Unit ii normative foundation

UNIT II
NORMATIVE FOUNDATION OF HUMAN
RIGHTS

The Normative and Institutional Evolution of
International Human Rights
-Thomas
Buergenthal
 Protection of Human Rights has no international boundaries.
 The Charter has given rise to various international and
regional human rights law and international institutions and
mechanism.
 Evolution of human rights can be dived into three stages:-
 Enforcement of U N Charter 1945 till ICCPR 1966
 Charter was less effective in international system for
protection of human rights and moreover countries were not
prepared for strong commitments.
 Second stage begins from late 1960s
 Third stage began in post cold war era and it continues.
 Fourth stage –individual criminal responsibility

UNIT II
INSTRUMENTS OF HUMAN RIGHTS
 Universal Declaration of Human Rights
(UDHR) and Indian Constitution
 International Covenant on Civil and Political
Rights (ICCPR) and Indian Constitution
 International Covenant on Economic, Social
and Cultural Rights (ICESCR) and Indian
Constitution

UNIVERSAL DECLARATION OF HUMAN
RIGHTS AND INDIAN CONSTITUTION
 Indian Constitution was framed by
Constituent Assembly on December 9, 1946.
 When the Indian Constitution was in the
making, the General Assembly proclaimed
UDHR.
 Indian was a signatory to UDHR.
 UDHR influenced the framing of Indian
Constitution. Many of Fundamental Rights
guaranteed to individual are similar to
UDHR provisions.

Indian Constitution
Fundamental Rights – Part III (Article 14-
35)
Directive Principles of State Policy- Part IV
(Article 36- 51)
Fundamental Duties- Part IVA (Article 51A)

PREAMBLE
 Preamble is the key to understand the provisions of the
Constitution.
 WE, THE PEOPLE OF INDIA, having solemnly
resolved to constitute India into a _[SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC
REPUBLIC] and to secure to all its citizens:
JUSTICE, social, economic and political;
 LIBERTY of thought, expression, belief, faith and
worship;
 EQUALITY of status and of opportunity;
 and to promote among them all
 FRATERNITY assuring the dignity of the individual
and the [unity and integrity of the Nation];
 IN OUR CONSTITUENT ASSEMBLY this twenty-
sixth day of November, 1949, do HEREBY ADOPT,
ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.

Similarities between
Universal Declaration of
Human Rights and
Indian Constitution

Name of Rights UNIVERSAL
DECLARATION
OF HUMAN
RIGHTS
INDIAN
CONSTITUTIO
N
Equality before law Article 7 Article 14
Equality of opportunity in
matters of public
employment
Article 21(2) Article 16(1)
Protection of certain
rights
regarding freedoms of
speech, etc,
Article 19 Article 19(1) A
Protection of life and
personal liberty
Article 9 Article 21
Prohibition of tracking in
human beings and
forced labour

Freedom of conscience
and free
Profession practice
and propagation
of religion
Article 18 Article 25 (1)
Protection of Interests of
minorities
Article 22 Article 29 (1)
Right of minorities to
establish and
administer Educational
Institutions
Article 20(3) Article 30(1)
Right to property Article 17 (2) Not a fundamental rights
after amendment 44, but
now in Article 300A
Remedies for
enforcement of rights
conferred by this part

 CASES:-
 Rural Litigation And Entitlement Kendra vs.
State Of U.P. & Ors on 12 March, 1985
- Equivalent citations: 1985 AIR 652, 1985
SCR (3) 169
 Maneka Gandhi vs. Union of India AIR 1978
SC 597
Section 10(3)(c) of the Passport Act is
violative of Article 14 of the Indian
Constitution as it confers vague and
undefined power on the passport authorities.

International Bill of Human Rights
UDHR
ICCPR
ICESCR

ICCPR
 ICCPR was adopted on 19 December 1966, and it
came in force from 23 March 1976.
 The covenant commits its parties to respect the
civil and political rights of individuals, including
the right to life, freedom of religion, freedom of
speech, freedom of assembly, electoral rights
and rights to due process and a fair trial.
 As of February 2017, the Covenant has 169
parties and six more signatories without ratification.

Similarities
between ICCPR
and Indian
Constitution

Rights Covenant on
Civil and
Political Rights
Indian
Constitution
Prohibition of tracking in
human beings and
forced labor
Article 8(3) Article 23
Equality before law Article 14(1) Article 14
Prohibition of
discrimination on
ground of religion, race,
caste,
sex or place of birth
Equality of opportunity in
matters of public
employment
Article 25(c) Article 16(1)
Protection of certain
rights
Article 19(1, 2) Article 19

To assemble peaceably
and
without arms
Article 21 Article 19 (1b)
To form association or
unions
Article 22(1) Article 19(1c)
To move freely
throughout
the territory of India
Article 12 (1) Article 19(1d,e,g)
Protection in respect of
conviction for offences
Article 15(1)
Article 14 (7)
Article 20(1)(2)
No person accused of
any offence shall be
compelled to be a
witness against himself
Article 14(3g) Article 20(3)
Protection of life and
personal liberty
Article 6 (1),
Article 9 (1)
Article 21
Protection against arrest
and
detention in certain
Article 9 (2,3,4) Article 22

Monitoring Body under ICCPR
 The ICCPR is monitored by the United Nations Human
Rights Committee (a separate body to the United
Nations Human Rights Council), which reviews regular
reports of States parties on how the rights are being
implemented.
 States must report initially one year after acceding to
the Covenant and then whenever the Committee
requests (usually every four years). The Committee
normally meets in Geneva and normally holds three
sessions per year.

ICESCR
 Adopted and opened for signature, ratification and
accession by General Assembly on 16 December
1966 and it entered into force 3 January 1976.
 ESCR are human rights concerning the basic
social and economic conditions needed to live a
life of dignity and freedom, relating to work and
workers’ rights, social security, health, education,
food, water, housing, healthy environment and
culture.

Economic, Social
and Cultural rights proclaimed
in the Universal Declaration of
Human Rights have been
incorporated in part IV of the
Indian
Constitution

Name of Right Covenant on
Economic, Social
and Cultural
Rights
Indian
Constitution
Equal pay for equal work Article 7a (1) Article39d
Provision for just and
humane
conditions of work and
maternity relief
Article 7b Article 42
Right to work, to
education and
public assistance in
certain cases
Article 6(1) Article 41
Opportunity for children Article 10 (3) Article 41f
Compulsory education
for children
Article 13 (2a) Article 45
Living wage, etc, for
workers
Article 7(a)(11)
Article 7 (d)
Article 43

Among the rights guaranteed to all human being under
international treaties, without any discrimination on
grounds such as race, colour, sex, language, political
or other opinion, national or social origin, property,
birth or other status, are:
 The right to the highest attainable standard of health
 The right to work and just and favourable working
conditions
 The right to adequate food
 The right to adequate housing
 The right to water and sanitation
 The right to social security
 The right to education
 The right to cultural expression
 The right to participate in cultural life
 Freedom from arbitrary interference with privacy,
family, home or correspondence.

Monitoring Body of ICESCR
The Committee on Economic, Social and
Cultural Rights (CESCR) is the body of 18
independent experts that monitors
implementation of the International
Covenant on Economic, Social and
Cultural Rights by its States parties.

Unit ii normative foundation

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Unit ii normative foundation