Enumeration and classification of Human Rights.

 

Q. No. 1: In how many ways, Human Rights may be classified? Describe with special reference to Right to Freedom of Speech as a First Generation Human Rights.

Human rights can be classified into several broad categories based on their nature, the obligations they impose on states, and the historical periods in which they emerged. The sources identify the following primary methods of classification:

Classification of Human Rights

• Classic vs. Social Rights: Classic rights (civil and political) typically require the state to refrain from interference, creating a negative obligation. Social rights (economic, social, and cultural) require the state to take active measures to provide guarantees, creating positive obligations.
• Generations of Rights: This classification, introduced by Karel Vasak, traces the historical evolution of rights based on the ideals of the French Revolution.
• First Generation: Civil and political rights associated with Liberté (Liberty).
• Second Generation: Economic, social, and cultural rights associated with Égalité (Equality).
• Third Generation: Collective or solidarity rights associated with Fraternité (Fraternity), such as the rights to development, peace, and a healthy environment.
• Fourth Generation: A proposed category related to advancements in biotechnology and information technology, though not yet universally accepted.
• Fundamental and Basic Rights: Fundamental rights often refer to those secured by a written constitution. Basic rights are prioritized rights concerning an individual's primary material and non-material needs, such as life and security.
• Individual and Collective Rights: Individual rights protect the person, while collective rights are exercised by groups, such as the right to self-determination or minority rights to preserve language and culture.
• Absolute and Non-Absolute Rights: Absolute rights, like the freedom from torture, cannot be limited under any circumstances. Non-absolute rights can be restricted for reasons of national security, public order, or public morality.

Freedom of Speech as a First Generation Right

The right to freedom of speech and expression is a cornerstone of first-generation rights, which are primarily concerned with individual liberty and autonomy. Rooted in the 17th-century struggle against tyranny, it is considered an essential defence for the individual against arbitrary government power.

Under international standards like Article 19 of the UDHR and the ICCPR, this right includes the freedom to hold opinions without interference (freedom of opinion) and the freedom to seek, receive, and impart information and ideas (freedom of expression). In India, this is a Fundamental Right guaranteed under Article 19 of the Constitution. While the freedom to hold an opinion is an absolute "passive" right, the freedom to express it is not absolute and may be limited by law to protect the reputations of others, national security, public order, or public health and morals.

 

Case Law on Freedom of Speech

The sources cite extensive national and international case law that defines the scope and limitations of freedom of speech:

• Handyside v. The United Kingdom: The European Court stated that freedom of expression is a foundation of a democratic society, applicable even to information that "offend[s], shock[s] or disturb[s] the State".
• Life Insurance Corpn. of India v. Prof. Manubhai D. Shah: The Supreme Court of India ruled that freedom of speech is a natural right acquired at birth and an essential part of the UDHR.
• Lingens v. Austria / Castells v. Spain: The European Court affirmed that the limits of permissible criticism are wider regarding governments and politicians than for private citizens.
• Sohn v. Republic of Korea: The Human Rights Committee found that imprisoning a trade leader for supporting a strike and condemning a government threat violated his freedom of expression.
• Navtej Singh Johar v. Union of India: This landmark Indian case tested the validity of Section 377 on the touchstone of Article 19, noting that sexual orientation and choice are protected forms of individual identity and expression.
• The Last Temptation of Christ Case (Olmedo Bustos et al. v. Chile): The Inter-American Court found that prior censorship of a film on grounds of blasphemy was a violation of freedom of expression.
• Gauthier v. Canada: The Human Rights Committee ruled that denying a journalist full access to parliamentary press facilities violated his right to receive information.

 

Q. No. 2: Discuss the rights enshrined in the Universal Declaration of Human Rights, 1948 and its adaptation in the Indian Constitution.

The Universal Declaration of Human Rights (UDHR), 1948, is considered the "cornerstone for modern day human rights" and serves as a common standard of achievement for all nations. Although it is not a legally binding instrument in itself, it has profoundly influenced the Indian Constitution, which was drafted around the same time and reflects many of the UDHR's principles in its chapters on Fundamental Rights and Directive Principles of State Policy.

