Human Rights And The Constitution - The Tension Between Textualism And Porposivism
Author: LawSphereX
Category: Constitutional & Human Rights
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HUMAN RIGHTS AND THE CONSTITUTION: THE
TENSION BETWEEN TEXTUALISM AND PORPOSIVISM
Dushyant Mehan, RIMT School of Legal Studies, RIMT University Aish Sajjan, RIMT School of Legal Studies, RIMT University
ABSTRACT
Human rights have been a part of us from the beginning of a civilized society. The concept of human rights gained importance after the end of the Second World War. Many conventions and treaties happened at the international level to promote and protect human rights, like the UN Charter, 1945. The Constitution of India is also based on human rights. The Indian Constitution is based on the rule of law, which is the soul of human rights. Fundamental rights and Directive Principles of State Policy are based on the concept of human rights. Human rights do not mean to live life generally because of being a human; it gives all the rights that are important to live life in a progressive way in all the fields of society, and the Indian Constitution has all the provisions that are linked with the civil, political, cultural, and economic aspects of society.
Articles 14, 19, and 21 of the Indian Constitution, are the core of the Fundamental Rights, which were made by taking into consideration the natural rights of the human. Natural rights give birth to the concept of human rights, which inspired the makers of the Constitution to make provisions according to the needs of the society and human beings. The Constitution of India has various provisions that uphold human rights, which are interpreted by the judiciary in the time of need; thus the concept of constitutional interpretation and human rights is interlinked. This abstract aims to explore the relationship between constitutional interpretation and human rights, highlighting the importance of the judiciary safeguarding the same, the influence of international norms, and the tension between textualism and purposivism in constitutionalism hermeneutics.
Keywords: Constitution, Fundamental rights, human rights, natural rights, constitutional interpretation
INTRODUCTION
Humans are born with some natural rights. Those rights make the human life reasonable and meaningful. Without those rights human is just a mere living creature and the powerful person or entity of the world get all the resources and facilities. These natural rights are Human rights, which are basically based on the principle of equity, natural justice and democracy. Our Indian constitution also consist of various provision which ensure about the human rights are given to the people of India. Human rights and the Constitution of India are correlated with each other. Our Constitution maker while framing the Constitution ensure about giving all the human rights to the people of India. Broadly speaking human rights contain right to life, liberty and equality which are framed in the Fundamental rights of the Indian Constitution.
All people have the same basic legal rights, regardless of their gender, color, nationality, ethnicity, language, religion, or any other distinction. Human rights cover a wide range of rights, such as the freedom from slavery and torture, the right to life and liberty, the freedom of speech, and the right to a job and an education, among many more. These rights apply to everyone without exception. Human rights are justifiable demands made by individuals that are accepted by society, whether or not they are also recognized by the law. They become enforceable only when given a legal sanction; otherwise, they are just moral assertions. According to Andrew Heywood, Human Rights are rights to which people are entitled by virtue of being human, they are a modern and secular version of "natural rights".
Nelson Mandela stated ‘To deny people their human rights is to challenge their very humanity.
WHAT ARE HUMAN RIGHTS
It is the concept and ideology of human rights only that is accepted around the world. Human rights movement was born when human dignity stood compromised, as never before in human history, during the Two World Wars. In 1948, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights. Article 3 of the Declaration provides, ‘Everyone has the right of life, liberty and security of person.1 The ancient India, when people in India were not known to the Human rights there were several kings who were make an agreement to give human treatment to the prisoner of war and also spare life of the unarmed
1 Human rights and Indian Constitution: a critical analysis by Aarjav Jain & Vaishali Panch
subject in the 13th century. 2 Right to Life is the basic right which is necessary for every individual in their living and the protection for this right given in the Art. 21 of the Indian Constitution. Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these rights, without discrimination as defined by the United Nations. 3 The Human rights belongs to us not by a statute just because we exist as a human being in this world.
The Human rights were firstly protected by the Universal Declaration on Human rights which act as a first legal document for the protection of the Human rights by the United Nation general assembly in 1948. Its 30 articles provide the principles and building blocks of current and future human rights conventions, treaties and other legal instruments. Human rights are universal and inalienable in nature. They cannot get taken away or given to any person by their nationality, race, caste etc. human rights are based on the principles of equality or non-discrimination. Human rights are given collectively to the human beings. They are indivisible and interdependent of each other like giving political rights without giving civil rights are not make justice to a human beings.
INTERNATIONAL LAW ON HUMAN RIGHTS
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL
RIGHTS (ICESCR)
The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by the United Nations General Assembly (Resolution 2200 A (XXI)) on 16 December 1966. As one of two international treaties that make the ‘International Bill of Human Rights’ (along with the Universal Declaration of Human Rights), the ICESCR provides the legal framework to protect and preserve the most basic economic, social and cultural rights, including rights relating to work in just and favourable conditions, to social protection, to an adequate standard of living, to the highest attainable standards of physical and mental health, to education and to
2 India and International Law by Nagendra Singh, pt. 10
3 www.un.org
enjoyment of the benefits of cultural freedom and scientific progress. For this reason, most of the rights contained in the ICESCR are related to tackling VAW, given that VAW is a cause and consequence of women’s enjoyment of their human rights on a basis equal to men.4
THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966, and in force from 23 March 1976. Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals, and which ensure one's ability to participate in the civil and political life of the society and state without discrimination or repression.5 These two with the collab of Universal Declaration on Human Rights become the international bill on human rights and grant all the individual all types of rights.
