“HUMAN RIGHTS IN INDIA: AN ANALYSIS” by-Yashpriya Sahran
The theme of this paper, “Human Rights in India: An Analysis” basically focuses on the rights which a person is born with and due to the discriminations in society, some individuals are unable to access the rights. Among these people, most of them are from the marginalized group of the society: Women, People with Disabilities, Scheduled Caste (Dalits), Scheduled tribes, Elderly or Aged People, children, and Sexual Minorities, etc. Human rights are the rights that a person is born with or is having inheritance from birth regardless of race, sex, nationality, ethnicity, language, religion, or any other status. It is a wide and tremendous topic that allows individuals to have the right to freedom, right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to employment and education, and a lot many more. We must look over the marginalized section of our society that is being criticized and exploited daily by the major stakeholders of the nation. These groups don’t have adequate knowledge about their human rights and don’t have enough resources to take some appropriate action. This is a crucial problem due to which not only the individuals are affected but the whole country is affected socially, economically, and politically. India is a country with a population of 138 crores out of which 33 crores people comprise of the marginalized society which is equal to the population of the United Nations. This paper will try to highlight various rights affiliated with the marginalized section in India concerning the Universal Declaration of Human Rights by the United Nations General Assembly.
Keywords: Human Rights, Access to Justice, Marginalised People, Fundamental rights.
Human Rights: meaning and its relevance in India
Human right is a topic evolving all over the world since the establishment of the United Nations in 1945 and then the adoption of the Universal Declaration of Human rights by the UN General Assembly on 10th December 1948, the concept of Human Rights paced its significance with a central concern to its faith in fundamental human rights for the dignity and worth of human beings and to provide equal rights of men and women. Human rights are the rights that an individual enjoys irrespective of race, caste, gender, creed, religion, or any other background and they cannot be denied anywhere and or at any condition all over the world.2 The marginalized people in India are not aware of these inherent rights which has resulted in a crucial problem in the nation. India gained its independence 70 years ago; the huge question arises whether this freedom was attained by all the Indians or not? Do all the people enjoy their human rights or they are visible to only a few? Before answering these questions let’s begin with what are human rights and the challenges posed before Human rights.
The expression Human Rights denotes all those rights which are inherent and without which we cannot sustain as human beings. Human Rights plays an eternal part of the nature of Human beings in developing their personality, human qualities, intelligence, talent, and conscience and also enables them to satisfy their spiritual and other higher needs.3
Human Rights: its Origin and Development in India
The concept of human rights can be traced back to the Vedic period of 15th Century B.C. Human rights were signified as the concept of equality in Vedas and was encrypted as – “No one is superior-inferior all should strive for the interest of all and should progress collectively”. It is quite evident from the facts and the stories of ancient times that the society under the Vedic period was also concerned and committed towards human rights and the same was also supported by other religions also.4
During the Muslim era in India, the concept of human rights was stressed badly and got lost in the tragedy. But when Akbar became the king, once again the social, religious, and political rights of individuals were given importance. Also, various religious movements and remarkable contributions were also made during the Mughal period for the emergence of human rights.5
At the time of the British era, Britishers vanquished Indians completely in the context of social, economic, religious, and political rights. It was condemned by the Britishers that Indian does not deserve any rights. Therefore, after suffering a lot many discriminations and inequality, Indian leaders & people began to fight for their basic rights such as the right to life, right to freedom, right to equality, right to preach, etc. Perhaps the first instinct of fundamental rights was seen in the Constitution of India Bill, 1895 which guaranteed every Indian the right to equality before the law, right to expression, right to education, right to property, etc.6 Thereafter, a series of resolutions were advanced between 1917 and 1919 for civil rights and equality. Another major resolution was passed in 1927, popularly known as Nehru Report which came into success in May 1928 and its major concern was to secure fundamental rights. “Sapru Committee Report” was also another level of advancement of fundamental rights which got published in 1945 to figure out the affairs concerning minorities that had tormented political and constitutional discourse in India.7
Fundamental Rights in India
We often hear fighting people for their rights. What are these rights for which people are fighting and what is the purpose of these rights? Why do people have to struggle for their rights?
