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1
CHAPTER I
INTRODUCTION
Human rights are evolved along with human being. These rights are basic
rights relating to life, liberty equality and dignity of the individual. Human beings are
born equal in dignity and rights. These are moral claims which are inalienable and
inherent in all human personality by virtue of their ‘humanity alone’.1 These claims
are articulated and formed as ‘human rights’. It has been translated into legal rights
according to establishment of law creating process of states in national and
international. The history of human rights is full of instances which establish the fact
that all struggles for human rights revolve around to create a condition for respect
each individual can live with dignity. The human rights are human dignity and the
struggle for the human rights recognition and respect is for human dignity.2 Therefore
human rights are basic inalienable rights which cannot be subjected to take away.
The traditional norm governing the concept of human rights is the respect
for human personality regardless of colour, race, sex or religion. These rights are
essential for development of human personality and pursuit of happiness of every
human being. According to H. Lauchaterpat, human rights may be said to be those
basic fundamental rights guaranteed to every man or women inhabiting any part of the
world should be deemed entitled merely by virtue of born as a human being3. Further
Jack Donnelly observed, the Human rights are ‘universally’ applied because they are
all human beings in universe4. The human rights are considered as highest moral
value rights and it regulates the fundamental structures and practices in society. In
1Leah Levin, Human Rights: Questions and Answers 3 (National Book Trust, India in
Collaborationwith UNESCO publishing, New Delhi, 1998). 2M.K.Sinha, Enforcement of Economic, Social and Cultural Rights: International and National
Perspective 1 (Manak Publications Pvt. Ltd., New Delhi, 2006). 3 H. Lauchaterpachat, International law and Human Rights 73-91 (New York, 1950). 4Jack Donnelly, Universal Human Rights in Theory & Practice 1(Manas Publications in collaboration
with Cornell University Press, New Delhi, 2010).
2
ordinary circumstances, it takes priority over other moral, legal, and political claims.
Therefore eminent professor Jock Donnelly called it as “the moral universality of
human rights”5. These senses, the concept of human rights was introduced and
developed by thinkers from various cultural and religious traditions. After the First
World War, serious steps were taken to establishment of international human rights
standards in nineteenth century. However, it was succeeded in the second half of the
nineteenth century. The efforts of the United Nations, its specialized agencies and
regional intergovernmental organizations were taken collective steps for recognition
and promotion of international standard of human rights in universally6. The United
National Organization was established on 24th
October 1945 with primary object to
protect humanity from future war.
The Charter of the United Nations expressed the determination of member
States “to reaffirm faith in the fundamental human rights, in the dignity and worth of
the human person, in the equal rights of men and women and of nations large and
small”7. The Second World War has witnessed that massive violation of human
rights which leaded to the breach of international peace. The horrors and untold
sorrows of the world wars have strengthened the belief that “the recognition of the
inherent dignity and of the equal and in alienable rights of all member of the human
family is the foundation of freedom, justice and peace in the world.”8 It is necessitated
by the world nations to enunciate the universal declarations model in recognition of
the central role of Universal Declaration of Human Rights, 19489. The Universal
Declaration of Human Rights 1948 has been regarded as the cornerstone of
5 Id. 6 Supra note1 at vii. 7 Para-II of Preamble of the U.N. Charter, 1945. 8 Para-IV of the Universal Declaration of Human Rights, 1948. 9 It established the contours of the contemporary consensus on internationally recognizedhuman rights.
Adopted by the United Nations General Assembly on December 10, 1948, by a vote of 48-0 with eight
abstentions.
3
international human rights law in contemporary world order10
. The UDHR includes
substantial list of rights and it has been further elaborated by variety of treaties, most
importantly the two international covenants on Human Rights, 196611
, listed out the
rights of Civil, Political, Economic, Social and Cultural Rights. The international
human rights law comprises more than eighty universal and regional conventions12
which have binding force for state parties and therefore called as “hard law”. The end
of the Word War-II most of the Nations constitutions in the world have incorporated
human rights in their domestic sphere13
explicitly or implicitly. The various
provisions of the Constitutions in the world have the covenants enumerated rights in
one way or another.14
The Indian Constitution 1950 and the Universal Declaration of
human rights 1948 has been drafted parallel in time. Therefore the founding fathers
have faithfully reflected both guaranteed list of basic civil, political, economic, social
and cultural in Indian Constitution under Part-III and Part-IV respectively; since India
had faced serious basic human rights violation during the British regime. Hence the
Indian constitution consciously has incorporated basic human rights norm into
Constitutional mainstream. Therefore the realization of human rights in India is not a
claim of individual against the State as of the responsibility of the State is to protect
human rights whether the individual claims or not, the state is responsible to protect
and secure the human rights.15
10
Supra note 1 at viii. 11
International Covenant on Civil and Political rights, 1966 and International Covenant on Economic,
Social and Cultural Rights, 1966. 12 These instruments and state parties thereto are presented in the UNESCO Publication Human Rights:
Major International Instruments published annually. 13
C.Rajkumar and K.Chockalingam (eds.), Human Rights, Justice, and Constitutional Empowerment 26
(Oxford, New Delhi, 2007). 14
Prof. Mool Chand Sharma and Raja Ramachandran (eds), Constitutionalism, Human Rights & the Rule
of Law – Essays in honour of Soli J Sorabjee xiv (Universal law publishing, Delhi, 2008). 15
Supra note13 at 40.
