Dharmashastra National Law University, Jabalpur

2020-2021

Subject
Human Rights Law
Project topic
First Generation Human Rights.

S ubmitted b y S ubmitted t o
Anoop Kumar Bardiya Dr. Veena Roshan Jose
BAL/015/18 (Assistant Prof. Of Law)
Sem. – 6th DNLU, Jabalpur
DNLU, Jabalpur

1
 Acknowledgement

God gives us life to decorate it with knowledge. Life without knowledge is

like a river without water.

I would really like express my special thanks of gratitude to our Hon’ble Vice
Chancellor Prof. Shri Balraj Chauhan sir as well as our Head Of
Department Shilpa Jain and Dr. Manvendra sir and my subject teacher Dr.
Veena Roshan Jose mam who gave me the golden Opportunity to work on this
great or wonderful Project of the subject and only just Because of this project
I got the opportunity to understand how to do the First Generation Human
Rights research on the topic and how to collect the data and how to arrange the
data in a research.

Secondly, I would really like to express my special thanks to my mentor Mr.

Ashit sir, Animesh Jha sir and to my University. And I also want to thanks to
my friend Balram Jat, who help me a lot to research in my project.

Anoop Kumar Bardiya

BAL/015/18
DNLU, Jabalpur
Cont. No. 8435381296
[email protected]
Contents
Introduction.................................................................................................................................4
Research Methodology...............................................................................................................6
The Cyrus Cylinder (539 B.C.)...........................................................................................8
The Magna Carta (1215).....................................................................................................8
Petition of Right (1628) T....................................................................................................8
United States Declaration of Independence (1776)..........................................................8
Declaration of the Rights of Man and of the Citizen (1789).........................................9
The First Geneva Convention (1864)...............................................................................10
The United Nations (1945).................................................................................................10
The Universal Declaration of Human Rights (1948).....................................................11
Generation of Human Right.....................................................................................................11
Civil and Political rights..........................................................................................................12
Access to the Judicial System..........................................................................................15
Participation in Political Life............................................................................................15
Are economic, social and cultural rights fundamentally different from civil and
political rights?.......................................................................................................................16
Constitutional Framework on Civil and Political rights........................................................17
SUPREME COURT ON HUMAN RIGHTS..........................................................................20
Conclusion.................................................................................................................................24
 Introduction
Human rights are the basic rights and freedoms that belonging to every person in the world,
from birth until death. Human Rights is a general term and it specifically denotes Civil
rights, Civil liberties, Economic, Social and Cultural Rights. These rights cannot be taken
by any legislature or act of government. These rights are important for the physical,
spiritual and moral development of individuals. Human rights are commonly understood as
inalienable fundamental rights to which a person is inherently entitled simply because she
or he is a human being.

RIGHTS as a common standard of achievement for all peoples and all nations, to the end
that every individual and every organ of society, keeping this Declaration constantly in
mind, shall strive by teaching and education to promote respect for these rights and
freedoms and by progressive measures, national and international, to secure their universal
and effective recognition and observance, both among the peoples of Member States
themselves and among the peoples of territories under their jurisdiction. 1

Defining human rights

Human rights are commonly understood as being those rights which are inherent in the
mere fact of being human. The concept of human rights is based on the belief that every
human being is entitled to enjoy her/his rights without discrimination.

Generations of Human Rights

Louis B. Sohn classified human rights into four generations which covers civil and political
rights, economic, social and cultural rights, collective rights and subjective rights. 2

 The Human Rights of First Generation (Civil and political rights)

 The Human Rights of Second Generation (Economic, social and cultural rights)
 The Human Rights of Third Generation (Collective rights)
 The Human Rights of Fourth Generation (Subjective rights)

The human rights of the first generation are civil and political rights of the people. Civil
rights are related to the right to life and personal liberty which includes, right to life,
personal liberty, security, freedom of speech and expression, worship etc. Political rights
are arising out when there is a clash between people and the government. These rights are
essential to every individual to reduce government arbitrary actions. 3Civil and political
rights together are known as “Liberty Oriented Human Rights” and they are also called

1
The Universal Declaration of Human Rights, 1948
2
Louis B. Sohn, International Law and Basic Human Rights, Naval War College Review
3
https://www.legalbites.in/generations-of-human-rights
negative rights because they protect people from excesses of the state. The first generation
of human rights speaks about various rights4

This research project deals with various generations of Human Rights. Civil and political
rights and historical development of human rights as well as current prospective “Liberty
Oriented Human Rights”.

