Chapter 3 The work for drafting a constitution for India was
done during the time of the Universal Declaration
Human Right in Indian Constitution
Human rights are essential for the overall
development of individuals. The framers of the
Indian Constitution were very much influenced by
the concept of human rights contained in the
Universal Declaration of Human Rights and
guaranteed many of those rights in our
constitution. When Human rights are guaranteed
by a written constitution they are known as
fundamental rights. Fundamental rights are the
modern name for what has been traditionally
known as natural rights. They are fundamental
because an ordinary legal right is enforced by the
ordinary law of the land and may be changed by
the legislature of the country, but the fundamental
rights cannot be altered in the same way. It can be
changed only by amending the constitution itself.
Fundamental rights are dealt in part IIIrd of the
constitution, while directive principles of state
policy are in part IVth in the constitution. While
civil and political rights have been incorporated in
the part IIIrd of the constitution, economic social
and cultural rights have been incorporated in part
IVth of the constitution.
In India humanitarian ideas become popular from
the beginning of the nineteenth century .The
abolition of sati (1829) ,abolition of
slavery(1843),and abolition of female infanticide
(1870), the formation of torture commission in the
Madras presidency (1855), introduction of widow
remarriage by legislation (1856), and prohibition
of child marriage (1929),were restrains imposed
tradition and the beginning of humanization
legislation. For preserving the rights of female
children, the age of consent act of 1891 and the
Abolition of Child Marriage act of 1929 were
passed. In addition the Madras Government
passed the Madras Children’s Act and the Madras
Elementary Education act in 1920 to safeguard
children and provide better education at primary
level. This humanitarian legislation prepared the
ground for an awareness of human rights during
war years.
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of Human Rights. With the inspiration from the
UDHR the framers of the constitution incorporated
a list of rights, what is known as fundamental
rights in the Indian constitution.
There are six categories of fundamental rights.
They are;-
1. Right to equality-Article 14to 18
2. Right to freedom –article 19-22
3. Right against exploitation Article 23&24
4. Right to religion Article 25-28
5. Cultural and educational rights Article 29,30
6. Right to constitutional remedies Article 32
Article 19 clause 1sub clause (f) and article 31 has
been taken away from the part III of the
constitution by the 44th amendment act of 1978.
1 . RIGHT TO EQUALITY
a).Equality before law and equal protection of
law. ( Art 14) - Article 14 consists of two parts
namely equality before law and equal protection of
the laws. Equality before law means that no
individual should be given any special privilege by
the state. Equal protection of the laws means the
right to equal treatment in equal circumstances.
b) Prohibition of discrimination on grounds of
religion caste etc. (Art. 15) - There are four
aspects of this right mentioned in following
Clauses of this Article.
i. Prohibition of discrimination - Article15,
Clause (1): This article prohibits the state
from discrimination against any individual or
group of individuals.
ii. Access to public places - Article15, Clause
(2): This right provides that no citizen can be
denied access to public places, places of
entertainment or the use of wells, tanks, and
roads that are maintained out of State funds.
iii. Protective laws for women and children -
Article15, Clause (3): A positive
discrimination for women and children is
made in the Indian context. Thus provision
for reservation for women, free education for
children etc. is provided.
iv. Reservation for backward classes –
Article15, Clause (4): The constitution
recognizes the Scheduled Caste, Scheduled
Tribes and Other Backward Classes as
weaker sections of the population. It
authorizes the state to make special
provisions for the advancement of these
sections of the society
c) Equality of opportunity to employment. (
Art.16)
The aim of article 16 of Indian Constitution
is to provide equal opportunity to all citizens in
employment offered by the state or its agencies.
