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The INDIAN CONSTITUTION – Human Rights Charter of the Indian Polity!

International law can be understood as the legal system that prevails comprising largely of a body of
rules which are laid down either by customary practice or by conclusion of treaties between member
States. Basically, it forms the reference frame by which the binding nature of relationships between
State entities is established. Oftentimes, International law is contrasted with Municipal (also known as
national or domestic law) in that the former deals primarily with relations of States while the latter
regulates the relationship between individuals and the State. Each bears peculiar characteristics and
differs largely in the judicial processes. The real dichotomy between the two is subject to much
theoretical discussion and debate but it is acknowledged that the monistic theory which holds that there
is no dichotomy is the oldest view while the dualistic, specific adoption, transformation and delegation
theories are more recent. But it finds consensus that in each of the recent viewpoints, international law
is either absorbed, transformed, or adopted ‘subsequently’ into the State’s domestic legal system.

It is in this arena where India possesses unique standing as evident by the supreme law of our land- the
Constitution!

For one, the Indian legal system is actually a mixed law system that includes aspects of Civil law
system that gives precedence to legislation and codification i.e. written law, as well as Common law
system, in that precedents and judge-made law with respect to customary practice and tradition is
observed.

More interesting is that Indian Contitutional law evidences- ‘congruence with International law, it
actually evolved alongside International law and was enforced earlier’. This is with specific reference
to Human rights as Fundamental rights! The Indian Constitution is among the most ‘right-based’
constitutions of the world.

Although drafted by the Constituent Assembly on 9th December, 1946 it was not until 26th November,
1949 that it was finally adopted. This time gap is reflective of the lengthy Constituent Assembly debates
and discussions of the legal luminaries at the time. The framers of our Constitution were progressive in
thought to keep abreast with the global scenario (that was dealing with enormous human rights violation
in the aftermath of the World Wars). Thus, we can conclude that ‘Human rights’ as a concept did
influence the framers of the Constitution. the Universal Declaration of Human Rights (UDHR) came
into force in 1948.

While the UDHR in its 30 Articles is an admixture of all of all kinds of rights (civil, political, economic,
social, cultural) it lacked enforceability. Therefore, the United Nations General Assembly later adopted
two protocols-

(1) International Covenant on Civil and Political Rights (ICCPR)

(2) International Covenant on Economic, Social and Cultural Rights (ICESCR)

Most of the human rights in the UDHR are guaranteed in the Indian Constitution. The Civil and
Political rights are grouped under Part III of the Constitution of India- as Fundamental rights; while Part
IV serves to group the Economic, Social and Cultural Rights as Directive Principles of State Policy.
And, since rights and duties are interdependent- fundamental duties were added to the ambit of
Directive Principles under Article 51-A in 1976 via the 42nd Constitutional Amendment.

So, Human Rights not only form the basic structure but are structured in a peculiar fashion in Indian
Constitutional Law– as fundamental rights, directive principles and even fundamental duties.
Fascinating is the underlying rationale for such a division!

India got its independence in 1947, just a year before the UDHR was adopted. The founding fathers of
the Indian Constitution were well aware that India’s freedom struggle had taken place in the context of
the demand for basic human rights. Yet economic backwardness of the country would make it
impossible to immediately satisfy all the aspirations of the people. So, they adopted a pragmatic
approach. They described certain human rights as “Fundamental rights” and laid down certain other
human rights as Directives to the State. Later there fundamental duties (obligations of State and
individual) were fashioned under the Directives.

According to the Constitution of India, the Supreme Court is the guarantor of the Fundamental rights
and it must take into account fundamental duties while interpreting constitutional rights.

FUNDAMENTAL RIGHTS

In Part III, the Indian Constitution provides a number of rights to the individual, mainly concerning civil
liberties. However, certain political, economic and social rights are recognized by other provisions in
the Constitution. These rights have been called “Fundamental rights”. The expression “fundamental”
shows that these rights are basic rights.

The nature of fundamental rights as basic human rights has already been established- the Supreme Court
of India recognizes Fundamental Right as “natural right”. Being exhaustively dealt with, the
fundamental rights enshrined under Part III of the Constitution cannot be elaborated in terms of new
rights; therefore, the Parliament cannot incorporate any additional fundamental right. However, any
expansion of such rights must necessarily rest on judicial interpretation. In fact, the provisions of Part
III of the Constitution [Arts. 12 – 35] enshrine the Fundamental Rights, which are more elaborate than
those of any other existing written constitutions dealing with Fundamental Rights.