Research Methodology
As whole research work for this work is confined to the library and books and no field
work has been done hence researcher in his research work has opted the doctrinal
methodology of research. Researcher has followed the uniform mode of citation throughout
the project work.

Sources of data
For doing the research work various sources has been used. Researcher in the research
work has relied upon the sources like many books of international law, Articles, journals,
4
Ibid
and conventions. The online material has been remained as a trustworthy and helpful
source for the research.

Scope and Limitation

Though the researcher has tried his level best to not to lost any stone unturned in doing his
research work to highlight the various aspects relating to the topic, but the topic being so
vast and dynamic field of law and whose horizon and ambit cannot be confined and
narrowed down, the research work has sought with some of the unavoidable limitations.

Research question:
 How Can Human Rights Exist?
 Generation of human rights?
 Should human rights be defined as inalienable?
 Should human rights be defined as minimal rights?

Hypothesis
current legal framework of human right (civil and political rights) does not protect in
democratic countries (Mainly focus in India). to protect principle of human rights and law
of human right are just imaginary to a utopian state.

Aims and Objective

The aim of this paper to know about the generation of human right, how they are evolved?
And to know the current Indian legal framework to protect civil and political rights. And
practical aspect to protect human rights in democratic country.

Historical development
 The Cyrus Cylinder (539 B.C.) In 539 B.C., the armies of Cyrus the Great, the first king
of ancient Persia, conquered the city of Babylon. But it was his next actions that marked a
major advance for Man. He freed the slaves, declared that all people had the right to
choose their own religion, and established racial equality. 5These and other decrees were
recorded on a baked-clay cylinder in the Akkadian language with cuneiform script. 6
Known today as the Cyrus Cylinder, this ancient record has now been recognized as the
world’s first charter of human rights. It is translated into all six official languages of the
United Nations and its provisions parallel the first four Articles of the Universal
7
Declaration of Human Rights.

The Magna Carta (1215) The Magna Carta, or “Great Charter,” was arguably the most
significant early influence on the extensive historical process that led to the rule of
constitutional law today in the English-speaking world . In 1215, after King John of
England violated a number of ancient laws and customs by which England had been
governed, his subjects forced him to sign the Magna Carta, which enumerates what later
came to be thought of as human rights 8. Among them was the right of the church to be
free from governmental interference, the rights of all free citizens to own and inherit
property and to be protected from excessive taxes. It established the right of widows who
owned property to choose not to remarry, and established principles of due process and
equality before the law. It also contained provisions forbidding bribery and official
misconduct.9

Petition of Right (1628) The next recorded milestone in the development of human rights
was the Petition of Right, produced in 1628 by the English Parliament and sent to Charles
I as a statement of civil liberties 10. The Petition of Right, initiated by Sir Edward Coke,
was based upon earlier statutes and charters and asserted four principles: (1) No taxes may
be levied without consent of Parliament, (2) No subject may be imprisoned without cause
shown (reaffirmation of the right of habeas corpus), (3) No soldiers may be quartered upon
the citizenry, and (4) Martial law may not be used in time of peace.11

United States Declaration of Independence (1776) On July 4, 1776, the United States
Congress approved the Declaration of Independence. 12Its primary author, Thomas

5
Frans Viljoen (Frans Viljoen is Director, Centre for Human Rights, Faculty of Law, University of Pretoria,
South Africa.) International Human Rights Law: A Short History
6
Ibid
7
Ibid
8
Ibid
9
Ibid
10
Ibid
11
Ibid
12
Supra 5
Jefferson, wrote the Declaration as a formal explanation of why Congress had voted on
July 2 to declare independence from Great Britain, more than a year after the outbreak of
the American Revolutionary War, and as a statement announcing that the thirteen
American Colonies were no longer a part of the British Empire 13. Congress issued the
Declaration of Independence in several forms. It was initially published as a printed
broadsheet that was widely distributed and read to the public.14

Philosophically, the Declaration stressed two themes: individual rights and the right of
revolution. These ideas became widely held by Americans and spread internationally as
well, influencing in particular the French Revolution15.

The Constitution of the United States of America (1787) and Bill of Rights (1791)
Written during the summer of 1787 in Philadelphia, the Constitution of the United States
of America is the fundamental law of the US federal system of government and the
landmark document of the Western world. It is the oldest written national constitution in
use and defines the principal organs of government and their jurisdictions and the basic
rights of citizens.16

The Bill of Rights protects freedom of speech, freedom of religion, the right to keep and
bear arms, the freedom of assembly and the freedom to petition 17. It also prohibits
unreasonable search and seizure, cruel and unusual punishment and compelled self-
incrimination. Among the legal protections it affords, the Bill of Rights prohibits Congress
from making any law respecting establishment of religion and prohibits the federal
government from depriving any person of life, liberty or property without due process of
law18.