This article has five clauses
i. Equality of opportunity – Article 16, Clause
(1) wherein it is stated that equality of
opportunity should be given to all citizens in
matters relating to employment or
appointment to any office under the state.
ii. Prohibition of discrimination - Article 16,
Clause (2) This clause prohibits
discrimination on grounds only of religion,
race, caste, sex, descent, and place of birth,
residence or any of them in respect of any
employment of the state.
iii. Residential requirements - Article 16,
Clause (3) It allows the Parliament to make
laws that require residential (domicile)
requirements in a State for public
employment or appointment.
iv. Protective laws - Article 16, Clause (4) This
Clause allows the Parliament to make
protective laws for appointment of backward
classes of citizens who are not adequately
represented in the services of the state.
v. Preference to certain persons in religious
institutions - Article 16, Clause (5) This
clause prescribes that the Parliament can
make laws which require only a person
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professing a particular religion to be
appointed in a body or institution of that
religion. For example, a Hindu can only be
appointed as a priest in a Hindu temple.
d) Abolition of untouchibility. (Art. 17)
This is a unique article that has been
incorporated only in the Constitution of India.
Article 17 declares that not only Untouchability
has been abolished but it also makes any practice
and propagation of Untouchability in any form
punishable in accordance with the law.
e) Abolition of tittles (Art. 18)
The Clause of the Article prohibits the State from
conferring any title at all upon any person.
However the State is not prevented from awarding
military distinctions, such as Mahavir Chakra,
Param Vir – Chakra etc. for honoring men for their
acts of valour or academic distinctions.
II. RIGHT TO FREEDOM (ARTICLES 19 –
22)
a. Six fundamental freedoms - Article19 -
Article 19 (1), as amended by the Constitution
(Forty Fourth) Amendment Act, 1979, guarantees
to all citizens the following six freedoms:
i. Freedom of speech and expression
ii. Freedom of peaceful assembly
iii. Freedom of forming associations or unions
iv. Freedom of movement throughout the territory
of India
v. Freedom of residence and settlement in any part
of the territory of India, and
vi. Freedom of profession, occupation, trade or
business.
b. Protection in respect of conviction for
offences – (Article20) This right guarantees
protection in respect of conviction for offences, to
those accused of crimes. There are three clauses to
this article.
(i) Protection against ex – post, facto legislation –
It means that a person cannot be punished under
such a law, for his actions which took place before
the passage of the law.
(ii) Protection against double punishment – it says
that no person shall be prosecuted for the same
offence more than once.
(iii) Protection against self incrimination – this
clause states that no person accused of an offence
shall be compelled to be a witness against himself.
c. Protection of life and personal liberty -
Article21
Article 21 of the Indian Constitution
recognizes the right to life and personal liberty. It
provides that “no person shall be deprived of his
life or personal liberty except according to
procedure established by law.”
d. Protection against arrest and detention in
certain cases. - Article22
The provisions of Article 22 are
complimentary to those of Article 21. Article 22
has two parts; the first part consisting of clauses
(1) and (2), deals with persons, who are arrested
under ordinary criminal law and the various rights,
they are entitled to; and the second part consisting
of the remaining clauses (3) to (7), is concerned
with persons, who are detained under a law of
preventive detention.
III. RIGHT AGAINST EXPLOITATION
(ARTICLES 23-24)
a. Prohibition of traffic in human beings and forced
labour - Article23 The article prohibits traffic in
human beings and ‘begar’ and other similar forms
of forced labour.
b. Prohibition of employment of children -
Article24 Article 24 of the constitution prohibits
child labour. Children below fourteen years of age
cannot be employed in any factory or mine or in
any other hazardous employment.
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IV. RIGHT TO FREEDOM OF RELIGION
(ARTICLES 25 – 28) a. Freedom of Conscience
and Religion - Article25 - Article25 reflects the
spirit of secularism and recognized freedom of
religion to everyone in India.
b. Freedom to manage religious affairs - Article26
It recognizes the right of every religious order to
establish and maintain institutions for religious and
charitable purposes and manage its own affairs in
matters of religion.
c. Freedom as to payment of taxes for promotion of
any particular religion - Article27 The state shall
not compel any person to pay any taxes for the
promotion of maintenance of any particular
religion or religious denomination.
d. Freedom to attend religious instruction in
education Institution - Article28 This article
prohibits imposition of religious beliefs by
educational institutions on those who are attending
them.
Taken together the four Articles (25 to 28)
establish the secular character of democracy.
V. CULTURAL AND EDUCATIONAL
RIGHTS (ARTICLE 29)
a. Cultural right of the individual as well if
minorities – Article29 This Article states that every
section of the society has the right to conserve its
distinct language, script or culture.
b. Right of minorities to establish and administer
Educational institution - Article30 The State
cannot discriminate in granting aid to any
educational institution on the ground that it is
under the management of a religious or linguistic
minority.