CLASSIFICATION OF FUNDAMENTAL RIGHTS

 TOPIC-BASED: Fundamental rights were classified the 44th Constitutional Amendment in


1979as:
I. Right to equality [Arts.14-18]
II. Right particular freedom [Arts. 19-22]
III. Right against exploitation [Arts. 23-24]
IV. Right to freedom of religion [Arts. 25-28]
V. Cultural and educational right [Arts. 29-30]
VI. Right to constitutional remedies [Arts. 32-35]

*** Right to property [Art. 31]  was simultaneously relegated to the status of a mere
constitutional right, however, although internationally it still finds recognition as a basic human
right.

Fascinating is that these rights can be analysed from other perspectives too--

 CITIZENS ONLY versus ALL PERSONS’ RIGHTS: Those rights guaranteed to citizens
only or whether they pertain to citizens and non-citizens/foreigner. Rights under Arts. 15, 16, 19
and 30 are exclusively available to Indian citizens while Arts. 14 and 21 are not restricted to
citizens only.

 STATE PROHIBITION versus INDIVIDUAL BENEFIT: Whether an express prohibition on


the State is present. For instance, Article 14 reads, “The State shall not deny to any person
equality before the law……” Other fundamental rights are positively worded as they confer
some benefits upon the individual, like, the Right to Religious Freedom [Art. 25].

 LIMITATION IMPOSED : Here, limits are set on the Executive while some rights curb the
legislative power also. Art. 21 lays down few limitations on the Executive but does not curtail
legislative power. On the other hand, even Legislature is powerless to regulate the rights
guaranteed by Arts.15, 17, 18, 20, and 24 because of the absolute limitation imposed.

 RIGHTS AGAINST STATE ACTION versus RIGHTS OF PRIVATE INDIVIDUALS: A


primary reason for articulating fundamental rights, which are justiciable in nature, is to serve as
safeguards against arbitrariness, abuse and misuse of power vested with the State. Thus, most
fundamental rights are guarantees against State action, like, the right guaranteed under Article
19 and 21. However, certain fundamental rights can be invoked against the State as well as
against private individuals, like, the prohibition of untouchability [Article17], and prohibition of
traffic in human being [Article23].

DIRECTIVE PRINCIPLES OF STATE POLICY [ARTS.36-51] & FUNDAMENTAL DUTIES [ART. 51-A]

The directive principles & fundamental duties find expression in Part IV of the Indian Constitution. The
former were finalized by the Sapru Committee, and are mere directives to the Legistive and Executive
organs of government that are urged to be observes while framing policies and laws; while the latter
were incorporated under Article 51-A of the Constitution in 1976 and an eleventh duty was added in
2002 which states thus –

"(every citizen) 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 and fourteen years".

The dilemma faced by the fathers and framers of the Constitution of India post-independence was
ensuring the equality and well-being of the people with the available resources and machinery for
implementation. Since there was a resource shortage not every right was included under Part III as a
fundamental right.

There was also the thought of not increasing the burden on policy-makers when citizens went to court to
enforce the same. In this situation, the Directive Principles of State Policy emerged – as a set of
guidelines which were not-justiciable. Thereby, even if the government did not bring these principles
into action, the citizen would not be able to approach the court for implementation of these principles.

Mostly the Directive Principles aim at realizing the pledge in the Preamble to the Constitution- on the
establishment of socio-economically and culturally-sensitive democracy. They form the ‘moral
precepts’ which the courts are increasingly taking cognizance of while interpreting the Constitution.
The significance of these principles, in spite of being enforceable, is that they exemplify the declaration
of the Preamble that – the goal of Indian polity is a welfare state.
Fundamental duties are articulated as moral obligations which are non-justificiable. These obligations
lie on both the individual and the State. As citizens we must abide by the constitution, defend our
country when in need, and promote harmony amongst all citizens and protect our environment. No
punishment is prescribed for their non-observance.

In fact, international instruments too make mention of such duties- especially the UDHR and ICCPR.
They obligate citizens to foster a sense of respect to national symbols (including the Constitutions),
heritage and even assist in the defense of the nation.

To conclude,

Although there is great resemblance between the International Law and the Indian Constitutional law,
there are certain disparities. Nevertheless in light of the above discussion the Indian domestic law can
be claimed to be mostly at par with international instruments on the topic of human rights and its
mechanisms.

The Indian Constitution is truly the Human Rights Charter of our (Indian) Democratic Polity!

- Sherry M. Lobo, III LL.B.