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An Analytical Research on Human Rights viz a viz Fundamental Rights in

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Article in Journal of Legal Studies · February 2022

DOI: 10.55662/JLSR.2022.8101

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AN ANALYTICAL RESEARCH ON HUMAN RIGHTS VIZ A

VIZ FUNDAMENTAL RIGHTS IN INDIA

Written by Dr Baloy Bhattacharjee

Assistant Professor (HoD), Arunachal University of Studies, Namsai, Arunachal Pradesh,

India

ABSTRACT

Human rights are the rights relating to overall development of every individual. Every citizen
as well as non- citizens caries their rights wherever they go. Simultaneously human rights are
essential for the overall development of every individual. In the constitution of India various
provisions are there that reflects the basic rights which are also known as fundamental rights.
But the thing is that there are some specified as well as some unspecified fundamental rights.
But the most important thing is that in India there is Protection of Human Rights Act, 1993
with an objective of protecting human beings from violations of Human rights to prevent and
punish any gross violation on human rights. India is the largest democracy of the world. Being
a democratic country we have to protect our basic rights of the people. Government of India
has also given due consideration to the recognition and protection of human rights. The
Constitution of India recognizes those rights of the people and yawn them for every individuals
concern. Then also violation of Human rights still exist by other form like forced labour, forced
prostitution, immoral trafficking, low wages, gender discrimination etc.

Keywords: Human rights, fundamental rights, Forced Labour, gender discrimination, immoral
trafficking etc.

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INTRODUCTION

Today the dimension of Human rights is becomes vaster than the earlier day. Today we include
basic rights as human rights as without those rights no one can exist in the present society. In
a biggest democratic society like India the human rights are prevailed in our constitution by
the term fundamental rights and in some other related articles. On the basis of those articles we
enact some legislations those are included in recent days like forced labour, gender
discrimination, immoral trafficking, death behind the bar, death in judicial custody, and some
other attracted area. Being a signatory India enacts an Act called Protection of Human Rights
Act. Thing is that the whole study is based on doctrinal analysis based on various articles,
journals, books and some other related material based on human rights violation and related
material. Regarding this the essentialities are depends upon basic rights enshrined in the
constitution of India. The fundamental rights are become very much essential ingredient to
maintain our life. It is not only specified in our constitution but also in UDHR’S, ICCPR’S and
on various conventions or protocols, those are mentioned. In this light India takes various
crucial steps to uplift the status of citizen in India. The UDHR’s plays a significant role of its
own, though in earlier time in the year 1920 ILO initiated the conventions on the rights of
workers like on the basis of abolition of forced labour and forming unions and organizations to
resolve disputes and most of the countries framed a legislation in this regard.

AIMS AND OBJECTIVES OF THE STUDY

The study based on a critical analysis on various issues based on gross violation of human
rights. In this regard the following objectives are taken under consideration:
1. To study the impact of establishment of protection of Human Rights in India
2. To study constitutional framework for right to education and other relevant legislation on
Human Rights in India
3. To study the different government approaches to protect human rights violation against
individuals in India.

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RESEARCH METHODOLOGY

The whole work is based on doctrinal research study. Where the researcher tries to find out the
source of human rights in India and also tries to compare the international instruments with our
present mechanisms. The researcher also goes through various journals books and magazines
and various judicial pronouncements to find out the laws prevailing in India. The study is
evaluated on the basis of reviewing various articles and books and no primary sources are used
to find out the outcome. Descriptive analysis is the key tool used to evaluate and analyze the
thought relating to Human rights in India.

REVIEW OF LITERATURE

In a brief lecture on "Human Rights in Constitution of India"i the respected speaker tries to
highlight about the framework of social order by implementation of various laws without which
well-ordered social life would not be possible. Various philosophers of social contract theory
are of the view that object of the creation of state is to maintain and protect the rights of
individualsii. According to Aristotle, State came into existence out of basic necessities of life
and continues for the sake of good life simultaneously, Locke was of the view that end of state
is to remove the obstacles that hinder the development of an individual. Thus, the existence of
the state is recognized with the protection of rights and liberties of individual which is the main
object of stateiii. Protection of the dignity of an individual is essential for harmony in the
society, as its violation can have grave impact on individual in particular and on society in
general. Every individual is entitled to some rights which are inherent to human existence. Such
rights should not be violated on the grounds of gender, race, caste, ethnicity, religion etc. these
are called human rights.iv Human rights are also named as basic rights, fundamental rights,
natural rights or inherent rights. The concept of human right is not a new occurrence. It has
gone through various stages of development and has taken long time to become the concept of
present day. These rights had place in all ancient societies though referred by different names,
those rights are also includes civil rights, liberties and social cultural and economic rights. The
researcher also mentioned protection of human rights is a necessity for the development and

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growth of an individual personality, which ultimately contributes in the development of the

nation as a whole. It is an internationally recognized issue and various international instruments
have been established for the protection of human rights.