The fundamental rights are considered to be the basic human rights of all the citizens without discrimination over their gender, caste, religion, sex, colour, race, or creed etc. these rights are developed by the constitution of India around 1949.8 Fundamental rights are not the same as ordinary laws which means that no other law, custom, or administrative order can be abridged or taken away these fundamental rights.9
In the case Golak Nath v. State of Punjab10, the apex court held that the parliament shall not infringe and takes away the fundamental rights provided by the Constitution of India. In ADM
Jabalpur v. Shukla11, Justice M. Hameedullah Beg held that the objective of making certain general aspects of rights as fundamental is to ensure the citizens protection against illegal invasion by executive, legislative, or judicial organ of the State.
The Supreme Court also held that any amendment shall not take away the fundamental rights of the citizen provided by the Constitution of India in the case of Kesavanada Bharati v. State of Kerala.12 The Supreme court of India held these fundamental rights as Natural rights or Human Rights. India being a party to the Universal Declaration of Human Rights and that Declaration expresses some fundamental rights as inalienable.
Fundamental Rights in India:
- Right to Equality
- Right to Freedom
- Right against exploitation
- Right to Freedom of Religion
- Cultural and Educational Rights
- Right to Constitutional Remedies
Right to Equality:
Right to equality gives equality to all the citizens of India. The right of equality prohibits discrimination or inequality based on caste, religion, birthplace, race, gender, or creed. This right ensures equality of opportunity at the time of employment and prevents the state from discrimination against anyone on any ground of religion, race, sex etc.13
In National Legal Services Authority v. Union of India14, the Supreme Court held that Article
14 does not limit the word ‘person’ and its application to only males and females and transgender falls within the expression ‘person’. Legal protection of laws is entitled to everyone in every sphere of law till their lifetime which includes activities like education, employment, health care as well as equal civil citizenship rights.
In the case Srinivas Theatre v. State of T.N.15, Reddy, J., stated that equality before the law is an effective concept having many facets. There shall be no discrimination in the name of a privileged person or class as everyone should be treated equally in the name of law as mentioned in the preamble and part 4th of directive principles of state policy of Indian Constitution.16 In the case of Usha Mehta v. Government of Andhra Pradesh17, 2012, it has been held that the court can command the state to give equal treatment to similarly situated persons but cannot issue a mandate that the state should commit illegality or pass wrong order, then article 14 from Indian Constitution cannot be called for perpetuating irregularities or illegalities. Right to Freedom:
Right to freedom provides us with different rights such as freedom of assembly without arms, freedom of movement throughout the territory of our country, freedom of speech18, freedom to reside in any part of the country, freedom of expression, freedom to practice any profession, freedom of association.
In Romesh Thapar v. State of Madras19, Patanjali Shastri, CJ, held that the Freedom of speech and the press lays the foundation of all democratic organisations, without free political discussion. In this case, the English journal Cross Road was banned by the government of Madras. It was held violative of the freedom of speech and expression as, without liberty of circulation and publication, it would be of little value.
Right to life:
The Right to life is the right which provides human being to live with dignity and with the bare necessities of life like clothing, shelter, and adequate nutrition etc. to sustain his/her life. Article 21 states that no person shall be prohibited from his life or personal liberty except according to procedure established by law.20 Right to life also includes the access to carry on functions and activities which constitute the bare minimum expression of the human self.
In Maneka Gandhi v. Union of India21, the Supreme Court gave a new aspect to Art. 21 and held that the right to live isn’t merely a physical right but is inclusive of the right to live with human dignity. In the case Siddharam Satlingappa Mhetre v. State of Maharashtra22, 2010 this right is considered as one of basic human rights and even the state doesn’t have authority to violate this right.
