Fighting for Rights

In 1925 the Indian National Congress adopted the ‘Declaration of Rights.’ In subsequent session held at Madras held in the year 1927 demanded incorporation of a ‘Declaration of Fundamental Rights’ in any future constitutional framework following which, a committee under Motilal Nehru was appointed by the National Congress to study the fundamental rights. The rights emphasized by the Motilal Nehru Committee Report were:

• Personal liberty, inviolability of dwelling place and property
• Freedom of conscience, and of profession and practice of religion
• Expression of opinion and the right to assemble peaceably without arms and to form associations
• Free elementary education
• Equality for all before the law and rights
• Right to the writ of Habeas Corpus
• Protection from punishment under ex-post facto laws
• Non-discrimination against any person on grounds of religion, caste or creed in the matter of public employment
• Equality of right in the matter of access to and use of public roads, wells etc.
• Freedom of combination and association for the maintenance and implementation of labor and economic factors
• Right to keep and bear arms
• Equality of rights to man and woman

There was a big blow to the fight for rights as soon after this 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’ in the year 1945 that successively stressed the need for a written code of fundamental rights and the Constituent Assembly, thus in response raised a forceful demand for the inclusion of human rights in the Constitution.

Human Rights and the Indian Constitution

The Indian Constitution was framed by the Constituent Assembly of India, which met for the first time on December 9, 1946. The Constitution of India gave primary importance to human rights. To quote Guha, “The demand for a declaration of fundamental rights arose from four factors.”

• Lack of civil liberty in India during the British rule
• Deplorable social conditions, particularly affecting the untouchables and women
• Existence of different religious, linguistic, and ethnic groups encouraged and exploited by the Britishers
• Exploitation of the tenants by the landlords

The Constituent Assembly incorporatedthe substance of the rights proclaimed and adopted by the General Assembly in the Universal Declaration of Human Rights in the constitution of India In the year 1948, when the Constitution of India was in the making, the General Assembly proclaimed and adopted the Universal Declaration of Human Rights, which definitely influenced the framing of India’s Constitution. The Constitution of the Republic of India which came into force on 26th January 1950 with 395 Articles and 8 Schedules, is one of the most elaborated set of fundamental laws ever adopted in the world. The plethora of rights are much more than the American bill of rights. The Preamble to the Constitution declares India to be a Sovereign, Socialist, Secular and Democratic Republic. The term ‘democratic’ denotes that the Government gets its authority from the will of the people. It gives a feeling that they all are equal “irrespective of the race, religion, language, sex and culture.” The Preamble to the Constitution pledges justice, social, economic and political, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and fraternity assuring the dignity of the individual and the unity and integrity of the nation to ail its citizens.

Institutional Framework and Human Rights

India is divided into twenty nine (29) States and seven Union territories (centrally administered). The Constitution of India provides for division of legislative functions between Parliament and the State Legislatures to devolve the administrative system and thus ensuring rights at local level as well.

India and the Universal Declaration

India is the signatory to the Universal Declaration of Human Rights. 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. Table 1”‘1: Civil and Political Rights in the Universal Declaration of Human Rights and in the Indian Constitution

Sl.No.	Name of Rights	Universal Declaration	Indian Constitution
1.	Equality before law	Article 7	Article 14
2	Prohibition of discrimination	Article 7	Article 15(1)
3.	Equality of opportunity	Article 21(2)	Article 16(1)
4.	Freedom of speech and expression	Article 19	Article 19(1) (a)
5.	Freedom of peaceful assembly	Article 20(1)	Article 19(1) (b)
6.	Right to form associations or unions	Article 23(4)	Article 19(1) (c)
7.	Freedom of movement within the border	Article 13 (1)	Article 19(1) (d)
8.	Protection in respect of conviction for offences	Article 11 (2)	Article 20 (1)
9.	Protection of life and personal liberty	Article 3	Article 21
10.	Protection of slavery and forced labor	Article 4	Article 23
11.	Freedom of conscience and religion	Article 18	Article 25(1
12.	Remedy for enforcement of rights	Article 8	Article 32
13.	Right against arbitrary arrest and detention	Article 9	Article 22
14.	Right to social security	Article 22	Article 29(1)

The table below shows; that most of the economic, social and cultural rights proclaimed in the Universal Declaration of Human Rights have been incorporated in part IV of the Indian Constitution. Table 1”‘2: Economic, Social and Cultural Rights in the Universal Declaration of Human Rights and in the Indian Constitution

Sl.No.	Universal Declaration of Rights	Article in the Universal Declaration	Article in the Indian Constitution
1.	Right to work, to just and favorable conditions of work	Article 23 (1)	Article 41
2.	Right to equal pay for equal work	Article 23(2)	Article 39 (d)
3.	Right to education	Article 26(1)	Articles 21(A), 41, 45 & 51A(k)
4.	Right to just and favorable remuneration	Article 23(3)	Article 43
5.	Right to rest and leisure	Article 24	Article 43
6.	Right of everyone to a standard of living adequate for him and his family	Article 25(1)	Article 39(a) & Article 47
7.	Right to a proper social order	Article 28	Article 38

In the landmark judgment, Keshavananda Bharati v. State of Kerala,the Supreme Court observed, “The Universal Declaration of Human Rights may not be a legally binding instrument but: it shows how India understood the nature of human rights at the time the Constitution was adopted.” Constitutional interpretation of Human Rights in India has been strongly influenced by the Declaration. India further ratified the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights on March 27, 1979. The Optional Protocol to the International Covenant on Civil and Political Rights, 1989, however, was not ratified by India.

