INTRODUCTION
“All those rights which are essential for the protection and maintenance of dignity of individuals and create conditions in which every human being can develop his personality to the fullest extent may be termed human rights.”
– Justice P.N. Bhagwati1
Human rights are those rights which are inherent in our nature and without which we cannot live as human beings. So, human rights may be regarded as those fundamental and natural rights which are sine qua non for a decent life as human beings and are possessed by every human being irrespective of his or her nationality, race, religion, sex, colour, simply and only because he or she is a human being.
Apart from the U.N. Charter, 1945 and International Bill of Human Rights various International Instruments that safeguard the human rights of all individual are – Convention on the Prevention and Punishment of the Crime of Genocide, 19482; Declaration on the Protection of all persons from being subjected to Torture and other Cruel, inhuman or Degrading Treatment or Punishment, 19753; Convention against Torture and other Cruel, inhuman or Degrading Treatment or Punishment, 19844; Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW)5; United Nations Declaration on the Right of the Child, 19596; Convention on the Right of the Child, 19897; Convention Relating to the Status of Stateless Persons, 19608; International Convention on the Elimination of All Forms of Racial Discrimination, 19669; Supplementary Convention on the Abolition of Slavery, The Slave Trade, And Institutions and Practices Similar to Slavery, 195610; Convention relating to the Status of Refugees, 195111; World Conference on Human Rights, 199312 (Vienna Declaration and Programme of Action).
A. Research Methodology
The present socio-legal research paper is conducted both on doctrinal and non-doctrinal research by analysing the existing statutory provisions and cases by applying the reasoning power as well as by method like case study.
B. Techniques of Data Collection
The primary sources of this study are all the major substantive Laws, viz., Constitution of India; and many Government Reports. As regards the Procedural Laws in India, our primary source is Code of Criminal Procedure, 197313 as amended up to date. Various International Documents such as Universal Declaration of Human Rights, 194814 (UDHR); Convention on the Elimination of All Forms of Discrimination against Women, 197915 (CEDAW); International Covenant on Civil and Political Rights, 196616 (ICCPR); International Covenant on Economic, Social and Cultural Rights,196617 (ICESCR); UN Declaration on the Right to Development, 1986; The United Nations Conference on the Human Environment, 1972; European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (ECHR); African Charter on Human and People’s Rights (Banjul), 1981 (ACHPR)18, American Convention on Human Rights, 1969; Arab Charter on Human Rights, 2004.
Secondary sources of data have been taken from books, journals, articles of various authors; encyclopaedias, dictionaries; and from Internet.
MEANING AND CONCEPT OF HUMAN RIGHTS
Human rights may be regarded as those fundamental and natural rights which are essential for a decent life as human being. Human rights are those rights which are possessed by every human being irrespective of his or her nationality, race, religion, sex, colour, simply and only because he or she is a human being. So, human rights are those rights which are inherent in our nature and without which we cannot live as human being. Human rights are the very essence of a meaningful life. Because of immense significance to human beings, human rights are sometimes characterized as ‘fundamental rights’; ‘natural rights’; ‘birth rights’; ‘inherent rights’ and ‘basic rights.’19
A. First Concrete Step by the UN General Assembly in Formulating Various Human Rights
Though various principles of human rights are as old as the ancient doctrine of “natural rights” founded on natural law20, the expression “human rights” is of recent origin emerging from post Second World War instrument, the Charter of the United Nations, 194521. The United Nations Charter was adopted to prevent recurrence of the destruction and suffering caused by the Second World War by setting up the United Nations.22 The Preamble to the United Nations Charter, 1945 sets as a basic goal to reaffirm faith in fundamental human rights, in the dignity and worth of the human persons, in the equal rights of men and women and to promote social progress and better standards of life in large freedom. Furthermore, Article 1 of the Charter manifests that one of the purposes of the United Nations is “to achieve international cooperation in solving international problems of an economic, social and cultural, or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.”23 In fact the United Nations Charter had been ahead of its time by making the link between peace and security, and socio-economic development and a respect for human rights, for e.g., by Articles 5524 and 56.25
The first concrete step by way of formulating the various human rights was taken by the UN General Assembly on December 10, 1948 by adopting the Universal Declaration of Human Rights (UDHR) without defining the expression “human rights”. To remove the non-binding nature of UDHR and to provide machinery for enforcement of human rights, the UN General Assembly on December 16, 1966 adopted two International Covenants26 on “civil and political rights” and on “economic, social and cultural rights”. At present there are more than hundred international human rights instruments working world over, but none of them defined the term human rights. J. S. Verma stated that human dignity is the quintessence of human rights. For him “all human rights for all” and “the world is one family” are concepts which have depended on the expanded meaning of human rights assuring full human dignity to every member of the human race in the global village.27
B. International Bill of Human Rights
The International Bill of Human Rights consists of the Universal Declaration of Human Rights, 1948 (UDHR), inter-alia, the International Covenant on Civil and Political Rights, 1966 (ICCPR) and its two Optional Protocols; and International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR).28 The International Covenant on Civil and Political Rights, 1966 and International Covenant on Economic, Social and Cultural Rights, 1966 together form the most comprehensive International Code of binding legal provisions in the arena of human rights. These two Covenants develop and supplement the provisions of the UDHR.