Declaration of the Rights of Man and of the Citizen (1789) In 1789 the people of France
brought about the abolishment of the absolute monarchy and set the stage for the
establishment of the first French Republic. Just six weeks after the storming of the Bastille,
and barely three weeks after the abolition of feudalism, the Declaration of the Rights of
Man and of the Citizen (French: La Declaration des Droits de l’Homme et du Citoyen) was
adopted by the National Constituent Assembly as the first step toward writing a
constitution for the Republic of France.19
The Declaration proclaims that all citizens are to be guaranteed the rights of “liberty,
property, security, and resistance to oppression.” It argues that the need for law derives

13
Supra 5
14
Supra 5
15
Supra 5
16
Supra 5
17
Supra 5
18
Supra 5
19
Supra 5
from the fact that “the exercise of the natural rights of each man has only those borders
which assure other members of the society the enjoyment of these same rights.” Thus, the
Declaration sees law as an “expression of the general will, “intended to promote this
equality of rights and to forbid “only actions harmful to the society.”20

The First Geneva Convention (1864) In 1864, sixteen European countries and several
American states attended a conference in Geneva, at the invitation of the Swiss Federal
Council, on the initiative of the Geneva Committee. 21The diplomatic conference was held
for the purpose of adopting a convention for the treatment of wounded soldiers in combat. 22
The main principles laid down in the Convention and maintained by the later Geneva
Conventions provided for the obligation to extend care without discrimination to wounded
and sick military personnel and respect for and marking of medical personnel transports
and equipment with the distinctive sign of the red cross on a white background.23

The United Nations (1945) World War II had raged from 1939 to 1945, and as the end
drew near, cities throughout Europe and Asia lay in soldering ruins. Millions of people
were dead, millions more were homeless or starving. Russian forces were closing in on the
remnants of German resistance in Germany’s bombed-out capital of Berlin. In the Pacific,
US Marines were still battling entrenched Japanese forces on such islands as Okinawa.24
In April 1945, delegates from fifty countries met in San Francisco full of optimism and
hope. The goal of the United Nations Conference on International Organization was to
fashion an international body to promote peace and prevent future wars. The ideals of the
organization were stated in the preamble to its proposed charter: “We the peoples of the
United Nations are determined to save succeeding generations from the scourge of war,
which twice in our lifetime has brought untold sorrow to mankind.”25

20
Supra 5
21
Supra 2
22
Supra 2
23
Supra 2
24
Supra 5
25
Supra 5
 The Universal Declaration of Human Rights (1948) By 1948, the United Nations’ new
Human Rights Commission had captured the world’s attention. 26Under the dynamic
chairmanship of Eleanor Roosevelt President Franklin Roosevelt’s widow, a human rights
champion in her own right and the United States delegate to the UN the Commission set
out to draft the document that became the Universal Declaration of Human Rights.
Roosevelt, credited with its inspiration, referred to the Declaration as the international
Magna Carta for all mankind. It was adopted by the United Nations on December 10,
1948.27
In its preamble and in Article 1, the Declaration unequivocally proclaims the inherent rights
of all human beings: “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. All human beings are
born free and equal in dignity and rights.”

Generation of Human Right

When human rights are being discussed, they are often divided up into three categories
called generations. A reflection of the three generations of human rights can be seen in
the popular phrase of the French Revolution: liberty, égalité, fraternity. These generations
of human rights were first formally established by Karel Vesak, a Czech jurist, in 1979.
This division of the types of human rights helps improve conversations about rights,
especially those involving legislation and the role that governments play in human rights.28

First Generation
The human rights of the first generation are civil and political rights of the people. Civil
rights are related to the right to life and personal liberty which includes, right to life,
personal liberty, security, freed om of speech and expression, worship etc. etc. Political
rights are the rights which allow the people to participate in government actions such as
the right to an election.29
Political rights are arising out where there is a clash between people and the Government.
Thus, rights are essential to every individual to reduce government arbitrary action. 30
Civil and political rights together are known as “Liberty Oriented Human Rights” and they
are also called negative rights because they protect people from excesses of the state. The
first generation of human rights speaks about various rights and its importance, it has been
incorporated in different Constitutions of various states.31

