Introduction to human rights with a special focus on indian constitution, universal declaration of human rights,1948 and ICHR

Introduction to Human Rights with a special focus on Indian
Constitution, Universal Declaration of Human Rights,1948
and International Covenants on Human Rights
Dr.Shahnawaz Ahmed Malik
Assistant Professor
Department of Law
Aligarh Muslim University Malappuram centre
shahnawazahmed.law@gmail.com

Definition and Concept of Human Rights
 ‘Human Rights’ refers to "the basic rights and freedoms
to which all humans are entitled".
 Examples of rights and freedoms which are often
thought of as human rights include civil and political
rights, such as the right to life and liberty, freedom of
expression, and equality before the law; and social,
cultural and economic rights, including the right to
participate in culture, the right to work, and the right to
education.

 All human beings want to be treated fairly and would
even rebel or resist if treated unfairly.
 All forms of resistance, rebellion or revolution are only
different forms of efforts to gain, retain or regain human
rights. For the weak, the resistance may take the shape
of a suicide, while for the strong this struggle may result
in concrete and historical events,
 like in the case of the barons who extracted the Magna
Carta from King John at Runnymede (1215 AD) in order
to restore rights which they believed were their due.

Definition and Meaning of Human Rights
 In India, The Protection of Human Rights Act, 1993
defined 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”.

The United States defined ‘human rights’ in a policy
document in 1978
 Human rights means freedom from arbitrary arrest and
imprisonment, torture,unfair trial, cruel and unusual
punishment, and invasion of privacy.
 It includes right to food, shelter, health care and
education, and freedom of thought, speech,assembly,
religion, press, movement and participation in
Government.

Definitions….
 Louis Henking, a professor and Western scholar defined
‘human rights’ as “Claims asserted and recognized as of
rights.....against society as represented by government
and its officials.”
 E. Donald Elliot, stated that ‘human right’ is “an
opportunity guaranteed by the State to its citizens to
enjoy the societal benefits and values existing in the
given society.”

Definitions….
 The philosophy of human rights appears to have its
existence in the domain of natural law.
 According to the philosophy of natural law jurists, the
natural law denotes natural justice, an instrument that
can harmonize the whole humankind and bestow
happiness essential for good living of a society.
 Thinkers believe that natural law predicates men to
recognize divine will in human affairs.
 Jesus Christ himself said that “Thou shalt love thy
neighbor as thyself. All things, therefore, whatsoever
you would that man should do to you, do you also to
them...”.

St. Thomas Aquinas (1225-1274)
 He believes that, precepts of natural law teach us to live
honorably, to injure no one, and to give every man his
due. The natural law contents in Hugo Grotius, Thomas
Hobbes, John Locke, Rousseau and Immanuel Kant
strongly propagates the existence of human rights like
securing life,
 property,
 happiness, and
 subjects by the social institutions.

Elements of Human Rights
 Inalienable - Human rights are conferred on an
individual due to the very nature of his existence.
 Essential and necessary - In the absence of human
rights, the moral, physical, social and spiritual welfare of
an individual is impossible.
 Concerned with Human Dignity
 Irrevocable:
 Universal
 Not absolute :- They are not absolute in nature, and
human rights of one person cannot encroach upon the
rights of others.

Elements of Human Rights
 Dynamic - Human rights are not static, they are
dynamic. Judges have to interpret laws in such ways as
are in tune with the changed social values. For example,
the right to be cared for in sickness has now been
extended to include free medical treatment in public
hospitals under the Public
 Rights as limits to State power :- For example, six
freedoms enumerated under the right to liberty enshrined
in the Constitution of India, forbid the State from
interfering with the individual.

History
 The Magna Carta, 1215 - Magna Carta or "Great Charter"
was one of the world's first documents containing
commitments by a sovereign to the people, to respect
certain legal rights. King John of England granted the
Magna Carta to the English barons on June 15, 1215. The
King was compelled to grant the Charter, because the
barons refused to pay heavy taxes unless the King signed
the Charter.
 The English Bill of Rights, 1689 -Enacted on December
16, 1689, by the British Parliament. The British Parliament
declared its supremacy over the Crown in clear terms.

