped ensure that restrictions imposed on them are reasonable and protected their overarching status from new laws and parliament amendments.
While India's Constitution provides a strong foundation for protecting human rights, there are still significant challenges in ensuring these rights are upheld. Discrimination, censorship, police brutality, and gender inequality continue to be major obstacles to the full realisation of human rights for all citizens. The government and civil society must work together to address these issues and create a more just and equitable society for all. Only then can India truly live up to its promise as a democratic nation that respects and protects the rights of all its people.