Human Rights in India: Historical Perspectivev, in this article the researcher highlighted on the
history of human rights is contemporary to the development and evolution of early man. The
concept of human rights as it is understood today has evolved over the centuries ago. The
researcher also explained that the concept of human rights from a historical perspective, it
would be seen that it is neither entirely western nor so modern, rather it is the crystallization of
values that are common heritage of mankind. According to him Kautilya in his famous and
immortal work "Arthasastra" has defined and described the human rights of war prisoners. The
human rights were reformed to as civil rights, political rights, personal rights, legal rights,
natural or divine rights, economic and social rights in ancient period. Hence, there is a variety
of expression, like 'inherent rights, 'natural rights', 'inalienable rights', 'basic fundamental
rights', which are interchangeable terms to express the rights that a human being possess. The
concept of human rights was first, reflected in ancient Greece and Rome, where it was closely
tied to Pre-modern natural law doctrine of Greek stoicism. The Greek idea of divine law and
freedom and the practice of Roman law are at the heart of today’s ideas of human rights.
According to him during the 18th Century, the so called Age of Enlightenment, a growing
confidence of human reason and of course, the perfection of human affairs led it to become
more comprehensive one. At the same time John Locke in England, Montesquieu Voltaire and
Jean Jacques Rousseau in France and others supported tried to prove the superiority of natural
law. The doctrine of natural rights influenced the English, French and American Revolutions.
The researcher also mention an another live examples of England glorious revolution 1688 and
resulting Bill of Rights on 1689 as well provided rationale for the wave of revolutionary
agitation which influenced the West, most notably in North America and France. Certain
historic texts like Pennsylvania Declaration (1776) American Declaration (1787) French
Declaration (1789) reflected the intellectual milieu of the contemporary socio-political
situations spawning the struggle against political absolutism. In the words of Maurice Cranston,
a leading human rights scholar, it is evident that these struggles took place because the
absolutism promoted men to claim their rights which were denied to them. All those revolutions

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laid the foundation of human rights. In fact, Henry David Thoreau was first philosopher to have
used the term "human rights" in his treatise; civil disobedience, which influenced Leo Tolstoy,
Mahatma Gandhi and Martin Luther King to develop and propagate the concept of non-violent
resistance to unethical governmental actions. Mahatma Gandhi said: "respect of one, equally
applies to the whole universe. All mankind in essence are alike, what is therefore possible for
one is possible for everybody.” The horrors of the Second World War led to the birth and
recognition of the modern human rights movement in the international sphere. President
Roosevelt's proclamation in 1941 the four freedoms of speech and expression, of belief,
freedom from fear and want- as universally acceptable set of standards, along with the works
of NGO's were some of the significant developments in this directions. But it was the
establishment of the United Nations in 1945, and the subsequent international concern for the
commitment of human rights that widened the scope of this movement. A cornerstone of this
post war human rights regime was the Universal Declaration of Human Rights (UDHR) which
was adopted on 10th December, 1948, which is commonly known as “Human Rights Day”.
The sources of this Declaration owe much to the Englishvi.

V. Sharma, “Forces deploy 1 million to guard Kashmir Valley, vii” in this article the writer
discuss about some incidences and highlighted near about 9.5 lakh personnel from the Army,
various paramilitary units and special forces, besides the Indian Air Force, are guarding every
inch of the Kashmir Valley amid heightened tensions between India and Pakistan in the
aftermath of the scrapping of Article 370. He also mentioned While a majority of forces were
already stationed in the Valley, the Centre, in the past month, has deployed over 1.75 lakh
additional forces — which is unprecedented in the history of Jammu and Kashmir. Besides the
massive troop build up, all the forces put together have flown in at least 100 doctors to cater to
medical emergencies among soldiers and have stocked up on medicines and rations, which
would last easily for the next three to four months. The doctors include specialists like
cardiologists, neurosurgeons, general physicians and pathologists. Several dozen vehicles have
been rented by the Jammu and Kashmir police to ferry soldiers, besides pressing into service
more military vehicles to facilitate travel in the interior areas of the Valley, particularly in the
troubled hotspots of South Kashmir.viii

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During this tenure most shops are shut and locals confined within the four walls of their homes,
outside on the streets it is only a sea of soldiers, covering every nook and corner of the Kashmir
Valley, with officials describing preparations as “warlike”. Top security establishment sources
told this newspaper that the biggest deployment, in terms of numbers, is that of the CRPF. In
the Kashmir Valley alone, besides the regular deployment of 60 CRPF battalions, that roughly
translates into nearly 60,000 men (each battalion has close to 1,000 personnel), the Centre had
deployed an additional 40,000 personnel, which takes the deployment of CRPF personnel to
about one lakh personnel. Likewise “About 10 battalions (10,000 men) had arrived a month
ahead of the Amarnath Yatra to sensitise the route and guard it which continued till it abruptly
came to an end, days before Centre scrapped Article 370. They have been redeployed in
different parts of the Valley. Besides, 30,000 additional troops were sent to the Valley in the
days leading to the Centre’s announcement on August 5,” a CRPF official said.ix

Besides the Army and the paramilitary the Jammu and Kashmir police, whose total strength is
about 83,000 personnel. While they are spread across J&K, the police too have its own Special
Operations Group (SOG), who assists in counter-insurgency operations in the Valley. Not only
these sources said that though NSG commandos have always been made available in the Valley
for operations, their strength too has been hiked in the past month in view of the announcement
made by the Centre. “Wherever required, the NSG commandos and the Rashtriya Rifles are
working in coordination,” a senior security official said. “It looks like the massive deployment
will continue till the elections are completed here, or even beyond that. The situation now is
volatile, and by the end of October the two UTs will formally come into existence. Thereafter,
the Centre might go in for polls. So there is uncertainty over how long this huge deployment
will remain in place,” a senior government official said. Here the existence shows that to protect
the rights of every individual the government may take extreme efforts but simultaneously the
efforts may goes against to avail some human rights. Reason of that we can’t say that a gross
human rights violation is there.