American Declaration of Independence, 1776
 The first colonies to revolt against England were the
thirteen States of America. These states declared their
independence from their mother country on July 4, 1776.
 The declaration charges the King with tyranny and affirms
the independence of the American colonies. The declaration
of independence has great significance in the history of
mankind, as it justified the right to revolt against a
Government that no longer guaranteed the man’s natural
and inalienable rights.

The U.S. Bill of Rights, 1791 -
 The U.S. Constitution was enacted on September 17,
1787.
 The citizen be protected, against the abuse of power by
the officials of the State.

The French Declaration of the Rights of Man and of the
Citizen, 1789 -
 On August 4, 1789, the National Assembly proclaimed
the Rights of Man and of the Citizen.
 The Declaration has far reaching importance not only in
the history of France, but also, in the history of Europe
and mankind. It introduced a new social and political
order, founded on the noble and glittering principles.

Declaration of International Rights of Man, 1929 - After
World War I,
 questions were raised about human rights and
fundamental freedoms. In 1929,the Institute of
International Law adopted the Declaration of
International rights of Man.
 The Declaration declared that fundamental rights of
citizen, recognized and guaranteed by several domestic
Constitutions, especially the French and the U.S.A
Constitutions, were in reality meant not only for citizens
of the states, but also for all men all over the world,
without any consideration.

The UN Charter, 1945
 Signed by 51 states, on June 26, 1945.
 United Nations Conference at San Francisco for the
promotion and protection of human rights.
 The importance of the Charter lies in the fact that it is
the first official document in which the use of ‘human
rights’ is, for the first time traceable and which also
recognized the respect for fundamental freedom of man.

The Universal Declaration of Human Rights, 1948 -
 The Universal Declaration of Human Rights (UDHR) was adopted
by the General Assembly of the United Nations on December 10,
1948. Article 1 of the UDHR declares that
 “All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood.”
 The Declaration consists of 30 Articles
 It covers civil, political, economic, social and cultural rights for
all men, women and children.
 The declaration however is not a legally binding document.
 It is considered to be a central component of international
customary law which may be invoked under appropriate
circumstances by national and other judiciaries. The UDHR
urges member nations to promote a number of human, civil,
economic and social rights,

UDHR Preamble
 Whereas recognition of the inherent dignity and of
the equal and inalienable rights of all members of
the human family is the foundation of freedom, justice
and peace in the world,
 Whereas disregard and contempt for human
rights have resulted in barbarous acts which have
outraged the conscience of mankind, and the advent of
a world in which human beings shall enjoy freedom of
speech and belief and freedom from fear and want has
been proclaimed as the highest aspiration of the
common people,

 Whereas it is essential, if man is not to be compelled to have
recourse, as a last resort, to rebellion against tyranny and
oppression, that human rights should be protected by the
rule of law,
 Whereas it is essential to promote the development of
friendly relations between nations,
 Whereas the peoples of the United Nations have in the
Charter reaffirmed their faith in fundamental human rights, in
the dignity and worth of the human person and in the equal
rights of men and women and have determined to promote
social progress and better standards of life in larger freedom,
 Whereas Member States have pledged themselves to
achieve, in cooperation with the United Nations, the
promotion of universal respect for and observance of human
rights and fundamental freedoms,

The Universal Declaration of Human Rights
 The UDHR contains 30 articles, and covers the most
fundamental rights and freedoms of people (collectively
and individually) everywhere in the world.
 Articles 1 and 2 are the foundation blocks on which
the UDHR is built. They reaffirm human dignity,
equality and brotherhood.
 Articles 3-11 are the house’s first column. They are
the rights of the individual: the right to life, outlawing
of slavery or torture, equality before the law, the right to
a fair trial etc.

 Articles 12-17 are the second column. These are the rights of individuals
within civil and political society. They include freedom of movement, the
right to a nationality, the right to marry and found a family, as well as the
right to own property.
 Articles 18-21 are column number three. They are the spiritual and
religious rights of individuals, such as freedom of thought and conscience
(i.e. religion), the right to your own opinion, the right to peaceful assembly
and association, and the right to vote and take part in government.
 Articles 22-27 are the final column to the UDHR house. They are
the social, economic and cultural rights of the individual. They include
the right to work, the right to rest and leisure, the right to a decent standard
of living, and the right to education.
 The final three articles, 28-30, are the pediment that binds these four
columns together. They remind us that rights come with obligations, and
that none of the rights mentioned in the UDHR can be used to violate
the spirit of the United Nations(Remember: the Preamble, or steps to the
house, establishes this spirit)

