CHAPTER- I

INTRODUCTION

“Though not radically ameliorative of here-and-now suffering, international human

rights standards and norms empower peoples' movements and conscientious policy-
makers everywhere to question political practices. That… is an inestimable potential of
human rights languages, not readily available in previous centuries…”1

Further, it is said,
“No matter how many contested fields may be provided by the rhetoric of the
universality, indivisibility, interdependence, and inalienability of human rights,
contemporary human rights cultures have constructed new criteria relative to the
legitimation of power. These criteria increasingly discredit any attempt to base power
and rule on the inherent violence institutionalised in imperialism, colonialism, racism,
and patriarchy. "Contemporary" human rights make possible, in most remarkable
ways, discourse on human suffering...Central to … human rights discourse are visions
and ways of constructing the ethic of power which prevent the imposition of repression
and human suffering beyond the needs of regime-survival no matter how extravagantly
2
determined...”

The above observations would make it clear that standards and norms of
international human rights empower the people by acting as a new criterion for
legitimation of political power. This is because human rights construct the ethics of
power in order to prevent repression and human suffering. Concern for rights among the
people as it exists today was not the same in earlier times. The origins of ‘ideas of rights’
have been much disputed because there are many theories and schools contending the
other, emerging from different times and circumstances. Nevertheless, it is universally
accepted that human rights are essential rights that are required for every living human
being. This is because human rights enable every right-holder, without consideration as to
one’s age, race, nationality, gender and any other grounds for discrimination, to enjoy
one’s life fully with utmost dignity. Right to life, liberty of thought, faith, and expression,
freedom of movement, right to privacy, freedom of religion, right to vote, right to
education, right to work, right to equal pay for equal work, right to travel abroad, right to

1
Upendra Baxi, Voices of Suffering and the Future of Human Rights, 8 Transnat'
l L. & Contemp. Probs.
1998, pp.126-27.
2
Ibid., at pp. 137-38.
 2

found a family, right to dignity, right against inhuman degrading treatment, right against
arbitrary interference in family life, right against illegal and arbitrary arrest, detention are
some of the rights that are recognised in the International Bill of Human Rights.3
These rights enable the individuals in developing not only one’s personality but
also attaining economic, social, cultural, spiritual and political progressions. Human
rights are found in its ever-evolving status, as a testimony, claims and rights movement
have been constructed in recent times, inter alia, concerning right to food, right to water,
right to rationing, and right to homosexuality. Human rights have played an important
role historically in emancipatory social and political movements and it is said that the
histories of the labour movement, civil rights and rights of the homosexuals all validate
the efficacy of the language of rights.4
Human rights are not western in origin. In fact, every civilised society had
recognised certain basic rights of the individuals, such as right to life, right to worship,
freedom of movement, freedom of speech and expression. It was only the degree and the
form of recognition given to such rights that varied from one society to another and from
one time to another because an act of conferment of the said rights primarily depended
upon nature of the society, existing socio-economic and political circumstances, and
thewill of the ruling Governments. A ‘right’ is generally understood as ‘entitlement’ to
individuals that cast obligation on others including the State and its machineries to
respect it. Rights may even be considered as a typical liberal response that requires
individuals to value rights for the freedom they give to plan one’s own life-courses. In
this way, then, rights bring more closely together the will and the self by enabling the
right-holders to self-definitions.
‘Rights claim’ involves an ethical demand for action, thus they are normative
trump cards according to Ronald Dworkin. Indeed, Joel Feinberg points out that rights
are a most useful sort of moral furniture.5 It is said, appeal to rights establishes a base
within the treatise of political legitimation and then it creates a foundation for the
3
International Bill of Human Rights comprises of the Universal Declaration of Human Rights, 1948,
International Covenant on Civil and Political Rights, 1966, International Covenant on Economic, Social
and Cultural Rights, 1966 along with their Optional Protocols.
4
Kenneth Baynes, Rights as Critique and the Critique of Rights: Karl Marx, Wendy Brown, and the Social
Function of Rights, Political Theory, Vol. 28, No. 4, 451 (Aug., 2000), pp. 451-468.
5
Christian Resu Smit, Individual Rights and the Making of the International System, (United Kingdom:
Cambridge University Press, 2013), p. 31.
 3

