PROTECTION OF HUMAN RIGHTS THROUGH RULE OF LAW
Author: Ms. Ipsa
IMS Unison University, Dehradun
Human rights are one the essential and basic right of a human being. These are inherited in human existence that is they are sort of birthrights of a human. No law, no state, no organization can deprive a human being of these rights thus, the rule of law- the supreme law of the land also acts as its protector. The framers of our constitution ensured that no person shall be deprived of their birthright therefore, added the provisions for its safeguard, which was the aim of the Universal Declaration of Human Rights.
This research paper, therefore, aims to discuss how human rights can be protected by means of the rule of law. In doing so, the paper is divided into three parts. The first part deals with Human Rights i.e., what are human rights and their adoption in the Universal Declaration of Human Rights. The second will discuss how human rights are included in the Indian constitution and the related provisions therefore, the way in which human rights are protected through the rule of law in India. The third part will throw light on the suggestions for the protection of human rights through the rule of law and the conclusion.
Human Rights, Rule of Law, Indian Constitution, Protection, Universal Declaration of Human Rights
Human rights are one the essential and basic right of a human being. These are inherited in human existence that is they are sort of birthrights of a human. Thus, they are not some kind of privileges available only for the upper caste or for any particular nation. They are inherent irrespective of caste, creed, poor-rich, gender, culture, religion, ethnicity, and nationality. We are all equally entitled to our human rights without any discrimination. These rights are all interrelated, interdependent, and indivisible.
The first universal instrument of human rights was— “Universal Declaration of Human Rights” (UDHR)- a United Nations initiative, adopted on December 10, 1948. The uniqueness of the declaration lies in the fact that it represents a worldwide charter of rights, proclaimed universal and fundamental freedoms which, transcend, National, religious, cultural, and ideological factors. After the adoption of UDHR, a number of charters and treaties have been made at the national and international levels.
Over the years, humans are subjected to the arbitrary actions of the state. As known worldwide, the actions of the state are the result of their diplomacy and self-interest. The value of human life as compared to the interest of the state is nil. The state interest does not usually mean the interest of the nation however, it denotes the interest of the government governing it. The government sometimes places its interest before the interest of its electors. This behaviour of the state creates lawlessness and chaos in the society, which ultimately results in suppression of the rights of the humans- its citizens and thus, violation of human rights.
Thus, there is a need for the protection of human rights through rule of law, that is through the laws framed for the protection of people and incorporated in the constitution (rule of law) of the country. This is to save the people from the arbitrary actions of the state and the offensive behaviour of citizens toward one another.
WHAT ARE HUMAN RIGHTS?
Everyone on this planet has a right to live with dignity. Dignity can be ensured only with certain rights. These rights are called human rights. Thus, every human being is entitled to it. It is the duty of the state to protect these rights of an individual and to ensure that no human being is deprived of it. These rights are not given by any political leader or state but are inherent in human existence.
Human rights include:
- The right to privacy
- The right to vote.
- The right to equality
- The right against self-incrimination
- The right to work in a healthy environment
- The right to education.
- The right to freedom of expression
- The right to freedom of religion or conscience
- The right to property
- The right to freedom of assembly
- The right to proper wages.
PROTECTION OF HUMAN RIGHTS THROUGH RULE OF LAW
The human rights which have been adopted in the Universal Declaration of Human Right, 1948 are the basic rights of every individual and the state is obliged to protect them. Thus, these rights are a part of the legal framework of the country. In India, some of the human rights are the part of the Fundamental Rights of the people under part III, some are the part of governance guidelines for the state so as to protect the citizens i.e., Directive Principle of State Policy and some are incorporated as Fundamental Duties of every citizen.
India was a signatory to the Universal Declaration of Human Rights. Therefore, a number of fundamental rights guaranteed to the individuals in Part III of the Indian Constitution are similar to the provisions of the Universal Declaration of Human Rights. The following chart makes it very clear:
HUMAN RIGHTS AND FUNDAMENTAL RIGHTS
A lot of rights that are the parts of the Human Rights Charter are also the part of the Fundamental rights guaranteed to the people of India under the Indian constitution, starting from Article 12 to Article 32.