International Covenants on Human Rights
 The UDHR was not a legally binding document. It lacked
enforcements. This deficiency was sought to be removed by
the U.N. General Assembly by adopting the two Covenants in
December 1966, viz.,
 (1) International Covenant on Civil and Political Rights,
 1966 (ICCPR) and
 (2) International Covenant on Economic, Social and Cultural
Rights, 1966 (ICESCR). Further, there are two Optional
Protocols to ICCPR, the
 The two International Covenants, and the Optional Protocols
together with the Universal Declaration, comprise the
International Bill of Human Rights.
 Bill of Human Rights represents a milestone in the history of
human rights. It is a modern Magna Carta of human rights.

 BACKGROUND: The United Nations International
Covenant of Civil and Political Rights (ICCPR) attempts
to ensure the protection of civil and political rights. It
was adopted by the United Nations’ General Assembly
on December 19, 1966, and it came into force on March
23, 1976.
 PURPOSE:Countries that have ratified the Covenant
are obligated “to protect and preserve basic human
rights… [and] “compel[ed] to take administrative,
judicial, and legislative measures in order to protect the
rights enshrined in the treaty and to provide an effective
remedy.” There are currently 74 signatories and 168
parties to the ICCPR.

The rights protected under the ICCPR include:
 Article 2 ensures that rights recognized in the ICCPR will be
respected and be available to everyone.
 Article 3 ensures the equal right of both men and women to the
enjoyment of all civil and political rights.
 Article 6 – Right to life.
Article 7 – Freedom from torture.
Article 8 – Right to not be enslaved.
Article 9 – Right to liberty and security of the person.
Article 10 – Rights of detainees.
Article 11 – Right to not be imprisoned merely on the ground of
inability to fulfil a contractual obligation.
Article 12 – Freedom of movement and choice of residence for
lawful residents.
Article 13 – Rights of aliens.
Article 14 – Equality before the courts and tribunals. Right to a fair
trial.

ICCPR
 Article 15 – No one can be guilty of an act of a criminal offence
which did not constitute a criminal offence
 Article 16 – Right to recognition as a person before the law.
Article 17 – Freedom from arbitrary or unlawful interference.
Article 18 – Right to freedom of thought, conscience and religion.
Article 19 – Right to hold opinions without interference.
Article 20 – Propaganda for war shall be prohibited by law.
Article 21 – Right of peaceful assembly.
Article 22 – Right to freedom of association with others.
Article 23 – Right to marry.
Article 24 – Children’s rights
Article 25 – Right to political participation.
Article 26 – Equality before the law.
Article 27 – Minority protection.

 First Optional Protocol: This protocol allows victims
claiming to be victims of human rights violations to be
heard. The Human Rights Committee (Committee),
which is established by the Covenant, has the
jurisdiction to receive, consider and hear
communications from victims.
 Second Optional Protocol: This protocol aims to
abolish the death penalty. It was entered into force on
July 11, 1991.

International Covenant on Economic Social and
Cultural Rights 3 January 1976
 The Covenant follows the structure of the UDHR and the
ICCPR, with a preamble and thirty-one articles, divided into
five parts.
 Part 1 (Article 1) recognizes the right of all peoples to self-
determination, including the right to "freely determine their
political status", pursue their economic, social and cultural
goals, and manage and dispose of their own resources. It
recognizes a negative right of a people not to be deprived of
its means of subsistence, and imposes an obligation on those
parties still responsible for non-self governing and trust
territories (colonies) to encourage and respect their self-
determination.
 Part 2 (Articles 2–5) establishes the principle of "progressive
realization" (see below.) It also requires the rights be
recognized "without discrimination of any kind as to race,
color, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status".
 The rights can only be limited by laws worded in a manner
compatible with the nature of the rights, and only for the
purpose of "promoting the general welfare in a democratic
society".

