Concept and Development of Human Rights

• Statutory definition (Protection of Human Rights Act 1993, s.2(1)(d)): “human rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. Under s.2(1)(f), “International Covenants” means the ICCPR and the ICESCR, adopted by the UN General Assembly on 16 December 1966. Note that the Indian definition does not list the UDHR.

• Characteristics: inherent (not granted by the State), inalienable, universal, equal and non-discriminatory, indivisible, interdependent and interrelated (Vienna Declaration 1993), and (for many rights) enforceable against the State.

• Human rights versus fundamental rights: human rights are moral and international in origin and universal; fundamental rights are those the Constitution (Part III) guarantees and courts enforce under Articles 32 and 226. Some fundamental rights are available only to citizens (Articles 15, 16, 19, 29, 30), while human rights belong to everyone.

• Derogable and non-derogable rights: ICCPR Article 4(2) lists rights that cannot be suspended even in a public emergency: right to life (Art. 6), freedom from torture (Art. 7), freedom from slavery (Art. 8(1) and (2)), freedom from imprisonment for inability to fulfil a contractual obligation (Art. 11), no retrospective penalties (Art. 15), recognition as a person before the law (Art. 16), and freedom of thought, conscience and religion (Art. 18).

• Jus cogens and erga omnes: prohibition of genocide, slavery, torture and racial discrimination are peremptory norms; obligations erga omnes are owed to the international community as a whole (Barcelona Traction case, ICJ 1970).

In India, the first-generation rights largely correspond with Part III (Fundamental Rights) and the second with Part IV (Directive Principles), although the Supreme Court has read many second-generation rights into Article 21 (education, health, livelihood, shelter, clean environment).

• Preamble: faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women.

• Article 1(3): one purpose of the UN is promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

• Article 13(1)(b): General Assembly shall make recommendations for assisting in the realisation of human rights.

• Articles 55 and 56: UN shall promote universal respect for human rights; all members pledge themselves to take joint and separate action in cooperation with the UN.

• Article 62(2) and 68: ECOSOC may make recommendations on human rights and shall set up commissions for the promotion of human rights.

• Article 2(7) (domestic jurisdiction) is the usual counterargument to international scrutiny.

• UN Human Rights Council (UNHRC): created in 2006 by General Assembly Resolution 60/251 to replace the Commission on Human Rights; seats in Geneva; 47 members elected by the General Assembly for three-year terms on the basis of regional distribution; periodic review of all UN member States through the Universal Periodic Review (UPR); special procedures (special rapporteurs and working groups); complaint procedure. India was elected for the 2026–28 term, its seventh term on the Council.

• Office of the High Commissioner for Human Rights (OHCHR): post created in 1993 (after the Vienna conference); seat in Geneva.

• Treaty bodies: Human Rights Committee (ICCPR; 18 members), Committee on Economic, Social and Cultural Rights, CERD, CEDAW, Committee against Torture, Committee on the Rights of the Child, Committee on Migrant Workers, Committee on the Rights of Persons with Disabilities, Committee on Enforced Disappearances.

• Others: General Assembly (Third Committee), ECOSOC, Security Council (human rights as a threat to peace), ICJ, International Criminal Court, UNHCR, UNICEF, ILO, UN Women.

• Regional systems: Europe (European Court of Human Rights, Strasbourg); the Americas (Inter-American Commission in Washington and Court at San Jose, Costa Rica); Africa (African Commission, Banjul, and the African Court); the Arab Charter (2004). Asia has no region-wide court.

• Pre-constitutional: the Constitution of India Bill 1895; Nehru Report 1928; the Karachi Resolution 1931 on fundamental rights and economic programme.

• Constitution: Part III (Articles 12–35) and Part IV (Articles 36–51); the Preamble secures justice, liberty, equality and fraternity assuring the dignity of the individual. India voted for the UDHR in 1948 (Hansa Mehta and Lakshmi Menon took part in the debates).

• International treaties: India ratified CERD (1968), the ICCPR and ICESCR (10 April 1979), CEDAW (1993), CRC (1992) and CRPD (2007). It has signed but not ratified the Convention against Torture (signed 1997); it is not a party to the Optional Protocols to the ICCPR and has not ratified the Refugee Convention.

• Domestic implementation: Article 51(c); Article 253; the Protection of Human Rights Act 1993 (see section 10). In Vishaka v. State of Rajasthan (1997) the Court used CEDAW to fill a legislative gap; in Jolly George Varghese (1980) the Court read the ICCPR in aid of the Constitution; in Nilabati Behera v. State of Orissa (1993), compensation was awarded as a public-law remedy for custodial death.

• Judicial landmarks: A.K. Gopalan (1950) to Maneka Gandhi v. Union of India (1978), which read due process into Article 21 and made the doctrine of the right to life expansive; Hussainara Khatoon (1979, speedy trial), Sunil Batra (1978/80, prisoners), Francis Coralie Mullin (1981, dignity), D.K. Basu v. State of West Bengal (1997, arrest guidelines), Justice K.S. Puttaswamy v. Union of India (2017, privacy as a fundamental right), Navtej Singh Johar (2018).