Right against exploitation:
Right against exploitation convict’s child labour forced labour, human trafficking making it an offence which is strictly punishable by the law. The bonded labour system also got abolished because of this right, every person is entitled to wages for his work unless he/she is working for the public purpose like communication services or NGO works.
Right to Freedom of Religion:
Right to Freedom of Religion23 guarantees religious freedom and this helps India to be termed as secular. This right ensures that every religion should be treated and respected equally. In India, there is no official religion of any state. It ensures the freedom to preach, practice and, propagate any religion they want.
To prohibit any kind of religious denomination or section thereof, Article 26 was enacted which refers to the freedom to manage religious affairs and is subjected to public order, morality and health.24 In the case of Dr. Subramanian Swamy v. State of Tamil Nadu, the Supreme held that Article 26 shall not be subjected to any other provision of Part III of the Constitution as Article 25 lays down the limitation prescribed by lawmakers.25
Cultural and Education Rights:
Cultural and Educational rights ensure education for every citizen of the country without any discrimination on any ground. This right deals with the rights of cultural, religious, and linguistic minorities by enabling people to respect and conserve their heritage and hence protect everyone against any sort of discrimination.26
This right enables every citizen to take admission into any state-run or aided educational institution without any discrimination based on race, caste, creed, language, etc.27
Right to Constitutional Remedies:
Right to Constitutional Remedies provides citizens the right to go to the Supreme Court of India directly if their fundamental rights are violated. Supreme Court has the jurisdiction to enforce the law against private bodies if the fundamental rights got violated for any reason.28
Dr. B.R. Ambedkar, the Drafting Chairman of the Constitution of India emphasized Article 32 as the very soul and heart of the Constitution as it provided effective remedies against violation of Fundamental Rights and without which the Constitution would be a nullity.29
Right to Privacy:
Right to privacy30 ensures that an intrinsic part of life and personal liberty under Article 21 of the Indian Constitution should be protected. No person shall be bereft of his life or personal liberty except consistent with procedure established by law.
In the case of Ram Jethmalani v. Union of India31, 2011, the right to privacy is considered as an integral part of life. This right appreciated constitutional value and also human beings must be allowed domains of freedom that are free of public scrutiny nevertheless they act unlawfully. Although many rights are available in the Universal Declaration of Human Rights but unavailable in the fundamental rights at the time of enactment of the Constitution. With the due passage of time, many judgements and case laws had given a new way of looking at a particular law and the tremendous interpretation made by the honorable courts has widened the scope of fundamental rights available in India.
As discussed above, there are many case laws and judgements regarding the interpretation of fundamental rights but still, our country is lacking behind in providing proper access of these rights to everyone especially the marginalized people.
Universal Declaration of Human Rights
At the time of World War II, millions of people died. After the World War ended in 1945, the victorious nation’s states met together and decided to prevent such acts in the future. Hence, they formed the United Nations to advance human rights and peace. The United Nations created the Universal Declaration of Human Rights, the first Human Rights document. The committee was led by Eleanor Roosevelt who created this document stated that the declaration provides rights for all mankind. On 10th December 1948, United Nations adopted the Universal Declaration of Human Rights.
The Universal Declaration of Human Rights (UDHR) is acknowledged as a milestone document within the history of human rights. This document is also referred to as the first truly universal human rights document. It was adopted and signified under resolution 217 A (III) by the General Assembly of the United Nations.32
The United Nation also took other alternatives before this Universal Declaration was adopted. The United Nations created International laws to protect human rights which took almost 20 years in its process. International Laws are the laws that are agreed upon by many countries. Therefore, many countries that belong to the United Nations brought these rights earlier, and as a result of which we can see that the basic laws of many nations include the rights contained in the declaration.33
Universal Declaration of Human Rights begins by acknowledging that ‘the inherent dignity of all members of the human family is the foundation of freedom, justice and peace in the world’. It proclaims that human rights are universal that is to be enjoyed by people all over the world. This declaration is contained with 30 rights which cover all the Human Rights required for an individual all over the world.