Rights Enshrined in the UDHR

The UDHR consists of a preamble and 30 articles that cover civil, political, economic, social, and cultural rights. Key articles include:

• Fundamental Principles: All humans are born free and equal in dignity and rights (Art. 1) and are entitled to these rights without distinction of race, sex, language, or religion (Art. 2).
• Civil and Political Rights: Right to life, liberty, and security (Art. 3); freedom from slavery (Art. 4) and torture (Art. 5); right to recognition as a person before the law (Art. 6); and equality before the law (Art. 7).
• Legal Protections: Right to an effective remedy (Art. 8); freedom from arbitrary arrest (Art. 9); and the right to a fair public hearing (Art. 10).
• Personal Freedoms: Right to privacy (Art. 12); freedom of movement (Art. 13); right to a nationality (Art. 15); right to marry and found a family (Art. 16); and the right to own property (Art. 17).
• Spirit and Thought: Freedom of religion (Art. 18); freedom of opinion and expression (Art. 19); and freedom of assembly and association (Art. 20).
• Economic and Social Rights: Right to social security (Art. 22); right to work and equal pay (Art. 23); right to rest and leisure (Art. 24); and the right to an adequate standard of living (Art. 25).
• Education and Culture: Right to education (Art. 26) and participation in cultural life (Art. 27).

Adaptation in the Indian Constitution

Art.	UDHR Provisions	Indian Constitution (Articles)
1	All people are entitled to rights without distinction based on race, colour, sex, language, religion, opinion, origin, property, birth, or residence.	Articles 14, 15, 16, and 17 (equality, access to public places, equality in employment, and abolition of untouchability).
2	All human beings are born free and equal in dignity and rights.	Articles 14 and 15 (prohibition of discrimination on the grounds of religion, race, caste, sex, or place of birth); Article 17 (abolition of untouchability); Article 16 (equal employment opportunities).
3	Right to life, liberty, and security of person.	Article 21 (Right to Life and Personal Liberty).Article 23 (prohibition of forced labour); Article 24 (prohibition of child labour in hazardous employment).
4	Freedom from slavery.	Articles 17, Article 23 (prohibition of forced labour); Article 24 (prohibition of child labour in hazardous employment).
5	Freedom from torture.	Articles 20, 21, and 22.
6	Right to be treated equally before the law.	Article 14.
7	Right to equal protection of the law.	Articles 14 and 39A.
8	Right to an effective remedy by a competent tribunal.	Articles 14, 20, 21, and 22.
9	Freedom from arbitrary arrest and detention.	Articles 20, 21, and 22.
10	Right to a fair and public hearing by an independent tribunal.	Articles 20, 21, 22, and 39A.
11	Right to be presumed innocent until proven guilty and to all guarantees necessary for defence.	Articles 20, 21, and 22.
12	Right to privacy.	Article 21.
13	Freedom of movement within the country and the right to leave and return to any country.	Articles 19 and 21.
14	Right to political asylum in other countries.	Not specifically provided (N/A).
15	Right to nationality.	Articles 19 ; Citizenship provisions under Articles 5–11.
16	Right to marriage and family and equal rights of men and women during and after marriage.	Articles 14, 21, and 44.
17	Right to own property.	Article 300A.
18	Freedom of thought, conscience, and religion.	Articles 19, 25, 26, 27, and 28.
19	Freedom of opinion and expression and the right to seek, receive, and impart information.	Articles 19 and 25.
20	Freedom of association and assembly.	Article 19(1)(b).
21	Right to take part in and select government.	Part XII, Chapter II and Part XV; other provisions relating to elections.
22	Right to social security and the realization of economic, social, and cultural rights.	Articles 29, 30, and 43.
23	Right to work, equal pay for equal work, and the right to form and join trade unions.	Articles 19, 39, and 42.
24	Right to reasonable hours of work and paid holidays.	Articles 42 and 43.
25	Right to an adequate standard of living for oneself and one's family, including food, housing, clothing, medical care, and social security.	Part IV of the Constitution (Directive Principles of State Policy).
26	Right to education.	Articles 21A and 45.
27	Right to participate in cultural life and to protect intellectual property rights.	Articles 29 and 30.
28	Right to a social and international order in which these freedoms can be fully realized.	Articles 38 and 51.
29	Every person has duties towards the community, which are essential for a democratic society.	Articles 48A and 51A (Fundamental Duties).
30	Repression in the name of rights is unacceptable.	Articles 32, 33–35, and 226.