constant expansion and reformulation of those same rights.6 There are categories of rights
such as natural rights, moral rights, legal rights, and the like, but all categories of rights
are of importance to individuals because they enable the right-holders in achieving the
desired progress while preventing the State from its recourse to arbitrary form of
governance. Therefore, human rights are moral, political and legal entitlements which act
as limitations on the powers of the States.
This would further indicate that rights safeguard some minimal level of well-
being because such a threshold is necessary if citizens are to live their lives with dignity,
which their humanity entitles them.7 Human beings are entitled to human rights by virtue
of their birth. Human rights are universal in nature, hence, all human beings on the
principle of equality, and non-discrimination as to nationality, religion, caste, gender or
any other allied criteria can enjoy them. States must not only guard liberties as are
necessary for their subjects but also ensure that all its subjects have access to basic social
amenities that enable them to live human lives with dignity.
Initially, each State held full autonomy in matters of giving recognition and
protection to the rights of its subjects that made it purely a State-affair. Subsequently, this
autonomy gave rise to certain complications. History reveals that certain totalitarian,
authoritarian regimes had adverse impact upon the rights of the individuals and in
addition, where States had involved in combats or wars, the rights of the subjects were
violated on large scales. This in turn affected peace and security of the people,
relationship of the nations, and even the international order. To preserve, and to protect
peace and security at the global level, it was inevitable for the international community to
stay away from wars and to give recognition to the basic rights of individuals that can be
enjoyed everywhere. Therefore, the rights that were subjugated by totalitarian or despotic
regimes, despite their relevance to humanity and the society as a whole, had to be
protected by establishment of Rule of Law and constitutionalism.
Though the ‘idea of human rights’ transcend all nations, groups and cut across
varieties of historical and political experiences, this in itself was not sufficient to ensure

6
Claude Lefort, Human Rights and the Welfare State in Democracy and Political Theory, Trans. David
Macey, (Minneapolis: University of Minnesota Press, 1988), p.39.
7
Robin West, Rights, Capabilities and the Good Society, 69 Fordham L. Rev. 1901, 1904-07, 1914-15
(2001) in Marius Pieterse, Eating Socioeconomic Rights: The Usefulness of Rights Talk in Alleviating
Social Hardship Revisited, Hum. Rts. Q., Vol. 29, No. 3 (Aug., 2007), p. 796.
 4

that all humans could enjoy human rights similarly. Internationalisation and
universalisation of the human rights was the sole path to empower all the individuals to
relish their basic rights devoid of any distinction. Along with that, sovereign States had to
commit themselves to the cause of protection and promotion of human rights. This led to
the formal recognition of State-intervention on humanitarian grounds, development of
human rights and its norms based on international cooperation. It is submitted that
international peace, security and rights of the individuals are closely connected with each
other. Therefore, they may be regarded as interdependent. This is because if security and
peace has to survive, then the individuals must have cordial relations and harmony with
one another, and from the States’ side, they must limit their powers to ensure that their
actions comply with human rights norms.
Wisdom emerging from the sufferings in the past, such as wars and authoritative
regimes, has helped the human kind to become serious about the need to protect their
basic rights. In addition, cases of violations of human rights are not limited to any
particular State as it is a global occurrence. Mere desire to have rights is insufficient to
protect the real entitlements of the individuals. Therefore, the need was to list the rights
that are to be recognised human rights, guarantee effective recognition under legal
frameworks and to develop and provide effective remedies in case of breach of such
rights. Accordingly, based on cooperation, the members of the human family have
developed norms, institutions and mechanisms to protect human rights of all living
human beings. Presently, human rights are protected and promoted with the aid of law
and thus the human rights protection mechanism depends upon either charter-based or
treaty-based mechanisms created globally. The International Human Rights Law (IHRL)
has listed human rights that are now regarded as ‘minimum morality’ for all the States.
Human rights also act as a ‘higher law principle’. The International Bill of Rights led by
the Universal Declaration of Human Rights, 1948, (UDHR) has had impact on
Constitution and other subsequent norms of several States. Human rights are ethical
demands and they have become the touchstone for the nations to achieve through their
laws and policies. To give effect to the rights contained in the International Bill of Rights
the States are required to develop basic institutional structure and organise economy.
 5