Contours of Human Rights in India
The journey of Human rights has been evolving since 1215, when Magna Carta was introduced for giving people new rights and making the king subject to the law. Although there had been four generations of human rights that had been publicized. At the initial point, civil and political rights, like the right to life, liberty, free speech, and privacy, also known as subjective rights were considered as first-generation human rights. Later, the rights focused on the economic, social, and cultural rights, like the right to social security, health, and education, also known as solidarity rights were accepted as the second-generation human rights. The third generation of human rights can be identified as the rights which cannot be exerted only by an individual, but only collectively like, right to environment, peace, and development. The fourth generation of human rights includes the rights related to genetic engineering which are based on the doctrinal debate in what regards their recognition or prohibition of certain activities.34
These advances in human rights is a result of various civil actors who had articulated human rights violation and advocated the promotion of access to justice in India. Human rights activists had emphasized and highlighted various contemporary issues that aim to ensure the full legal recognition and actual realization of human rights.
In India, various challenges have been posed throughout the decades which stresses for finer articulation of human rights which includes identity-based violence, communal violence, regional disparities on counts of poverty, infrastructure growth, availability of natural resources, and administrative mechanism for governance, etc. Along with this, there are many state induced problems also such as internal displacement, ethnic identity separatist groups and their demands, armed forces powers and injustice and violence are all violations of human rights. These issues have been given due respect along with protection which resulted in the promotion and fulfillment by various state agencies of India to protect the human rights of individuals.35 Human rights is a dynamic subject matter as evident from various incidents as the moment any sort of violation takes place, Human rights of individuals are violated whether in the form of torture by police in their custody, especially on under-trials, custodial deaths, discriminatory treatment and persecution to religious minority groups, scheduled castes and scheduled tribes, targeted attacks and hate crime/violence, etc. are well known.
The major victims of the violation of human rights are the people from the marginalized section of the society. These people face problems in getting adequate access to the basic needs of life such as health, education, housing, food, security, employment, justice, and equity and the issues related to sustainable livelihood, social and political participation of the marginalized groups exists as the major problem. Due to these troubles in many developing nations where there are vulnerable groups face violations of their human rights.
Safeguards provided to the Marginalized people in India
Marginalized people are considered as a group of people who are treated as unimportant, insignificant; usually regarded as of lower status. They are referred to as untouchables in many sections of the Indian sub-continent. India is a multi-cultural, multi-linguistic, multi-religious and multi-ethnic secular country and hence the marginalized people find it difficult many a times to exercise their human right in full extent.
The vulnerable groups include Women, Scheduled Castes (SC), Scheduled Tribes (ST), Aged, Children, Disabled, Poor Migrants, and Sexual Minorities which face discrimination in various aspects. These groups are exposed to multiple barriers due to their multiple identities. Every group should have equal access to the services and the opportunities furnished by the State for the upliftment of the vulnerable section. The government must make ensure that there shall be no discrimination against any section of the society. There had been many instances where we can find specific reference of these groups in the Constitution of India, for example, Article 341 talks about SCs36, Article 342 about STs37, Article 340 about OBCs38, and new acts had also been passed by the parliament for the upward economic and social mobility of these groups, for example, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 198939. Also, there had been many instances where the Supreme Court has provided various interpretations of laws and has ensured justice to various vulnerable people in India.
In the case of Mohd Ahmed Khan v. Shah Bano Begum, 1985, the Supreme Court has deliberated its judgment in the favour of Shah Bano and granted her alimony.40 Supreme Court also emphasized the Personal Laws and Gender Inequality in India in the case of Harvinder Kaur v. Harmender Singh Choudhary, 198341.