In the Human Rights Education in Indiax the researcher triggered on another vital point of view
that is related to right to education for children under Article 21A of the Constitution by the
Eighty-Sixth Constitutional Amendment Act, 2002. He also highlighted that India thus became

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one of the few countries in the world where the right to education is a fundamental right. The
Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) guarantees the right
to free and compulsory education to every child between 6 and 14. The RTE Act, although
progressive, is not accompanied either by a well laid-out implementation mechanism of the
law or by a financial memorandum. Therefore, its implementation remains a challenge because
of inadequate financial allocations and lack of effective enforcement mechanisms. While the
Act does have provisions stating that the local authority may take up a complaint, it ignores the
fact that this very local authority is also an implementing functionary. Till to date, only 17
states have prepared drafts of their state rules on the Act but are yet to notify them. This paper
mainly focused on Human rights education in India, constitutional framework regarding human
rights education in India

In the article Human Rights and Ancient India xi the researcher highlighted various innovative
thought relating to Human Right as a word was not framed by ancient Indians but the content
of current Human Rights was included in the ancient Indian education pattern in gurukul and
ashrams. Ancient India recognized the supreme value of moral education in human life. He
also highlighted about the ancient thinkers who felt that a healthy society was not possible
without morally educated individuals. To ensure education they framed an educational scheme
carefully and wisely aiming at the harmonious development of the mind and body even moral
education is one of them that bound the students and those becoming the adult to run their life
according to rules framed and provided by the gurukulas, ashramas and societies.

CONCEPT OF HUMAN RIGHTS AND ITS ORIGIN AND

DEVELOPMENT IN INDIA

The term human rights have been defined various times in several documents. One of most
important explanations from those are as defined by OHCHR:xii

Human rights are rights inherent to all human beings, whatever our nationality, place of
residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are
all equally entitled to our human rights without discrimination. These rights are all interrelated,

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interdependent and indivisible.xiii Or in the UN Charter in 1945 affirmed faith in the

fundamental human rights and appointed a Commission on Human Rights under Mrs. E.
Roosevelt. This declaration was the outcome of the latter’s deliberations A.A. Said aptly
remarked ‘The concept of Human Rights may be difficult to define but impossible to ignore.
The Human Rights are concerned with the dignity of the individual—the level of self-esteem
that secures personal identity and promotes human community.’xiv

The thought of Human rights are not a new thought rather an ancient thought, like Buddhist
concept of non-violence in deed and humanitarian doctrine of third century B.C. Jainism too
contained similar doctrines. According to the Gita, the person he who has no ill will to anyone,
who is friendly and compassionate, who is free from egoism and self-sense and who is positive
minded in pain and pleasure and passionate is dear to God. It also says that divinity in humans
is represented by the virtues of non-violence, truth, freedom from anger, renunciation, aversion
to fault-finding, compassion to living being, freedom from covetousness, gentleness, modesty
and steadiness- the qualities that a good human being ought to have. The historical account of
ancient Bharat proves beyond doubt that human rights were as much obvious in the ancient
Hindu and Islamic civilizations as well as in the European Christian civilizations. Ashoka, the
prophet Mohammed and Akbar cannot be excluded from the genealogy of human rights. The
modern version of human rights jurisprudence may be said to have taken birth in India at till
time of the British rule. When the British ruled India, resistance to foreign rule manifested in
the form of demand for fundamental freedoms and the civil and political rights of the people;
Indians were humiliated and discriminated against by the Britishers. The freedom of movement
and the harsh repressive measures of the British rulers encouraged the fight for civil liberties
and fundamental freedoms. Lord Macaulay rejected the ancient Indian legal political system
as dotages of Brahmanical superstition, and condemned ancient legal heritage and its inner core
as an immense apparatus of cruel absurdities. Lord Wellesley condemned the Indians as vulgar,
ignorant, rude and stupid and Lord Cornwallis described as an axiom that every native of
Hindustan is corrupt. The English East India Company debarred Indians from high offices and
deprived them of their political, social and economic rights. Simultaneously, the idea of human
rights was deep rooted by means of basic rights and freedoms in landmark developments in

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Britain by means of Magna Carta of 1215, the Habeas Corpus Act of 1679, and the Bill of
Rights 1689.