Fundamental Rights and Human Rights

The judicially enforceable fundamental rights which encompass all seminal civil and political rights and some of the rights of minorities are enshrined in part III of the Constitution (Articles 12 to 35). As it can be noted that Fundamental rights differ from ordinary rights in the sense that the former are inviolable. None of the law, ordinance, custom, usage, or administrative order can abridge or take them away them. Any law violating any of the fundamental right will be held void. Chief Justice Subba Rao in the landmark judgement Golak Nath v. State of Punjab had rightly observed, “Fundamental rights are the modern name for what have been traditionally known as natural rights,” The Supreme Court of India in other judgment recognized these fundamental rights as ‘Natural Rights’ or ‘Human Rights’. In ADM Jabalpur v. Shukla, Justice Beg observed, in the similar tone, “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.” The list of the Fundamental Rightsenshrined in the Constitution of India, which serves to be purposeful in our analysis of rights denied and rights ignored and rights violated through the issue of human trafficking.

Article 14 right of all persons to equality before the law. Whereas,Article 15 prohibits the State from discriminating against any citizen on grounds of religion, race,caste, sex or place of birth, and prohibits any restriction on any citizen’s access to any public place, including wells and tanks. Under separate headArticle 16 i.e. Equality of opportunity for all citizens in matters of public employment is guaranteed. Both Articles 15 and 16 enable the State to make special provisions for the advancement of socially and educationally backward classes, for such castes and tribes as recognized in the Constitution (known as the Scheduled Castes and Scheduled Tribes) require very special treatment for their advancement. In different connotation Article 17: Abolishes untouchability and makes its practice an offence punishable under law. The right to freedom of speech and expression mentioned in Article 19: This encompasses the right to freedom of speech and expression, the right to assemble peaceably without arms, the right to form associations or unions, the right to move freely throughout the territory of India, the right of residence, and the right to practice any profession, or to carry on any occupation, trade or business. This right is reserved only for the citizens.

In Chairman Railway Board and others v. Chandrima Das the Supreme Court, in Anwar State of Jammu and Kashmir it was held that non-citizens could not claim fundamental rights provided under Article 19. It observed that: Fundamental rights are available to all the persons of this country and those who are not citizens of this country and 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 also have a right to life in this country. Thus they also have the right to live with human dignity so long as they are here in India. Article 14 which guarantees equality before 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. 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. Upholding the decision of the High Court, the Supreme Court held that as a national of another country, she could not be subjected to a treatment, which was below the dignity, nor could she be subjected to physical violence at the hands of Government employees who outraged her modesty. According to the tone and the tenor of the language used in Article 21, they are available not only to every citizen of this country but also to a person of another country. The Apex Court also held that since the word ‘life’ has been used in Article 21 of the Constitution as a basic human right in the same sense as understood in the Universal Declaration of Human Rights of 1948, there is no reason why it should be given a narrow meaning.

Article 20 provides the protection of a person in respect of conviction of offences is guaranteed through this article which includes protection against ex post facto criminal laws, the principle of autre fois convict and the right against self-incrimination. whereasArticle 21 being the umbrella of rights provides the core of all fundamental rights provisions in the Indian Constitution, ordains: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Article 21A provides right to free education this was added to the Constitution by the Eighty Sixth Constitutional Amendment Act 2002. Article 21A proclaims “the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.” Article 22 says about the rights of a person, arrested and detained by the State authorities. These include the right to be informed of the grounds of arrest, the right to legal advice and the right to be produced before a magistrate within 24 hours of arrest (except where one is arrested under a preventive detention law). Whereas Article 23 talks about the right against exploitation includes prohibition of trafficking in human beings and forced labor and prohibition of employment of children below 14 years of age “to work in any factory or mine or in any other hazardous employment.” Amongst all these rights, Article 23 is very important for our study along with other rights that are guaranteed and deserved in all its forms. The Article 32 of the constitution enshrines the right to Constitutional remedies definitely deserves to be earmarked for it is essentially the right to move the Supreme Court of India for enforcement of the above rights.

Specified Fundamental Rights

Fundamental rights guaranteed under the Indian Constitution may be divided, for the sake of convenience, into two categories viz., specified fundamental rights and other fundamental rights (rights not specifically enumerated). Many of the rights enshrined in the Covenant on Civil and Political Rights have been recognized specially in the Indian Constitution as ‘fundamental rights.’ The under mentioned table shows the different Articles of the International Covenant on Civil and Political Rights and the Indian Constitution wherein identical rights are stipulated. Table 13: Different Articles of the International Covenant on Civil and Political Rights and the Indian Constitution

Sl.No.	Fundamental Rights	Covenant on Civil and Political Rights	Indian Constitution
1.	Forced labor	Article 8(3)	Article 23
2.	Equality before law	Article 14(1)	Article 14
3.	Prohibition of discrimination	Article 26	Article 15
4.	Equality of opportunity to public service	Article 25(C)	Article 16(1)
5.	Freedom of speech and expression	Article 19(1) & (2)	Article 19(1) (a)
6.	Right for peaceful assembly	Article 21	Article 19(1) (b)
7.	Right to freedom of association	Article 22(1)	Article 19(1) (c)
8.	Right to move freely within the territory of a State	Article 12(1)	Article 19(1) (d) &(e)
9.	Protection in respect of conviction of offences	Article 15(1)	Article 20(1)
10.	Protection from prosecution and punishment	Article 14(7)	Article 20(2)
11.	Not to be compelled to testify against himself	Article 14(3)(g)	Article 20(3)
12.	Right to life and liberty	Article 6(1 )& 9(1)	Article 21
13.	Right to child education	Article 26(1)	Article 21(A)
14.	Protection against arrest and detention	Article 9(2)(3) & (4)	Article 22
15.	Freedom of conscience .and religion	Article 18(1)	Article 25

 

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