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4. Human Rights Guaranteed by International Conventions.

The creation of constitutional government is a most significant mark of the distrust of human beings in human nature. It signalizes a profound conviction, born of experience, that human beings vested with authority must be restrained by something more potent than their own discretion.
RAYMOND MOLEY.

The French Declaration of Rights of Man (1789) - which Lord Acton called a single confused page.that outweighs libraries and is stronger than all the armies of Napoleon- refers to natural and imprescriptible rights of man: liberty, property, security and resistance to oppressi on. That Declaration goes on to proclaim a number of the natural and imprescriptible rights of man: equality before the law, freedom from arrest except in conformity with the law, protection against retroactivity of the law, presumption of innocence, freedom of opinion, freedom of religion, freedom of expression and the right of property. The later Declaration of 1793 reaffirmed these rights and added others including freedom of press. The fundamental rights enshrined in Part III of our Constitution represent, generally speaking, natural or human rights, as has been recognized by our Supreme Court and High Courts. 1 Patanjali Sastri, C.J., regarded them as cherished human values2 and referred to them as those great and basic rights which are recognized and guaranteed as the natural rights inherent in the status of a citizen of a free country3. Likewise, the Bill of Rights in United States has been recognized as embodying basic human rights or the natural rights which inhere in the great and essential principles of liberty and free government.4 The Courts of Canada have called these rights original freedoms which find their existence in the very nature of man.5

Till this century it was left to individuals to scorch up tyranny by a word as a flame, or to awaken with clear trumpet notes mens hearts to the love of liberty. In this century, for the first time in world history, whole nations, through their international organizations, are trying to ensure basic human rights 6. The civilized world is taking collective action to maintain what James Madison called the Great Rights of Mankind. The principle that there are inviolable natural or human rights, is now accepted by the majority of the nations of the world who are signatories to Conventions and Declarations on the subject. Some of the most significant of the historical documents dealing with inalienable human or natural rights are referred to below.
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Motilal v. State of U.P. I.L.R 1951(1) All.269, 387-88. Gopalan V. State of Madras 1950 S.C.R. 88, 198-99, A.I.R. 1954 SC 27, 72. 3 State of Bengal v. Subodh Gopal Bose 1954 S.C.R. 587, 596,597, 600 A.I.R 1954 S.C. 92,95, 96. 4 American Jurisprudence, 2d, Vol.16, pp. 636-38. 5 Chabot v. School Commissioners (1958) D.L.R. 2d, 796, 805. 6 The credit goes to the European Convention for establishing that an individual is capable of being a subject of international Law and of having his human rights legally enforced through an international tribunal, not only against the government of his own state , but also against other sovereign states.(Ireland v. U.K.(1978) E.H.C.R.) This is the contribution of International Law to the movement for universalisation of Human rights.

(a) The Charter of the United Nations which was signed on 26 June 1945 reaffirmed faith in fundamental human rights, in the dignity and worth of the human person. Article 55 of the Charter provides that the United Nations shall promote, inter alia, universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion; while by Article 56,all Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.7 (b) The Universal Declaration of Human Rights, which was adopted on 10 December 1948, might well become Magna Carta of all mankind, as Mrs. Roosevelt observed. The Universal Declaration refers to the equal and inalienable rights of all members of the human family. It mentions that 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. It reaffirms faith in fundamental human rights, in dignity and worth of the human person and in equal rights of men and women. It further states that Member States have pledged themselves to achievethe promotion of universal respect for and observance of human rights and fundamental freedoms. (c) The European Convention, for the Protection of Human Rights and Fundamental Freedoms was signed on 4th November, 1950. Its aim is the maintenance and further realization of Human Rights and Fundamental Freedoms. The signatory governments reaffirm their profound belief in those Fundamental Freedoms which are the foundation of justice and peace in the world and express their resolve to take steps for the collective enforcement of certain of the Rights stated in Universal Declaration. Fifteen States of Europe are parties to the Convention.8

To ensure observance of the engagements undertaken by the parties to the convention, two bodies have been set up the European Commission of Human Rights and the European Court of Human Rights. The Commission is entitled to receive petitions from any person, nongovernmental organization or group of individuals claiming to be victims of violation of the rights set forth in the Convention, provided that the State against which the complaint is lodged has declared that it recognizes the competence of the Commission to receive such petitions. After considering any petition the Commission has the right to bring the case before the European Court of Human Rights. Eleven States have recognized the right of the European Commission to receive the petitions and accepted the compulsory jurisdiction of the European Court.9 (d) The International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, were both adopted by the General Assembly of the United Nations on 16th December 1966. Those Covenants refer to the equal and inalienable
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The U.N. Charter, however, was not a binding instrument, and merely stated the ideal which was to be later developed by different agencies and organs. (Starke, Introduction to International Law 1984, p.350.) 8 All Council of Europe member states are party to the Convention and new members are expected to ratify the convention at the earliest opportunity (Resolution 1031 (1994) on the honouring of commitments entered into by member states when joining the Council of Europe).
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All 47 member states of the Council of Europe have recognized the jurisdiction of the Court. The Convention had 15 protocols as on January, 2010. Taking the cue from the 1950 Convention, in 1999 the European Council, enforced the 1999-2000 convention which drafted Charter of Fundamental Rights of the European Union in

