Udhr and indian constitution

UDHR and how it has impacted Indian Constitution and has been a constant inspiration for the judiciary to ensure the widest possible interpretation of constitutional provisions specifically those related to human and fundamental rights.

1. Universal Declaration of Human Rights and Constitution of India

2. UDHR- Introduction Universal Declaration of Human Rights- a mile stone document in history of human rights. The declaration was a tool to repair the degradation of human life due to war and several other reasons. Aims at universally protecting fundamental human rights Has been translated into 500 languages till now. The Declaration was passed on December 10, 1948 by its resolution 247 A (III) in Paris.

3. Brief History The world leaders decided to compliment the UN Charter with a road map to grantee rights of individuals. The document was taken up at the first session of G.A. 1946 Assembly transmitted it to ECOSOC for referring the same to Commission for Human Rights. Final draft handed to commission, at Geneva was sent to member states for comments, called the Geneva Draft First draft of declaration was proposed in September, 1948, UDHR finally adopted by General Assembly in Paris, by its 217 A (III) resolution of December 10, 1948. The entire UDHR text was Composed in 2 years .

4. The Drafters of UDHR Dr. Charles Malik ( L ebanon), Committee Rapporteur Alexander Bogomolov (USSR) Dr. Peng Chung Chang (China), Vice Chairman Rene Cassin (France) ,composed the draft Eleanor Rooselvelt (USA), chaired UDHR Committee Charles Dukes (UK) William Hodgson (Australia) Hernan Santa Cruz (Chile) John P. Humphery (Canada)

5. Women Participation Eleanor Rooselvelt : First chairperson of the Commission on Human Rights. Hansa Mehta : Only other female delegate to UN Commission on Human Rights 1947-48. she emphasized the phrase from “all men are born free and equal” to “all human beings are born free and equal” in Article 1 of UDHR Minerva Bernardino : feminist leader, argued for equality of men and women in UDHR Begum Shaista Ikramullah : Delegate to General Assebly third committee on social, humanitarian, and cultural matters, emphasized on equal rights in marrige - a way to combat child marriges Bodil Begtrup : Chairperson on sub-commission on status of Women in 1946 and commission on Satus of women in 1947. proposed including minority rights under article 26. her ideas were too controversial at that time Marie Helene Lefaucheux : Chairperson of Commission on Status of women 1948, advocated for non-discrimination on the basis of sex to be included in Article 2 Evdokia Uralova : Rapporteur of Commission on status of Women. Argued for Equal pay for women Lakshmi Menon : Indian Delegate to General Assembly’s Third Committee,1948. opposed the concept of Colonial relativism.

6. Preamble Preamble: Dignity, equal and inalienable rights of all members of human family. Protection of human rights by the Rule of Law Development of friendly relations among nations Pledge to achieve promotion of universal respect for and observance of human rights and fundamental freedoms in cooperation with UN UDHR- Common standard of achievement for all people and all nations Strive by teaching and education to promote respect for these rights and freedoms and by progressive measures both at national and international level.

7. Few Rights and freedoms No distinction on the basis of race, colour , sex, language, religion, political or other opinion, national or social origin, property, birth or other status.( Articla 2) Right to life, liberty and security of person to everyone.(article 3) Prohibition on slavery (article 4) Equality before law and Equal protection before law.(article 7) Right to effective remedy in tribunals for infringement of fundamenta rights granteed by constitution or any other law.(article 8) Right against arbitrary arrest, detention or exile. (article 9) Right to fair public hearing (article 10) Right to be presumed innocent until proven guilty, ex-post facto laws (article 11) Freedom of movement, right to leave one’s country including his own and to return his country. (article 13) Right to a nationality (article 15) Right to marry (article 16) Freedom of thought, conscience and religion (article 18) Freedom of speech and expression (article 19) Right to peaceful assembly and associations (article 20) Right to education (article 26)

8. UDHR- Influence Foundation of Human right law, has inspired a rich body of legally binding international human right treaties Has inspired more than 80 international human right treaties, great number of regional human right conventions, domestic human rights bills International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights entered into force in 1976, develop most of the rights enshrined in the UDHR. UDHR and the two covenants form the International Bill of Human Rights. All UN members have ratified at least one of the nine core international human rights treaties. 80% members have ratified four or more international human right treaties.