C. Rights Recognised in the International Law
Following are the rights recognised in International Law –
1. Right to Equality and Non-discrimination29
2. Right to Life, Liberty and Security of Person30
3. Right to Privacy31
4. Right Against Cruel, Inhuman and Degrading Treatment32
5. Freedom from Slavery, Slave Trade and Servitude33
6. Prohibition Against Arbitrary Arrest and Detention34
7. Right to Health35
8. Right to Freedom of Movement36
9. Right to Education37
10. Right to Compensation38
11. Right not to be Tried or Punished Twice (Prohibition of Double Jeopardy)39
12. Freedom from Ex Post Facto Law40
13. Right to Freedom of Speech and Expression41
14. Right to Freedom of Religion42
15. Right to Enjoy Culture43
16. Right Against Self-incrimination44
17. Right to Freedom of Peaceful Assembly and Association45
18. Right to Development46
19. Right to Pollution Free Environment47
20. Right to Property48
21. Right to Work49
22. Right to Rest and Leisure50
23. Right to Information51
24. Right to Participate in Government and Public Affairs52
25. Right to Fair Trial53
26. Right to Marry54
27. Right to Nationality55
28. Protection of Minorities’ Rights56
HUMAN RIGHTS IN INDIAN CONSTITUTIONAL LAW
The Constitution of India is a living document, its interpretation may change as the time and circumstances change to keep pace with it.57 For achieving various goals set out in the Preamble to the Constitution of India, the founding fathers of the Constitution included a set of provisions in Part III titled ‘Fundamental Rights’ and another set of provisions in Part IV titled “Directive Principles of State Policy”. The provisions contained in Part III of the Constitution, by and large contain negative injunctions against State’s interference with the Fundamental Rights of individuals and group of individuals and also provide for remedy against violations of such rights by direct access to the Supreme Court of the Country by virtue of Article 32 of the Constitution.58 Part IV of the Constitution enumerates the obligation of the State to make policies and enact laws for ensuring that weaker segments (have-nots) of the society are provided with opportunities to rise to a level where they can compete with others (haves).
A. Human Rights incorporated in Constitution of India
The Constitution of India guarantees essential human rights under Part III and directive principles in Part IV of the Constitution which are fundamental in governance of the country. Part III entitled ‘Fundamental Rights’, primarily, but not exclusively, contains what are called the Civil and Political Rights and may roughly be compared with the International Covenant on Civil and Political Rights, 1966; while Part IV, “Directive Principles of State Policy” contains what may primarily, but not exclusively, be called Economic, Social and Cultural Rights, roughly comparable with the International Covenant on Economic, Social and Cultural Rights, 1966.
a. Human Rights and the Constitution of India
Various rights recognised in the international human rights law are as follows –
29. Right to Equality and Non-discrimination59 – The right to equality and non-discrimination is stipulated in Article 14 and 26 of the ICCPR. According to it, all persons are equal before law and entitled without any discrimination to the equal protection of laws.
The Constitution of India, not only provides for securing equality of status and of opportunity by prohibiting discrimination by the State on the grounds of religion, race, etc., but at the same time makes special provisions for the promotion of the interest of the backward and weaker sections of the people, in whose case mere equality of status and of opportunity may not be adequate to secure their well-being as a part of general welfare of the society. The noble concept of ‘social justice’ has been enshrined in the Constitution of India. The Constitution is a monumental example of social engineering. Liberty, equality and fraternity are the three cornerstones of the concept of social justice in the constitutional framework. The Preamble to the Constitution of India talks not only of social justice but of equality of status and of opportunity to all the citizen of India. Therefore, social justice is the yardstick of the justice administration system. The Constitution made ample provision for equality with a view to establishing an egalitarian society. India has given equal status to women under Article 14 of the Constitution, which provides that “the State shall not deny to any person equality before law or equal protection of the laws within the territory of India.”
30. Right to Life, Liberty and Security of Person60 – The right to life is often claimed to be the most important of all human rights because life is the precondition for the exercise of any other right. It is enshrined in Article 3 of the Universal Declaration of Human Rights, 1948 (UDHR) and in all major general human rights conventions.