Due to immense violation Mahatma Gandhi take the initiative under his leadership and
introduced his non-violence struggle to achieve self-government and fundamental rights for
ourselves. Lokmanya Tilak is one of them who advocated that freedom was the birth right of
Indians for which we will have to fight. It was because of the rigid opposition from the people
of India that the Charter Act of 1813 was enacted to promote the interest and happiness of the
native inhabitants of India. Similarly, the Government of India Act, 1833 was passed to allow
the Indians to enjoy some political rights. The proclamation of Queen Victoria on 1 November
1858 contained some principles of state policy, which were similar to fundamental rights in
nature. The concrete demand for fundamental rights came logically in the wake of the
nationalist movement, which coincided with the birth of the Indian National Congress in 1885.
The Constitution of India Bill 1895 known as the Home Rule Document prepared by the Indian
National Congress lined up the way for constitution guaranteeing every citizens for basic
human rights like freedom of expression, right to property and equality before law and
obviously the right to life. Beside those in the Government of India Act, 1915, in pursuance of
the demands for fundamental rights, guaranteed equality of opportunity in public services. Now
we can see the thing in our constitution by means of fundamental rights or we can say it Natural
rights or Basic human rights. The judicially enforceable fundamental rights which include all
determining civil and political rights and some of the rights of minorities are enshrined in part
Ill of the Constitution (Articles 12 to 35). These include the right to equality, the right to
freedom, the right against exploitation, the right to freedom of religion, cultural and educational
rights and the right to Constitutional remedies and also the right to education under Article 21A
and obviously right to equality and personal liberty under Article 21.

HUMAN RIGHTS IN INTERNATIONAL SCENARIO

The International Bill of Rights When a State becomes a party to an international human rights
treaty; it assumes obligations and duties under international law to respect and protect human
rights and to refrain from certain acts. Three of the most important international instruments

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pertaining to human rights are collectively known as the International Bill of Human Rights,
those are as:

1. The Universal Declaration of Human Rights (UDHR)

2. International Covenant on Civil and Political Rights (ICCPR)
3. International Covenant on Economic, Social and Cultural Rights (ICESCR)

Universal Declaration of Human Rights Background

In the aftermath of World War II, Eleanor Roosevelt spearheaded the U.S. involvement in the
creation of the United Nations, as well as the drafting of the Universal Declaration of Human
Rights (UDHR). Eleanor Roosevelt’s diplomatic efforts with the Soviet Bloc countries in
particular assisted greatly in the final acceptance of the UDHR. On December 10, 1948 the
United States voted in favor of the resolution to adopt the Declaration before the United Nations
General Assembly. As the cornerstone of the international human rights movement, the UDHR
was drafted as ‘a common standard of achievement for all peoples and nations.’ It was the first
time in history that one document designated the basic civil, political, economic, social and
cultural rights to which all humans are entitled. It has since been widely accepted by the
international community as the fundamental standard of human rights that all States should
respect and protect.xv Legal Force Many scholars assert that all of the rights enumerated in the
UDHR have become customary international law. Unlike other non-binding international
human rights declarations, the UDHR is so broadly accepted around the world that it
established common human rights norms. Virtually every international human rights
instrument references the UDHR, as do many declarations adopted unanimously or by
consensus by the U.N. General Assembly.xvi

Nevertheless, others have argued that, while certain of the rights identified in the UDHR may
constitute customary norms, other rights, especially certain economic and cultural rights, have
not achieved this same status.xvii Article 7 provides Equality before law and prohibition of
discrimination, under Article 3 provides Protection of Life and personal liberty simultaneously
Article 4 provides protection of slavery and forced labour then Article 9 highlighted about right
against arbitrary arrest and detention whereas equality of opportunity describes about Article

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21(2) in Article 20(1) peaceful assembly and Article 23(4) is about freedom to form
associations or unions.

International Covenant on Civil and Political Rights (ICCPR)xviii

The ICCPR prescribes certain conduct to protect civil and political rights of individuals or
groups. It is important to remember that civil rights and political rights are guaranteed by the
welfare states. Being a welfare state India also guaranteed those rights to protect the rights of
every individual. According to this Articles 6 that provides for a person’s “inherent Right to
life”, and requires the same to be protected by the law. It states that this is the most supreme
right, and no derogation of this is ever possible. It doesn’t prohibit death penalty, but restricts
it to the most serious crimes.xix Then Article 8 which Prohibits slavery and forced labour. In
relation to Right to Liberty and security of a person Article 9 assure the people arrested
recourse to courts and a fair trial for curbing their liberty and lastly Article 11 Prohibits the use
of punishment for breach of contract. In relation to Procedural fairness and rights of an
accused Article 14 provides for a fair trial to everyone also provides for other rights of the
accused in a trial i.e. presumption of innocence, forbids double jeopardy, right of the accused
to appeal in a higher court, right to be protected against self-incrimination and fair and speedy
trial. Whereas, Article 15 prevents prosecutions under Ex-post facto law and imposition of
retrospective criminal penalties, and requires imposition of lesser punishment where criminal
sentences have changed between the time of commission of crime and the date of the judgment
and Article 16– requires the state to recognize everyone as a person before the law. Relating to
individual Liberties at the same time Article 12 provides for freedom of movement, including
the right of persons, Article 13 Forbids arbitrary expulsion of resident aliens, Article 17
mandates the right of privacy, the article also protects people from unlawful attacks to their
honor and reputation, Article 18 is about freedom of religion and belief and Article 19 is about
freedom of expression whereas Article 20 Provides that any propaganda for war shall be
prohibited by law. Simultaneously Article 21 & 22 provides for the right of peaceful assembly,
without restrictions in a peaceful democratic society and everyone shall have the right to form
associations, it also provides for restrictions in the same manner as the previous Article. It also
provides that members of the International Labour Organization shall not have or pass any law
that prejudices the freedom that is guaranteed to citizens in that Convention.