 

Landmark Case Law

The Indian judiciary has played a crucial role in using the UDHR as an interpretive tool to expand the scope of constitutional rights:

• Keshavananda Bharati v. State of Kerala (1973): The Supreme Court observed that while the UDHR may not be a binding instrument, it shows how India understood the "nature of human rights" at the time the Constitution was adopted. The Court noted that essential constitutional features correspond to rights in the UDHR.
• Maneka Gandhi v. Union of India (1978): The Court referred to Article 13 of the UDHR to hold that the right to travel abroad is a part of "personal liberty" under Article 21.
• PUCL v. Union of India (1997): In this telephone tapping case, the Court relied on Article 12 of the UDHR to uphold the right to privacy as an essential ingredient of personal liberty under Article 21.
• D.K. Basu v. State of West Bengal (1997): The Court relied on Article 5 of the UDHR (prohibition of torture) to frame mandatory guidelines for arrest and detention to prevent custodial violence.
• Vishaka v. State of Rajasthan (1997): The Court held that in the absence of domestic law, international conventions like the UDHR and CEDAW are significant for interpreting guarantees of gender equality and the right to work with dignity.
• Miss Mohini Jain v. State of Karnataka (1992): The Court examined the right to education as both a constitutional and human right by specifically referring to the UDHR.
• Jolly George Varghese v. Bank of Cochin (1980): The Court noted that imprisonment for poverty alone (inability to pay a debt) is inconsistent with human dignity principles found in the UDHR and ICCPR.

 

 

Q. No. 5: Discuss about the general notion of Human Rights ......................

The general notion of human rights is based on the principle that every individual, by virtue of being human, possesses certain inherent, inalienable, and universal entitlements. These rights are not granted by any state or authority but are acquired at birth, regardless of nationality, race, religion, sex, or any other status.

General Notion and Nature of Human Rights

Human rights serve to define the relationship between individuals and power structures, particularly the State, by delimiting State power and requiring it to take positive measures to ensure a dignified existence for all. The core nature of these rights is defined by several key principles:

• Inherent and Inalienable: They are "birthrights" that cannot be taken away or lost any more than one can cease to be human.
• Universal: They apply equally and indiscriminately to every person everywhere in the world.
• Indivisible and Interdependent: All human rights—whether civil, political, economic, or social—are part of a complementary framework. The improvement of one right facilitates the advancement of others, while the deprivation of one adversely affects the rest.
• Essential for Dignity: They are necessary for the physical, social, moral, and spiritual well-being of an individual and for the full development of human personality.

 

Q. No. 7(e): Significance of UDHR.

Significance of UDHR

The Universal Declaration of Human Rights (UDHR), adopted on 10 December 1948, is the cornerstone of modern human rights and represents the first global expression of inherent entitlements for all individuals. Although it was originally adopted as a non-binding resolution, it has acquired immense moral and political authority, serving as a "common standard of achievement for all peoples and all nations". Its significance is highlighted by the following:

• Customary International Law: Many scholars and states argue that the UDHR's principles have become part of customary international law, making them binding on all states regardless of treaty ratification.
• Foundation for Treaties: It provided the philosophical basis and building blocks for subsequent legally binding instruments, most notably the ICCPR and ICESCR.
• Constitutional Influence: The UDHR has served as a direct benchmark for many domestic constitutions and national laws, including the Indian Constitution, which incorporated its principles into Fundamental Rights and Directive Principles.
• Universal Scope: It remains truly universal, preserving its validity for every member of the human family irrespective of whether a government has formally accepted its principles.

 

Q. No. 7(a): International Bill of Rights.

International Bill of Rights

The International Bill of Human Rights is a collective term for the primary documents that form the foundation of the global human rights regime. It consists of:

1. The Universal Declaration of Human Rights (UDHR), 1948.
2. The International Covenant on Civil and Political Rights (ICCPR), 1966.
3. The International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966.
4. The Optional Protocols to these covenants, which deal with individual complaint procedures and the abolition of the death penalty.

Together, these instruments enumerate approximately 50 normative propositions, including civil, political, economic, social, and cultural rights. While the UDHR provides the general principles, the two Covenants translate these into legally binding obligations for states that ratify them. They recognize that human beings can only enjoy freedom from fear and want if conditions are created where all categories of rights are enjoyed simultaneously.

Q. No. 7(e): European Convention on Human Rights.

European Convention on Human Rights (ECHR)

The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) was signed in 1950 and entered into force in 1953 as a product of the Council of Europe. It is widely regarded as one of the most effective regional mechanisms for human rights protection.

• Scope: The ECHR focuses primarily on civil and political rights, such as the right to life, freedom from torture, and the right to a fair trial.
• Enforcement: It established the European Court of Human Rights in Strasbourg, the first regional judicial body with the power to deliver final, legally binding decisions on state parties.
• Advanced Monitoring: Under Article 34, individuals, NGOs, and groups can file petitions against states once domestic remedies are exhausted, provided the state is a party to the Convention.
• Evolution: The Convention has been expanded through fourteen Protocols, which have added new rights (like the protection of property and right to education) and simplified procedural structures.
• Integration with EU: The European Union is bound to respect the fundamental rights guaranteed by the ECHR as general principles of Community law, and Protocol No. 14 recently enabled the EU itself to formally accede to the Convention.