It is observed that the international law serves only as preventive measures and on
its own, it is insufficient to provide adequate human rights protections. This would be
clear from the harsh reality of abuses occurring on daily basis. This would imply that
appropriate steps are to be initiated to protect human rights effectively, including
development of norms and mechanisms at regional and national levels. Occurrence of
violation of human rights intrudes in the enjoyment of life and liberty of the individuals.
There are several causes for violation of human rights, like, terrorism, State’s failure to
observe its obligations under the IHRL, war, and non-inclusion of certain rights within
the ambit of municipal law or failure in domestic application of certain human rights. It is
said, the second half of the twentieth century, known as the ‘age of human rights’, came
to be plagued by its own innovations in the politics of cruelty. Prof. Upendra Baxi has
explained this phenomenon as human suffering vibrating in the Universal Declaration of
Human Rights, 1948.8
Indian society is one of the oldest civilisations and it has all along recognised
certain basic rights of the individuals. However, the modern normative protection of
human rights in India has evolved from the time of freedom struggle and developed
subsequently. The Constitution of India is inspired by the UDHR, 1948 and consequently
contains in it certain civil and political rights, and economic, social and cultural rights in
the form of Fundamental Rights and Directive Principles of State Policy. However, the
rights guaranteed by the Constitution are not absolute and they are subject to few
limitations: (i) Fundamental Rights are subjected to reasonable restrictions as provided by
the Constitution; (ii) Fundamental Rights are amenable to suspension during
proclamation of emergency;9 and (iii) not all International human rights standards have
been recognised by the Constitution of India.
Since the Indian Constitution protects human rights, they are understood as a set
of minimal standards for the States and its institutions to achieve under all circumstances.
The Indian Government with an object to give better protection to the human rights
enacted the ‘Protection of Human Rights Act, 1993’. This Act constitutes Commissions,

8
Upendra Baxi, supra note 1 at p. 125.
9
Fundamental Rights can be suspended when National Emergency is proclaimed under Article 352 of the
Constitution. All the Fundamental Rights may be suspended vide Articles 358 and 359 except the rights
conferred by Articles 20 and 21 of the Constitution of India.
 6

enforcement machinery at the Central and State level, i.e. National Human Rights
Commission and State Human Rights Commission, respectively. Besides this, the Act has
provided for establishment of Human Rights Courts under Section 30 to hear the cases
involving the question of human rights. However, the implementation of this law has
been very poor on the note that the District Courts are declared as Human Rights Courts10
and that the Act does not recognise any additional human rights which are unspecified
under the Constitution.
Therefore, lack of legislative and executive action coupled with exploitation of
the masses by the few power-holders, made the Judiciary to rise to the occasion by
extending its powers to help at least some of the needy people. Judiciary being the
saviour of the Fundamental Rights in India did not wait in anguish, it has responded to
the needs of the downtrodden by providing justice and adopting operational principles.
Judicial activism in India, generally speaking, in some attempts has filled legislative
vacuum in the field of human rights only to reinforce the strength of democracy and to
reaffirm the faith of the common person in the rule of law.
Public Interest Litigation, that is an instance of judicial activism, has proved to be
a useful judicial tool that represents a continuous effort on the part of the Judiciary to
provide access to justice to the deprived sections of Indian humanity with a view to
protect their human rights. It is said that Public Interest Litigation “… come(s) with
unusual problems, never before so directly confronted by the Supreme Court. They seek
extraordinary remedies, transcending the received notions of separation of powers and the
inherited distinctions between adjudication and legislation on the one hand,
administration and adjudication on the other. They bring, too, a new kind of lawyering
and a novel kind of judging. They add a poignant twist to the docket explosion which was
so far merely a routine product of the Bar committed only to justice according to the fees.
They also bring a new kind of dialogue on the judicial role in a traumatically changeful
society”.11
The Courts have all along given expansive interpretation of the enumerated rights
by taking recourse to judicial activism that has resulted in incorporation of certain

10
The Protection of Human Rights Act, 1993, Section 30.
11
Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, Third
World Legal Studies: Vol. 4, Article 6, (1985), p.108.
 7

international human rights standards into the Indian legal system. A virtual interpretation
of the Court authorising for judicial incorporation of treaty law into the municipal law is
demonstrated in Vishaka v. State of Rajasthan.12 The Court in this case has pointed out
that,

“The meaning and content of the Fundamental Rights guaranteed in the

Constitution of India are of sufficient amplitude to encompass all the facets of
gender equality including prevention of sexual harassment or abuse.
Independence of judiciary forms a part of our constitutional scheme. The
international conventions and norms are to be read into them in the absence of
enacted domestic law occupying the field when there is no inconsistency between
them. It is now an accepted rule of judicial construction that regard must be had
to international conventions and norms for construing domestic law when there is
no inconsistency between them and there is a void in the domestic law”.