According to Article 14, the state shall not deny to any person equality before the law or the equal protection of law within the territory of India. That is no person is above law and the law applies equally to every person irrespective of their position, religion, or caste. The right to equality is the basic right of humans. Article 15 adds a star to this provision by prohibiting discrimination on the bases of religion, race, place of birth, caste, or sex. However, certain provisions enable the state to make laws for the upliftment of the women and children, in order to raise their status in society.
Civil and Political Rights in the Universal Declaration of Human Rights and in the Indian Constitution
|No.||NAMES OF THE RIGHTS||INDIAN CONSTITUTION||UNIVERSAL DECLARATION|
|1||Equality before law||Article 14||Article 7|
|2||Prohibition of discrimination||Article 15(1)||Article 7|
|3||Quality of opportunity||Article 16(1)||Article 21(2)|
|4||Freedom of speech and expression||Article 19(1)(a)||Article 19|
|5||Freedom of peaceful assembly||Article 19(1)(b)||Article 20(1)|
|6||Right to form associations or union||Article 19(1)(c)||Article 23(4)|
|7||Freedom of movement within the border||Article 19(1)(d)||Article 13(1)|
|8||Protection in respect of conviction for offences||Article 20(1)||Article 11(2)|
|9||Right to life||Article 21||Article 3|
|10||Protection from slavery and forced labour||Article 23||Article 4|
|11||Freedom of conscience and religion||Article 25(1)||Article 18|
|12||Remedy for enforcement of rights||Article 32||Article 8|
|13||Right against arbitrary arrest and detention||Article 22||Article 9|
|14||Right to social security||Article 29(1)||Article 22|
Equality of opportunity in matters of public employment is dealt u/a 16, in order to maintain fair competition.
Under article 19, all the citizens shall have the right to–
- Freedom of speech and expression (A-19(1)(a))
- Assemble peacefully and without arms (A-19(1)(b))
- form associations and unions, co-operative societies (A-19(1)(c))
- move freely throughout the territory of India (A-19(1)(d))
- reside and settle in any part of the territory of India (A-19(1)(e))
- freedom of occupation (A-19(1)(g))
However, these rights are subjected to certain limitations to prevent the violation of the right of the other. The right to freedom of speech and expression is enumerated under article 19 of the charter of the Universal Declaration of Human Rights.
Article 20 deals with the provision for protection in respect of conviction for offences. The three clauses of this article deal respectively with i) ex-post-facto laws, ii) double jeopardy, and iii) prohibition against self-incrimination.
Article 21 (protection of life and personal liberty) is the heart and soul of part III of the constitution. According to it “no person shall be deprived of his life or personal liberty except according to the procedure established by law”. This article covers the right to privacy, the right to live in a healthy pollution-free environment, the right to travel abroad, the right to legal aid, and speedy trials. Article 21A was added by the 86th Constitutional (Amendment) Act, 2002. The article provides the right to education. In this, the state is obliged to provide free and compulsory education for the children of the age 6 to 14 years.
The right to protection against arrest and detention in certain cases is dealt with within article-22. Article 23 and 24 describe the right against exploitation. These articles prohibit human trafficking and forced labour, along with the abolition of child labour in the factories and industries. The Indian Constitution provides the freedom of religion under Article 25- 28. Article 29 and 30 provide the cultural and educational rights to the minorities, in order to preserve cultural heritage.
In case of violation of these rights, an individual has a right to move to the Hon’ble Supreme Court under article 32 for their enforcement. The same power has been vested in the High Court under article 226.
Although the ultimate power to make laws and for constitutional amendments resides with the parliament yet, the judiciary has the power to declare any law passed by parliament as null and void in case of its inconsistency and unconstitutionality. (Article 13)
Chairman Railway Board and others v. Chandrima,
In this case, a Bangladeshi national Mrs. Khatoon was gang-raped by the Railway employees in a room at the Yatri Niwas of the Howrah Railway Station in West Bengal. The Calcutta High Court allowed compensation of a sum of rupees 10 lakhs to her for having been gang-raped.