4
1.1 Social and Economic Rights in Imperialist Rule and at Independence
India faced massive human rights violations during the British regime for
more than 200 years. Indian masses were deprived of basic rights which are essential
to lead life with dignity i.e. right to food, clothes, education, work, health, property
right to land and shelter. During that period social and economic rights were
deprived. Lahore and Karachi sessions of Indian National Congress urged the British
to guarantee independence and certain fundamental rights for Indian people. At the
time of India’s independence, there was everywhere starvation deaths, droughts,
illiteracy and no standard of living, and no social security to common man to worker,
education and property rights. These situations has been explained by Dr. Ambedkar
in his concluding address to Assembly and argued as “We must begin by
acknowledgement the fact that there is complete absence of two things in Indian
Society. One of these is equality. On the social plane we have in India a society
based on the principle of graded inequality which means elevation of some and
degradation for others. On the economic plane we have a society in which there are
some who have immense wealth as against many who live in abject poverty. How
long shall we continue to deny it we will do so only by putting our political democracy
in peril. We must remove this contradiction at the earliest possible moment or else
those who suffer from inequality will blow up the structure of political democracy
which this Assembly has so laboriously built up.”16
Jawaharlal Nehru’s economic plan
was mainly focused on socialistic model. He was the one who was responsible to
incorporate human rights into India through framing polices which aimed to eradicate
poverty and remove illness from the society i.e. hunger, poverty and illiteracy. He
categorically asserted that “if we cannot solve this problem soon, all our paper
16
Ranbir Singh, “Human Rights and the People of India”, 40 JILI 115–116 (1998).
5
constitutions will become useless and purposeless… If India goes down, all will go
down; if India thrives, all will thrive; and if India lives, all will live”.17
This speech
indicates that the necessary incorporative mechanism must be provided under our
constitution. During this time, the United Nations Organization was established by
dominating powers in the World. The Preamble to the U.N. Charter proclaims “to
reaffirm faith in fundamental human rights, in the dignity, and worth of human
person, in the equal rights of men and women and of national large and small, and …,
to promote social progress and better standards of life in larger freedom”. Apart
from preamble to the U.N. Charter, Art.1 (2) categorically urges the World Countries
to develop friendly relations with other nations and respect for equal rights of all and
guarantee to self-determination of people. Further Article 1(3) provides to promote
and protect for fundamental human rights and fundamental freedom to all without any
distinctions as to race, religion, sex or language. The responsibility fixed by U.N.
Charter, the human rights Committee was established by the ECOSOC. The
Committee studied various provisions of the Charter imposed obligations for
protection and strengthening of fundamental human rights. Hence, the Committee
appointed Elinor Roosvelt as Chairman of the Draft declaration of the Universal
Declaration of Human Rights (UDHR). At the same time, Indian Constituent
Assembly appointed a drafting committee to frame Indian Constitution. The Indian
Constitutional Drafting Committee appointed sub-committees to study about various
constitutions and to incorporate relevant provisions into Indian Constitution. The
Drafting of Declaration task handled by well developed Western nations, they got
well experience working of their constitution, and certain rights mentioned were
included into Universal Declaration of Human Rights. These rights were influenced
17
Id.