 Part 3 (Articles 6–15) lists the rights themselves. These
include rights to work, under "just and favorable
conditions", with the right to form and join trade unions
(Articles 6, 7, and 8);
 social security, including social insurance (Article 9);
 family life, including paid parental leave and the protection of
children (Article 10);
 an adequate standard of living, including adequate food,
clothing and housing, and the "continuous improvement of
living conditions" (Article 11);
 health, specifically "the highest attainable standard of
physical and mental health" (Article 12);
 education, including free universal primary education,
generally available secondary education and equally
accessible higher education. This should be directed to "the
full development of the human personality and the sense of
its dignity",[19] and enable all persons to participate
effectively in society (Articles 13 and 14);
 participation in cultural life (Article 15).

 Part 4 (Articles 16–25) governs reporting and
monitoring of the Covenant and the steps
taken by the parties to implement it. It also
allows the monitoring body – originally
the United Nations Economic and Social
Council – now the Committee on Economic,
Social and Cultural Rights – see below – to
make general recommendations to the UN
General Assembly on appropriate measures
to realize the rights (Article 21)
 Part 5 (Articles 26–31) governs ratification,
entry into force, and amendment of the
Covenant.

Classification of Human Rights
 The human rights cannot be classified into any
watertight compartments, as they are interdependent on
each other. Human rights can be broadly classified on
five bases.
 They are:
 1. Civil Human Rights
 2. Political Human Rights
 3. Economic Human Rights
 4. Social and Cultural Human Rights
 5. Development Oriented Human Rights

 The seventeenth, eighteenth and nineteenth centuries contributed
and strengthened the civil and political rights, which assured civil
and political liberties.
 The civil and political human rights are collectively known as
‘Liberty Oriented Human Rights’ because they provide, protect and
guarantee individual liberty against the State and its agencies.
‘Liberty rights’ also referred to as ‘Blue Rights’ are the First
Generation of Human Rights.
 The twentieth century contributed to the development and
strengthening of economic, social and cultural rights and the rights
of minorities as well. These rights aim at promotion of the economic
and social security, through economic and social upliftment of the
weaker sections of the society. These rights are essential for dignity
of personhood, as well as, for the full and free development of
human kind.

 The economic, social and cultural rights, including the rights
of the minorities are collectively known as the “Security
Oriented Human Rights” because these rights collectively
provide and guarantee the essential security in the life of an
individual.
 In the absence of these rights, the very existence of human
beings would be in danger, as such, they are referred to as
‘Red Rights’ or ‘Positive Rights’, and are the Second
Generation of Human Rights.
 These rights along with the Civil and Political Rights were
declared by the UDHR and recognized by the covenants,
ICCPR and ICESCR in December 1966.

 The Development Oriented Human Rights are of a very recent
origin, in the late twentieth century. These rights enable an
individual to participate in the process of all-round development and
include environmental rights, that enable an
 individual to enjoy the absolutely free gifts of nature namely, air,
water, food and natural resources, free from pollution and
contamination. They are called as ‘Green Rights’ or ‘Solidarity
Rights’ because their implementation depends upon international
cooperation, and form the Third Generation of Human Rights.
 Solidarity rights are of special importance to developing countries,
because these countries want the creation of an international order
that will guarantee to them right to development, right to
disaster relief assistance, right to peace, and right to good
government.

Rights for citizens and for all persons
 All human rights can be further classified into two
distinct classes based on
 1.The rights for citizens; and
 2. The rights for all persons
 Certain rights are conferred only on citizens. For
example, in the Indian Constitution provisions in
Articles 15, 16, 19 and 29 are limited to citizens.
 The remaining provisions in Part III of the Indian
Constitution are applicable to citizens and aliens alike.

History and Development Human Rights in India
Moti Lal Nehru Report 1928
 Personal liberty, inviolability of dwelling place and
property
 Freedom of conscience, and of profession and practice
of religion
 Free elementary education
 Equality for all before the law and
 The Right to the writ of Habeas Corpus among the other
rights

 It is interesting to note that the Constitution of India,
enacted in 1950, incorporated ten of the nineteen rights
enumerated in the Motilal Nehru Committee Report of
 1928.
 The Government of India Act, 1935 was passed without
any bill of rights much to the disappointment of the
Indian leaders. It was the 'Sapru Committee' of 1945
 that subsequently stressed the need for a written code of
fundamental rights and the Constituent Assembly raised
a forceful demand for the inclusion of human rights in
the Constitution.