VI. Right to Constitutional Remedies (Article
32)
Article 32 provides for the Constitutional
Remedies, under which, one can move the
Supreme Court for the enforcement of the
Fundamental Rights and this provision itself is
made one of the Fundamental rights. This is
something unique. Dr. Babasaheb Ambedkar
considered it as the very heart and soul of the
constitution.
The other rights that are guaranteed in the
Indian Constitution are as follows.
a) Right of property - Article31 t.
b) Power of Parliament to modify the right -
Article33 u.
c) Restriction on right while martial law is in
force- Article34 v.
d) Parliament empowered to make to enforce
certain Fundamental Right - Article35
By the 44th Amendment Act, 1978, the right to
property was eliminated from the list of
Fundamental Right. However though it is not a
fundamental right, it is still a constitution at right.
It is also a human right.
SOCIO, ECONOMIC AND CULRURAL
RIGHTS - (Directive Principles of State Policy)
The Directive Principles of State Policy are ideals,
directions and rights aimed at establishing an
economic and social democracy. DPSP enshrined
in the part IV of the constitution. It sets out the
ideals and objectives related with social economic
and cultural upliftment. The Directive Principles of
State Policy enshrines socio-economic rights
which are part of the human rights. These rights
can be classified in to three categories
1. Directives in the nature of ideals of the state.
2. Directives shaping the policy of the state.
3. Non-justiciable rights of the citizens.
1.Directives in the nature of ideals of the state.
1. The state should promote the welfare of the
people by securing a social order permeated by
social economic and political justice Art38(1): to
minimize inequality in income ,status facilities and
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opportunities amongst individual and groups
Art38(2)
2. The state shall endeavor to secure just and
human conditions of work: a living wage, a decent
standard of living and social and cultural
opportunities for all workers( Art43).
3.The state shall endeavor to raise the level of
nutrition and standard of living and to improve
public health. (Art 47)
4. The state shall direct its policy towards securing
equitable distribution of the material resource of
the community and prevention of concentration of
wealth and means production. Art(39 (b),(c).
5. The state shall endeavor to promote international
peace and co-operation (Art51)
2. Directive shaping the policy of the state
1. To establish economic democracy and justice by
securing certain economic rights
2. To secure a Uniform Civil Code for the citizens.
(Art.44)
3. To provide free and compulsory primary
education (Art.45) ( Now this concept is a
fundamental right and included in the Article 21A )
4. To prohibit consumption of liquor and
intoxicating drugs except for medical purposes.
(Art47)
5. To develop cottage industries (Art.43)
6. To organize agriculture and animal husbandry
on modern lines (Art48)
7. To prevent slaughter of useful cattle’s i.e. cows,
calves and other cattle.(Art48).
8. To organize village panchayats as units of self-
governments ( Art40)
9. To Promote educational and economic interest
of weaker sections and to protect them from social
jusice. (Art.46)
10. To protect and improve the environment and
safeguard forests and wild life (Art 48A)
11. To protect and maintain places of historic or
artistic importance.( Art49)
12 To separate the Judiciary from
executive.(Art50)
3. Non- Justiciable rights of the citizens
1. Right to adequate means of livelihood. Art 39(a)
2. Right of both sexes to equal pay for equal work
(Art 39(d)
3. Right against economist exploitation (39 (e),(f)
4. Right of children and the young to be protected
against exploitation and to opportunities for
healthy development, with freedom and dignity.
Art 39(f)
5. Right to equal opportunity for justice and free
legal aid Art 39A
6. Right to work (Art41)
7 Right of public assistance in cases of
unemployment, old age, sickness and other cases
of undeserved want (Art41)
8. Right to a living wage end conditions of
ensuring decent standard of life for workers (Art
43)
9. Right of workers to participate management of
industries (Art 43A)
10. Right to children to free and compulsory
education ( Art 45).
Human Rights of Women Children and
Minorities
Social reform legislation recognizing women rights
has been introduced in India since the British rule.
After independence too the legislatures have
enacted several laws for protecting women’s rights
and making provisions for the violation of their
rights punishable.