6
in Drafting of the Indian Constitution. The UDHR mentioned Civil and Political
Rights and Social-Economic Rights were incorporated into Indian Constitution. India
is an original member of the U.N. and signatories of the Universal Declaration of the
Human Rights. Treaties are not to be treated self executing in India. India specifically
follows the Anglo-Saxon model of British practice to application of treaties or
convention. This principle incorporates customary international law into India, if they
are not inconsistent with statutes.18
But, the Constitution imposed restriction under
article 367. It directs that the International Charters should be interpreted on the same
footing as an Act of Parliament.19
However, The Supreme Court of India has not
hesitated to incorporate international human rights law into India, the Court
interpreted the Written Constitution with liberally infusing salutary safe guards for
human rights contained under the International Human Rights law. Because, the
Constitution of India contemporary to the Universal Declaration of Human Rights. In
1948, the Constituent Assembly debates were going on. Therefore we may assume
that the makers of the Constitution were influenced by UDHR for framing Part-III and
Part-IV of the Constitution. With regard to both covenants i.e. ICCPR, and ICESCR,
1966 to which India is party and ratified by it. Hence, the covenants imposed
international obligation to implement it through appropriate legislation. If the
Parliament failed to legislate, the Court would be justified interpreting the
constitutional provision with regard to the International Covenants. These are the
justifying mechanism for article 367 to incorporate international human rights into
India. Therefore, Article 51(c) specifically provides that it is one of the directive
principles to direct the State to foster respect for international law and treaty
18
Naorem Sanajaoba, “International Dimension of Human Rights and International Obligations of
India”, 40 JILI 93 (1998). 19
Durga Das Basu, Human Rights in Constitutional Law, 27 (LexisNexis, New Delhi, 2008).
7
obligations in the dealings of organized people with one another.20
Art.253 provides
that Parliament has power to make law for implementing any treaty, agreement or
convention with any other country or countries or any decision made at any
international conference, association or other body.21
These provisions apparently
provide incorporation mechanism. Therefore the Union Parliament, Executive and
Judiciary have power to interpret international treaty or Convention or instruments
relating to human rights while doing their course of business. Hence, Rajeev Dhavan,
Senior Advocate of Supreme Court aptly observed that “human rights treaties stand
on a different footing from other treaties precisely because similar rights enshrined in
the Indian Constitution”.22
The Constitution itself provides that the executive of the Union has power to
enter into treaties; and execution and implementation of treaty provisions. The
Executive power of the Union is extending (i) to the matters with respect to which
Parliament has power to make laws; and (ii) to the exercise of such rights, authority
and jurisdiction as are exercisable by the Government of India by virtue of any treaty
or agreement.23
Therefore executive has performed on part of their obligation to
frame Welfare programmes and fund allotments in various FYPs. The Supreme Court
of India has adopted Anglo-Saxon and progressive approach by interpreting
Constitutional and other statutory provisions. With regard to Parliament enactment,
the Government of India has replied to the U.N. rapporteur in which categorically
stated that “the treaty or convention has to be given effect through national
20
Article 51(3) of the Indian Constitution, 1950. 21
Id, article 253. 22
Rajeev Dharan, “Treaties and People: Indian Reflections”, 39 JILI 31 (1997). 23
Article 73 of the Indian Constitution, 1950.
8
legislation”.24
Therefore, organs of the Government have incorporated socio-
economic related rights into India.
Therefore then the Prime Minister of India, Pandit Jawaharlal Nerhu
emphatically asserted that to remove inequalities and provide socio-economic rights
to all people in India. His speech was “the service of India means the service of the
millions who suffer. It means the ending poverty and ignorance and disease and
inequality of opportunity. The ambition of the greatest man of our generation has
been to wipe every tear from every eye. That may be beyond us, but as long as there
are tears and sufferings, so long our work will not be over”.25
The then President of
India, Rathakrishnan asserted that “India must have a ‘socio-economic revolution’
designed not only to bring about ‘the real satisfaction of the fundamental needs of the
common man’, but to go much deeper and bring about ‘a fundamental change in the
structure of Indian Society”.26
Hence socio-economic rights must be guaranteed to
people. The Constituent Assembly emphatically discussed about socio-economic
rights. Hence, the framers of the Constitution incorporated the specific provision
under Directive principles in Art.51 and legislative relations between Union and
States in Art.253 to implement laws and ratify treaties which was made under
international conferences or with other nations. These provisions are responsible for
incorporation of international human rights to be incorporated into India. Therefore
these factors that during 200 years imperialistic rule of Britisher in India, they
deprived Indians basic civil and political rights; and social and economic rights such
as right to education, food, shelter etc. In this context, the research made critic and
analyse to India’s active role of incorporation of social and economic rights of
24
Supra note 18 at 93. 25
Granville Austin, The Indian Constitution: Cornerstone of a Nation, 26 (Oxford University Press, New
Delhi, 2009). 26
Id, at 26–27.
9
international human rights in India through legislature of the Union, union judiciary
and excusive program of action on social, economic and cultural rights. Hence, the
research work formulated certain questions, which are to be answered in this research.
1.2 Research Problems
In this background the following research questions are to be formulated.