The Supreme Court has observed that fundamental rights are available to all the persons- citizens and non-citizens thus, who come here as tourists or in any other capacity, are entitled to the protection of their lives in accordance with the Constitutional provisions. They have the right to live with human dignity so long as they are here in India. Article 14 which guarantees equality before the law and equal protection of laws within the territory of India is applicable to “person” who would also include both the “citizens” of this country and non-citizens.
Through this decision of the supreme court, it was made clear that human rights are protected by the rule of law in India and the Judiciary will always be the means to protect them.
HUMAN RIGHTS AND DIRECTIVE PRINCIPLES OF THE STATE POLICY
Due to the socio-economic conditions of India, those human rights which cannot be a part of the Fundamental Rights were incorporated in the mandatory governance policy of the government i.e., under the head of Directive Principles of State Policy. These are judicially non-enforceable rights but are fundamental in governance. They are of social-economic nature. These start from article 36 and continues till article 51.
Article 39A provides for equal justice and free legal aid, to enable people to access courts in case of violation of their rights. Under Article 40, village panchayats are to be organized for the better representation of the people and to look after their needs properly. Article 41 deals with the right to work, to education, and to public assistance in certain cases. Under Article 42 provisions for just and humane conditions of work and maternity, Relief are made, to provide health benefits to mothers during the pregnancy.
Article 43 living wages, etc for workers to maintain proper work conditions. Article 43A participation of workers in the management of industries. Article 45 provisions for early childhood care and education to children below the age of six years. Article 46 provides for the promotion of the educational and economic interest of scheduled caste and scheduled tribes and other weaker sections in order to protect them from any kind of discrimination.
Under Article 47 it is the duty of the state to raise the level of nutrition and the standard of living and to improve public health. Article 48A states for the protection and improvement of the environment and save guarding of Forest and wildlife to provide for pollution-free breathing atmosphere. Article 51 is for the protection of international peace and security so as to secure the citizens from attack and foreign threats.
FUNDAMENTAL DUTIES AND HUMAN RIGHTS
Every right comes with a duty. Therefore, with the rights incorporated in Part III of the constitution, the duties are mentioned under Part IV(A) of the Constitution. There are in total 11 Fundamental duties of every citizen under article 51A. They are-
- to abide by the constitution and respect its ideals and institutions, the national flag and the national anthem.
- To cherish the novel 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 diver diversities; to renounce practices derogatory to the dignity of women
- To value and preserve the rich heritage of our composite culture
- To protect and improve the natural environment including forest, lakes, rivers, and 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
- Strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement
- Who is a parent or guardian to provide an opportunity for education to his child or, as the case may be, ward between the age of six and 14 years (This was added by 86th Constitutional (Amendment) Act, 2002 for the promotion of primary education among children)
These duties thus, promote the protection of human rights and bound the individuals to help to protect their and rights of other beings.
CHANGE IN THE SCENERIO
Although, the framers of the Indian Constitution have already incorporated the provisions related to the protection of human rights in the Constitution yet nothing remains unchanged so, with the change in the society, the changes in the legal framework for the protection of human rights and dignity were essential. Thus, the Indian Judiciary from time to time through judicial pronouncement has ensured that the people of the country shall not be deprived of their basic birthright of being human (human right).
A step that has been taken by the Indian judiciary for the protection of human rights is the introduction of PUBLIC INTEREST LITIGATION (PIL). It is to protect and uplift the living standards of the citizens. They can either be the under-trial or convicted prisoners in the jail or a common man in the society. The concept of PIL in India was developed by Justice PN Bhagwati and Justice VR Krishna Iyer during the 1980s. This is to provide legal representation to the previously un-represented groups of people. Such groups include the environmentalist, the poor section of the society, the prisoners, the exploited class and the ethnic minorities, who were earlier deprived of their basic rights and could not access the court for justice, due to lack of financial support and expensive legal proceedings, thus this was a method through which the justice could reach these people.
The court has reiterated the concept of locus standi. Under PIL, it is not essential that the aggrieved party can only institute the case but a person who has been affected either directly or indirectly can also institute the case.
Hussainara Khatoon v. State of Bihar was the first case under PIL. It drew the attention of the court towards the conditions of the under-trial prisoners.