Constituent Assembly, the Indian Constitution and the
Human Rights.
 The Indian Constitution was framed by the Constituent
 Assembly of India, which met for the first time on
December 9, 1946.
 The Constitution gave primary importance to human
rights. The Constituent Assembly incorporated in the
Constitution of India the substance of the rights
proclaimed and adopted by the United Nations General
Assembly in the Universal Declaration of
 Human Rights, which was proclaimed and adopted on
10thDecember, 1948.

 The Constitution of India, which was adopted on 26th
November, 1949 and brought into force on 26th
January, 1950 is first and foremost a social document.
 It guarantees many human rights to the citizens as well
as non-citizens of India in the form of the Preambular
objectives viz., Liberty, Equality, Justice, and Fraternity
 assuring the dignity of individual.
 These objectives find their echo in the form of
Fundamental Rights, Directive Principles of State Policy
and the Fundamental Duties.

 The Indian Constitution of 1950 was well ahead of the
bifurcation of human rights into civil and political rights
on one hand, and social, economic and cultural rights on
the other hand, as it guaranteed them in the form of
fundamental rights and directive principles respectively.
It may be seen that such bifurcation at the international
level was made in 1966.

Preamble of Indian Constituion
 The Preamble of Indian Constitution
 WE, THE PEOPLE OF INDIA, having solemnly resolved to
constitute India into a SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the
unity and integrity of the Nation;
In Our Constituent Assembly this twenty-sixth day of
November, 1949, do Hereby Adopt, Enact And Give To
Ourselves This Constitution.

Components of Preamble
 1. It is indicated by the Preamble that the source of
authority of the Constitution lies with the people of
India.
2. Preamble declares India to be a sovereign, socialist,
secular and democratic republic.
3. The objectives stated by the Preamble are to secure
justice, liberty, equality to all citizens and promote
fraternity to maintain unity and integrity of the nation.
4. The date is mentioned in the preamble when it was
adopted i.e. November 26, 1949.

 Re Berubari Vs U/India - In this case, it was held by
the Supreme Court that the Preamble is the part of the
Constitution. However, it recognised that the Preamble
could be used as a guiding principle if a term in any
article of the Constitution is ambiguous or has more than
one meaning.
KeshavNanda Bharti Vs State of Kerala
The Supreme Court held that the Preamble is a part of
the Constitution and can be amended under Article 368
of the Constitution. The Supreme Court of India has
declared many of these objectives as ‘basic Features‘ of
the Constitution since the famous Fundamental Rights
Case decided in 1973.

Various terms
 1. Sovereign- The term ‘Sovereign’ which is proclaimed by the
Preamble means that India has its own independent authority and it
is not a dominion of any other external power.
 2. Socialist - It is basically a ‘Democratic Socialism’ that holds faith
in a mixed economy where both private and public sectors co-exist
side by side.
3. Secular - which means that all the religions in India get equal
respect, protection and support from the state.
4. Democratic -An established form of Constitution which gets its
authority from the will of the people expressed in an election.
5. Republic-The term ‘Republic’ indicates that the head of the state
is elected by the people directly or indirectly. In India, the President
is the head of the state and he is elected indirectly by the people.

Fundamental Rights
 Fundamental Rights
 The judicially enforceable fundamental rights, which encompass all
seminal civil and political rights are enshrined in part Ill of the
Constitution. The expressly guaranteed rights are:-
 Right to Equality:
 Articles 14 to 18 guarantee this right. Article 14 guarantees to all the
persons equality before the law, and equal protection of laws. The
protection of this Article is available to all the persons, whether natural
or legal in status, and also to citizens and non citizens.
 Article 15 prohibits discrimination against citizens by the State only on
the ground of religion, race, caste ,sex or place of birth. This Article
also recognized few exceptions to the above Rule in the form of
protective discrimination in favour of women and children, and also
compensatory discrimination in favour of socially and educationally
backward classes, scheduled castes and scheduled tribes.

 Article 16, guarantees equal opportunity in the matter of public
employment, and prohibits discrimination against any citizen on the
ground only of religion, race, caste, sex, place of birth, descent and
residence. However, it also recognizes certain exception to the
above Rule in favour of other Backward classes, Scheduled Castes,
and Scheduled Tribes in the form of reservations, subject to the
condition of inadequate representation of such classes of people in
government services.
 Article 17 abolishes untouchability which has been an inhuman
practice; and
 Article 18 abolishes titles except those relating to academic and
military distinctions. Thus, this fundamental right aims to guarantee
one of the most important human rights that is equality, which was
missing in pre-independence era which witnessed a deeply divided
Indian society.