“Life” and “Liberty” which occurs in the Fifth and Fourteenth Amendments to the US Constitution as observed by Justice Field in Munn v. Illinois61 of the US Supreme Court means – “By the term ‘life’ as here used something more than mere animal existence…” Article 21 of the Constitution protects the right to life and personal liberty as the most important Fundamental Rights guaranteed by the Constitution. It cannot be restricted to “mere animal existence”, it means something more than just physical survival. In Maneka Gandhi v. Union of India62 the Supreme Court held that Article 21 clubs life with liberty and when we interpret the colour and content of “procedure established by law”, we must be alive to the deadly peril of life being deprived without minimal processual justice, legislative callousness despising “hearing” and fair opportunities of defence.
31. Right to Privacy63 – The right to privacy is stipulated in Article 17 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) which says that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. A nine- Judge Bench of Supreme Court of India in a historic judgment in Puttaswamy v. Union of India, 201764 has declared that the right to privacy is a Fundamental Right protected under Part III of the Constitution of India.65
32. Right Against Cruel, Inhuman and Degrading Treatment66 – Article 5 of the Universal Declaration of Human Rights, 1948 (UDHR) and Article 7 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) provide protection against torture or cruel, inhuman or degrading treatment. In Francis Coralie Mullin v. Union Territory of Delhi,67 the Apex Court held that any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into right to live and it would be prohibited by Article 21 unless it is in accordance with procedure established by law.68
33. Freedom from Slavery, Slave Trade and Servitude69 – Article 4 of the Universal Declaration of Human Rights, 1948 (UDHR) provides that no one shall be held in slavery or servitude; slavery and slave trade shall be punishable in all their forms. Article 23 of the Constitution prohibits traffic of human beings and forced labour.
34. Prohibition Against Arbitrary Arrest and Detention70 – Article 9 of the Universal Declaration of Human Rights, 1948 (UDHR) provides that no one shall be subjected to arbitrary arrest, detention or exile. Article 22 of the Constitution provides protection against arrest and detention in certain cases.
35. Right to Health71 – Article 12 of the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR) guarantees the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Article 25 (1) of the Universal Declaration of Human Rights, 1948 (UDHR) provides that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family. In India, the right to health is recognised under Article 21 of the Constitution of India as Fundamental Right.72
36. Right to Freedom of Movement73 – Article 12 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) provides that everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement. In Mrs. Maneka Gandhi v. Union of India (UOI) and Anr,74 the Passport of the Petitioner impounded in public interest by order dated 02-07-1977. In interest of general public, the Government of India declined to furnish reasons to her for its decisions. Writ Petition under Article 32 of the Constitution filed by the Petitioner to challenge that order. The issue raised before the Court was whether right to go abroad included in right under Article 19 (1) (a). right to go abroad held by the Apex Court as not included in right under Article 19 (1) (a). if order made under Section 10 (3) (c) of the Passport Act violate right of free speech and expression, it could be struck down as unconstitutional.
37. Right to Education75 – The right to education has been explicitly recognised in Article 13 of the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR) which provides that the State Parties recognise the right to everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity and shall strengthen the respect for human rights and fundamental freedoms. The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution of India to provide free and compulsory education of all children in the age group of six to fourteen years as the State may, by law, determine. In Unni Krishnan, JP v. State of Andhra Pradesh76 the questions for determination that arose viz., whether citizen has Fundamental Rights to education for medical, engineering or other professional degree, whether right to education implicit in Article 21 of Constitution. It was held that up to the age of 14 years, every child/ citizen has right to free education.
38. Right to Compensation77 – The right to compensation is a recognised right under Article 9 (5) of the International Covenant on Civil and Political Rights, 1966 (ICCPR). It lays down that anyone who has been the victim of unlawful arrest and detention shall have an enforceable right to compensation. The Apex Court in Rudul Shah v. State of Bihar78 observed – “Article 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 order to release from illegal detention…the right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield.79
39. Right not to be Tried or Punished Twice (Prohibition of Double Jeopardy)80 – Article 4 of Protocol No. 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (ECHR) provides that no one shall be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of this State. Article 20 (2) of the Constitution guarantees the right not to be tried or punished twice for the same offence. According to this Article, “No person shall be prosecuted and punished for the same offence more than one.
40. Freedom from Ex Post Facto Law81 – Article 9 of the American Convention on Human Rights, 1969 guarantees the freedom from ex post facto laws. It provides that no one shall be convicted of any act or omission that did not constitute a criminal offence, under the applicable law, at the time it was committed. Article 20 (1) of the Constitution provides that no person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as offence, nor be subjected to penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
41. Right to Freedom of Speech and Expression82 – Article 19 of the Universal Declaration of Human Rights, 1948 (UDHR) guarantees the right to freedom of opinion and expression. It provides that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinion without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 19 (1) (a) of the Constitution of India guarantees freedom of speech and expression to all citizens of India.83
42. Right to Freedom of Religion84 – Article 18 of the Universal Declaration of Human Rights, 1948 (UDHR) and International Covenant on Civil and Political Rights, 1966 (ICCPR) lays down that everyone has the right to freedom of religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or in private, to manifest his religion or belief in teaching, practice, worship and observance. Article 25 of the Constitution enumerates the right to freedom of religion.