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International Covenant on Economic, Social and Cultural Rights (ICESCR) (Opened for
signature on 16 December 1966)

In contrast to the provisions in the ICCPR, the provisions in the ICESCR are generally viewed
as goals to which the parties agree to aspire. Article 2 provides that the States party to the
ICESCR should undertake steps, to the maximum of available resources, to achieve
progressively the full realization of the rights recognized by the ICESCR. Article 23(1) tells us
about Right to work, to just and favourable condition of work, in Article 23(2) Right to equal
pay for equal work, in Article 26(1) Right to education, in Article 23(3) Right to just and
favourable remuneration, Article 24 about Right to rest and leisure, Article 25(1) is about Right
of everyone to a standard of living adequate for him and family and Article 28 is about Right
to proper social order.

There are some other Human Rights Instruments

In addition to the International Bill of Rights, there are other human rights treaties and universal
instruments, including regional treaties. Listed below are some examples of these instruments.
The legal status of each instrument listed below varies as there are some which the United
States has not yet ratified.

A. UN Treaties Pertaining to Human Rights

 Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) (18 December 1979) was signed by the United States on July 17, 1980 but
has not yet been ratified
 International Convention on the Elimination of All Forms of Racial Discrimination
(CERD) (21 December 1965) was signed by the United States on September 28, 1966
and was ratified on October 21, 1994
 Convention on the Prevention and Punishment of the Crime of Genocide 27 (9
December 1948) was signed by the United States on December 11, 1948 and ratified
on November 25, 1988.
 Convention on the Rights of the Child (2 September 1990) was signed by the United
States on February 16, 1995, but not ratified

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 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (CAT) (10 December 1984) was signed by the United States on April 18,
1988 and ratified on October 27, 1990, but did not take effect until October 21, 1994.
For more detailed information, see section below on CAT.
B. Some other International Instruments
 Convention Relating to the Status of Refugees (28 July 1951)
 Convention Relating to the Status of Stateless Persons (28 September 1954)
 Convention on the Reduction of Statelessness (30 August 1961)
 Protocol Relating to the Status of Refugees (31 January 1967)
 U.N. Declaration on Territorial Asylum (14 December 1967)

JUDICIAL PRONOUNCEMENTS IN THE LIGHT OF HUMAN RIGHTS

Relating to Article 14 in National Legal Services Authority versus U.O.Ixx, the Supreme Court
has held that Article 14 does not restrict word ‘person’ and its application to only males and
females and hijras/transgender those who are neither male nor female falls within the
expression ‘person’. They are entitled to legal protection of laws in all spheres of state activity
including health care, employment, education as well as equal civil citizenship rights, as
enjoyed by every other citizen of this country.

In Naz Foundation v. Govt of NCT of Delhixxi case the Delhi High Court declared Section 377
of IPC, which criminalizes Homosexuality in India, as unconstitutional and violative of
fundamental rights guaranteed under Article 14, 15 and 21 of the Constitution. Later on, in
Suresh Kumar Kaushal & Anr. vs. NAZ Foundation & Others, the Supreme Court of India
struck down the decision of Delhi High Court and held the Section 377 of IPC does not suffer
from any constitutional infirmity and has left on the legislature to deal with the legality of the
Section.

Relating to Article 19 in Romesh Thapar v/s State of Madras,xxii Patanjali Shastri,CJ, observed
that Freedom of speech & of the press lay at the foundation of all democratic organization, for
without free political discussion no public education, so essential for the proper functioning of

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the process of popular government, is possible. In this case, entry and circulation of the English
journal Cross Road, printed and published in Bombay, was banned by the Government of
Madras. The same was held to be violative of the freedom of speech and expression, as without
liberty of circulation, publication would be of little value.

Again in an another case the Hon’ble Supreme Court observed in Union of India v/s
Association for Democratic Reforms,xxiii One-sided information, disinformation,
misinformation and non information; all equally create an uninformed citizenry which makes
democracy a farce. Freedom of speech and expression includes right to impart and receive
information which includes freedom to hold opinions.

Then in Indian Express Newspapers v/s Union of India,xxiv it has been held that the press plays
a very significant role in the democratic machinery. The courts have duty to uphold the freedom
of press and invalidate all laws and administrative actions that abridge that freedom. Freedom
of press has three essential elements. They are: Freedom of access to all sources of information,
Freedom of publication, and Freedom of circulation.