2000. The charter gained legality only in 2009 by the Treaty of Lisbon.

rights of all members of the human family, and recognize that these rights derive from the inherent dignity of human person.10 (e) The American Convention on human rights, to which the States of South America are signatories, was signed on 22nd November 1969. It recognizes that the essential rights of man are not derived from ones being a national of certain State, but are based upon attributes of the human personality.11
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While the former was addressed to the states to implement them by legislation, the latter was formulated legally enforceable rights of the individual. The first optional protocol to the international covenant on civil and political rights was adopted on 16th December, 1966. The Optional Protocol establishes an individual complaints mechanism for the ICCPR. The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty is a side agreement to the International Covenant on Civil and Political Rights. It was created on 15 December 1989, and entered into force on 11 July 1991 (Wikipedia). The optional protocol to the international Covenant on Economic, Social and Cultural Rights was adopted on 10 December 2008. The Protocol allows individuals to seek justice for violations of their economic, social and cultural rights (ESCR) at the international level, for the first time, through the establishment of a communications procedure (individual complaints process) and an inquiries procedure (hrbaportal.org). It is highly regrettable that the U.S.A., the model for preparation of the International Covenants on human Rights, which has also taken much interest in the internationalization of human rights, has not so far ratified the international Covenants of 1966. Some American Courts, however , tend to regard the human rights provisions of the Universal Declaration of Human Rights and the International Covenants as representing the basic principles of customary International law [Filartiga v. Pena-Irala (1980) 630 F. 2d.876.] These Covenants have inspired commonwealth countries to come up with international organization or association, consisting of peoples of different races and cultures and thus has resulted in adoption of two Significant Declarations by the Commonwealth Countries. i.e., The Singapore Declaration, 1971 and the Lusaka Declaration, 1979.
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Other significant of the historical documents dealing with inalienable human or natural rights are: (a) The Convention on Elimination of Discrimination against Women was adopted by the United Nations General Assembly on 18 December 1979. So far 186 nations are party to the convention. In its preamble, the Convention explicitly acknowledges that "extensive discrimination against women continues to exist", and emphasizes that such discrimination "violates the principles of equality of rights and respect for human dignity". According to article 1, discrimination is understood as "any distinction, exclusion or restriction made o.1 the basis of sex...in the political, economic, social, cultural, civil or any other field". The Convention gives positive affirmation to the principle of equality by requiring States parties to take "all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men"(article 3) (Office of United Nations High Commissioner for Human Rights: http://www2.ohchr.org/english/law). (b) The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention), was adopted by the United Nations General Assembly on 10 December 1984 (United Nations Treaty Collection: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Retrieved on 16 January 2010). It is an international human rights instrument, under the review of the United Nations, that aims to prevent torture around the world. The Convention requires states to take effective measures to prevent torture within their borders, and forbids states to return people to their home country if there is reason to believe they will be tortured (Wikipedia). (c) Convention on Rights of child was adopted by the United Nations General Assembly on 20 November 1989 (the 30th anniversary of its Declaration of the Rights of the Child) (United Nations General Assembly Resolution 25 session 44 Convention on the Rights of the Child on 20 November 1989). As of November 2009, 194 countries had ratified it and Nations that ratify this convention are bound to it by