43. Right to Enjoy Culture85 – Article 27 (1) of the Universal Declaration of Human Rights, 1948 (UDHR) guarantees the right to enjoy culture. It provides that everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. Articles 29 and 30 of the Constitution incorporate the cultural and educational rights within in the territory of India.
44. Right Against Self-incrimination – Article 14 (3) (g) of the International Covenant on Civil and Political Rights, 1966 (ICCPR) enumerates the minimum guarantees to be accorded during a trial and states that everyone has a right not to be compelled to testify against himself or to confess guilt. In India, the right against self-incrimination finds its place in Article 20 (3) of the Constitution as a fundamental right. Article 20(3) reads as follows – “No person accused of any offence shall be compelled to be a witness against himself.
45. Right to Freedom of Peaceful Assembly and Association86 – Article 20 of the Universal Declaration of Human Rights, 1948 (UDHR) guarantees the right to freedom of peaceful assembly. It lays down that everyone has the right to freedom of peaceful assembly and association. Article 19 1) (b) and (c) of the Constitution guarantees the right to freedom to assemble peacefully and without arms; and right to form association or unions or co-operative societies.
46. Right to Development87 – Article 1 of the UN Declaration on the Right to Development, 1986 declares that “right to development” became part of an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised. The Supreme Court observed that every person has a right to develop his or her potential. In fact, right to development is a basic human right.88
47. Right to Pollution Free Environment89 – The United Nations Conference on the Human Environment, 1972 held in Stockholm declared that all participating Nations have jointly formulated 26 principles known as Magna Carta on Human Environment. Principle 7 provides that States shall take all possible steps to prevent pollution hazardous for human health. The Apex Court held90 that sustainable development also forms part of Article 21 of the Constitution. The “Precautionary Principle” and Polluter Pays Principle” flow from the core value in Article 21.
48. Right to Property91 – Article 17 of the Universal Declaration of Human Rights, 1948 (UDHR) guarantees the right to own property. It provides that everyone has the right to own property alone as well as in association with others and no one shall be arbitrarily deprived of his property. The intellectual property right is the legal relationships that arise out of an individual’s creative gifts and the communication to the society oh his or her intellectual creations.92 So, the first step in encouraging intellectual creativity is to grant authors, inventors, artists, designers and the like, the right to claim a proprietary interest in their works and exploit them to their optimum advantage. Today, the protection of creators’ rights is a fundamental social principle recognised in Article 27 (2) of the Universal Declaration of Human Rights, 1948 (UDHR) which provides that everyone has the right to the protection of the moral and material interests resulting from any scientific, literary and artistic production of which he is the author. Article 300 A of the Constitution provides that no person shall be deprived of his property save by authority of law. So, the deprivation of property under this Article is prohibited without authority of law and thus, for the deprivation of property appropriate law has to be enacted by the competent authority.
49. Right to Work93 – Article 23 of the Universal Declaration of Human Rights, 1948 (UDHR) provides that everyone has the right to work, to free choice of environment, to just and favourable conditions of work and to protection against employment. Though Indian Constitution does not explicitly recognise the ‘right to work’ as a fundamental right, it is placed in Part IV (Directive principles of State Policy) of the Constitution under Article 41.
50. Right to Rest and Leisure – Article 24 of the Universal Declaration of Human Rights, 1948 (UDHR) provides that everyone has the right to rest and leisure including reasonable limitation of working hours and periodic holiday with pay. Article 43 of the Constitution provides that the State shall endeavour to secure by suitable legislation to all workers work a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities.
51. Right to Information – Article 9 of the African Charter on Human and Peoples’ Rights (Banjul), 1981 (ACHPR) provides that every individual shall have the right to receive information. Article 32 of the Arab Charter on Human Rights, 2004 also guarantees the right to information as well as right to seek receive and impart information and ideas through any medium, regardless of geographical boundaries. The Constitution of India does not clearly provide right to information, however, the right to information and community participation for protection of environment and human health is also a right which flows from Article 19 and 21 of the Constitution.