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The recognition of women’s right as human right
became international law when the U.N. General
Assembly adopted the CEDAW (Convention on
the the Elimination of All Forms of Discrimination
Against Women ) on 19th December 1979. With
reference to India, the Indian Constitution prohibits
discrimination on the basis of sex. Yet, it
recognizes that women need special attention. The
latter point is brought out by Articles 23 and 42.
1. Article 23 prohibits traffic in human beings. By
implication, this means that women, children, etc.
cannot be disposed of for immoral purposes.
2. Article 42 lays down that the State shall make
provision for securing just and humane conditions
of work and maternity relief. The Indian
Parliament passed the Maternity Benefits Act in
1961. The Maternity Benefits Act aims to regulate
the employment of women employees in certain
establishments for certain periods before and after
child birth and provides for maternity and certain
benefits.
3. The Domestic violence Act, 2005 provide
protection to the wife from domestic violence at
the hands of the husband or his relatives. Domestic
violence under the Act includes abuse or the threat
of abuse whether physical, sexual, verbal,
emotional or economic. Harassment by way of
unlawful dowry demands to the woman or her
relatives would also be covered under this
definition.
Among other things, Articles 14, 15, 16 and 39
guarantee equality among the sexes. Art.14 lays
down equality before the law and equal protection
of the law. Art.15 prohibits discrimination against
any citizen on grounds of religion, race, sex, etc.
Art.16 guarantees equality of opportunity in
matters of public employment. It says that no
citizen shall be discriminated against on ground of
religion, race, caste, sex, etc. Similarly Art. 39
guarantees equal pay for equal work for both men
and women.
Laws Protecting Children’s Right
The children of our country are the most
underprivileged in our society. Because of the
poverty in our country, many children are forced
to work resulting in child labour. The government
of India have enacted the following thirteen Acts to
provide legal protection to all children.
1. The Child Marriage Restraints Act, 1929.
2. The Children Act, 1933.
3. The Employment of Children Act, 1938.
4. The Minimum Wages Act, 1948.
5. The Factories Act, 1951. 6.. The Plantation
Labour Act, 1951.
7. The Indian Factories Act and Mines Act, 1952.
8. The Merchant Shipping Act, 1958.
9. The Apprentices Act, 1961.
10. The Atomic Energy Act, 1962.
11. The Beedi and Cigar Workers (Condition of
Employment) Act, 1966.
12. The Shops and Establishments Acts, 1969
(Statewise)
13. The Child Labour (Prohibition
Regulations) Act, 1986.
Of these, the 1986 law is the most
important one, wherein the Act lists occupations
and processes in which employment of children
is prohibited. Few of the hazardous occupations
where a child cannot be employed are as domestic
servants, workers in dhabas, restaurants, hotels,
motels, teashops, resorts, spas or other
recreational centres.
Part A provides that, No child shall be employed
or permitted to work in any of the following
occupations:
Railway, Port, Selling of crackers and ,slaughter
Houses, Automobile workshops and garages,
Handling of taxies or inflammable substance or
explosives, Handloom and power loom industry,
Mines, Plastic units and Fiber glass workshop. Etc
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Part B provides that, No child shall be employed
or permitted to work in any of the following
workshop wherein any of the following processes
is carried on.
Beedi making, Carpet Weaving, Cement
manufacture , Cloth printing, dyeing and weaving,
Manufacture of matches, explosive and fireworks,
Mica cutting and splitting, Shellac manufacture,
building and construction industry, Manufacturing
processes using toxic metals and substances such
as lead, mercury etc
Further the working hours for a child to
work is also specified. It states that a child can
work to six hours, including an interval of at least
one hour and children are not permitted to work
between 7 p.m. to 8 a.m.
Human Rights of Minorities
In India neither the constitution nor the National
Commission for Minorities Act (NCM Act) define
the term minorities and speak of these ‘based on
religion or language’. The NCM Act states,
‘Minority for the purpose of this Act, means a
and
community notified as such by the central
government. The central government has notified
the following as falling within the category of a
‘minority’: Muslims, Chistians, Sikhs, Parsis and
Buddists.