Therefore, it is clear that any International Convention not inconsistent with the
Fundamental Rights but in harmony with its spirit may be read into the provisions to
enlarge the meaning and content thereof, to promote the object of the constitutional
guarantee. Accordingly, the Court has been trying to give recognition to certain
international human rights standards such as right to privacy, right to dignity, right to
work, right to equal remuneration for equal work, by reading them into the ambit of
‘enumerated rights’under the Constitution. This apart the Court has been attempting to
enforce some of the economic, social and cultural rights contained in Part IV of the
Constitution.

1.1 The Problem

Being fundamental law of the land, the Constitution of India, inter alia, protects
the basic rights of the Indian citizens. Since the Indian Constitution was framed during
the worst period for individual rights that is World War II and freedom struggle, the
framers of the Constitution were aware of the importance of the basic rights of the
individuals and they were even inspired by the UDHR. Accordingly, the framers of the
Indian Constitution gave recognition to certain civil and political rights in Part III as
Fundamental Rights, and economic, social and cultural rights in Part IV of the

12
AIR 1997 SC 3011, at 3015.
 8

Constitution as Directive Principles of State Policy. However, certain legitimate interests

of individuals could not be protected in India because the Constitution has not
incorporated certain international human rights standards, for instance, inter alia, right
against arbitrary interference with individuals’ privacy, family, home or correspondence
and attacks upon their honour and reputation, right to compensation for arbitrary arrest
and detention.
Further, certain specific provisions under the Constitution of India such as Article
19 (2) to (6) empower the State to regulate individual rights by imposition of reasonable
restrictions on the fundamental freedoms guaranteed by Article 19 (1) (a) to (g).13 This
may result in legitimised human rights violations. These apart, human rights can be
suspended during the times of emergency which is also the case with Fundamental
Rights. However, the derogable and non-derogable rights under International Human
Rights Law (IHRL) and the Constitution are not the same. For instance, Article 4 (2) of
the International Covenant on Civil and Political Rights, 1966 (ICCPR) proclaims that
right to life, prohibition of torture and cruel, inhuman or degrading treatment or
punishment, prohibition of slavery, slave trade and servitude, right against imprisonment
on ground of inability to fulfil a contractual obligation, non-retroactivity of criminal law,
right to recognition as a person before law, freedom of thought, conscience and religion,
and right against discrimination based on race, colour, sex, language, religion or social
origin, cannot be derogated even during a serious emergence situation. Whereas in India,
Article 359 states that except Articles 20 and 21, namely protection in respect of
conviction for offences and right to life and liberty any other Fundamental Right can be
suspended during national emergency. If the national emergency is proclaimed on the
grounds of ‘war’ or ‘external aggression,’ then all six fundamental freedoms guaranteed
by Article 19 gets suspended automatically, without a proclamation by the President of
India in this regard.14Article 4 of the ICCPR is not applicable to all types of public
emergencies. Only the threat to life of the nation or to its very existence may be the
ground for derogation. In India, Article 352 deals with national emergency and according

