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HUMAN RIGHTS AND FUNDMENTAL RIGHTS : AN ANALYSIS By: SWETA PRAGYA
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HUMAN RIGHTS AND FUNDMENTAL RIGHTS :
AN ANALYSIS
Authored By: SWETA PRAGYA,
LL.M.from Chanakya National Law University,
Patna.
Abstract
Humans in order to survive need
certain rights which are inherent to them on the ground that they are born as a
human. Basic rights are very essential for the overall development of an
individual as well as for the protection of the person. It is important that
there must be certain rights which are universal in nature and at the same time
are available to all the people irrespective of the any condition. It is
important that there must be certain rights which cannot be taken away by any
state machinery. In the past there have been a lot more violations of the basic
rights of human beings. Magna Carta was considered as the first document which
deals with the basic rights of the individuals. After the World War II there
was an urgent need for an international body who would be enabling all the
countries in the world to come together for incorporating certain natural
rights which a man would inherit on his birth and which cannot be taken away
from them under any circumstances. This paper will focus on the relationship
between the human rights and fundamental rights, development of human rights in
the form of fundamental right and how the Indian constitution was highly
influenced by the universal declaration of human rights.
Keywords : Human rights, Fundamental rights,
relationship between human rights and fundamental rights, UDHR.
INTRODUCTION
Human rights can be defined as those
rights which are available to all human beings on the basis of them being the
member of a human family. These rights must be universal and absolute in nature
so that the same is made available to all the persons irrespective of race,
religion, citizenship, rich, poor etc. Man is considered as a social animal and
hence he would always be living in a society. Hence, it is important to
guarantee certain rights so that his interests are not violated. The human rights
are considered as affirmative rights as it protects and guarantees certain
rights to an individual while on the contrary they also apply certain
restrictions upon the state and other individuals so that the rights of an
individual are not violated. The human rights are essential for the survival of
a human being as it also protects their human dignity. As the society we live
in is dynamic in nature hence, the human rights are also becoming vaster in
their dimensions for meeting the present needs.
India is one of the largest
democratic countries which was highly inspired by the human rights and has
understood the importance of the same. While framing the constitution the human
rights were included in various provisions of the Indian constitution in the
form of fundamental rights. It has also helped in addressing the recent issues
in India like forced and bonded labor, gender inequality, human trafficking,
death in custody, death behind bars and other issues. The Universal Declaration
of Human Rights (UDHR) plays an important role on its own, even though the
ILO firstly started the conventions on workers' rights in the year 1920. These
conventions focused on the elimination of forced labor, the creation of unions
and organizations to settle disputes, and most countries even passed laws in
this area.
The United Nations General Assembly
passed the Universal Declaration on December 10, 1948. The previous wars and
the violations of basic rights have made it important for the adoption of human
rights. It was the first piece of writing on which all nations concurred on a
thorough description of unalienable human rights.
Human rights law is well-preserved
under the Indian Constitution. When the constitutional framers were making the
constitution they understood the importance of human rights and included the
same. This is the most comprehensive human rights charter ever created by any
nation in the world. The most crucial section of the Indian Constitution
pertaining to human rights is Part Ill[1].
In India, the judiciary has a considerable impact on the safeguarding of human
rights. The Indian Courts had already evolved into the courts of the oppressed
and struggling masses and have opened their doors to the underprivileged,
uneducated, illiterate, and oppressed as well as to every citizen.
CHARACTERSTICS AND DEVELOPMENT OF
HUMAN RIGHTS:
According to John Locke all
individuals are born equal with certain basic natural rights[2]
which are universal in nature and the same are also considered as inalienable
rights which cannot be taken away by any means. Right to life, liberty and
right to property are considered as inalienable rights which are also included
and guaranteed under the constitution of all the countries. Human rights are
also defined as all the humans are born free and also possess equal dignity and
rights irrespective of age, caste, race, gender, nationality etc.
The basic or natural rights has
always considered as important and have been time and again discussed in
various texts. Rig Veda is the first document where the reference was made with
respect to the three civil rights which are possessed by all the persons
irrespective of any condition. Those rights are:
1. Tana – it refers to the liberty of
body.
2. Shelter – every person has the right
to shelter.
3. Life – every person whether male or
female, rich or poor has the right to life.
So all these three rights were
included in the Rig Veda which implies that the concept of human rights are not
a new development. Instead, it was already existing since beginning but with
the passage of time the same was diluted and lost as the laws made by the
rulers became primarily important.
In Britain, the monarch was given
more importance and he was the authority who can address the interest of the
subjects. Monarch was considered as a representative of God and hence the
rights were only vested upon the monarch. During this time the civil rights
that is, equality, liberty and justice were under developed. And it was
completely dependent upon the whims and fancies of the monarch. The rights at
that time were enjoyed only by the king and the members of the royal family.