26
Supa 5
27
Supra 5
28
Mohammad Reza Sarani, Seyed Hossein Sadeghi, Hossein Ravandeh, “The Concept of “Right” and its
Three Generations”, Print ISSN: 2321-6379, DOI: 10.17354/ijssI/2017/6
29
Ibid
30
Ibid
31
Ibid
The first-generation human rights were also incorporated in the Universal Declaration of
Human Rights, 1948 from Article 3 to 21. Also, in the International covenant on civil and
political rights 1966, American and African instruments of 1969 and 1981, the European
Convention on Human Rights and Fundamental Freedom 1950.32

Example

The right to life

 The right to property
 The right to be seen equal before the law
 The right to receive a fair and public hearing where one is innocent before proven
guilty
 The right to privacy at home
 The right to move and reside anywhere within one’s country
 The right to seek asylum internationally
 The right to marry and found a family
 The right of freedom of belief and religion
 The right of freedom of speech and opinion
 The right to peacefully assemble and associate
 The right to take part in the government directly or indirectly
 The right to periodic and genuine elections
 The right to have free choice of employment
 The right to be protected from compulsion to join an organization
 The right to be protected against slavery
 The right to be protected against torture and cruel punishment
 The right to be protected against arbitrary exile or arrest
 The right as a parent to choose the type of education for your child
 The right to hold ownership over any scientific, literary, or artistic production one
creates

Civil and Political rights

Right to Liberty and Security of the Person The right of everyone to "life, liberty and
security of person" is stated in the article 3 of the Universal Declaration of Human Rights,
whereas article 9 forbids "arbitrary arrest, detention or exile." 33 These provisions are of
great importance for mentally disabled persons who are subject to unlawful detention.
Furthermore, article 8 of the International Covenant on Civil and Political Rights states

32
Ibid
33
Aulona HAXHIRAJ, “The Covenant on civil and political rights”, Juridical Tribune, Volume 3, Issue 2,
December 2013, Page 309
“except on such ground and in accordance with such procedures as are established by law" 34

Right to Equal Protection Before the Law Article 6 of the Universal Declaration of
Human Rights proclaims the right of everyone to be recognised as a person before the law.
35 It focuses on the legal position of the individual. Everyone includes disabled people
even if it is not specifically stated. Article 7 recognises the right to equality before the law
and to the equal protection of the law without discrimination.36

The International Covenant on Civil and Political Rights speaks in article 16 of the rights
of every person to recognition as a person before the law. Article 26 develops that
statement stating that the law shall prohibit any discrimination and guarantee effective
protection against discrimination. Even if disability is not expressly included in the grounds
belonging to the article, it can be included under other status.37

Right to Freedom of Assembly All persons have the right to freedom of peaceful
assembly and association, and no one can be compelled to belong to an association38.

Another aspect of this right constitutes a right to take part in the government of one's
country, directly or through freely chosen representatives.

Article 20 of the Universal Declaration of Human Rights provides the right, clearly and
basically. It is the reference article that is less controversial. It uses some precise words
and expressions, without provisions39.

Article 21 of the International Covenant on Civil and Political Rights deals with the right
of peaceful assembly. It introduces some provisions due to the necessity to protect a
democratic system, the interest of national security or public safety, public order, health,
morals, and protection of the rights or freedom of others. Article 22 of the text reiterates
the right to freedom of association, and provides for the right to join trade unions. It
emphasizes the role of trade unions in the defence of the workers and the prevention of all
kinds of disabilities due to working conditions.40

Right to be Free from Torture

Some deliberately inflicted forms of punishment and other such treatments are a major
cause of disability. They belong to the kind of practices that are identified as serious
violations of international law, including human rights. 41One can discern the following

34
Ibid
35
Ibid
36
Ibid
37
Ibid
38
Ibid
39
Ibid
40
Ibid
41
Article 2, par. 1 of the Covenant on Civil and Political Rights
practices, which are serious violations: amputation as punishment, institutional abuse,
forced sterilisation, castration and female circumcision, and blinding of detainees42.