Under Article 21 there is a landmark case Maneka Gandhi vs Union of India,xxv the Supreme
Court gave a new dimension to Art. 21 and held that the right to live the right to live is not
merely a physical right but includes within its ambit the right to live with human dignity.
Elaborating the same view, the Court in Francis Coralie v. Union Territory of Delhi, xxvi
observed that:

The right to live includes the right to live with human dignity and all that goes along with it,
viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head
and facilities for reading writing and expressing oneself in diverse forms, freely moving about
and mixing and mingling with fellow human beings and must include the right to basic
necessities the basic necessities of life and also the right to carry on functions and activities as
constitute the bare minimum expression of human self.

Then in another case the Supreme Court in Peoples Union for Democratic Rights v. Union of
India,xxvii held that non-payment of minimum wages to the workers employed in various Asiad
Projects in Delhi was a denial to them of their right to live with basic human dignity and

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violative of Article 21 of the Constitution. Bhagwati J. held that, rights and benefits conferred
on workmen employed by a contractor under various labour laws are clearly intended to ensure
basic human dignity to workmen. He held that the non-implementation by the private
contractors engaged for constructing building for holding Asian Games in Delhi, and non-
enforcement of these laws by the State Authorities of the provisions of these laws was held to
be violative of fundamental right of workers to live with human dignity contained in Art. 21.

In Vishaka vs State of Rajasthan,xxviii the Supreme Court has declared sexual harassment of a
working woman at her work as amounting to violation of rights of gender equality and rights
to life and liberty which is clear violation of Articles 14, 15 and 21 of the Constitution. In the
landmark judgment, Supreme Court in the absence of enacted law to provide for effective
enforcement of basic human rights of gender equality and guarantee against sexual harassment
laid down the following guidelines:

All employers or persons in charge of work place whether in the public or private sector should
take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this
obligation they should take the following steps:

1. Express prohibition of sexual harassment as defined above at the work place should be
notified, published and circulated in appropriate ways.
2. The Rules/Regulations of Government and Public Sector bodies relating to conduct and
discipline should include rules/regulations prohibiting sexual harassment and provide
for appropriate penalties in such rules against the offender.
3. As regards private employers steps should be taken to include the aforesaid prohibitions
in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
4. Appropriate work conditions should be provided in respect of work, leisure, health and
hygiene to further ensure that there is no hostile environment towards women at work
places and no employee woman should have reasonable grounds to believe that she is
disadvantaged in connection with her employment.

Where such conduct amounts to specific offences under IPC or under any other law, the
employer shall initiate appropriate action in accordance with law by making a complaint with
appropriate authority.

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Then in another case some other issues are highlighted in relation to the victims of Sexual
harassment should have the option to seek transfer of perpetrator or their own transfer.
In Jeeja Ghosh V UOI,xxix Supreme Court asked the Spice Jet Ltd to pay Rupees Ten Lakhs to
Jeeja Ghosh, an eminent activist involved in disability rights, for forcibly de-boarding her by
the flight crew, because of her disability. Apex Court bench comprising of Justices A.K. Sikri
and R.K. Agarwal also issued the guidelines with regard to ‘carriage’ by persons with
disabilities and/or persons with reduced mobility and observed that People with disabilities
also have the Right to live with dignity.

DATA ANALYSIS ON HUMAN RIGHTS VIOLATION

According to human rights commission report 2017-18 death in police encounter is increased
to 3.23% and custodial death increased to 1.12% and in other areas also it has been seen like
in child labour, bonded labour, gang rape, rape, children health, violation of human rights in
jail, etc.

Death in Police Encounter

200

150

100
Death in Police Encounter

50

0
2013-2014 2014-2015 2015-2016 2016-2017 2017-2018

Here we can observed that though the death in police encounter is 3 percent but it is continued
and increased to 180 cases that shows the gross human rights violation is continued.

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Custodial Death (Judicial) (Intimation)

1680
1660
1640
1620
1600 Custodial Death (Judicial)
(Intimation)
1580
1560
1540
1520
2013-2014 2014-2015 2015-2016 2016-2017 2017-2018

Here we can observed that though the custodial death is increased to 1 percent but it is has seen
that there is a continuous growth and increased to about 1670 cases that shows the gross human
rights violation in judicial custody.

Custodial Death (Police) (Intimation)

155
150
145
140
135 Custodial Death (Police)
(Intimation)
130
125
120
115
2013-2014 2014-2015 2015-2016 2016-2017 2017-2018

Simultaneously, we can observed that though the death in police custody is near about 2%
percent but it is continued and increased to about 150 cases that shows the gross human rights
violation in police custody.

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In below there is a complete scenario of gross violation of human rights and we can say that
though there is a huge scope of improvement to decrease the gross human right violation and
the government have to take necessary steps in this regard.