Human Rights of Minorities
1. Cultural right of the individual as well 0f
minorities – ( Article29). This article states that
every section of the society has the right to
conserve its distinct language, script or culture.
2. Right of a minority to establish educational
institutions –
(a) Article – 30 – Article 30(1) gives the linguistic
or religious minorities the following two rights:
i. The right to establish, and
ii. The right to administer educational
institutions of their choice.
(b) Article – 30(2) bars the state, while granting aid
to educational institutions, from discriminating
against any educational institution on the ground
that it is under the management of a linguistic or a
religious minority.
Human Rights of Prisoners
Article 10(1) of the Covenant on Civil and Political
Right of the United Nations lays down that all
persons deprived of their liberty should be treated
with humanity and dignity. But in part 3 of the
Indian Constitution there is no such provision.
Under Article 21, the Supreme Court has
developed a whole charter of dignity. The court
has held that the dignity belongs to all human
beings, both inside and outside the prison. In the
case of T.V. Vatheeswaran v. State of Tamil Nadu,
it was held that the Articles 14, 19 and 21 are
available to the prisoners as well as freemen.
1. Article 14 of the Constitution of India says that
the State shall not deny to any person equality
before law or the equal protection of laws within
the territory of India.
2. Article 19 guarantees six freedoms to the all
citizens of India. Among these freedoms certain
freedoms cannot be enjoyed by the prisoners
except the “freedom of speech and expression” and
“freedom to become member of an association.”
3. Article 21 of the Constitution of India says that
No person shall be deprived of his life or personal
liberty except according to procedure established
by law. By Article 21 of the Indian Constitution it
is clear that it is available not only for free people
but also to those people behind the prison.
Following are the rights of prisoners which are
implicitly provided under the Article 21 of the
Constitution of India:-
1. Right of inmates of protective homes.
2. Right to free legal aid.
3. Right to speedy trial.
4. Right against cruel and unusual
punishment.
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5. Right to fair trial.
6. Right against custodial violence and death
in police lock-ups or encounters.
7. Right to live with human dignity.
Apart from these rights of prisoners, Constitution
of India also provides following rights to the
prisoners:-
1. Right to meet friends and consult lawyer.
2. Rights against solitary confinement,
handcuffing & bar fetters and protection
from torture.
3. Right to reasonable wages in prison.
Prisoner’s Rights under the Prisons Act, 1894
Prisons Act, of 1894 is the first legislation
regarding prison regulation in India. Following
Sections of the Prisons Act, 1894 are related with
the reformation of prisoners:-
1. Accommodation and sanitary conditions for
prisoners.
2. Provision for the shelter and safe custody
of the excess number of prisoners who
cannot be safely kept in any prison.
3. Provisions relating to the examination of
prisoners by qualified Medical Officer.
4. Provisions relating to separation of
prisoners, containing female and male
prisoners, civil and criminal prisoners and
convicted and undertrial prisoners.
5. Provisions relating to treatment of under
trials, civil prisoners, parole and temporary
release of prisoners.
In the year of 2016 the Parliament has been passed
the Prisons (Amendment) Bill, 2016 to amend the
Prisons Act, 1894 with a view to provide
protection and welfare of the prisoners.
Other Rights
1. Right To Know The Grounds of Arrest -
According to Section 50(1) Cr.P.C. “every police
officer arresting any person without warrant shall
communicate to him full particulars of the offence
for which he is arrested”
2. Information Regarding the Right To Be
Released On Bail - Section 50(2) Cr.P.C. provides
that “where a police officer arrests without warrant
any person other than a person accused of a non-
bailable offence, he shall inform the person
arrested that he is entitled to be released in bail that
he may arrange for sureties on his.”
3. Right To Be Taken Before a Magistrate
Without Delay - The person making the arrest
must bring the arrested person before a judicial
officer without unnecessary delay. These matters
have been provided in Cr.P.C. under Sections 56
and 76.
4. Right of Not Being Detained For More Than
24 Hours without Judicial Scrutiny - The
arrested person must be brought before the
magistrate or court within 24 hours.
5. Right To a Fair Trial - The Code of Criminal
Procedure provides that for a trial to be fair, it must
be an open court trial. In some exceptional cases
the trial may be held in camera.