The Supreme Court widened the scope of Article 21 and 32 of the constitution of India in the Bhopal Gas Tragedy case.42 In the case of Vishaka v. State of Rajasthan, 1997, Supreme Court deliberated efforts on the working conditions for women employees, and thereafter Vishaka guidelines were issued. The judgment also provided basic definitions of sexual harassment at the workplace and provided guidelines to tackle these issues.43
In the case of Selvi v. State of Karnataka44 and NALSA v. Union of India45, the court has successfully given judgment in the favour of the transgender for the protection of their rights. In this way, there are various instances where the judiciary has proved to be a deity for the marginalized section of the society.
Protection of Human Rights Act, 1993
In 1993, the Protection of Human Rights Act46 was passed in India to furnish for a constitution of a National Human Rights Commission, State Human Rights Commission, and Human Rights Courts for the better protection of human rights and issues related to it. It provides provisions for constitution of the National Human Rights Commission, the appointment of its chairperson and other members, removal of the members of the Commission, terms, and conditions of service of members, procedure to be regulated by the Commission, officers and other staff, functions and powers of the Commission and therefore the method to be followed just in case of a complaint. Similar provisions are also laid down for the State Human Rights Commissions.
The National Human Rights Commission concern for the promotion and protection of human rights. The Protection of Human Rights Act defines Human Rights as the rights relating to life, liberty, equality, and dignity of the individual guaranteed by the constitution or embodied in the International Covenants and enforceable by courts in India.47
The National and the State Commissions have the power to probe into and scrutinize the complaints of human rights violations and put forward appropriate relief measures to the Government.48
Human rights courts have also been established by the enforcement of this act for achieving the objective of speedy trails of offences arising out of violation of human rights.49 Special public prosecutors are also appointed by the State Governments to conduct cases in the Human Rights Courts.50 This act plays a vital role in the promotion and the protection of the human rights of the individual by introducing various new establishments and provisions.
In India there are various provisions, guidelines, case laws, fundamental rights, and commissions for the protection and promotion of human rights. Instead, many conflicts and violence take places which are sparked or spread by the violations of human rights. Especially, the marginalized section of the society is the major part of our nation who is being exploited and are getting rid of from getting proper access to basic human requirements like health, food, education, employment, justice and equity, etc. The government has regularly been trying to curb away all the issues regarding the violation of human rights through various governmental activities to improve the provision of services through grass-roots local self-governance institutions, especially in rural areas. But still, the vulnerable sections of the society are unaware of the provisions and are being exploited and are treated as unequal, especially in the rural areas. The areas in which our nation is lacking behind are, the literacy rate and implementation of various policies and programs which may benefit the vulnerable groups. Throughout the paper, we have discussed various kinds of human rights and various safeguards and provisions made for the protection and promotion of human rights. In short, human rights are a sort of specific ethical privileges that belong to an individual as a consequence of being human. Although the Protection of National Human Rights Act, 1993 was enacted to prevent the violation of human rights of individuals, but this Act has been proved to be insufficient in some instances especially in the cases of vulnerable groups. Marginalized groups are also an essential part of our nation as they also contribute socially and economically to the nation. Therefore, it becomes necessary to protect the interests of people like SC, STs, women, children, aged, disabled and sexual minorities etc. To make all the provisions approachable to the vulnerable sections of the society, the NHRC and SHRCs need to simplify the procedure to be followed by the vulnerable sections to have adequate access to stand for their human rights.
1 Student at Lloyd Law College
2 UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH COMMISSIONER(Dec. 19, 2020, 9:41 PM).
3 Dr. U. CHANDRA, HUMAN RIGHTS 1 (8th ed., 2011).
4 Ms. Nidhi Madan, History & Development of Human Rights in Indian, Vol. No.22 Issue 6, IOSR-JHSS (2017).
7 Sapru Committee Report (Sir Tej Bahadur Sapru, 1945), (last visited on Dec. 29, 2020) https://www.constitutionofindia.net/historical_constitutions/sapru_committee_report sir_tej_bahadur_sapru 19 45 1st%20December%201945
8 INDIA CONST. Part III.
9 Supra note 7 art.13, cl.2
10 Golak Nath v. State of Punjab, 1967 AIR 1643, 1967 SCR (2) 762.
11 ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521.