70000
60000
50000
40000 2017-2018
30000
20000 2016-2017
10000 2015-2016
0
2014-2015
2013-2014

2013- 2014- 2015- 2016-

2014 2015 2016 2017 2017-2018
Death in Police Encounter 137 188 179 169 164
Custodial Death (Judicial)
(Intimation) 1577 1588 1668 1616 1636
Custodial Death (Police)
(Intimation) 140 130 151 145 148
Child Labour 63 716 66 50 46
Bonded Labour 3174 1017 3345 240 210
Gang Rape 659 759 572 455 392
Rape 827 978 707 535 498
Children 1568 2560 1657 1211 906
Health 1475 2738 2535 1832 1210
Jail 2597 2583 2670 2447 2416
Women 8991 9904 8105 7413 7460
Defence Forces 144 144 128 72 103
Para-Military Forces 141 178 160 152 95

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Data Source: National Human Rights Commission Report 2017-18.xxx

Now if we think about the gross human right violation in various state then we can observe that
a total of 79,612 cases were registered in the Commission during 2017-2018. Out of these
79,612 cases, 38,659 cases related to the State of Uttar Pradesh, 5,829 cases to Delhi, 4,977 to
State of Odisha, 3,522 to Bihar and 3,285 to Rajasthan. The State-wise breakup of the number
of cases registered is given in the chart on next page.
Intimation Received about Intimati
Custodial Deaths and Rapes ons
Defence/ Receive
Suo- Police Para- d about
motu Custodi Judicial Military Encoun
Name of the Compla Cogni al Custodia Custodia ter
State/UTs ints zance Deaths/ l Deaths/ l Deaths/ Deaths
Rapes Rapes Rapes Total
All India 562 3 0 0 0 0 565
Andhra 1082 0 2 36 0 1 1121
Pradesh
Arunachal 32 1 3 3 0 5 44
Pradesh
Assam 232 1 11 29 1 18 292
Bihar 3403 3 7 109 0 0 3522
Goa 45 1 0 0 0 0 46
Gujarat 1476 0 14 50 0 0 1540
Haryana 2962 2 7 46 0 4 3021
Himachal 159 0 2 6 0 0 167
Pradesh
Jammu and 189 0 0 4 0 1 194
Kashmir
Karnataka 864 2 4 11 0 2 883
Kerala 578 1 3 38 0 0 620

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Madhya 2574 7 7 114 0 1 2703

Pradesh
Maharashtra 2069 7 19 125 0 10 2230
Manipur 35 0 1 1 0 3 40
Meghalaya 28 0 2 2 0 4 36
Mizoram 12 0 1 2 0 0 15
Nagaland 19 0 0 2 0 0 21
Odisha 4909 3 4 54 0 7 4977
Punjab 839 2 10 127 0 1 979
Rajasthan 3182 5 3 91 0 4 3285
Sikkim 5 0 0 2 0 0 7
Tamil Nadu 1976 3 11 72 0 2 2064
Tripura 45 0 1 5 0 0 51
UP 38196 17 12 390 0 44 38659
WB 1563 0 5 138 0 4 1710
Andaman & 35 0 0 0 0 0 35
Nicobar
Chandigarh 117 0 0 2 0 0 119
Dadra & 15 0 0 0 0 0 15
Nagar Haveli
Daman & diu 17 0 0 0 0 0 17
Delhi 5771 8 7 42 0 1 5829
Lakshadweep 4 0 0 0 0 0 4
Puducherry 102 0 0 0 0 0 102
Chhattisgarh 520 4 3 54 0 40 621
Jharkhand 1531 3 6 50 0 10 1600
Uttarakhand 1466 0 0 17 0 1 1484
Telangana 746 1 3 14 0 1 765
Foreign 229 0 0 0 0 0 229
Countries

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Grand Total 77589 74 148 1636 1 164 79612

Table 1: National Human Rights Commission Report 2017-18.xxxi

All India Andhra Pradesh Arunachal Pradesh Assam

Bihar Goa Gujarat Haryana
Himachal Pradesh Jammu and Kashmir Karnataka Kerala
Madhya Pradesh Maharashtra Manipur Meghalaya
Mizoram Nagaland Odisha Punjab
Rajasthan Sikkim Tamil Nadu Tripura
UP WB Andaman & Nicobar Chandigarh

Here the researcher observed that though the constitution of India provides us the guarantee to
protect our human rights as well as it is inconformity with the international instruments but the
analysis shows that still there is a scope of improvement on the gross human right violation.
As in many states a gross violation is observed like in Andhra Pradesh, Bihar, Gujarat,
Haryana, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, Tamil Nadu, UP, WB, Delhi,
Jharkhand, Uttarakhand.

CONCLUSION

The Indian Constitution is a document rich with human rights jurisprudence. This is an
elaborate charter on human rights ever framed by any country in the world. Part Ill of the Indian
Constitution is the most essential part relating to human rights. The Judiciary in India plays a
significant role in protecting human rights. The Indian Courts have now become the courts of
the poor and the struggling masses and left open their portals to the poor, the ignorant, the
illiterates, and the downtrodden or for every countryman.

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Social activists have also started assisting victims of human rights violations in their respective
areas to approach various forums for justice. Students under the programme are also getting
involved in human rights advocacy in their respective villages. But beside those initiatives the
government has also some responsibility to assure the physical protection that is enshrined in
our Constitution. A large number of students have come out with striking revelations of change
in their perception and behavior as a result of the HRE program in their schools. Even
substantial efforts are therefore crucial to eradicate the social disparities and guarantee of
getting quality education on an equal basis. To closing down, there is an utmost need for
realizing that provision for universal access of those facilities for ground level development
and a fundamental condition in the process of creating India as a developed society.

