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.
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 (Lebanon), 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
January 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 10th 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
Rights and Freedoms UDHR Indian
Constitution
No discrimination on the basis of race,
colour, sex, language, religion,
Article 2 Article 15
Right to life and liberty Article 3 Article 21
Prohibition on slavery Article 4 Article 23,24
Equality before law, equal protection before
laws
Article 7 Article 14
Right to an effective remedy for
infringement of fundamental rights
Article 8 Article 32
Right against arbitrary arrest, detention
and exile
Article 9 Article 22
Right to fair public legal hearing Article 10 Article 39A
Protection against ex post facto laws Article 11 Article 20
Right to privacy Article 12 Article 21
11. Freedom of movement Article 13 Article 19
Right to property Article 17 Article 31
Freedom of thought, conscience and religion Article 18 Article 25
Freedom of opinion and expression Article 19 Article 19
Right to peaceful assembly Article 20 Article 19
Right to Social, Security Article 22 Article 38
Right to work, equal pay for equal work Article 23 Article 41
Special care of mother hood and special
care of children
Article 25 Article 45
Right to education Article 26 Article 21 A
Right to freely participate in cultural life of
community, enjoy arts and share in
scientific advancement
Article 27 Article 29, 30
Duty towards the community for free and
full development of personality.
Article 28 Article 51 A
12. 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.
13. 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.
14. 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.
15. 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.