13
Article 19 states that all citizens shall have the right- (a) to freedom of speech and expression; (b) to
assemble peaceably and without arms; (c) right to form associations or unions or cooperative societies; (d)
to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India;
and (g) to practise any profession, or to carry on any occupation, trade or business.
14
The Constitution of India, Article 358.
 9

to it, war, external aggression or armed rebellion are the grounds for proclamation of a
national emergency. This would suggest that wider scope for proclamation of emergency
is made available to the Executive under Article 352 of the Constitution.
Furthermore, under IHRL, in the case of emergency alone the States can resort to
preventive detention, whereas, in India, the preventive detention can be invoked during
times of emergency and in peacetime as well. This establishes the distinction in
circumstances in which deprivation of certain essential rights like liberty can be affected.
The Indian Government has passed a number of enactments authorising preventive
detention, though the safeguards are made available against arbitrary detention.15
In addition, the Protection of Human Rights Act 1993, which is a special
legislation that aims at better protection and promotion of human rights by establishing
human rights institutions and the court, has not given recognition to any constitutionally
not specifically incorporated human rights. Thus, it may be inferred that the Constitution
and the Protection of Human Rights Act, 1993, even if taken together, do not account for
giving recognition to certain important international human rights standards, among
others, right to privacy, right to compensation, and right against torture, This has led to
certain important consequences.
Firstly, it has led to poor protection of human rights in India leaving much scope
for violations by the State authorities. Secondly, it causes sufferings to the people, as
some of their essential rights are not conferred by the Constitution. Thirdly, it amounts to
legitimised deprivations of those rights by the State authorities, as the authorities have no
obligation to protect those unincorporated human rights. Fourthly, it makes India a
country that has inadequately recognised international human rights standards. Lastly, it
results in deprivation for the individuals from having all rounded development. This
effect is based upon the understanding that every human right provides a dimensional
growth to individuals. In this sense, if individuals enjoy all international human rights
because they are interdependent, then only one can be a well-formed human being.
Therefore, judiciary has intervened to confer better protection to the individuals’ interests
by attempting to incorporate some of the human rights standards, selectively, into the
Indian legal system.

15
Ibid. Article 22 (4) to (7).
 10

1.2 Objectives of the Study

It has been observed that in India there is a large-scale violation of human rights
by the overwhelming Government and its functionaries. The International civil society
organisations have criticised the Indian Governments’ compliance with human rights
standards very often. Aggrieved persons have been approaching the apex court to accord
best remedy in the interest of justice and to provide better protection to their human
rights. Accordingly, the Supreme Court has been attempting to fill the inadequacies found
in the Indian laws dealing with protection of human rights and exercise its power of
judicial review over the actions of the Executive and State implementation machineries to
form their actions in conformity with the Constitution with an aim to preserve the
Constitution and its guarantees. In this attempt, the Court has even incorporated few
constitutionally not specifically incorporated international human rights standards into
the Constitution by aiming to bring down the gap between the International Human
Rights Law and the Indian legal framework with an ultimate object to provide better
protection to human rights of the people in India. To provide an intellectual input and to
find solutions to the problems of human rights compliance this study has been
undertaken. Therefore, the primary objective of study is to find out the means and
methods used by the Supreme Court by which human rights standards are effectively
institutionalised and enforced in India.
In this direction, the study aims at the following:
a) Explanation of nature and value of rights;
b) Account of evolution and development of rights;
c) Elucidation of concept of human rights;
d) Reasons for internationalisation of human rights;
e) Description of controversy surrounding internationalisation of human rights;
f) Development of human rights as a ‘moral standard’ and ‘higher law
principle’;
g) Discussion of contemporary international human rights standards and
protection mechanisms;
h) Analysis of the scope of contemporary international human rights protection
standards;
i) Study on extent of human rights protected in India;
 11

j) Identification of constitutionally not specifically incorporated human rights

and explanation of its consequences;
k) Reasons for judicial incorporation of human rights into the Indian legal
framework;
l) Circumstances in which the Court resorts to judicial incorporation;
m) Features of judicial incorporation;
n) Cases of judicial incorporation;and
o) Examination of the Supreme Court’s role in protection of human rights of the
people in India.

1.3 Hypothesis
The primary hypothesis to be tested in the course of study is that the Constitution of
India has not given recognition to all the international human rights standards. This
provides for poor protection of human rights of the people in India. Realising this, the
Supreme Court has used the technique of ‘expansive and progressive interpretation’to
enlarge the scope and ambit of ‘enumerated rights’. In addition, the Court has even resorted
to judicial incorporation by which it has provided recognition to certain ‘un-enumerated’
rights with an object to protect the interests of the Indian citizens. However, the Court is
unsuccessful in giving recognition to all of the un-enumerated international human rights
standards and in enforcing every economic, social and cultural rights contained in Part IV
of the Indian Constitution.
In testing the above hypothesis, an attempt is made to verify the following.
Firstly, whether the international human rights contained in the International Bill of
Human Rights are fully recognised by the Constitution of India;
Secondly, whether non-recognition of certain international human rights standards
has resulted in legitimised deprivation of human rights of the people in India;
Thirdly, whether lack of legislative protection of human rights lead to judicial
incorporation of human rights; and
Fourthly, whether the Supreme Court of India has been successful in giving
recognition to and protection of all of the rights that are not specifically mentioned in the
Constitution of India.
 12