52. Right to Participate in Government and Public Affairs94 – Article 21 of the Universal Declaration of Human Rights, 1948 (UDHR) provides that everyone has the right to take part in the government of his country, directly or through freely chosen representatives. The Apex Court has held that right to participate in election to the State Assemblies and Parliament is not a Fundamental Right. It is only a Statutory right.95
53. Right to Fair Trial96 – Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (ECHR) enumerates the right to a fair trial. According to this Article, in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The Supreme Court of India held that “fair trial” includes fair and proper opportunity allowed by law to the accused to prove his innocence. Thus, free and fair trial is sine qua non of Article 21 of the Constitution.97
54. Right to Marry98 – Article 16 of the Universal Declaration of Human Rights, 1948 (UDHR) safeguards the right to marry. It provides that men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and as its dissolution. Right to marry is a right in respect of which a corresponding duty cannot be claimed as against some other person. So long as the person is suffering from a communicable disease or impotency, the right to marry cannot be enforced through a Court of law and shall be treated to be ‘suspended’ right.99
55. Right to Nationality100 – Article 15 of the Universal Declaration of Human Rights, 1948 (UDHR) incorporates the right to nationality and lays down that everyone has the right to a nationality and no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Article 9 of the Constitution provides that persons voluntarily acquiring citizenship of a foreign State not to be citizens. Thus, the Constitution of India provides single citizenship.
56. Protection of Minorities’ Rights – Protection of Minorities’ rights have been guaranteed in Article 27 of the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR). Article 27 states that in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be the right, in community with the other member of this group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. Part III (Articles 29 – 30) of the Constitution of India provides the cultural and educational rights. It protects the interest of minorities.
57. Sexual Orientation and Human Rights of LGBT Community – Sexual orientation is an enduring pattern of romantic or sexual attraction (or combination of both) to persons of the opposite sex or gender, the same sex or gender, or both the sexes or more than one gender. These attractions are generally subsumed under heterosexuality, homosexuality, and bisexuality, while asexuality (the lack of sexual attraction to others) is sometimes identified as the fourth category.101
b. Human Rights and Judicial Enforceability of the Rights Recognised in the Constitution
In Part III of the Constitution of India, there are provisions for abolition of untouchability, bonded labour, traffic in human beings, and also for prohibition of children employed in factories or in other kind of hazardous employments. But, more importantly, their enforcement in a meaningful sense involves taking effective economic measures, and mere paper abolition by enacting necessary laws will not be enough. The difference between the Fundamental Rights and Directive Principles of State Policy lies in that the former are primarily aimed at assuring political freedom of the citizens by protecting them against excessive State action while the latter aim at securing social and economic freedoms by appropriate State action. So, Fundamental Rights are of no value if they cannot be enforced through resorting to Court action. That is why they are made justifiable. This does not imply that Directive Principles are any less important than Fundamental Rights or they are not binding on the various organs of the State.102
CONCLUSION
List of rights as above-mentioned are the human rights recognised in International Human Rights Law. Part III and Part IV of the Constitution of India together constitute the core of commitment of social revolution and, they together, are the conscience of the constitution. The Court should make every attempt to reconcile the Fundamental Rights with the Directive Principles, remembering that the reason why the Directive Principles were left by the fathers of the Constitution as non-enforceable in the Courts was to give the Government sufficient latitude to implement these principles from time to time according to capacity and circumstances that might arise. In Minerva Mills Case,103 the Apex Court has clarified that Fundamental Rights and the Directive Principles of State Policy are supplementary and complementary to each other, and as such, they need harmonious construction. The Directive Principles of State Policy, together with the Fundamental Rights state the essential features of constitutionally desired social order.104 The difference between Fundamental Rights and Directive Principles of State Policy does not derive from the first-generation versus second-generation human rights debate. Several economic, educational and cultural rights are included in the Chapter on Fundamental Rights, and are therefore justiciable.
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Footnotes
1. Maneka Gandhi v. Union of India, AIR 1978 SC 597 (at p. 619).
2. Approved and proposed for signature and ratification or accession by the United Nations General Assembly Resolution 260 A (III) on December 9, 1948; entered into force on January 12, 1951. At all periods of history ‘genocide’ has inflicted great loss on humanity and in order to liberate mankind from such odious scourge, the General Assembly of the United Nations made a declaration that genocide is a crime under international law. Hence, the Convention was adopted. In 1944, Raphael Lemkin coined the term genocide. The word ‘genocide’ is a combination of the Ancient Greek word génos meaning race or people with the Latin word ‘caedere’ meaning to kill. Literally ‘genocide’ means deliberate killing of a whole nation or people.
3. Adopted by the United Nations General Assembly Resolution 3452 (XXX) of 9 December 1975.
4. Adopted and opened for signature, ratification and accession by the United Nations General Assembly Resolution 39/46 on December 10, 1984; entered into force on June 26, 1987.
5. Adopted by the United Nations General Assembly Resolution 34/180 on December 18, 1979.
6. Adopted by the United Nations General Assembly Resolution 1386 (XIV) 14 UNGAOR Supp (No. 16), UNDOC.A/4335 (1959) on November 20, 1959.