No religious tenet or any other cultural practice can justify or excuse such acts. They are
contrary to basic human rights, and obviously to the right to equal individual worth and
human dignity, as well as to the integrity of the body 43. Therefore, certain punishments, which
are deliberately intended to disable the individual, are contrary to international human
rights and humanitarian law.44

Right to Freedom of Expression Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media 45. It also includes the right to
freedom of thought, conscience and religion. It deals also with freedom to change one's
religion or belief and to engage in the teaching, practice, worship and observance, either in
public or private, alone or in community. Disabled persons have the same right to freedom
of expression as any other person.46

Freedom from Discrimination Freedom from discrimination is one of the underlying

principles of human rights, which are based on the equal worth and dignity of all human
beings. It is included in all international and regional human rights conventions.47

Article 1 of the Universal Declaration of Human Rights states that "all human beings are
born free and equal in dignity and rights." (emphasis added). Article 2 provides that
"everyone is entitled to all the rights and freedoms set forth in this Declaration, without
distinction of any kind". Article 7 states: "All are equal before the law and are entitled
without any discrimination to equal protection of the law. All are entitled to equal
protection against any discrimination in violation of this Declaration and against any
incitement to such discrimination" (emphasis added). 48Article 16 speaks of the equal right
of men and women to marry. Article 23 (2) states that “everyone, without any
discrimination, has the right to equal pay for equal work." (emphasis added). Article 25 (1)
is of particular importance for disabled women: "Everyone has the right to a standard of
living adequate for the health and well-being of himself and his family, including food,
clothing, housing, and medical care and necessary social services, and the right to security
in the event of unemployment, sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control." (emphasis added). Article 26 provides a

42
Ibid
43
Ibid
44
Ibid
45
Christian Tomuschat; International Covenant on Civil and Political Rights; Professor emeritus at
Humboldt University, Berlin
46
Ibid
47
Supra 28
48
Supra 28

14
right to education for all. And Article 27 provides a right to cultural life in the community
for all49.

Access to the Judicial System

It has often been argued that the right to legal assistance is the cornerstone for all other
human rights. The right to legal assistance exists within the broader mandate of the right
to a fair trial50. The right to legal assistance is also grounded on broader principles of
international human rights law. Even though there is no explicit provision in human rights
treaties discussing access to courts as a principle of international human rights law, the
concept has been found to be implicit in the statement that "all persons shall be equal
before the courts and tribunals", found in all major human rights treaties.51

Article 14, para. 3 (d) of the ICCPR states that all persons have the right

"to be tried in his presence, and to defend himself in person or through legal assistance of
his own choosing; to be informed, if he does not have legal assistance, of his right; and to
have legal assistance assigned to him, in any case where the interests of justice so require
and without payment by him in any such case if he does not have sufficient means to pay
for it."

Participation in Political Life

Article 21 of the Universal Declaration of Human Rights provides that everyone has the
right to take part in the Government of his country, either directly or indirectly, through
freely chosen representatives. Periodic and genuine elections shall be open to every citizen
of the country, with universal and equal suffrage. Voting stations shall be fully accessible
to disabled people52.

Article 25 of the ICCPR states that every citizen has the right without unreasonable
restrictions to take part in the conduct of public affairs, and to vote and be elected at
genuine periodic elections. It also requires equal access to public services in the country53.

49
Supra 28
50
Supra 1
51
Supra 28
52
Supra 45
53
Supra 45

15
 Are economic, social and cultural rights fundamentally different from
civil and political rights?
No. In the past, there has been a tendency to speak of economic, social and cultural rights
as if they were fundamentally different from civil and political rights. While the Universal
Declaration of Human Rights made no distinction between rights, the distinction appeared
in the context of the deepening cold war tensions between East and West. The market
economies of the West tended to put greater emphasis on civil and political rights, while
the centrally planned economies of the Eastern bloc highlighted the importance of
economic, social and cultural rights. 54This led to the negotiation and adoption of two separate
Covenants one on civil and political rights, and another on economic, social and cultural rights.
However, this strict separation has since been abandoned and there has been a return to the
original architecture of the Universal Declaration. In recent decades, human rights treaties such
as the Convention on the Rights of the Child or the Convention on the Rights of Persons with
Disabilities have integrated all rights.55
Second, economic, social and cultural rights have been seen as requiring high levels of
investment, while civil and political rights are said simply to require the State to refrain
from interfering with individual freedoms. It is true that many economic, social and
cultural rights sometimes require high levels of investment both financial and human to
ensure their full enjoyment. However, economic, social and cultural rights also require the
State to refrain from interfering with individual freedoms, for instance trade union
freedoms or the right to seek work of one’s choosing. Similarly, civil and political rights,
although comprising individual freedoms, also require investment for their full realization.
For example, civil and political rights require infrastructures such as a functioning court
system, prisons respecting minimum living conditions for prisoners, legal aid, free and fair
elections, and so on56.
Finally, in reality, the enjoyment of all human rights is interlinked. For example, it is often
harder for individuals who cannot read and write to find work, to take part in political
activity or to exercise their freedom of expression. Similarly, famines are less likely to
occur where individuals can exercise political rights, such as the right to vote.
Consequently, when closely scrutinized, categories of rights such as “civil and political