Right to Freedoms
 The second fundamental right is the Right to Freedoms. Articles 19
to 22 guarantee this fundamental right in its different facets. Article
19 guarantees to all the citizens six freedoms.
 They are freedom of speech and expression,
 freedom of assembly,
 of association,
 of movement,
 of residence and settlement, and
 the freedom of trade, and business, occupation, and profession.
 These freedoms which are essential ingredients of a free society,
however are not absolute and are made subject to various
restrictions on the grounds mentioned under Clauses (2) to (6) of the
same Article.

 The constitution also guarantees the right to life and personal
liberty under Article 20 and 21.
 Article 20(1) incorporates protection against Ex-post Facto
laws which states that no individual can be awarded,
punishment which is more than what the law of land
prescribes at that time. This legal axiom is based on the
principle that any criminal law cannot be made retrospective.
Therefore, the essential condition for an act to become a
crime or offence is that it should have been an offence legally
at the time of committing it.
 Article 20(2) Double Jeopardy provides that no person can be
convicted twice for the same offence, which protection is
against Double Jeopardy.
 Article 20(3) guarantees to an accused person protection
against self-incrimination also called testimonial compulsion.

Right to Life and Personal Liberty
 Right to Life and Personal Liberty is the most important
fundamental right guaranteed to every person in India.
Article 21 declares that no citizen can be denied his/her
life and personal liberty except according to the
procedure established by law. Therefore, an individual’s
personal liberty can only be curtailed if the person has
committed a crime.
 The primary education has been made a fundamental
right under the right to life and personal liberty. It says
that “to the children in the age group of six to fourteen
years shall be provided free and compulsory education”
by the state.

 Rights of a person arrested under ordinary circumstances
are laid down in the right to life and personal liberty.
 Under Article 22, every arrested person has a right to be
informed about the grounds for his/her arrest. The
arrested person has the right to defend himself by a
lawyer of his choice and also the arrested citizen has to
be produced before the nearest court within 24 hours.
The same provision makes exceptions to these in case of
enemy aliens / foreigners, and also preventive detention.

Right against Exploitation
 Article 23 prohibits and envisages the abolition of
trafficking in human beings and Begar, i.e. forced labor
and
 Article 24 abolishes employment of children below the
age of 14 years in dangerous jobs like factories and
mines.

Cultural and Educational Rights
 Article 29 applies to all the citizens of India,
 Article 30 deals with the rights of minorities whether based on
religion or language.
 Under Article 29, any religious or linguistic community that has a
language and a script of its own has the right to conserve and
protect them. State cannot discriminate any citizen against for
admission in State or State aided institutions.
 Under Article 30, all minorities, religious or linguistic, can set up
their own educational institutions in order to preserve and develop
their own culture. In granting aid to institutions, the State cannot
discriminate against any institution based on the fact that it is
administered by a minority institution. However, the state can
interfere in case of maladministration, or for maintaining standards
of education in the minority educational institutions.

Writs
 Article 32 empowers the citizens to approach the highest
court of the country i.e., the Supreme Court in case of
any denial of the fundamental rights, by asking the court
to preserve or safeguard their fundamental rights.
 The court may issue various kinds of writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto
and certiorari.
 Dr. Ambedkar, the Chairman of the Drafting Committee
described this Article as the most important and sacred
provision without which the Constitution would be a
nullity

Landmark Cases
 Harvinder Kaur v. Harmander Singh Choudhary, 1983
 Subject: Personal Laws and Inequality
 In this case, the court rejected the plea that personal law was discriminatory
towards Gender inequality in India. It also observed that introduction of Constitutional
law into the home (referring to personal laws) was most inappropriate.
 Mohd Ahmed Khan v. Shah Bano begum, 1985
 Subject: Right to maintenance
 Muslim personal law was challenged in this petition. The Supreme Court ruled in favour
of Shah Bano and granted her alimony which the Muslim community felt as an
encroachment on Muslim Sharia law. The decision of the case led to the formation of the
All India Muslim Personal Law Board in 1973.
 MC Mehta v. Union of India, 1986
 Subject: Right to Life
 MC Mehta filed a Public Interest Litigation for escape of poisonous gases by a plant in
Bhopal. The court in this case extended the scope of Article 21 and 32 of the
Constitution of India. The case is also famous as Bhopal Gas Tragedy.
 Olga Tellis v. Bombay Municipal Corporation, 1985
 Subject: Right to Life
 This case came before the Supreme Court as a writ petition. 5 judge-bench gave
decision allowing petitioners who live on pavements and in slums in the city
of Bombay to stay on the pavements against their order of eviction. The court also held
that right to livelihood is a right to life as per Article 21.