FRAMING OF THE INDIAN CONSTITUTION
The Constitution of India was framed to heal the wounds of the past and to ensure the stability of the people and country. On 13th January 1946 Jawahar Lal Nehru proposed the objective resolution that was the ideals for the framing of the Constitution of India. It was a momentous resolution that outlined the defining ideals of the Constitution of Independent India, and provided the framework within which the work of constitution-making was to proceed. It proclaimed India to be an “Independent Sovereign Republic”, guaranteed its citizens justice, equality and freedom, and assured that “adequate safeguards shall be provided for minorities. 6 Nehru said, his mind went back to the historic efforts in the past to produce such documents of rights. The Constitution is framed by taking consideration of the ideals of the human rights.
The Constitution was framed according to the will of the people. The toughest task for the framers was to how to implement different wills of the people of different community, the Constitution of the India defining rights of the Indian people and define the power of the state and by giving minority classes some privileges, giving them the opportunities to uplift in the
4 blogs.lsc.ac.uk/international convention on economic, social and cultural rights.
5 Human rights and constitutional provision by justice G. M. Akbarali
6 NCERT class 12th political science
society. The Constitution was framed by having the ideals of giving people political, social and economic rights.
PROVISION OF INDIAN CONSTITUTION AND HUMAN RIGHTS
PREAMBLE
The preamble of the Indian Constitution pledges Justice - social, economic and political, Liberty - of thought, expression, belief, faith and worship, Equality - of status and of opportunity and Fraternity - assuring the dignity of the individual and The unity and integrity - of the nation to all its citizens. The Preamble is the soul of the Constitution which establish all the principles and ideals of the Constitution. The Preamble is the main part from where we get to know that the human rights are into consideration in the provisions of the Indian Constitution.
FUNDAMENTAL RIGHTS
The fundamental rights of the Indian Constitution are different from the ordinary rights. Any statute, convention or law cannot take away the fundamental rights of a citizen which is similar to the inalienable nature of the Human Rights. The fundamental rights are:
1. Right to Equality (Art. 14-18)
2. Right to Freedom (Art 19-22)
3. Right against Exploitation (Art. 23&24)
4. Right to Freedom of Religion (Art. 25-28)
5. Cultural and Educational Rights (Art. 29&30)
6. Right to Constitutional Remedies (Art. 32-35)
The main Articles that deal with the human rights are Art. 14, 19 and 21 of the Constitution. All other rights give support to these three rights.7 Article 14 The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.8 It states about that the law is equal for all the people and nobody is denied from it in any basis. It correlates with the universality of the fundamental rights. In State of West Bengal vs Anwar Ali Sarkar9, The Supreme Court declared Section 5(1) of the West Bengal Special Courts Act, 1950, unconstitutional and void as it violated Article 14 of the Constitution. The Court held that the Act created an arbitrary classification between accused persons and thus offended the doctrine of equality before the law. Article 15
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to- (a) access to shops, public restaurants, hotels and places of public entertainment; or (b)the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
7 Constitutional law by J.N. Pandey
8 Article 14
9 1952 AIR 75 SC
(3) Nothing in this article shall prevent the State from making any special provision for women and children. (4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.
Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,— (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category. Explanation.
—For the purposes of this article and article 16, "economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage. 10 Article 15 prohibits any kind of discrimination which is mentioned under it, to grant every citizen law equally and to give equal opportunities in every sphere of the society.
10 Article 15
Article 16
16. Equality of opportunity in matters of public employment11
It states about that nobody on the basis mentioned in this Article can be discriminated for a public job opportunity. It also states that the state can make special provision for the minority and the backward classes. Article 19
19. Protection of certain rights regarding freedom of speech, etc.12
This article gives six types of freedoms and its restrictions which is necessary for the state. The freedoms are regarding to speech and expression, assembly without arms, to move freely in India, to reside in India and for the occupation. The most important aspect of the Human rights is the freedom to the individual given in the society. Article 21 It is the most important provision regarding the concept of the human rights. It gives right to livelihood which is defined in the Olga Tellis case13, right to privacy as defined in the Kharak Singh v State of UP case14. It enables the person to live a standard life without unreasonable restrictions. This article provides the basic requirements to live a standard life as it states that no person sall be deprived of its life and personal liberty. It provides the sanctity of the human life which is the fundamental concept of the social value.
Article 22 The human rights also grant human treatment to the prisoners and arrested person and give some rights to the detained persons. Article 22 gives enhancement to this aspect of the Human rights. It states that the arrested person have the right to be informed about the on what
11 Article 16
12 Article 19
13 1986 AIR 180
14 1963 Aur 1295
circumstances that arrest was made and the arrested person cannot be detained for more than
24 hours for put forward in front of a magistrate and the detention period cannot exceed 3moths
period except it is mentioned in a statute.
DIRECTIVE PRINCIPLES OF STATE POICY
The DPSP are the duties of the state towards the citizen of the India. It contains also the provision which strengthen the Human rights enforcement in India. The provisions are Article 39(d)- equal pay for equal work for both men and women Article 39(f)- that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Article 41- directs the state to secure the right to work, education and public assistance in certain cases such as unemployment, old age, sickness and disablement.
Article 42- The State shall make provision for securing just and humane conditions of work and for maternity relief Article 43- The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas. Article 45- The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.
Article 47- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
CONCLUSION
The human rights are the inherited rights of a human individual but to give an affect to these rights, there is need for a statute in the society. The Constitution of India gives a applicable effect to the Human Rights by way of its Preamble, Fundamental Rights and Directive Principles of State Policy. The Constitution is the mother law of India and all the laws in India cannot contradict with the provisions of the Constitution which gives a enforceable effect on it.