1.4 Methodology Adopted

The study is doctrinal in nature and involves examination of extent of recognition
given to international human rights and judiciary’s contribution in incorporating
international human rights standards into the Indian legal framework with the help of
primary and secondary sources. The primary sources are the statutes enacted by the
legislatures in India, judicial decisions of the Supreme Court, international conventions,
Charter, Declaration, treaties and resolutions of the committees concerned with human
rights. The secondary sources are the books, articles, journals, and periodicals consulted
for the study.

1.5 Importance of the Study

A study on human rights is important to all living human beings. In particular, a
study on judicial incorporation of international human rights into the Indian legal system
is believed to be important for lawyers, academicians, students, Non-Governmental
Organisations (NGOs), International Organisations, National Human Rights Institutions
and policy-makers as it is centred on cases in which the judiciary has attempted to
incorporate constitutionally not specifically enumerated human rights. Further, the study
is important to the above named stakeholders as it attempts to highlight the success and
failure of the Supreme Court in its endeavour of protecting human rights of the people in
India.

1.6 Scheme of the Study and its Presentation

The results of the study will be presented in Eight Chapters, including First
Chapter on Introduction and a last Chapter on Conclusions and Suggestions. In the First
Chapter, an attempt is made to define the problem, to state the objectives of the study and
hypothesis, to define importance of the study and to elucidate the methodology adopted
for the study.

1.6.1 Nature and Value of Rights

Rights are entitlements that are important to everyone as they provide minimum
conditions under which human beings can flourish. In “Nature and Value of Rights,” that
 13

is the Second Chapter, an attempt is made to highlight various approaches, theories as to

what rights are, and to emphasise that every such understanding is attached to social,
political, economic and historic circumstances and contexts from which such
understandings emerge. To achieve this objective, the Chapter aims to study the nature
and importance of rights; evolution of rights in the West and evolution of rights in India;
emergence of theories of rights, wherein the discussion commences from seventeenth
century and ends with the age of consolidation and trimming of the existing theories of
rights; schools of thought ranging from natural law and natural rights to social contractual
thinking; important arguments that oppose significance of the rights; and impact of the
authoritarian regimes on the rights of the individuals. The discussion on the theories and
definitions of rights do not consider their shortcomings or criticisms because there is no
comprehensive or conclusive shortcoming or criticism that holds ground during varying
times and circumstances.

1.6.2 Internationalisation of Human Rights

“Internationalisation of Human Rights”, that is the Third Chapter, aims to point
out that bitter experiences flowing from certain totalitarian, despotic regimes and the
aftereffects of the WorldWar II forced the international community to recognise certain
basic rights which are important for sustenance and development of the individuals and to
protect them globally by the process of internationalisation of human rights. Accordingly,
this Chapter is planned to commence with a narration of the important circumstances and
causes which led to the emergence of human rights from subjugation. Subsequently,
attempts are made in this Chapter to explain the process of internationalisation of human
rights; to define the concept and nature of human rights; to discuss the theories of human
rights; to elucidate human rights as a moral standard; to explain the process of adoption
of Universal Declaration of Human Rights, 1948; to discuss arguments against
internationalisation of human rights; and to highlight human rights as higher law
principle. The discussion on the theories and definitions of human rights, as in the
previous Chapter, excludes the consideration of its shortcomings or criticisms due to their
non-comprehensiveness and non-conclusiveness.
 14

