Provision Of Human Rights In The Constitution Of India

    As was said by Saint Augustine that unjust law is no law or “Lex Unjusta Non Est Lex” [1]. On these very lines, natural law came into the forefront and gave shape to human rights.

    Introduction Of Natural Law

    The word “natural” signifies a higher (non-human) law, based on morality, against which the moral validity of human law can be gauged. In short, natural law concerns the norms of human conduct. The term ‘human rights’ is relatively contemporary, the concept that an individual possesses certain basic, inalienable rights as against a sovereign state had its origin in the principles of natural law. The term right can be analogous with the set of moral values as in natural law.

    Overview Of Natural Law

    Slavery refers to a condition in which individuals are owned by others, who control where they live and at what they work. Slavery had existed throughout the period of history. Drafted due to post-wartime atrocities against slave workers, one of its first guarantees, penned in Article 4, requires states to ensure no-one is held in slavery. There had been several cases highlighting the prevalence of slavery. Among them is Somerset v. Steward, which has set the law in motion about slavery. This case is significant due to the notion of morality which is something concomitant with being humans.

    Somerset v. Stewart [2] – The case throws light on the misfortunes of society, as it has set the law in motion pertaining to slavery. Though, it took around six decades finally for the abolition of slavery. The facts of the case is that there was a customs collector named Charles Stewart from Boston, who bought James Somerset a plantation owner from Virginia. He brought him to England in 1769, but Somerset escaped but he was recaptured on 26 November, 1771 and was forced onto a ship bound for Jamaica. Granville Sharp, congregated a team of five lawyers to defend James Somerset. 

    In 1772, Lord Mansfield, the chief justice, ruled on the case. He decided that slavery had no basis in natural law or English law. Morality does not allow slavery. Therefore, he said whatever inconveniences may follow from the decision, the case could be discharged based on approval from the law of England.

    Lord Mansfield’s decision included a quotation often attributed to him: “This air is too pure for a slave to breathe in.” This legal victory persuaded the English public at large that no man was a slave on English soil.

    Discussing the case becomes imperative to acknowledge that even if there aren’t any codified laws protecting the morals of an individual, it persists. As was said by Lord Mansfield “it’s in the air” and underlines the essence of morality.

    Evolution Of Natural Law

    Modern natural theories could be seen as standing on the edifice of rendering the justice system. Even Hart, a positivist, sought to examine the impact of moral questions upon the assessment of the law’s quality by introducing a ‘minimum content of natural law’ into his positivist theory [3].

    According to Thomas Aquinas, natural law forms the basis from which human law traces its legal and reasoning assessment. During the 19th Century, natural law theory lost a lot of its influence because of positivism, materialism, utilitarianism, and Benthamism. Which became prevalent. In the 20th century, however, towards the second half, natural law theory received new recognition. This can partly be attributed to people’s reactions to the rise of totalitarianism, dictatorships such as those held by Hitler in Germany and Stalin in the USSR. Such dictatorships are linked to the other factor that can be attributed to the rise in interest in natural law and increased interest in human rights throughout the world.

    Basic Values Of Natural Law – John Finnish

    In the 20th century, John Finnish revived natural law. He said when we look at the law, we realize that there are universal basic values or goods, from these values moral principles are derived. Principles that make us realize good or bad is self-evident and does not require a demonstration. For example, the older the person grows their experience also surges and can aid in distinguishing between moral and immoral acts in a better way. Finnish said there are 7 basic values. [4]

    • Life
    • Knowledge
    • Play
    • Aesthetic Experiences
    • Friendship
    • Religion
    • Practical Reasonableness

    Significance Of Natural Law As UDHR

    In particular, due to wake of the Second World War gave a message to the United Nations General Assembly to adopt the Universal Declaration of Human Rights in 1948 urged nations to promote a collection of human, civil, economic, and social rights.[5] The Assembly called these rights part of the ‘foundation of freedom, justice, and panacea to curb ills in the world’. These words are echoed in the preamble to the Convention. There are 30 articles in the UDHR in the all-inclusive category comprising social, economic, political, cultural as well as civil rights.