 Sarla Mudgal Union of India, 1995
 Subject: Women’s Rights
 The Court held that if a Hindu converts to Muslim and then have a second
marriage, he cannot do so, irrespective of the fact that polygamy is allowed in
Islamic Law.

 Vishaka State of Rajasthan, 1997
 Subject: Working conditions for women employees
 This case came before the Supreme Court as a Public Interest Litigation against
State of Rajasthan and Union of India by Vishakha and other women groups. The
petitioners demanded enforcement fundamental rights for working women under
Articles 14, 19 and 21 of the Constitution. For this, Vishaka Guidelines were
issued. The judgment also provided basic definitions of sexual harassment at the
workplace along with provided guidelines to deal with the same.

 Naz foundation v. NCT, 2009
 Subject: Rights of LGBTs
 The court decriminalized sexual activities “against the order of nature” which
included homosexual acts, as per Section 377 of the Indian Penal Code. But this
judgement was overruled in 2013 by the Supreme Court of India.


 Selvi v. State of Karnataka, 2010
 Subject: Rights of transgender
 The apex court in the following case held brain mapping, lie detector tests
and narco analysis as unconstitutional and violative Article 20 (3) of
Fundamental Rights. It observed that these techniques cannot be conducted
forcefully on any individual and requires consent for the same. When they
are conducted with consent, the material so obtained is regarded as
evidence during trial of cases according to Section 27 of the Evidence Act.
 NALSA v. Union of India, 2014
 Subject: Rights of transgender
 The Court recognized rights of the transgender as third genders. Also,
ordered government to treat them as minorities. Reservations in jobs,
education and other amenities shall also be provided to them.
 Shreya singhal v. Union of India, 2015
 Subject: Right to freedom of speech and expression
 The apex Court held section 66A of the Information Technology Act which
allowed arrests for objectionable content posted on the internet as
unconstitutional and hence, struck down by the impugned section.

Lifting ban on entry of women (aged 10-50) inside Sabarimala Temple
 Saying that "Devotion cannot be subjected to gender
discrimination", the Supreme Court removed a ban that
prevented women between 10 and 50 years of age from entering
Kerala's Sabarimala temple.
 Adhaar case
 A five-judge bench of Supreme Court on September 26, 2018 ruled
that Aadhaar was constitutional but making it mandatory for
availing government services was unconstitutional. So, while
Aadhaar-PAN linking is mandatory, banks and telecom companies
cannot ask ask people to link their bank accounts and mobile
numbers with Aadhaar. This is unconstitutional

 Adultery not a crime
 The Supreme Court unanimously struck down a 150-year-old law that
considered adultery to be an offence committed against a married man by
another man. Defined under Section 497 of the IPC, adultery law came
under sharp criticism for treating women as possessions rather than human
beings.
 The Supreme Court declared Section 497 as unconstitutional. Adultery is
no longer a crime but if it leads to someone committing suicide, the act will
be treated as a crime - abetment to suicide.

Nature, Scope and Enforcement of Fundamental rights,
 It may be seen that Fundamental rights differ from
ordinary rights in the sense that the former are
inviolable.
 No law, ordinance, custom, usage, or administrative
order can abridge or take them away. Any law, which is
violative of any of the fundamental right, is void

 SC in 1965, Golak Nath vs State of Punjab had rightly
observed, "Fundamental rights are the modern name for
what have been traditionally known as natural rights,”.
 Again in ADM Jabalpur vs. Shivkant Shukla, Justice
Beg rightly observed that "the object of making certain
general aspects of rights fundamental is to guarantee
them against illegal invasion of these rights by
executive, legislative, or judicial organ of the State."