1.6.3 Contemporary International Human Rights Standards

“Contemporary International Human Rights Standards”, which is the Fourth
Chapter, aims to provide an account of the developments which have taken place in
human rights norms and institutions since the World War II. The Charter of the United
Nations that replaced its predecessor the Covenant on the League of Nations imposed
obligation upon the State Parties to respect, promote and protect human rights by taking
appropriate steps. The Organs of the United Nations, from the time of their inception,
have been taking many initiatives to create a body of International Human Rights Law
and to negotiate human rights treaties and declarations. Collectively, these treaties and
declarations have provided for a ‘culture of human rights’ which acts as a useful tool to
promote all human rights. The current scheme of protection and promotion of human
rights is aimed at the global level. Thus, for this purpose the international, regional and
national human rights protection systems are developed by the States based on
international cooperation. Accordingly, this Chapter attempts to study the mandate and
structure of the United Nations, as it is the mandate and structure that is considered a
primary tool used to conclusively determine the functions of any organisation. This
discussion aims to highlight the role of the United Nations and its organs in protection
and promotion of human rights. Further, this Chapter aims to study the International Bill
of Human Rights which consists of the Universal Declaration of Human Rights, 1948, the
International Covenant on Civil and Political Rights 1966, International Covenant on
Economic, Social and Cultural Rights 1966, and the Optional Protocols to the said
Covenants. This study would highlight the list of rights with their contents and narrates
how those rights are aimed to be implemented by the machineries under the Covenants.
The Chapter also focuses on the study of the classification of human rights, the
contemporary global human rights protection mechanisms besides analysis of the scope
and ambit of the international human rights standards.

1.6.4 Human Rights and the Indian Constitution

In the context of ‘protection of human rights’, it is the protection system at the
national level that is available to the individuals at the first instance. The framers of the
Indian Constitution chose to provide certain Fundamental Rights to the people based on
 15

the human rights model, as they were aware of the utility and importance of human
rights. Considering the then available resources, social, political and economic situations,
the framers gave recognition to certain civil and political rights, and economic, social and
cultural rights by specifying them in Parts III and IV of the Constitution, respectively.
However, not all the existing international human rights could be given recognition in the
Constitution. Accordingly, in this Chapter, it is attempted to study the development of the
idea of Fundamental Rights; to identify international human rights that are
constitutionally specified and the human rights that are not specifically recognised in the
Constitution of India; to distinguish Fundamental Rights from human rights; and to
highlight consequences of non-incorporation of some international human rights
standards.

1.6.5 Judicial Incorporation of International Human Rights

Lack of comprehensive legislations to give effect to all international human rights
in India coupled with the existence of legitimised deprivations of human rights under the
legal framework have resulted in protection of the human rights of the people in India. In
order to ameliorate, the Courts in India, led by the Supreme Court, has been trying to give
recognition to certain of those international human rights standards that are not specified
in the Constitution of India. Thus, this Chapter is designed to discuss the power and
structure of the Supreme Court and High Courts with intent to study whether the Court
has the power to give recognition to unspecified international human rights standards.
Further, the Chapter aims to study the idea of judicial incorporation; features of judicial
incorporation; the causative factors of judicial incorporation; and the cases in which the
judiciary has selectively resorted to judicial incorporation. This part of the Chapter
attempts to highlight various international human rights standards that have been
incorporated into the Constitution by the Court.

1.6.6 Evaluation of Judicial Role

The judicial incorporation being a creative technique chosen by the judiciary for
protection of human rights has been playing a key role in giving recognition to some of
the un-enumerated international human rights standards. However, it is important to
analyse the contributions and failures of the Court in its venture of providing protection
 16

to internationally proclaimed civil and political rights and economic, social and cultural
rights. Thus, this Chapter undertakes critical evaluation of the role of the Supreme Court
of India in protection of the said rights wherein an attempt has been made to highlight the
contributions and failures of the Court concerning protection of human rights through
judicial incorporation.

1.6.7 Conclusions and Suggestions

The absence of provisions to protect a human right in the Constitution has not
stopped the Court from thinking of an alternative way to protect human rights of the
people in India. The Court has resorted to its creative interpretations to protect the
unspecified fundamental human rights. In this process, the Court has been making
frequent and extensive references to the principles of international human rights norms
and the International Human Rights Law to develop or enlarge the scope of Fundamental
Rights guaranteed by the Constitution with intent to include in it as much international
human rights standards as possible. “Conclusions and Suggestions”, that is the Eighth
Chapter attempts to provide appropriate suggestions with reference to the present study
based on conclusions.