Common man did not have any right. Later in 1215, King John adopted Magna Carta
which holds a great significance in the development of human rights. This
document was helpful in protecting the subjects from the arbitrary acts of the
state officials and kings. Firstly, it made it compulsory that no land or any
property belonging to an individual can be seized without proper reasons and
procedure. And secondly the concept of Montesquieu that no one is above law and
the state and its officials have to be abide by the law. It was followed and
was made compulsory for the judges to follow the laws. Now the judges cannot
ignore the law and take decision on their own whims and fancies. Rather they
have to well aware about the laws and had to follow and respect the same as no
one is above law. The document also protected the individuals from arbitrary
arrests. Hence, this helped in establishing a principle that the powers of the
king are not absolute.
After 14th century the
clash between the king and the pope started. The pope was shifted permanently
to the Vetican city and hence, it became easy for the monarch to rule without
the strong interference of the pope. Later in 1600, the king or the queen had
the right to issue royal documents and this power was given to them under the
Royal Charter. There were various other declarations and rights passed in
different countries with the intent of providing civil rights to the people
like the French Declaration, bill of rights and the constitution of united
states all discussed about the right to life, liberty, free speech, equality
etc to be granted to all the people as it was considered as a basic right which
was given to the people by the God.
After the World War II the United
Nations Charter was drafted. And at the same time the two International
military tribunals were set in order to one for the trial of the Nazis leader
which is also known as Nuremberg Trial and the second one was for the trial of
far east generally known as Tokyo Trial. In Nuremberg Trial out of 177
defendants, 24 were given death sentence, 20 were given lifelong punishment and
the 98 of them were given other sentences. In the Tokyo Trial, seven were given
the punishment of death by hanging, sixteen of them were given life
imprisonment while the two of the defendants died during the trial.
UNIVERSAL DECLARATION OF
HUMAN RIGHTS:
The United Nation Charter was drafted
and accepted by the 51 state representatives who were present at the San
Francisco for the Conference. The significance of the Charter is based on
the fact that this charter is the first official document where the term
"human rights" is used and where the importance of fundamental
freedom is also acknowledged. The 1948 Declaration with respect the human
rights was adopted by the General Assembly on 10th December,
1948.
All men, women, and children are
guaranteed civil, political, economic, social, and cultural rights under the
thirty Articles of the Declaration. Yet, the declaration is not a binding legal
document as it is not addressing the states but rather it is addressing to the
humans. Hence it lacks enforcement. It represents the highest ideals of
humanity.
There was an urgent need for the
removal of such deficiency and hence in December 1966 the assembly passed two
covenants:
1. International Covenant on Civil
and Political Rights
2. International Covenant on
Economic, Social and Cultural Rights.
The Universal Declaration of Human
Rights, the Optional Protocols, and the two Covenants together make
up the international human rights charter. A significant turning point in the development
of human rights is the International Bill of Human Rights and is regarded as
the Magna Carta of modern human rights.
RELATIONSHIP OF HUMAN RIGHTS AND
FUNDAMENTAL RIGHTS:
The human rights were given
importance in Indian history since the beginning. The Rig Veda itself considers
right to life, bodily liberty and shelter as the basic rights and each and
every individual is entitled to the same. While the other countries and the
European countries adopted the concept of basic civil rights after the adoption
of Magna Carta. The concept of these rights however, remained unknown to most
of the countries. But due to the growing of the kingdoms and invasions the
people forgot about the existence of these civil rights. In India the fight for
the independence gave birth to the social rights and also the rights possessed
by an individual. India was one of the signatories of the Declaration which was
held for the purpose of human rights and in regard of the same the framers of
Indian Constitution adopted the same in various provisions of the constitution.
The Indian Constitution embodies the nation's commitment to defending and
advancing the basic liberties and as well as the rights of all people.
All categories of human rights are
covered in detail by the Indian Constitution. The political and civil liberties
that are justified in nature and hence enforceable in court are covered in Part
III[3] of
the document. Directive Principles of State Policy which is provided
under Part IV[4] of the
constitution include the economic, social, and cultural rights. The latter
are essential to national administration even though they cannot be enforced by
the court. But the same can be enforced by the apex court on reasonable
grounds.
Fundamental Rights:
Human rights are necessary for the
existence of a fundamental right. These are those rights which are granted by
the nations to their citizens in order to enjoy them. These rights are
guaranteed by law. The court may also hear a case challenging these
rights. Although fundamental rights are equivalent to the human rights but
still there is a very slight distinction between the two. The
essential distinction is that although human rights are not recognized by the
law and hence cannot be questioned in the court, while on the other
hand fundamental rights have legal validity and may be challenged in court
upon the event of a violation. The fundamental rights are provided to
everyone under the Indian Constitution in the form of basic human rights
clause.