    26th January, 1950 marks the day when the Constitution of India came into operation. The impact of the Universal Declaration of Human Rights Part III of the Constitution can’t be denied. Fundamental Rights entailed in Part III of the Constitution have emerged from the doctrine of natural rights. Fundamental Rights are the recent name for what has been traditionally known as Natural Rights. Justiciability or Enforcement became a sine qua non of fundamental rights.

    https://legalreadings.com/prevention-of-oppression-mismanagement-under-companies-act2013/

    Significance Of Fundamental Rights And Universal Declaration Of Human Rights

    Part III of the Constitution India ‘also referred to as Magna Carta’ contains the Fundamental rights. Kesavananda Bharati v. State of Kerala [6] case observed: “the Universal Declaration of Human Rights signifies the path of

    human right that shaped the constitution of India.” Another remarkable case of  Chairman, Railway Board & Ors. v. Chandrima Das & Ors [7], mentions “UDHR has been recognized as a model code of conduct adopted by The United Nations General Assembly”.

    Equality and Equal Protection Before Law: Article 7 of UDHR and Article 14 of the Constitution of India  Under Article 14, the constitution of India mentions equality before the law to exercise equal protection. The article, on one hand, provides equality before the law, while on the other hand it also mentions non-denial of the equal protection of laws. The main aspect of equality before the law is a prohibition of discrimination. This addresses a negative perspective. The concept of equal protection of laws gives the same treatment to all people in all types of situations within the Indian territory. This principle of equality brings a positive aspect of egalitarianism.

    Article 8 of UDHR and Article 32 the Constitution of India – The law provides the right to an effective remedy to all citizens. This aspect focuses on the competent authority to exercise remedies to check the violation of the fundamental rights. This is also an important reason this article was described as the very heart as well as the soul of the constitution of India. Article 32, provides power to the parliament for exercising the power of the Supreme Court to any other court that falls in its jurisdiction. Therefore, under this provision, the enforcement of fundamental rights is guaranteed.

    Article 9 and Article 21 of the Constitution of India – All citizens fall in the domain of Article 21. Though it is worth noting that the original interpretation of Article 21 would not allow properly referring to the fundamental rights. The case of Maneka Gandhi v. Union of India, provided a new facet, that procedures cannot be based on whims and fancies. It has to stand the test of reasonability.

    Article 19 UDHR and Article 19(1)(a) of the Constitution of India Article 19(1)(a) of the Constitution of India confer to all its citizens the right to freedom of speech and expression but this right is not absolute. It is subject to restrictions provided under Article 19(2). Article 19(1)(a) encompasses the right to express views, it can be through the medium of mouth, writing, printing, film, movie and many more.

    Article 18 UDHR and Article 25(1) of  the Constitution of India – When the constitution came into existence, it didn’t have the word secular. As time passed the requirement was felt. Hence, in the year 1976 by 42nd amendment the word secular was added underlying the idea by the state that it won’t be having any official religion and protection of every religion uniformly. Further, Article 25 also embodies that every person can practice, propagate and profess any religion. India boasts of people of different race, religion, creed, caste, and community. When it comes to exercising one’s religious beliefs, India is neutral.

    Conclusion  

    It can be said that being humans, we possess certain basic needs and so there arises a requirement for codification be it UDHR or Fundamental Rights. The objective remains the same in making our world a better place to live in. The dignity of all citizens is the minimum requirement provided by human rights. The choice of living style, way of expression, as well as the kind of government are few remarkable aspects under it. Ranging from the bare necessities to protection against any form of dictatorship is guaranteed under human rights.

    References

    [1] J.R Russel, “Trial by Slogan: Natural Law and Lex Iniusta Non Est Lex” 19 Jstor 433 (2000).                                                   

    [2] Law Archive, Slave or Free (Law Archive, U.K, 2017).

    [3] William C. Starr “Law and Morality in H.L. A. Hart’s Legal Philosophy” 67, Marquette Law      Review (1984).

    [4] Hugh MCcarthy, “A summary of Natural Law by John Finnish”, ASC Blog, (2015).

    [5] The Universal Declaration of Human Rights, 1948, art. 4. 

    [6] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 933.

    [7] Chairman Railway Board v. Chandrima Das, AIR 2000 SCC 465.


    BY KAJAL PRIYA | NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI

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