 Further, the fundamental rights are generally enforceable
against the State action.
 In this regard, the expression State defined under Article 12
denotes the executive and legislative branches of the
government apart from local and other authorities.
 The expression ‘other authorities’ has been given expansive
interpretation by the judiciary as including public
corporations, government companies, government funded
universities, societies and even Non Governmental
Organisations.
 Apart from these expressly guaranteed fundamental rights,
the higher judiciary in India has interpreted many other
implicit rights as fundamental rights like the right to privacy,
right to health, and the right to livelihood.


Directive Principles of State Policy
 The Directive Principles therefore contain the principles
of distributive justice, welfare state, Gandhian
philosophy and intellectual attainment.
 The Directives amplify what is said in the Preamble, that
the goal of Indian polity is a welfare state. They are
‘moral precepts’ and the courts are increasingly talking
the Principles into consideration while interpreting the
Constitution.
 It is gratifying to note that the courts are increasingly
talking these Principles into consideration while
interpreting the Constitution.

Directive Principles of State Policy
Article Number What it says
Article 36
Defines State as same as Article 12
unless the context otherwise
defines.
Article 37
Application of the Principles
contained in this part.
Article 38
It authorizes the state to secure a
social order for the promotion of
the welfare of people.
Article 39
Certain principles of policies to be
followed by the state.
Article 39A Equal justice and free legal aid.

Directive Principles
 Article 40 - Organization of village panchayats.
 Article 41-Right to work, to education and to public
assistance in certain cases.
 Article 42-Provision for just and humane conditions of
work and maternity leaves.
 Article 43- Living wage etc. for workers.
 Article 43-A- Participation of workers in management of
industries.
 Article 43-B Promotion of cooperative societies.
 Article 44 Uniform civil code for the citizens.

 Article 45- Provision for early childhood care and education
to children below the age of six years.
 Article 46 -Promotion of education and economic interests of
SC, ST, and other weaker sections.
 Article 47 - Duty of the state to raise the level of nutrition and
the standard of living and to improve public health.
 Article 48- Organization of agriculture and animal husbandry.
 Article 48-A Protection and improvement of environment and
safeguarding of forests and wildlife.
 Article 49- Protection of monuments and places and objects
of national importance.
 Article 50 -Separation of judiciary from the executive.
 Article 51 -Promotion of international peace and security.

Fundamental Duties Article 51-A
 The Indian philosophy of Human Rights focuses mostly
on the ‘human duties’ rather than the ‘human rights’.
 This statement has been given effect to, in the form of
ten fundamental duties imposed on all the citizens under
Article 51-A of the Constitution by virtue of 42nd
Constitutional amendment made in 1976.
 The fundamental duties of citizens were added to the
constitution by the 42nd Amendment in 1976, upon the
recommendations of the Swaran Singh Committee that
was constituted by the government earlier that year.

Article 51-A - DPSP
 To abide by the Constitution and respect its ideals and
institutions, the National Flag and the National Anthem;
 To cherish and follow the noble ideals which inspired
our national struggle for freedom;
 To uphold and protect the sovereignty, unity and
integrity of India;
 To defend the country and render national service when
called upon to do so;
 To promote harmony and the spirit of common
brotherhood amongst all the people of India
transcending religious, linguistic and regional or
sectional diversities; to renounce practices derogatory to
the dignity of women;

Article 51-A DPSP
 To value and preserve the rich heritage of our composite
culture;
 To protect and improve the natural environment including
forests, lakes, rivers, wildlife and to have compassion for
living creatures;
 To develop the scientific temper, humanism and the spirit of
inquiry and reform;
 To safeguard public property and to abjure violence;
 To strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher
levels of endeavour and achievement;
 Who is a parent or guardian, to provide opportunities for
education to his child, or as the case may be, ward between
the age of six to fourteen years

Relationship between the Fundamental Rights,
Directive Principles and Fundamental Duties
 The Fundamental Rights and Directive Principles have also been
used together in forming the basis of legislation for social welfare.
 The Supreme Court, after the judgement in the Kesavananda
Bharati case, has adopted the view of the Fundamental Rights and
Directive Principles being complementary to each other, each
supplementing the other's role in aiming at the same goal of
establishing a welfare state by means of social revolution.
 The Supreme Court has also issued directions to the State in this
regard, with a view towards making the provisions effective and
enabling a citizens to properly perform their duties.

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