Part III of the Indian Constitution embodies the fundamental freedoms which are the very life of the United Nations Charter and the United Nations Declaration of Human Rights, to both of which India was signatory prior to the drafting of the Constitution.12
international law. It is the first legally binding international instrument to incorporate the full range of human rightscivil, cultural, economic, political and social rights (http://www.unicef.org/crc/(unicef)). It spells out the basic human rights that children everywhere have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life (http://www.unicef.org/crc/(unicef)).
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In India, in particular, the courts are specially cramped in drawing inspiration from the International Charters by reason of the fact that the Constitution itself directs [Art.367(1)] that it should be interpreted in the same manner as an Act of the Indian Legislature. Nevertheless. The Indian Supreme Court has held that in interpreting the very text of the written constitution, the court should use the International Chatters as an inspiration for liberal interpretation, in infusing, as much as possible the salutary safeguards for human rights as contained in those Charters and conventions, for the following reasons, inter alia-[Vijay Kumar :Human Rights-Dimensions and Issues Vol. I] (a)The Universal Declaration of Human Rights was adopted by the U.N. General assembly on December 10, 1948, while debates in the Indian Constituent Assembly were going on. Hence, it must be assumed that the makers of the Indian Constitution, in framing Part III on the Fundamental rights, were influenced by the provisions of the Universal Declaration. it is, therefore, legitimate for the court to refer to the comparable provisions of the Universal Declaration in construing the intent and scope of the relevant text of Part III of the Constitution (Maneka Gandhi v. Union of India , [AIR 1978 S.C.597(para.70) ] (b)As regards those covenants to which India is a party or which it has ratified, it has an international obligation to implement them by appropriate legislation. So long as such legislation has not taken place, the court would be justified in interpreting the terms of the Constitution in the light of those covenants[Varghese v. Bank of Cochin, AIR 1980 S.C. 470(para 6)]. If possible, that is. So far as the language of the Constitution can be stretched, without doing violence [Keshavananda Bharati v. State of Kerala AIR 1973 SC 1461: Rajendra v. State of U.P. AIR 1979 S.C. 916 (paras 125, 126)]. Thus the Indian Supreme Court has drawn inspiration from the International Charters and covenants (a)In coming to the conclusions that not only the Fundamental Rights in Part III but also the Directives are based on Human Rights, so that the Directives , even though non-justifiable , are not to be regarded as inferior to the Fundamental Rights.[Minerava Mills v. Union of India AIR 1980 SC 1789 (paras 111-12 ., Bhagawati,J.)] (b)In Deducing unremunerated fundamental rights as supplemental to those specified in Part III, e.g., the right to human dignity, in general[Keshavananda Bharati v. State of Kerala AIR 1973 SC1461(paras 153-54,303,Sikri,C.J.) : Maneka v. Union of India AIR 1978 S.C.597 (paras 53.70, Bhagawati, J.]. From this general right, one formulated, various corollaries have been deduced as follows: (i)A guarantee against torture, cruel punishment or inhuman and degrading treatment of an accused or prisoner, from Art.21 of the Constitution [Francis v. Union territory AIR 1981 SC 746 (para.7)]. (ii)A right of an accused not to be subjected to third-degree or uncivilized method to extort confession [Sunil Batra v. Delhi Administration (II) AIR 1980 SC 1579 (para 15): Kishor v. state of Rajasthan AIR 1981 SC 625( para 5,10)]. (iii) A right of an accused to a speedy trial [Kadra v. state of Bihar AIR 1981 SC 939 (paras 2-3)]. (iv) A right to travel abroad [Maneka v.Union of India AIR 1978 SC 597 (paras 103,107, Iyer.J.)]. (c)In view of Art. 8 of the International Covenant, the court has refused to restrict the meaning of the expression forced labor to be ejusdem generis with the word beggar in Art.23 of the Constitution.[Peoples Union v. Union of India AIR 1982 SC 1473 (para .14)] (d)In view of Arts. 1 and 4 of the Universal declaration and An.8 of the International Covenant, the expression traffic in human beings has been interpreted to include a contract for the sale of a man for marriage or concubinage, though not for prostitution. Even when such sale is supported by the caste-custom [ Nihal Singh v. Rambai AIR 1897 M.P. 126 (paras.10-11)] .

The following comparative chart shows the close similarity between the chapter on Fundamental Rights under our Constitution and the Universal Declaration of Human Rights. Chart be inserted It is clear that when by Article 14, 31-C13 the various fundamental rights under Articles 19 and 31 were abrogated, we not only broke our pledge to our own people but also violated the Universal Declaration of Human Rights. When all civilized democracies are deeply concerned about the basic liberties of mankind, we have chosen to deface our constitution and defile its underlying concept of a free democracy.

Needless to say, in India, Courts also attempt to interpret statues to conform to rules of International law or Convections to which India is a party [Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, AIR 1984 SC 667 (para 29)]. Thus, Though India has ratified the International Covenant on Civil and Political Rights, no court in India can directly enforce any of its provisions at the complaint of an aggrieved individual[Ali Akbar v. U.A.R. AIR 1996 SC 230 (p.30)]. Nevertheless, the court can offer relief to him by so construing the constitution or the relevant statue, if possible ,as to be in tune with the provisions of the Covenant Similarity between the Articles in the Constitution of India and Articles in the Universal Declaration of Human Rights can be drawn in the form of various provisions incorporated in the constitution. Though, whereby, article 17(2) of UDHR still upholds a persons right to property, Indian Constitution has abrogated the same (Art. 31(1)). On other hand, whereby, civil and political rights have been incorporated under Part III of the Constitution of India in the form of Fundamental Rights, Social and Economic rights have been incorporated under Part IV, in form of the Directive Principles of State Policy in the Constitution of India (Human Rights, Dr. U. Chandra).
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Article 31-C an outrage on the Constitution, p.50.

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