Does the India take effective step to incorporate the international human rights law?
If so:-
1. What is meant by international human rights?
2. What constitutes Economic, Social and Cultural rights in international human
rights law?
3. What are the international obligations imposed under the International Human
Rights law in India?
4. What is the incorporation mechanisms provided under the Indian law?
5. What is meant by legislative incorporation of international human rights in India?
6. Does the legislature of the union take any endeavour to incorporate international
human rights into domestic sphere?
7. What is meant by executive incorporation of international human rights in India?
8. Does the executive of India take any endeavour to incorporate international
human rights into domestic sphere?
9. What is meant by judicial incorporation of international human rights?
10. Does the judiciary of India take any endeavour to incorporate international human
rights into domestic sphere?
11. What are the methods adopted by India for incorporation of International Human
Rights?
10
1.3 Objectives of the Study
The objectives stated below are deduced from the research questions in
order to have comprehensive and explicit answers.
1. To define operative definition of “international human rights”,
“social and economic rights”, “incorporation”, “legislative
incorporation”, “executive incorporation”, “judiciary incorporation”
and “seminal rights” for the purpose of the research work.
2. To analyse various international conventions, treaties and covenants
that are related to the international human rights.
3. To enumerate international human rights related to Social and
Economic Rights.
4. To analyse India’s obligation with international law.
5. To analyse and identify international conventions and treaties in
which India is a signatory.
6. To analyse the legislative social and economic rights of
incorporation of international human rights in India.
7. To analyse the executive incorporation of social and economic rights
of international human rights in India.
8. To analyse the judicial incorporation of social and economic rights of
international human rights in India.
9. To critically analyse the seminal rights related to right to educations,
right to work, and right to found family.
10. To critically analyse the right to social security related rights of
workers and old aged person; and their welfare schemes programme
in India.
11
11. To analyse the right to adequate standard of living related to right to
health, right to food, pure drinking water, right to housing in India.
12. To analyse right to property in India.
1.4 Conceptual Definition
The research work concepts like ‘international human rights, ‘social and economic
rights’ ‘incorporation’, ‘legislative incorporation’, ‘executive incorporation’, ‘judicial
incorporation’ and ‘seminal rights’ among others has used for purpose of the
research. Hence, clear understanding of the concepts is required to proceed in this
research work.
International Human Rights Law
The eminent scholars Louis Henkin, Jack Donnelly, Ronald Dworkin and
Hersch Lauterpacht have defined international human rights in their own perspectives.
For the purpose of the research, it refers and limited to the rights set out in the
international conventions and covenants which are adopted by General Assembly of
the United Nations and its organizations.
Social and Economic Rights
Social and Economic Rights means and includes cultural rights; seminal rights such as
right to education, work and found family; right to adequate standard of living such as
right to food, water, right to shelter and health; right to social security; and right to
property.
Incorporation
The concept of incorporation means and includes the influence or reference
of the international human rights law directly or indirectly into Indian legal system.
The process of incorporation has limited to legislative, executive and judicial.
12
Legislative Incorporation
Legislative incorporation means the law enacted by the Parliament of India
directly or indirectly to social and economic rights of international human rights
related to seminal rights such as right to education, work and found family; right to
adequate standard of living such rights are food, drinking water, shelter and health;
right to social security of workers in organized and unorganized and old aged persons;
and right to property.
Executive Incorporation
Executive incorporation means the executive programmes formulated by
union executive of India directly or indirectly to social and economic rights of
international human rights related to seminal rights such as right to education, work
and found family; right to adequate standard of living such rights are food, drinking
water, shelter and health; right to social security of workers in organized and
unorganized and old aged persons; and right to property.
Judicial Incorporation
Judicial incorporation means the Supreme Court of India while deciding
cases recognizing directly or indirectly to social and economic rights of international
human rights related to seminal rights such as right to education, work and found
family; right to adequate standard of living such rights are food, drinking water,
shelter and health; right to social security of workers in organized and unorganized
and old aged persons; and right to property.
Seminal Rights
The origin of the word ‘seminal’ is derived from Latin word ‘seminalis,
from semen, semen seed and it firstly used in 14 century. The word considered as
13
adjective27
. It means having strong influence on ideas, works, and events etc., which
come later: very important and influential. The concept of seminal rights requires
definition and an in depth explanation. The core international human rights
instruments has provided minimum basic rights that required for individual to lead a
progressive life without which individual cannot live as a human being. Therefore
seminal right means and includes right to education, work and found family. These
rights are required to fulfill the development of human being in social and economic
aspect.