7. Adopted by the United Nations General Assembly Resolution 44/25 on November 20, 1989; entered into force on September 2, 1990.
8. Adopted on September 28, 1954 by a Conference of Plenipotentiaries convened by Economic and Social Council resolution 526 A (XVII) of 26 April 1954; entered into force on June 6, 1960.
9. Adopted by the United Nations General Assembly Resolution 2106 (XX) of December 21, 1965; entered into force on January 4, 1969.
10. Adopted by Economic and Social Council Resolution 608 (XXI) of April 30, 1956 and done at Geneva on September 7, 1956; entered into force on April 30, 1957.
11. Adopted on July 28, 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly Resolution 429 (V) of December 14, 1950; entered into force on April 22, 1954.
12. Adopted by the World Conference on Human Rights in Vienna on June 25, 1993, endorsed by the General Assembly of the United Nations Resolution 48/121 on December 20, 1993.
13. Act 2 of 1974.
14. United Nations General Assembly Resolution 217 A (III), December 10, 1948.
15. United Nations General Assembly Resolution 34/180, December 18, 1979.
16. United Nations General Assembly Resolution 2200 A (XXI), December 16, 1966.
17. United Nations General Assembly Resolution 2200 A (XXI), December 16, 1966.
18. ACHPR, adopted on June 27, 1981, OAU Doc. CAB/LLG/67/3 rec. 5, 21 I.L.M. 58 (1982), entered into force on October 21, 1986.
19. Dr. S.R. Myneni, Human Rights, 1st Ed. (Asia Law House, 2012.) at p. 4
20. Jatindra Kuman Das, Human Rights Law and Practice (PHI Learning Private Limited, 2021) at pp. 1 – 4.
21. On June 26, 1945, the United Nations Charter was signed – a historic moment in global history. Out of the ashes of World War II, countries came together to form an organization to serve as a platform for cooperation, dialogue and shared action for peace. As United Nations Secretary-General António Guterres has said: “Peace, justice, human dignity, tolerance and solidarity are enshrined in the Charter and bind as together.”
22. The United Nations was established after World War II with the aim of preventing future wars, succeeding the ineffective League of Nations. On April 24, 1945, 50 Governments met in San Francisco for a Conference and started drafting the United Nations Charter.
23. Article 1, The United Nations Charter, 1945.
24. Article 55, The United Nations Charter, 1945: With a view to the creation of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the U.N. shall promote: (a) higher standard of living, full employment, and conditions of economic and social process and development; (b) solutions of international economic, social, health and related problems; and international culture and educational co-operations; and (c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
25. Article 56, The United Nations Charter, 1945: All members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.
26. International Covenant on Civil and Political Rights, 1966 (ICCPR) and International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR).
27. J.S. Verma, “Human Rights Redefined: The New Universe of Human Rights”, 1, Journal of the NHRC (2002), pp. 1 – 17.
28. See UN Office of the High Commissioner for Human Rights (OHCHR), The International Bill of Human Rights, The Fact Sheet No. 2 (Rev. 1) at p. 1.
29. Articles 14 and 26, ICCPR; Articles 1 and 2, the UDHR; Article 1, CEDAW; Article ACHPR; Article 14, ECHR; Articles 3, 11 and 13, Arab Charter on Human Rights, 2004.
30. Article 3, the UDHR; Article 6, the ICCPR; Article 2, ECHR; Articles 4 and 7, American Convention on Human Rights, 1969; Article 6, ACHPR.
31. Article 17, the ICCPR; Article 12, the UDHR; Article 8, ECHR; Article 11, American Convention on Human Rights, 1969; Article 21, Arab Charter on Human Rights, 2004.
32. Article 5, the UDHR; Article 7, the ICCPR; Article 3, ECHR; Article 5, American Convention on Human Rights, 1969; Article 8, Arab Charter on Human Rights, 2004.
33. Article 4, the UDHR; Article 8, the ICCPR; Article 4, ECHR; Article 6, American Convention on Human Rights, 1969; Article 10, Arab Charter on Human Rights, 2004.
34. Article 9, the UDHR; Article 9, the ICCPR.
35. Article 12, the ICESCR; Article 25 (1), the UDHR; Article 16, ACHPR; Articles 38 and 39, Arab Charter on Human Rights, 2004.
36. Article 13, the UDHR; Article 12, the ICCPR; Article 2, Protocol No. 4, ECHR; Article 22, American Convention on Human Rights, 1969; Article 12, ACHPR; Article 26, Arab Charter on Human Rights, 2004.
37. Article 26, the UDHR; Articles 13 and 14, the ICESCR; Article 2, Protocol No. 1, ECHR; Article 17, ACHPR; Article 41, Arab Charter on Human Rights, 2004.