9. UDHR and Indian Constitution The Indian Constitution was adopted on November 26,1949 and on J anuary 26, 1950 came into force, the lengthiest Constitution of the world spread over 22 chapters and 395 articles. While UDHR was in making Indian Constituent was too in developing phase. However the UDHR was adopted before the Indian Constitution. The Part III and IV of the Constitution has a striking resemblance with the UDHR, which may lead to the belief that Indian Constitution borrows few provisions from the UDHR, but this might not be true. As per the Constitutional Assembly Debates, Fundamental rights were discussed before 10 th December, 1948 except for inclusion of Article 21. Also the Indian representatives who signed the declaration were not the part of both Drafting Committee or the Constitutional Committee. It may be doubtful to say that it is borrowed however denying any kind of influence is also not possible as it cannot be ignored that Part III and Part IV is majorly analogous to UDHR.

10. UDHR and Indian Constitution

11. UDHR and Indian Constitution The Indian Constitution may not have borrowed anything directly from the Declaration but it surely has influenced it. The Indian Judiciary as oftenly referred the UDHR while interpreting the Constitution. The Judiciary has not restricted itself to what was originally laid in the Constitution and the intention of framers but has tried to give a wide interpretation to the human rights by referring to international instruments and UDHR is one among them. Satwant Singh v. Asst. Passport officer India AIR 1967 SC 1836- while discussing the right to travel abroad the Supreme Court while referring to Article 13 of UDHR said that while everyone holds the right to leave any country including his own country and return back, the right is not applicable to criminals avoiding penalties or people who are likely to create international or to people who may disgrace the country abroad.

12. UDHR and Indian Constitution Prem Shankar Shukla v Delhi Administration AIR 1980, SC 1535- (telegram sent to court by a prisoner complaining about forced handcuffing and humiliation, torture of being held in irons in public, and hand cuffing of the under trials despite court’s direction not to do so) the case involved Individual’s personal liberty under articles 14, 19 and 21. Amicus Curiae to the court stated that the court and counsel must not forget the core principle of Article 5 of UDHR “no one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment even while discussing Statutory provisions. Nawabkhan Abbaskhan v. State of Gujrat AIR,1974 SC 1471- the court discussed the unreasonable infringement of Fundamental right by the externment order passed in violation of Audi Alteram Partam by the police in the current case and stated that it is a basic principle of human rights law like UDHR that no free man shall be taken, nor imprisoned, nor disseised , nor outlawed, nor banished, nor destroyed in any way.

13. UDHR and Indian Constitution People’s Union for Civil Liberties v. U.O.I- Telephone tapping of Politicians by CBI. The Supreme Court held Telephone tapping as a serious invasion of person’s privacy. The court gave a wide interpretation to Article 19 (1)(a) by saying that Freedom of Speech and expression includes the right to express freely, right to privacy by itself has not been identified by the Constitution but it has been a well established fundamental human right in UDHR Article 12 and ICCPR Article 17. The court also held that the scope of International law today isn’t just confined to regulation of State relations but has been extended tremendously. Telephone tapping was considered as invasion of one’s privacy and cannot be done unless in interest for national security, public order. Francis Corail Mullin v. Administrator UT Delhi- the court while interpreting the scope of Article 21, said that Article 21 of Indian Constitution, right to life and personal liberty includes not only limb and faculty through which life is protected but also includes bare necessities such as nutrition, shelter, clothing, facilities of reading and writing, expression of self, freely moving around, mixing and commingling with human beings. The Court held that Article 5 of UDHR, Right to protection against torture, cruel, degrading treatment was implicit in the Article 21 of the Indian Constitution.

14. UDHR and Indian Constitution Indian Express Newspaper Pvt. Ltd. v U.O.I – while discussing the freedom of press included in the Freedom of Speech and Expression itself the court referred to Article 19 UDHR, “Right to Freedom of Opinion and Expression, includes freedom to hold opinion without interference and to seek, receive and impart information and ideas through any media regardless of frontiers. Chairman Railway Board and Ors . v. Mrs. Chandrima Das-The Supreme Court has stated UDHR as Moral Code Of Conduct, while deciding the matter on the basis of Domestic Jurisprudence based on Constitutional provisions and human rights Jurisprudence based on UDHR.