1.5 Review of Literature
In this section books, articles, dissertations, notes and comments; and reviews
made by jurists, authors, scholars are analyzed to find out the gap in existing literature
on the topics of International Human Rights Law and, on Economic, Social and
Cultural Rights, Human Rights in India and the Roles of Parliament, Executive and
Supreme Court on protection and promotion of International human rights in India.
Manisuli Ssenyonjo, in “Economic, Social and Cultural Rights in International
Law”,28
analyzed in deeper in the light of the practice of the International Covenant
on Economic, Social and Cultural Rights while taking into account of other relevant
sources of Economic, Social and Cultural Rights (ESCR) at national, regional and
international levels. Harold Hongju Koh, in “How is International Human Rights
Law Enforced?”29
analyzed to enforcement of international human rights into
domestic level through a transnational legal process of institutional interaction,
interpretation of legal norms and attempt to internalize those norms.
27 Supra note 19.
28Manisuli Ssenyonjo, Economic, Social and Cultural Rights in International Law, (Hart
Publishing,Portland, 2009). 29
Harold Hongju Koh, “How International Human Rights Law Enforced?’ 74 Indiana Law Journal,
1999, pp.1397 - 417.
14
Ellie Palmer, in “Judicial Review, Socio-Economic Rights and the Human
Rights Act”,30
analyzed legal mechanism for protecting socio-economic rights in
International law and it was recognized into constitutional propriety and efficacy of
various methods of protecting socio-economic rights at international, European
regional and domestic legal system. Rhona K.M. Smith, in “Texts & Materials on
International Human Rights”,31
trace the international human rights with special
reference to key vulnerable groups. Anthony D’ Amato, in “The concept of Human
Rights in International Law”,32
attempted that the concept of human rights can play
vital role in international law to implement and comply the world in realistic manner.
Dianne Otto, in “Rethinking the ‘University’ of Human Rights Law”,33
analyzed
international human rights assists toward a world without domination and established
universally egalitarian states. He explored transformation of international human
rights universally applicable in whole world. Michael Hass, in “International Human
Rights : A Comprehensive Introduction”,34
discussed the main focus on human rights
activism in which individual and organizations sought to advance human rights
through drafting important legal documents.
Durga Das Basu, in “Human Rights in Constitutional Law”,35
elaborately
analyzed various nationals’ constitution with international human rights law in
comparatively and further he analyzed that the international human rights law
guaranteed rights in national constitutions. Mahendra P. Singh and Helmut Goerlich
30
Ellie Palmer, Judicial Review, Socio-Economic Rights and the Human Rights Act, (Hart Publishing,
Portland, 2007). 31
Rhona K.M. Smith, Texts & Materials on International Human Rights, (Routledge - Cavendish
Publications, New York, 2007). 32
Anthony D' Amato, “The Concept of Human Rights in International Law,” 82 Columbia Law Review
1982, pp.1110 - 59. 33
Dianne Otto, “Rethinking the ‘Universality’ of Human Rights Law,” 29 Columbia Human Rights
Law Review 1997, pp. 1 - 46. 34
Michael Hass, International Human Rights : A Comprehensive Introduction, (Routledge, New
York, 2008). 35
Durga Das Basu, Human Rights in Constitutional Law, (LexisNexis, New Delhi, 2008).
15
(et.al) in “Human Rights and Basic Needs : Theory and Practice”,36
analyzed status of
the human rights in first world – developed countries in West and third world
countries and second world countries in Asia, Africa and Latin America. Vijay
Chitnis and C.M. Madan (et.al), in “Human Rights and the law : National & Global
perspectives”,37
traces evolution of human rights in national and international level
and human rights of vulnerable society and human rights and Indian Constitution.
Venkat Iyer (ed.), in “Democracy, Human Rights and the Rule of law : Essays
in Honour of Nani Palkhivala”,38
analyzed Indian Supreme Court and Human Rights,
protection and promotion of human rights through public interest litigation and human
rights in globalization and Asian values of human rights. These essays traced the
human rights in International level and Indian legal system. Manoj Kumar Sinha, in
“Enforcement of Economic, Social and Cultural Rights: International and National
Perspectives”,39
detailed explored the enforcement of human rights in general and
social, economic and cultural rights in particular. For the purpose, he elaborately
discussed rights contained under the international instruments and regional treaties
and national constitutions and other laws dealing with human rights. South Asian
Human Rights Documentation Centre, in “Introducing Human Rights : An overview
including issues of Gender Justice, Environmental and Consumer law”,40
traced the
international frame work of human rights, gender justice, and environmental policy.
It attempts to analyze the human rights in this aspect.