BIBLIOGRAPHY

Books:

 Dr J.N. Pandey, Constitutional Law of India; 45th Edition, Central Law Agency.
 Dr S. K. Kapoor, International law and Human Rights; 18th Edition, Central Law
Agency.
 Dr H. O Agarwal, Human Rights; 6th Edition, Central Law Agency.

Articles and Journals:

 Hannum, The Status of the Universal Declaration of Human Rights in National and
International Law, 25 Ga. J. Int’l & Comp. L. 287, 290 (1995/1996). Hurst Hannum,
Associate Professor of International Law,
 Dr. Anant Kalse (2016), A brief lecture on “Human Rights in the Constitution of India”,
available at: http://mls.org.in/books/H-2537%20Human%20Rights%20in.pdf.’
 Amartish Kaur (2017), “Protection of Human Rights in India – A Review”, Jamia Law
Journal, Vol.2.
 Rajeev Dhavan. "Law as Struggle: Public Interest Law in India," lndian Journal of
lnternational Law (Vol. 36, 1994): 307-317.

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 Sunil Deshta and Ms Kiran Deshta. "Philosophy of Right to Life, a Movement from
Rigidity to Flexibility." Civil and Military Law Journal, Vol. 31: 3. 123. (July-
September. 1995)
Webliography:

 https://www.legalserviceindia.com/legal/article-1200-interpretation-of-human-rights-
in-india.html.
 V. Sharma, “Forces deploy 1 million to guard Kashmir Valley,” The Asian Age (August
18, 2019). Available at https://www.asianage.com/india/all-india/180819/forces-
deploy-1-million-to-guard-kashmir-valley.html

ENDNOTES

i
By DR. ANANT KALSE, PRINCIPAL SECRETARY, MAHARASHTRA LEGISLATURE SECRETARIAT
& SECRETARY, COMMONWEALTH PARLIAMENTARY ASSOCIATION, MAHARASHTRA BRANCH
http://mls.org.in/books/H-2537%20Human%20Rights%20in.pdf
ii
https://www.coursehero.com/file/44357852/82F6F397-6AE0-4253-940E-58C9B0BDEC32-Amartish-Kaur-
Human-Rightspdf/
iii
Ibid.
iv
https://www.lawctopus.com/training-program-on-human-rights-at-shobhit-deemed-university-
meerut/#:~:text=Each%20individual%20is%20entitled%20to,natural%20rights%20or%20inherent%20rights.
v
Dr. S. S. Rana, Associate Professor, Department of Political Science, Sri Aurobindo College (M), University of
Delhi, New Delhi
vi
VOLUME 5, ISSUE 1, JAN. – MARCH 2018; ISSN 2349-5138 pp 474 IJRAR- International Journal of
Research and Analytical Reviews Research Paper Revolution, American Revolution, and French Revolution
vii
V. Sharma, “Forces deploy 1 million to guard Kashmir Valley,” The Asian Age (August 18, 2019). Available
at https://www.asianage.com/india/all-india/180819/forces-deploy-1-million-to-guard-kashmir-valley.html
viii
Ibid.
ix
Ibid.
x
Dr. Raj A. Soshte, Asst. Prof. Accountancy, NSS College of Comm. & Eco. Tardeo, Mumbai
xi
Dr. Ramesh Baboo Assistant Professor Dept. of Chemistry, Dr B. R. A. Govt. Girls P. G. College, Fatehpur,
U.P. India
xii
https://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx
xiii
Ibid.
xiv
https://www.legalserviceindia.com/legal/article-1200-interpretation-of-human-rights-in-
india.html#:~:text=The%20UN%20Charter%20in%201945,define%20but%20impossible%20to%20ignore.
xv
From the Universal Declaration of Human Rights Homepage, found at the United Nations Human Rights: Office
of the High Commissioner for Human Rights website.
xvi
Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 Ga.
J. Int’l & Comp. L. 287, 290 (1995/1996). Hurst Hannum, Associate Professor of International Law, The Fletcher
School of Law and Diplomacy, Tufts University, wrote this article based on a report he prepared as Rapporteur
of the Committee on the Enforcement of International Human Rights Law of the International Law Association.

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xvii
3 See, e.g., Restatement of the Foreign Relations Law of the United States (Third) § 701, Reporters’ Notes 4-
6 (1987).
xviii
(Opened for signature 16 December 1966)
xix
Ibid.
xx
AIR 2014 SC 1863
xxi
160 Delhi Law Times 277, p. 2
xxii
AIR 1950 SC 124
xxiii
(2002) 5 SCC 294
xxiv
1950 S.C.R. 594
xxv
AIR 1978 SC 597; (1978) 1 SCC 248
xxvi
[1980] 2 SCR 557
xxvii
1982 AIR 1473 1983
xxviii
(1997) 6 SCC 241
xxix
(2016) 7 SCC 761
xxx
https://nhrc.nic.in/publications/annual-reports?tid=3112.
xxxi
https://nhrc.nic.in/publications/annual-reports?tid=3112

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