6. Right To a Speedy Trial - The Constitution
provides an accused the right to a speedy trial.
Although this right is not explicitly stated in the
Constitution, it has been interpreted by the Hon'ble
Supreme Court of India in the judgment of
Hussainara Khatoon.
7. Right To Consult A Legal Practitioner -
Article 22(1) provides that no person who is
arrested shall be denied the right to consult a legal
practitioner of his choice.
8. Right To Be Examined By A Medical
Practitioner - Section 54(1) provides examination
of arrested person by medical practitioner at the
request of the arrested person.
9. Right Of The Accused To Produce An
Evidence - The accused even has right to produce
witness in his defence .
National Human Rights Commission
There are governmental and non-governmental
agencies and institutions have been working for the
protection of the human rights. The protection of
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Human Right Act of 1993 demands for the
constitution of a National Human Rights
Commission, State Human Rights Commission and
Human Rights Courts. A national human right
institution can be described as an independent
organization that is established by the government
according to specific legislation with an aim to
promote and protect human rights at national level.
The protection of the Human Rights Act provides
that the National Human Rights Commission
consist of 5 members including the chairman.
It consists of :-
a). A chairperson who has been a Chief Justice of
supreme court.
b). One member, who is or has been a judge of the
Supreme Court.
c). One member, who is or has been the chief
justice of the High Court.
d). Two members to be appointed from among the
persons having knowledge of or practical
experience in matters relating to human rights
e).The chair persons of the National Commission
for Minorities, the National Commission for
Scheduled Caste and Scheduled Tribes and the
National Commission for Women shall be deemed
to be the members of the commission for the
discharge of certain functions.
There shall be a Secretary General who shall be the
chief executive officer of the commission and shall
exercise such powers and discharge such functions
of the commission as it may delegate to him. The
headquarters of the commission shall be at Delhi.
Functions
The functions and powers of the NHRC are
outlined below:-
1. Inquiry and investigation - The NHRC may
inquire into and investigate complaints of human
rights violations. Such enquiry may undertake
through its own initiative (Suo motto) or based on
a petition presented by a victim or any person on
his / her behalf. Upon the completion of an inquiry,
the NHRC may make recommendations to the
government or the authority concerned for the
initiation of proceedings for prosecution or any
other action as it deems fit . It may also approach
the supreme court or the high court for a direction,
as that court may consider necessary.
3. Inspect living conditions of the inmates in any
jail or any other institution under the control of the
State Government
4. Review the safeguards provided in the
constitution or any other law for the time it is in
force to ensure the protection of human rights

2. Inspection - The NHRC can undertake
inspections and make recommendations on living
conditions in jails and other institutions. It may
also suggest mechanism that ought to be instituted
to better protect human rights.
3. Intervention in court proceedings - The NHRC
may intervene, with the courts permission, in
proceedings involving human rights violation.
4. Sensitization - The NHRC is mandated to
sensitize the government to its constitutional
obligations to honour international human rights
treaties.
In addition to these functions, NHRC encourage
the effort of non- governmental organizations and
institutions working in the field of human rights.
5. Undertake and promote research and awareness
programs in the field of human rights
6. Promote human right awareness through literacy
campaigns, publications, seminars etc. for the
protection and safeguards available under human
rights practices.
7. Encourage involvement of Non-Government
Organizations and individuals for expansion work
in the field of human rights awareness.
8. Perform any other functions that may be
considered necessary for the promotion of human
rights.

Kerala State Human Rights Commission

The protection of human rights act 1993

also provides for the establishment of state human
rights commission to be constituted by the
respective state governments. Accordingly the
Kerala State Human Rights Commission was
constituted on 11 December 1998 with the
appointment of the first Chairperson Justice M.M.
Pareed Pillay, a former Chief Justice Kerala High
Court along with Dr. S. Balaraman and Shri. T.K.
Wilson as supporting members. The commission is
entitled to perform any of the following functions:

1. Autonomously investigate on a petition filed by

any person on his/her behalf as a complaint of
Violation of human rights and instigation or
Negligence in the prevention of such violations.

2. Get involved in any proceeding under violation

of human right pending before a court with the
approval of that court.

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