12 Kesavanada Bharti Sripadagalvaru and Ors. v. State of Kerala and Anr., (1973) 4 SCC 225: AIR 1973 SC 1461
13 Supra note 7 art. 14
14 National Legal Services Authority v. Union of India, (2014) WP (Civil) No 400 of 2012.
15 Srinivasa Theatre and Ors. v. Government of Tamil Nadu and Ors., (1992) AIR999, 1992 SCR (2) 164.
16 Supra note 7 Part IV.
17 Usha Mehta v. Government of Andhra Pradesh, (2012) 12 SCC 419.
18 Supra note 7 art. 19.
19 Romesh Thapar v. State of Madras, (1950) AIR 124, 1950 SCR 594
20 Supra note 7 art. 21.
21 Maneka Gandhi v. Union of India, (1978) AIR 597, 1978 SCR (2) 621.
22 Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. (2011) 1 SCC 694.
23 Supra note 7 art. 25.
24 Supra note 7 art. 26.
25 Dr. Subramanian Swamy v. State of Tamil Nadu, (2014) 5 SCC 75.
26 Supra note 7 art. 30.
27 State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.
28 Supra note 7 art. 32.
29 Ambedkar, B.R., CAD Vol. VII, p. 953.
30 Supra note 7 art.21.
31 Ram Jethmalani v. Union of India, (2011) 8 SCC 1.
32 United Nations, International Bill of Human Rights 217 A (III), (last visited on Dec. 27, 2020). https://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/217(III)
33 United Nations, Universal Declaration of Human Rights, “History of the Document”,(last visited on Dec. 27, 2020) https://www.un.org/en/sections/universal-declaration/history- document/index.html#:~:text=The%20Universal%20Declaration%20of%20Human%20Rights%2C%20which%20 was%20adopted%20by,of%20the%20Second%20World%20War.&text=World%20leaders%20decided%20to%20 complement,rights%20of%20every%20individual%20everywhere.
34 Adrian Vasile Cornescu, The Generation of Human Rights, Dny prava – 2009 – Days of Law: The Conference Proceedings, 1. Edition. Brno: Masaryk University, 2009, ISBN 978-80-210-4990-1.
35 Varsha Bhagat Ganguly, Introduction: Exploring Contours of Human Rights in India, NULJ 01, 2017.
36 Supra note 7 art. 341.
37 Supra note 7 art. 342.
38 Supra note 7 art. 340.
39 Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, Act No. 33 of 1989, Act of Parliament, 1989 (India) (last visited on Dec. 28, 2020). https://tribal.nic.in/DivisionsFiles/mj/4- preventionofAtrocities.pdf
40 Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.
41 Harvinder Kaur v. Harmender Singh Choudhary, (1983) AIR 1984 DELHI 66, ILR 1984 DELHI 546.
42 MC Mehta v. Union of India, (1986) AIR 1987 SC 965.
43 Vishaka v. State of Rajasthan, (1997) SCC (Cri) 932 : AIR 1997 SC 3011.
44 Selvi v. State of Karnataka, (2010) 7 SCC 263.
45 NALSA v. Union of India, (2014) AIR 2014 SC 1863.
46 The Protection of Human Rights Act, 1993, Act No. 10 of 1994, Act of Parliament, 1993 (India) available at: http://legislative.gov.in/sites/default/files/A1994-10.pdf (last visited on Dec. 28, 2020)
47 Supra note 45, s. 2(1)(d).
48 South Asia Terrorism Portal (SATP), Annual Report 2007-08 of the Union Ministry of Home Affairs, Govt. of India, Chapter V Human Rights, (last visited on Dec. 28, 2020). https://www.satp.org/satporgtp/countries/india/document/papers/mha07-08/chapter5-07.pdf
49 Supra note 45, s. 30.
50 Supra note 45, s. 31.