36
Mahendra P. Singh & Helmut Goerlich (et.al), Human Rights and Basic Needs : Theory and
Practice, (Universal Law Publishing Co., New Delhi, 2008). 37
Vijay Chitnis and C.M. Madam (et.al), Human Rights and the Law, (Snow-white, Mumbai, 1997). 38
Venkat Iyer (ed.), Democracy, Human Rights and the Rule of Law : Essays in Honour of Nani
Palkhivala, (Butterworth’s India, New Delhi, 2000). 39
Manoj Kumar Sinha, Enforcement of Economic, Social and Cultural Rights, (Manak Publications,
New Delhi, 2006). 40
South Asian Human Rights Documentation Centre, Introducing Human Rights : An overview
including issues of Gender Justice, Environmental and Consumer Law, (Oxford University Press,
New Delhi, 2010).
16
Yash Ghai & Jill Cottrell, in “The Millennium Declaration, Rights and
Constitutions”,41
explored how economic, social and cultural rights which recognized
under the Millennium Development Goals (MDGs) enforced. They emphatically says
that only possible when the world constitutions incorporate these rights into it.
Granville Austin, in “The Indian Constitution: Corner-stone of a Nation”,42
explored
that Indian Constitution in Part-III and Part-IV is the conscience of the Constitution
and it guarantees civil and political rights and, economic social and cultural rights.
Therefore he categorically came to conclusion that Indian Constitution is the first and
foremost a social document.
Manoj Kumar Sinha, in “Implementation of Basic Human Rights”,43
analyzed
development of human rights in jurisprudential aspects in national and international
level and implementation of non-derogable rights at national and international level,
and Jurisprudence of Indian judiciary and national human rights institutions. P.R.
Ghandhi, in “Balackstone’s International Human Rights Documents”44
consolidated
various international instruments in chronologically dealing to human rights and
United Nations procedure for handling human rights complaints.
Sally Engle Merry, in “Human Rights and Gender Violence : Translating
International Law into Local Justice”45
analyzed human rights into anthropological
model. She explored deep roots in cultural and religious belief. She also discussed
how human rights are incorporated into local cultural system. She emphatically
answered that human rights norms incorporated into local through localizing
41
Yash Ghai & Jill Cottrell, The Millennium Declaration, Rights and Constitutions (Oxford University
Press, New Delhi, 2011) 42
Granville Austin, The Indian Constitution : Cornerstone of a Nation, (Oxford University Press, New
Delhi, 2009). 43
Manoj Kumar Sinha, Implementation of Basic Human Rights, (Manak Publications, New Delhi,
1999). 44
P.R. Ghandhi (ed.), Blackstone’s International Human Rights Documents, (Universal Law
Publishing Co., New Delhi, 2001). 45
Sally Engle Merry, Human Rights and Gender Violence, (Oxford University Press, New Delhi,
2006).
17
transnational knowledge of rights, S.P. Sathee, in “Judicial Activism in India”,46
traces the evolution of the Supreme Court of India from restrictive narrow or passive,
positivist court into an activist court. He is proudly at jurist critically analyzed
Supreme Courts judgments in various periods. He observed that the Supreme Court
has activist role in cases decided under the Public Interest Litigation.
Jack Donnelly, in “Universal Human Rights in Theory and Practice”,47
explores the efficacy of bilateral and multilateral international action to issues related
on humanitarian intervention, democracy and human rights. He further elaborates a
theory of human rights in view of cultural relativism. Adamantia Pollis and Peter
Schwab (eds.), in “Human Rights : New Perspectives, New Realities”,48
analyzed
issues with the concept of the Universality of the human rights and discussed the
theoretical aspect of human rights with in the context of economic, social and cultural
rights. Charles R. Beitz, in “The Idea of Human Rights”,49
traces the contribution of
political theory relating protection and promotion of human rights in international law
i.e. global and regional level and, foreign policy of states and non-governmental
organizations.
Atula Gaur, in “Protection and Implementation of International Human Right
in Domestic Law”50
traces the implementation of human rights standards in India and
explains constitutional provisions and Judicial decisions which harmonizing the
International with municipal law. Shale Horowitz and Albrecht Schnabel (eds.), in
46
S.P. Sathe, Judicial Activism in India, (Oxford University Press, New Delhi, 2010). 47
Jack Donnelly, Universal Human Rights in Theory and Practice, (Manas Publications, New Delhi,
2010). 48
Adamantia Pollis and Peter Schwab (eds.), Human Rights : New Perspectives, New Realities, (Viva
Books, New Delhi, 2010). 49
Charles R. Beitz, The Idea of Human Rights, (Oxford University Press, New Delhi, 2009). 50
Atula Gaur, Protection and Implementation of International Human Rights in Domestic Law,
(Serials Publications, New Delhi, 2010).