54
International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, Annex to G.A. Res. 2200,
21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966) (entered into force Mar. 23, 1976) [hereinafter
ICCPR)

55
Ibid
56
Ibid
rights” or “economic, social and cultural rights” make little sense. For this reason, it is
increasingly common to refer to civil, cultural, economic, political and social rights. 57

Constitutional Framework on Civil and Political rights

The Human Rights in India originated long time ago. It can easily be recognized from the
principles of Buddhism, Jainism. Hindu religious books and religious texts like Gita,
Vedas, Arthasatra and Dharmashstra also contained provisions of human rights. Muslim
rulers like Akbar and Jahangir were also very much appreciated for his regard for rights
and justice. During the early British era, the people suffered a great violation of several
rights and this led to the birth of modern Human Rights jurisprudence in India58.

On January 24, 1947, Constituent Assembly voted to form an advisory committee on

Fundamental Rights with Sardar Patel as the Chairman. Drafted list of rights was prepared
by Dr. B. R. Ambedkar, B. N. Rau, K. T. Shah, Harman Singh, K. M. Musnshi and the
Congress expert committee. Although there were few amendments proposed, there was
almost no disagreement on the principles incorporated. The rights in the Universal
Declaration of Human Rights were almost completely covered in the Indian Constitution
either in Fundamental Rights or Directive Principles of State Policy 59. Nineteen
fundamental rights were covered in Motilal Nehru Committee Report, 1928 out of which
ten appear in the Fundamental Rights whereas three of them appear as Fundamental
Duties60.

Part-III of the Constitution of India

Human rights are those minimal rights which every individual must have against the
state or public authorities by virtue of which being a member of human family
irrespective of any other consideration. When human rights are guaranteed by a
written constitution they are called "fundamental rights" because a written
constitution is a fundamental law of a State. Human Rights are not created by any
legislature. They assume the position of natural rights. 61These rights provide the
suitable condition for the material and moral uplift of the people because of their
immense significance to the human beings; human rights are also sometimes
referred as fundamental rights, basic rights, inherent rights, natural rights, and birth
right. Human rights are being essential for all round development of personality of
the individuals as the society, being necessarily protected and being made available

57
Ibid
58
Saumendra Das and N. Saibabu (2014), “Indian Constitution: An Analysis of the Fundamental Rights
and the Directive Principles”, ARS – Journal of Applied Research and Social Sciences, Vol.1, Issue.17,
December 2014, ISSN 2350-1472″.
59
Ibid
60
Ibid
61
Ibid
 to all individuals.62 As a result, these rights have become established as guaranteed
human rights

Part III (Article III) of the Indian Constitution deals with Fundamental rights:
There are six fundamental rights listed in the Constitution of India. Article 14 to
18 of the Constitution guarantee the right to equality to every citizen of India.
Article 14 embodies the general principle of equality before law and prohibits
unreasonable discrimination between persons. Article 14 embodies the idea of
equality expressed in the Preamble. The succeeding Articles 15, 16, 17 and 18 lay
down the specific application of the general rules laid down in Article 14. Article
15 relates to prohibition of discrimination on the ground of religion race, caste, sex
or place of birth. Article 16 guarantees equality of opportunity in matters of public
employment. Article 17 abolishes untouchability. Article 18 abolishes title63.

Six fundamental rights in the nature of freedoms which are guaranteed to the
citizens by Article 19. These fundamental freedoms are freedom of speech, and
expression, freedom of assembly, freedom to form associations, freedom of
movement, freedom to reside and to settle, freedom of movement, freedom of trade
occupation trade or business64.

Article 20 provides safeguards to the persons accused of Crimes such as protection

against Ex post facto law, Double Jeopardy, Prohibition against self-incrimination.
Article 21 of the Constitution says that "No person shall be deprived of his life or
personal liberty except according to procedure established by law." The right
guaranteed in Article 21 is available to 'citizens as well as non-citizens65.