38. Article 9 (5), the ICCPR; Article 10, American Convention on Human Rights, 1969; Article 3, Protocol No. 7, European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (ECHR);
39. Article 4, Protocol No. 7, ECHR; Article 19, Arab Charter on Human Rights, 2004.
40. Article 15, the ICCPR; Article 7, the ECHR; Article 9, American Convention on Human Rights, 1969.
41. Article 19, the UDHR; Article 19, the ICCPR; Article 10, ECHR; Article 13, American Convention on Human Rights, 1969; Article 30, Arab Charter on Human Rights, 2004.
42. Article 18, the UDHR; Article 18, the ICCPR; Article 9, ECHR; Article 12, American Convention on Human Rights, 1969; Article 30, Arab Charter on Human Rights, 2004.
43. Article 27, the UDHR; Article 15, the ICESCR; Article 26, American Convention on Human Rights, 1969; Article 22, ACHPR; Article 42, Arab Charter on Human Rights, 2004.
44. Article 14 (3) (g), the ICCPR.
45. Article 20, the UDHR; Articles 21 and 22, the ICCPR; Article 11, ECHR; Articles 15 and 16, American Convention on Human Rights, 1969; Article 10 and 11, ACHPR.
46. UN Declaration on the Right to Development, 1986; Articles 22 and 29, the UDHR; Article 37, Arab Charter on Human Rights, 2004.
47. The United Nations Conference on the Human Environment, 1972; Article 24, ACHPR.
48. Articles 17 and 27 (2), the UDHR; Article 21, American Convention on Human Rights, 1969; Article 21, ACHPR; Article 31, Arab Charter on Human Rights, 2004.
49. Article 23, the UDHR; Articles 6 and 7, ICESCR; Article 15, ACHPR; Article 34, Arab Charter on Human Rights, 2004.
50. Article 24, the UDHR.
51. Article 9, the ACHPR; Article 32, the Arab Charter on Human Rights, 2004.
52. Article 21, the UDHR; Article 25, the ICESCR; Article 23, American Convention on Human Rights, 1969; Article 13, ACHPR; Article 24, Arab Charter on Human Rights, 2004.
53. Article 10, the UDHR; Article 14, the ICESCR; Article 6, the ECHR; Article 8, American Convention on Human Rights, 1969; Article 13, Arab Charter on Human Rights, 2004.
54. Article 16, the UDHR; Article 23, the ICESCR; Article 12, the ECHR.
55. Article 15, the UDHR; Article 24, the ICESCR.
56. Article 27, the ICESCR.
57. I. R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1, 101 (para 109): AIR 2997 SC 861.
58. Jatindra Kuman Das, Human Rights Law and Practice (PHI Learning Private Limited, 2021) at p. 214.
59. Articles 14 and 26, ICCPR; Articles 1 and 2, the UDHR; Article 1, CEDAW; Article 3, ACHPR; Article 14, ECHR; Articles 3, 11 and 13, Arab Charter on Human Rights, 2004.
60. Article 3, the UDHR; Article 6, ICCPR; Article 2, ECHR; Articles 4 and 7, American Convention on Human Rights, 1969; Article 6, ACHPR.
61. 94 U.S. 113 (1877).
62. AIR 1978 SC 597: (1978) 1 SCC 248.
63. Article 17, the ICCPR; Article 12, the UDHR; Article 8, ECHR; Article 11, American Convention on Human Rights, 1969; Article 21, Arab Charter on Human Rights, 2004.
64. 10 SCC 1: AIR 2017 SC 4161.
65. Also see Gobind v. State of Madhya Pradesh, AIR 1975 SC 1378: (1975) 2 SCC 148; R. Raj Gopal v. State of Tamil Nadu, AIR 1995 SC 264: (1994) 6 SCC 632; People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568: (1997) 1 SCC 301; ‘X’ v. Hospital ‘Z’, AIR 1999 SC 495: (1998) 8 SCC 296.
66. Article 5, the UDHR; Article 7, ICCPR; Article 3, ECHR; Article 5, American Convention on Human Rights, 1969; Article 8, Arab Charter on Human Rights, 2004.
67. (1981) 1 SCC 608.
68. Also see, D. K. Basu v. State of West Bengal, AIR 1997 SC 610: (1997) 1 SCC 416.
69. Article 4, UDHR; Article 8, ICCPR; Article 4, ECHR; Article 6, American Convention on Human Rights, 1969; Article 10, Arab Charter on Human Rights, 2004.
70. Article 9, the UDHR; Article 9, ICCPR.
71. Article 12, the ICESCR; Article 25 (1), the UDHR; Article 16, ACHPR; Articles 38 and 39, Arab Charter on Human Rights, 2004.