18
“Human Rights and Societies in Transition Causes, Consequences, Responses”,51
explored appropriate and effective policies to promote human rights in transition
societies. International, regional and local actors must aware to violation of human
rights so that they can frame policies to take steps to protect the human rights and it
also offers recommendations for implementation of human rights practice in transition
societies.
S.C. Joshi, in “Human Rights : Concepts, issues and Laws”,52
analyzed the
issues related to Human Rights’ evolution, economic development and human rights,
human rights and criminal administration system, national human rights commission,
contribution of NGO for protection of human rights and positive action in Indian
Society. L.N. Basu, in “Human Rights: Practice and Limitation”53
explored the
concept of human rights and its dimensions. He analyzed elaborately that human
rights is indispensable for development of individual in all aspects.
Centre for Development and Human Rights, in “The Right to Development :
A Primer”54
explored right to development, Economic, Social and cultural rights in
International Law and Contribution Indian judiciary recognition of human rights
through interpretation constitutional provisions and statutory provisions. The book
elaborately analyzed the right to food, education and health. U.N. Gupta, in “The
Human Rights: Conventions and Indian Law”55
analyzed functional aspects of human
rights in constitution and Judicial pronouncements recognized in it while deciding
51
Shale Horowitz and Albrecht Schnabel (eds.), Human Rights and Societies in Transition : Causes,
Consequences, Responses, (United Nations University Press, Tokyo, 2004). 52
S.C. Joshi, Human Rights : Concepts, Issues and Laws, (Akansha Publishing House, New Delhi,
2006). 53
L.N. Basu, Human Rights : Practice and Limitations, (Pointer Publishers, Jaipur, 2006). 54
Centre for Development and Human Rights, The Rights to Development : A Primer, (Sage
Publications, New Delhi, 2004). 55
U.N. Gupta, The Human Rights : Conventions and Indian Law, (Atlantic Publishers, New Delhi,
2004).
19
cases. S. Gopalan (ed.), in “India and Human Rights”56
traced evolution of human
rights, internationally recognized human rights and Indian recognized human rights.
Justice V.R. Krishna Iyar, in “Human Rights and Inhuman Wrongs”57
explored universal application of human rights in national constitutions. He
eloquently explained human rights in several chapters related to different aspects of
human rights and plea for restoration of human personality. It is responsible to
respect and recognition of human rights for everyone in the Society. Upendra Baxi,
in “The Future of Human Rights”58
analyzed evolution of human rights in
developmental era, contemporary human rights in national and international law and
various human rights movements and human rights market in globalization era.
Paras Diwan and Peeyushi Diwan in “Human Rights and the Law : Universal
and Indian”,59
explored evolution of International human rights and Indian human
rights and fundamental rights under Indian Constitution and Implementation
mechanism under the Indian Constitution. YSR Murthy, in “Human Rights : Hand
Book”,60
analyzed definition of human rights, human rights in India and it compared
with International Human Rights. Civil and Political Rights and Economic, Social
and Cultural Rights under the India Law and International Law and vulnerable
sections and Human Rights and Human Rights in Contemporary World. J.S. Verma,
in “The New Universe of Human Rights”61
analyzed Human Rights in the New
Millennium, contribution of judiciary and role of national institutions for protection of
Human Rights. He also elaborately discussed contemporary issues in Human Rights.
S.K. Agarwala and T.S. Rama Rao (ed.al), in “New Horizons of International Law
56
S. Gopalan (ed.), India and Human Rights (Lok Shaba Secretariat, New Delhi, 1998). 57
Justice V.R. Krishna Iyar, Human Rights and Inhuman Wrongs, (B.R. Publishers, New Delhi, 2001). 58
Upendra Baxi, The Future of Human Rights, (Oxford University Press, New Delhi, 2005). 59
Paras Diwan and Peeyushi Diwan, Human Rights and the Law : Universal and Indian, (Deep and
Deep Publications, New Delhi, 1998). 60
YSR. Murthy, Human Rights : Hand Book, (LexisNexis, New Delhi, 2007). 61
J.S. Verma, The New Universe of Human Rights, (Universal Law Publication, New Delhi, 2006).
20
and Developing Countries”62
explored Human Rights in new horizons of International
Law, Human Rights in developing nations, developed nations, regional conventions
on Human Rights and jurisprudence of the European Court of Human Rights.