In Maneka Gandhi v. Union of India, it was held that though Article 21 has been couched in negative language, confers the fundamental right of life and liberty.
Some other Measures of Protection of Human Rights under Indian Law are-
- Dowry Prohibition Act, 1961
- Bonded Labour (Abolition) Act, 1976
- The Child Labour (Prohibition and Regulation) Act, 1986
- Indecent Representation of Women (Prohibition) Act, 1986
- Sati (Prevention) Act, 1987
- The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
- The National Commission for Women Act, 1990
- The National Commission for Minorities Act, 1992
- The National Commission for Safari Karamcharis Act, 1993
- The National Commission for Backward Classes Act, 1993
- The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
The Indian Constitution was framed a long time ago therefore, with the changed societal circumstances, the increased crime rate, and advancement in technology, there have emerged different ways of violation of human rights. Thus, in order to protect these rights, the evolvement of rule of law was essential, resulted in the constitutional amendments and judicial pronouncement.
- PUBLIC EDUCATION: every individual should be aware of his or her rights, either civil, political, or fundamental. Therefore, human rights- the essential rights should become a part of the education curriculum, so as to make students aware of the very beginning of their rights. A slight violation of human rights should be brought under the notice of the concerned authorities and to the public, for effective and speedy justice. the research institutions must be well equipped with the facilities to train the future judges and the lawyers.
- ACCESS TO JUSTICE: the rights can only truly be enjoyed if there is a surety that justice will be served that is, better investigation process and law enforcement. However, due to expensive legal proceedings access to justice is like a dream for the poor and weaker section of the society. Though the introduction of PIL has to curb this drawback to a certain extent yet there still remain some loopholes. Therefore, some changes are required in the system like a well-resourced office for Public Solicitor and Public Prosecutor. The legal aid system is a good step for development but for better functioning of this system, advanced resources should be provided to the concerned authorities.
- NHRI (National Human Rights Institution): Inception of a Human Rights Commission at the national level, to look after the violation of the human rights and demand justice for the victims is essential as established in India (Indian Human Rights Commission).
All the incidents and the mishappening that has occurred in world from the 9/11 attack to the ARAR’s case (where the Syrian born Canadian citizen was detained on 26 September 2002 by U.S. officials when in transit from Tunisia to Canada, returning from vacation with his family in New York’s JFK airport. Twelve days later, he was chained, shackled, and flown to Jordan aboard a private plane and from there transferred to a Syrian prison where he was imprisoned, interrogated and tortured for 10 months) are the evidence of the violation of the Human Rights. All these dates and sufferings have to be stopped by the rule of law.
Injustice to a single person is the injustice to his whole family. There exist marginalized groups in every society- unaware of their human rights, facing discrimination and injustice at every level of life either because of their caste, creed, race, or societal status. This injustice needs to stop in order to achieve the goals of the Universal Declaration of Human Rights.
Let’s pledge today that the injustice or violation of human rights will not be tolerated anywhere and will uphold and cherish the concept of rule of law.
“Injustice anywhere is a threat to justice everywhere”— Martin Luther King.
 13th ed., V.N. SHUKLA’s CONSTITUTION OF INDIA, EBC Publication, p.no. 48
 13th ed., V.N. SHUKLA’s CONSTITUTION OF INDIA, EBC Publication, p.no. 88
 13th ed, V.N. SHUKLA’s CONSTITUTION OF INDIA, p.no. 128
 Constitution of India, Article 21
 A.I.R. 2000 (1) S.C. 2EO
 AIR 1982 SC 149
 1986 3 SCC 596
 AIR 1979 SC 1369
 1978 SCR (2) 621
 10-04-20,21:31, https://shodhganga.inflibnet.ac.in/bitstream/10603/6653/11/11_chapter%203.pdf
 Written by-karishmacnlu, 19:38, 09-04-2020; http://www.legalservicesindia.com/article/1201/Why–Must–Human–Rights–Be–Protected–by–the–Rule–of–Law.html
 Written by-karishmacnlu, 19:38, 09-04-2020; http://www.legalservicesindia.com/article/1201/Why–Must–Human–Rights–Be–Protected–by–the–Rule–of–Law.html