These rights are enforced without any
discrimination and are applied without any regard to the factors like
gender, ethnicity, or religion. Importantly, under specific circumstances,
fundamental rights are upheld by the courts. They are referred to as essential
rights for two reasons, firstly they are embodies in the constitution.
Secondly, they are safeguarded. The courts can enforce them whenever there is a
breach, a person may go before a court for the enforcement of the same. The
Indian Constitution consists of six fundamental rights. They are as
follows: Rights to equality,[5]
freedom,[6]
protection against exploitation[7],
religious freedom[8], access
to culture and education rights[9],
and constitutional remedies.[10]
All these rights were included in the
declaration and the same has been adopted with respect to the requirements of
the people of India. Moreover, they are also part of the generations of the
rights. Many provisions in part IV rights are also a part of the generations of
rights.
COMPARISON OF HUMAN RIGHTS AND
FUNDAMENTAL RIGHTS:
Every citizen of a country has been
guaranteed certain rights under the constitution of that country which are
known as the fundamental rights. While contrary to the same human rights
enables a person to live with dignity and provides equality to all the humans.
Legal rights are the safeguards provided by the government to citizens of a
certain state. Just those rights are considered to be vital to a life of
dignity. Contrarily, human rights include a number of unalienable or such
rights which are not subject to exclusion. These are the rights which are
essential for a real life. The fundamental rights are neither essential to a
regular life nor to an absolute life.
Fundamental rights changes from
country to country and can be said to be nation specific as it completely
depends upon a country to include a particular right under its constitution or
not. The human rights are said to be universal in nature as it remains same for
each and every person irrespective of the race, place, nationality etc of any person.
So these are those rights which are basic for all and are also enjoyed by them.
Similar to basic rights, there are legal rights that apply to all residents of
a state and are available to all, and may be altered or modified at the
will or need of the government. The core idea of the liberty
guaranteed depends upon the basic rights. In contrast, the right to a
dignified existence is the cornerstone of human rights.
There are certain rights which are
guaranteed under the constitution of any country. Contrary to this, the human
rights are those rights which are universal in nature and is applicable
everywhere. Legal rights are those which differs according to the wishes of the
government and hence keeps on changing, they are such rights which are not guaranteed
under the constitution. Logically, both the human rights and fundamental rights
can be claimed by any person and are also enforceable. The violation of
fundamental rights or any of the constitutional rights can be brought before
the court and the same can be enforced by the court of law. The human rights
can be enforced by the United Nations organization. The legal rights are those
which are made by the government and hence the enforcement of the same can be
made by the government itself. These legal rights are not absolute in nature
and hence, they can be withdrawn by the government at any point of time. If the
government of a state changes then there are large probability that the legal
rights will also change as the new government will come up with the new rights.
Fundamental rights can be suspended
during the time of emergency on reasonable and lawful grounds while the human
rights can never be suspended. Human rights can neither be renounced by any
person and moreover, even during the wars the human rights cannot be suspended.
JUDICIAL DEVELOPMENT:
The fundamental rights have been
guaranteed and upheld by the Apex court in many cases. The Supreme Court is the
guardian of the constitution and hence it is the responsibility of the Supreme
Court to protect the rights which are guaranteed under the constitution of
India.
In the National Legal Services case[11]
the court was of the view that the word “person” used under the article 14[12]
not only is limited to include only males and females but it would also include
the transgender who are not considered as a male or a female. The transgender
being the third gender are also persons and are also entitled to be protected
by the laws everywhere in the society. They are also entitled to healthcare,
employment, right to education, equality before law, non discrimination on the
basis of gender as is enjoyed by the other citizens.
In the Naz Foundation[13]
case the high court of Delhi was of the view that that the homosexuality which
is criminalized under section 377[14]
is unconstitutional in nature. As the same is violating the rights which are
protected and guaranteed under article 14, article 15 and article 21[15].
The court further said that it is the personal choice of any person and hence
the sexual autonomy of a person cannot be violated if the same is done in
isolation.
In the Romesh Thapar[16]
case, the supreme court held that the media is considered as the fourth pillar
of any democratic country and hence the media and the press can exercise its
freedom of speech and expression. It was related to article 19[17]
of the constitution. If the media is not allowed to function independently then
no impartial discussions can be seen which would ultimately led to no public
education. Hence the press should be kept separate from the political
influence. So that it can discuss the actual performance of the government and
with which the people can be made aware. Moreover, the number of pages cannot
be restricted as it would also affect the quality of the news provided by the
newspaper.
In the case of Indian Express
Newspaper[18] it was
held that the press is one of the major pillar in the democratic society. The
press has the freedom of expression
without which the press will fail to function independently. And this can led
to misinformation, insufficient information and at times it may lead to one side
information or no information at all which would ultimately defeat the purpose
of the press. It would also affect the liberty of circulation and publication
of the newspaper which would have larger impact on the newspaper.