 Right to equality (Article 14-18)

 Right to freedom (Article 19-22)
 Right against exploitation (Article 23-24)
 Right to freedom of religion (Article 25-28)
 Cultural and educational rights
( Article 29-30)
 Right to property is now very much diluted and is secured to some extent by
Article.300A, 31A, 3B, 31C.
 Right to constitutional remedies
(Article 32-35)

62
Ibid
63
Supra 58
64
Amartish Kaur (2017), “Protection of Human Rights in India – A Review”, Jamia Law Journal, Vol.2
65
Ibid
 SUPREME COURT ON HUMAN RIGHTS

The progress of any society is dependent upon proper application of law to its needs and
since the society today realizes more than ever before its rights and obligations, the
judiciary has to mould and shape the law to deal with such rights and obligations. 66It is thus
clear that within certain limits judges have the power of profoundly influencing the system of
law and contributing to its substance. Courts enable the law to keep pace with the changing
conditions. Numerous illustrations can be presented from the laws of various countries which
show that courts with their creative function kept the law abreast with time without any formal
change in it.67 This process of development of law is so well illustrated by how from A.K.
Gopalan to Maneka Gandhi, it took the supreme court of India more than a quarter of a
century to read a new dimension into Art 21 of the Indian constitution 68.

Safety of life and liberty of a person are most significant Human Rights in any ordered
society. The Protection of Human Rights Act, 1993 has now defined "Human Rights30"
Under the Act31 "Human Rights" means the rights relating to life, liberty, equality and
dignity of the individual guaranteed by the constitution. The rights relating to life, liberty,
equality and dignity of the individual are guaranteed by part III of Indian Constitution. In
the beginning the judiciary has a conservative attitude towards this right and checks only
bad provisions, judiciary limited the scope of the expression personal liberty, to bodily
restrains only.

In A.K Gopalan V. State of Madras 69personal liberty was held to mean liberty of the
physical restrains of body only. In this case, the majority held that the expression,
'procedure established by law' means procedure prescribed by the law of the state i.e., this
right is guaranteed against executive arbitrariness and if the following conditions are
satisfied, once liberty may be deprived:

(i) There should be a law

(ii) Law should be a valid law

(iii) The procedure laid down by law should be followed.

Court refused to infuse in that procedure the principles of natural justice. The court also
arrived at the conclusion that Article 21 excluded enjoyment of the guaranteed under
article 19 Because, Article 19, according to the court, postulated legal capacity to exercise
the rights guaranteed by it. But this restrictive interpretation of the Article 21 has not been

66
Supra 64
67
Supra 64
68
Supra 64
69
AIR 1950 SC 27
accepted in the subsequent cases. The term life cannot be confined only to take away of
life70.

In an American case (Munn v. Illinois), 71it was held that, right to life means something
more than mere animal existence. The Supreme Court of India upheld this in Kharak Singh
v. State of U.P34 and said Art 21 means not merely the right to the continuance of
person’s animal existence, but a right to the possession of his organs, his arms and legs
etc.72

In the case of Anwar v. State of Jammu & Kashmir, it was held that the protection
guaranteed under article 21 extends to all persons, not merely citizens, including even
persons under imprisonment. A prisoner has the right to freedom of expression reading and
writing except in so for as it is circumscribed by the fact of imprisonment.73

In Menaka Gandhi v. Union of India Indian Supreme Court pronounced a landmark

judgment that the procedure contemplated by Article 21 should be in conformity with the
principles of natural justice and unless it was so, it would be no procedure at all; the
requirement of Article 21 would not be satisfied.74

In Icchu Devi Choraria vs. Union of India 75the court declared that personal liberty is a
most precious possession and that life without it would not be worth living. Terming it as
its duty to uphold the right to personal liberty, the court condemned detention of suspects
without trial observing that “the power of preventive detention is a draconian power,
justified only in the interest of public security and order and it is tolerated in a free society
only as a necessary evil”. Dear ones of a person who has been deprived of life by their
wrongful action, reading into Article 21 the “duty of care” which could not be denied to
anyone. For this purpose, the court referred to Article 9 (5) of the International Covenant
on Civil and Political Rights, 1966 which lays down that “anyone who has been the victim
of unlawful arrest or detention shall have an enforceable right to compensation”.76

In Smt. Nilabati Behera @ Lalita Behera vs. State of Orissa & Ors. 77the Supreme
Court asserted the jurisdiction of the judiciary as “protector of civil liberties” under the
obligation “to repair damage caused by officers of the State to fundamental rights of the
citizens”, holding the State responsible to pay compensation to the near and dear ones of a
person who has been deprived of life by their wrongful action, reading into Article 21 the
“duty of care” which could not be denied to anyone. For this purpose, the court referred to
Article 9 (5) of the International Covenant on Civil and Political Rights, 1966 which lays