72. See, Paschim Banga Khet Mazdoor Samity v. State of West Bengal, AIR 1996 SC 2426: (1996) 4 SCC 37.
73. Article 13, the UDHR; Article 12, the ICCPR; Article 2, Protocol No. 4, European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (ECHR); Article 22, American Convention on Human Rights, 1969; Article 12, ACHPR; Article 26, Arab Charter on Human Rights, 2004.
74. AIR 1978 SC 597: (1978) 1 SCC 248.
75. Article 26, the UDHR; Articles 13 and 14, the ICESCR; Article 2, Protocol No. 1, ECHR; Article 17, ACHPR; Article 41, Arab Charter on Human Rights, 2004.
76. AIR 1993 SC 2178: (1993) 1 SCC 645.
77. Article 9 (5), the ICCPR; Article 10, American Convention on Human Rights, 1969; Article 3, Protocol No. 7, European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (ECHR);
78. AIR 1983 SC 1086: (1983) 4 SCC 141.
79. Also see, Nilabati Behera v. State of Orissa, AIR 1993 SC 1960: (1993) 2 SCC 746.
80. Article 4, Protocol No. 7, ECHR; Article 19, Arab Charter on Human Rights, 2004.
81. Article 15, the ICCPR; Article 7, ECHR; Article 9, American Convention on Human Rights, 1969.
82. Article 19, the UDHR; Article 19, the ICCPR; Article 10, ECHR; Article 13, American Convention on Human Rights, 1969; Article 30, Arab Charter on Human Rights, 2004.
83. See, S.P. Gupta v. Unio of India, AIR 1982 SC 149: (1982) 2 SCC 365.
84. Article 18, the UDHR; Article 18, the ICCPR; Article 9, ECHR; Article 12, American Convention on Human Rights, 1969; Article 30, Arab Charter on Human Rights, 2004.
85. Article 27, the UDHR); Article 15, the ICESCR; Article 26, American Convention on Human Rights, 1969; Article 22, ACHPR; Article 42, Arab Charter on Human Rights, 2004.
86. Article 20, the UDHR; Articles 21 and 22, the ICCPR; Article 11, ECHR; Articles 15 and 16, American Convention on Human Rights, 1969; Article 10 and 11, ACHPR.
87. UN Declaration on the Right to Development, 1986; Articles 22 and 29, the UDHR; Article 37, Arab Charter on Human Rights, 2004.
88. Vikram Vir Vohra v. Shalini Bhalla (2010).
89. The United Nations Conference on the Human Environment, 1972; Article 24, African Charter on Human and Peoples’ Rights (Banjul), 1981 (ACHPR).
90. Glanrock Estate v. State of Tamil Nadu (2010) 10 SCC 96.
91. Articles 17 and 27 (2), the UDHR; Article 21, American Convention on Human Rights, 1969; Article 21, ACHPR; Article 31, Arab Charter on Human Rights, 2004.
92. Jatindra Kuman Das, Human Rights Law and Practice (PHI Learning Private Limited, 2021) at p. 268.
93. Article 23, the UDHR; Articles 6 and 7, the ICESCR; Article 15, ACHPR; Article 34, Arab Charter on Human Rights, 2004.
94. Article 21, the UDHR; Article 25, the ICESCR; Article 23, American Convention on Human Rights, 1969; Article 13, ACHPR; Article 24, Arab Charter on Human Rights, 2004.
95. N.P. Ponnuswamy v. Returning officer, Namakkal Constituency, AIR 1952 SC 64: 1952 SCR 218 at p. 236.
96. Article 10, the UDHR; Article 14, the ICESCR; Article 6, the ECHR; Article 8, American Convention on Human Rights, 1969; Article 13, Arab Charter on Human Rights, 2004.
97. Zahira Habibulla H. Sheikh v. State of Gujarat, AIR 2004 SC 3114: (2004) 4 SCC 158 (paras 32, 33, 36, 39, 40).
98. Article 16, the UDHR; Article 23, the ICESCR; Article 12, the ECHR.
99. ‘X’ v. Hospital ‘Z’, (1998) 8 SCC 296.
100. Article 15, the UDHR; Article 24, the ICESCR.
101. For critical analyses of various legal issues on sexual orientation see, Laurence Helfer and Alice Miller, “Sexual Orientation and Human Rights: Toward a United States and Transnational Jurisprudence” 9, Harvard Human Rights Journal (1996) at pp. 61 – 103.
102. Akhil Bharatiya Soshit Karamchari Sangh v. Union of India, AIR 1981 SC 298: (1981) 1 SCC 246.
103. Minnerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.
104. Upendra Baxi and Marc Galanter, Panchayat Justice: An Indian Experiment in Legal Access, available at http://marcgalanter.net/Documents/papers/scannedpdf/panchayatjustice.pdf