In the case of Maneka Gandhi[19],
it was held that every person has right to life which is provided under article
21[20].
The state cannot use arbitrary means to take away the article 21 of any person.
The due process of law has to be followed. Moreover, article 21 not only refers
to mere existence but it also deals with the human dignity. Hence every person
has the right to live with dignity.
In the case of Francis Coralie[21],
the court was of the view that the right to life under article 21 is very wide
in its application. It also includes the basic necessities of a person that is,
right to food, shelter and clothing which is very essential for the life. It
also includes educational rights as it helps in overall development of the
person and also enhances their thinking ability. It includes the free movement
of any person and all those functions which are necessary for constituting
human self. Thus right to life means right to life with dignity.
CONCLUSION AND SUGGESTIONS
The Indian constitution was highly
influenced by the human rights and hence in order to protect and provide the
same to the people the framers of the constitution has included it in the part
III[22]
and part IV[23] rights.
The former deals with fundamental rights which are the essential part relating
to the human rights. The same is very wide in application and it also has
developed various sub rights with the passage of time. In India, the judiciary
has a considerable impact on the defense of human rights. There is
a evolution of the Indian courts into the courts of the oppressed and
struggling masses and have opened their doors to the underprivileged,
uneducated, illiterate, and oppressed as well as to every citizen. The social
activists are also been aiding those who have experienced violations of
their human rights in their local communities to seek justice in a variety
of forums. Students participating in the program also engage in human rights
activism in their home areas. Yet in addition to those programs, the government
also has a duty to guarantee the physical security guaranteed by our
Constitution.
As a result of the human rights
education program in their schools, some students have come forward with
startling revelations about changes in their perspective and conduct. So, it is
essential to make even significant efforts in order to eliminate social inequalities
and ensure that everyone has access to high-quality education. A vital
requirement in the process of transforming India into a developed society,
fulfilling the universal access to those resources for surface level
development is crucial.
Human rights today encompass more
than just the right to an existence in dignity. Human rights are divided into
three generations by an international institute that is, Human rights
of the first generation are essentially civil and political in nature and is also individualistic;
those of the second generation are fundamentally economic, social, and cultural
in nature; they ensure that all citizens are treated equally; and those of the
third generation are the freedom of self-determination and the right to
development.
In the end, the judicial body in
India is acting an unmatched role in the Indian history around
the world despite many ups and downs. So, it must demonstrate that it deserves
the public faith and confidence. As this alone will earn it the respect of
the masses, the judiciary must expand beyond its traditional role of resolving
disputes between parties and instead work to advance the country and build a
social order where all citizens have access to the basic essential necessities
of a civilized life, such as employment, housing, medical care, and education
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Coralie v. Union Territory of Delhi [1980] 2 SCR 557
Indian
Express Newspapers v. Union of India 1950 S.C.R. 594
Maneka Gandhi
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National
Legal Services Authority v. Union Of India, AIR 2014 SC 1863
Naz
Foundation v. Govt of NCT of Delhi, 160 Delhi Law Times 277, p. 2
Romesh Thapar
v. State of Madras AIR 1950 SC 124
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Constitution
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[1] Constitution of India Act,1950,
Part III.
[3] Constitution of India Act,1950, Part III.
[4] Constitution of India Act,1950,
Part IV
[5] Constitution of India Act, 1950 a.
14-18.
[6] Constitution of India Act, 1950 a.
19-22.
[7] Constitution of India Act, 1950 a.
23-24
[8] Constitution of India Act, 1950 a.
28-29.
[9] Constitution of India Act, 1950 a.
29-30.
[10] Constitution of India Act, 1950 a.
32.
[11] National Legal Services Authority
v. Union Of India, AIR 2014 SC 1863
[12] Constitution of India Act, 1950 a.
14.
[13] Naz Foundation v. Govt of NCT of
Delhi, 160 Delhi Law Times 277, p. 2.
[14] Indian Penal Code, 1860, s.
377.
[15] Constitution of India Act, 1950 a.
14,15,21.
[16] Romesh Thapar v. State of Madras
AIR 1950 SC 124.
[17] Constitution of India Act, 1950 a.
19.
[18] Indian Express Newspapers v. Union
of India 1950 S.C.R. 594.
[19] Maneka Gandhi v. Union of India
(1978) 1 SCC 248
[20] Constitution of India Act, 1950 a.
21
[23]
Constitution of India Act,1950, Part IV
Article Information
HUMAN RIGHTS AND FUNDMENTAL RIGHTS : AN ANALYSIS By: SWETA PRAGYA
Authors: SWETA PRAGYA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/15
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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