70
Ibid
71
94 US 133:24 Led 77 (1877)
72
A.I.R. 1963 SC 1295
73
A.I.R. 1971 SC 337
74
AIR 1978 SC 597
75
1980 SCC 531
76
Ibid
77
(1993)2 SCC 746
down that “anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation”.78

In Joginder Kumar vs. State of UP and Others 79the court ruled that “the law of arrest
is one of balancing individual rights, liberties and privileges on the one hand and
individual duties, obligations and responsibilities on the other; of weighing and balancing
the rights, liberties of the single individual and those of individuals collectively”.80

In Delhi Domestic Working Women’s Forum vs. Union of India & Others the Court
asserted that “speedy trial is one of the essential requisites of law” and that expeditious
investigations and trial only could give meaning to the guarantee of “equal protection of
law” under Article 21 of the Constitution. 81

In People’s Union for Civil Liberties [PUCL] vs. Union of India and another the dicta
in Article 17 of the International Covenant on Civil and Political Rights, 1966 was treated
as part of the domestic law prohibiting “arbitrary interference with privacy, family, home
or correspondence” and stipulating that everyone has the right to protection of the law
against such intrusions.82

In D.K. Basu vs. State of West Bengal 83, the Court found custodial torture “a naked
violation of human dignity” and ruled that law does not permit the use of third-degree
methods or torture on an accused person since “actions of the State must be right, just and
fair, torture for extracting any kind of confession would neither be right nor just nor fair”.
In cases of custodial deaths, judiciary can issue a writ of mandamus directing the state to
grant compensation to the victim’s family; 5 Lakhs compensation was granted in a case of
custodial death. In recent years supreme Courts treats delay in execution of death sentence,
as violation of Human Right. It was held that if supreme Courts find that delay in
execution of death sentence is undue. “The court would quash the capital Punishment” and
substitute for it the sentence of life imprisonment to that person. 84

In Vishaka & Ors. vs. State of Rajasthan & Ors 85., Supreme Court said that “gender
equality includes protection from sexual harassment and right to work with dignity, which
is a universally recognized basic human right. The common minimum requirement of this
right has received global acceptance. In the absence of domestic law occupying the field,
to formulate effective measures to check the evil of sexual harassment of working women

78
Ibid
79
(1994) 4 SCC 260
80
Ibid
81
(1995) 1 SCC 14
82
AIR 1997 SC 568
83
AIR 1997 SC 610
84
Ibid
85
(1997) 6 SCC 241

22
at all workplaces, the contents of international conventions and norms are significant for
the purpose of interpretation of the guarantee of gender equality, right to work with human
dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against
sexual harassment implicit therein and for the formulation of guidelines to achieve this
purpose86in the absence of enacted law to provide for the effective enforcement of the
basic human right of gender equality and guarantee against sexual harassment and abuse,
more particularly, guidelines and norms are hereby laid down for strict observance at all
workplaces or other institutions, until a legislation is enacted for the purpose. This is done
in exercise of the power available under Article 32 for enforcement of the fundamental
rights and it is further emphasized that this would be treated as the law declared by the
Supreme Court under Article 141 of the Constitution.”87

86
Ibid
87
Ibid

23
Conclusion
The Hypothesis is proved, “current legal framework of human right (civil and political
rights) does not protect in democratic countries (Mainly focus in India). to protect principle
of human rights and law of human right are just imaginary to a utopian state’. Because, the
state on the ground of reasonable restriction, fear of state security, maintenance of peace
and public order, made certain legislations, which are regularly violate human rights
principle, like in India have long history for violation of human rights principles especially
civil and political rights. Ex prevention detention act, Maintenance internal security act,
Unlawful Activities prevention act, and National security act. In these aspect state use as
tool for prevent the voice against majoritarian political party or ruling govt. by means of
maintenance of security of state and maintenance of peace and social order, state regularly
violate principle of human rights and laws of human rights.

During emergency period, almost all political activists, who raised their voice against the
policy of the Government detained on the ground of maintenance of peace and internal
security and imposed MESA. In J&K people have detained without any ground only mere
falls averment, in current prospective, any person who raised their voice against hypocrite
policy of government have imposed UAPA and NSA on the ground of maintenance of
peace and social order and security of state which are very vague subjective ground and
most debatable topic. So, the question is that whom the state have fear, own citizens or
outsiders, its most frequently asked question in debate. So, the hypothesis is proved current
legal framework of human right (civil and political rights) does not protect in democratic
countries (Mainly focus in India). to protect principle of human rights and law of human
right are just imaginary to a utopian state.