Bimal N. Patel edited a collection of articles under the title, “India and
International Law”.63
In this work, Manoj Kumar Sinha wrote an article, “Laws of
Human Rights and the Indian Constitution” deals the enforcement mechanism under
the Constitutional Law and for this purpose, the role played by the Supreme Court,
executive and legislature in implementation of human rights. Another article
contributed by Subhash C. Kashyap, in “Human Rights provisions in the UN
Documents and in the Constitution and Law of India” comparatively analyzed various
internationally recognized human rights instruments with constitutional provisions
and Central Acts.
C.J. Nirmal edited a collection of articles under the title, “Human Rights in
India : Historical, Sociological and Political perspectives”.64
In this work, M. Sundara
Raj, in “Awakening of Human Rights” traces evolution of human rights from ancient
period to present period and analyzed Constitutional provisions relating to human
rights. A article contributed by Leela Simon and Chiranjivi J. Nirmal, in
“Fundamental Rights : The Constitutional Context of Human Rights” analyzed the
Constitutional background of fundamental rights and comparison of fundamental
rights with International covenants and UN Human Rights Committees
recommendations. Another an article contributed by V. Vijayakumar, in “The
Working of the National Human Rights Commission: A Perspective” explore the
concept of human rights to attain jurisprudential aspects. He classified Supreme
62
S.K. Agarwala and T.S. Rama Rao, New Horizons of International Law and Developing Countries,
(N.M. Tripathi Private Ltd., Bombay, 1983). 63
Bimal N. Patel (ed.), India and International Law, (Martinus Nijhoft Publishers, Leiden, 2005). 64
Chiranjivi J. Nirmal (ed.), Human Rights in India: Historical, Social and Political Perspectives,
(Oxford University Press, New Delhi, 2009).
21
Courts activist role into A.K. Goplan to Menaka Gandhi and Menaka Gandhi to 1993
in which Supreme Courts activists’ role was explained.
Anisur Rahman (ed.), “Human Rights and Social Security”65
in which an
article contributed by Nalini Kant Jha, in “The Role of Higher Indian Judiciary in
Balancing Human Rights and Social Welfare : An Assessment” analyzed the Supreme
Court activist role played through public interest litigation (PIL) or social action
litigation (SAL) in number of cases. He traced number of cases in protection of basic
human rights balancing social wellbeing. Another article contributed by Pawan
Kumar, in “Role of Public Interest Litigation in Protection of Human Rights under
Indian Constitutional Law” analyzed Human Rights under Indian Constitution and
traced public interest litigation’s nature, scopes and courts role to protect and implent
human rights through PIL.
Dr. Paramjit S. Jaswal and Dr. Nishtha Jaswal, in “Human Rights and the
Law”66
traces historical foundation of human rights and analytically discussed the
International Bill of Human Rights (IBHR) and also Judiciary’s evolution of new
human rights jurisprudence. Azizur Rahman Chowdhury and Md. Jahid Hossain
Bhuiyan edited a collection articles titled, “Issues in Human Rights”.67
In this work,
M. Abdul Hannan, in “The International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights : Their
Implementation and Progress” analyzed the implementation procedures of the
covenants and the petition system and general comments of the HRC; and supervisory
procedure.
65
Anisur Rahman, (ed.), Human Rights and Social Security, (Manak Publications, New Delhi, 2011). 66
Dr. Paramjit S. Jaswal and Dr. Nishtha Jaswal, “Human Rights and the Law, (APH Publishing
Corporation, New Delhi, 2012). 67
Azizur Rahman Chowdhury and Md. Jahid Hossin Bhuiyan (et.al), Issues in Human Rights, Atlantic
Publishers, New Delhi, 2010).
22
Ian Brownlie (ed.), in “Basic Documents in International Law”68
attempts to
combine essential instruments related to international law. B.N. Kirpal and Ashok H.
Desai (et.al) edited a collection of articles titled, “Supreme But not Infallible: Essays
in Honour of the Supreme Court of India”.69
In this work, Atul M. Setalvad, in “The
Supreme Court on Human Rights and Social Justice: Changing Perspectives”
analyzed constitutional provisions and Supreme Court decisions specifically
recognized human rights through innovative techniques.
Justice Dharmadhikari, in “Human Values and Human Rights”70
deals various
aspects of human rights related to right to health, education, right of older persons,
mentally ill and women. Prof. S.R. Bhansali, in “Law relating to Human Rights in
International and National Laws and Constitutions”71
analyzed comparative aspect of
human rights with natural law and fundamental rights. He elaborately discussed
various international human rights instruments on different issues.
K.P. Saksena edited collected articles titled, “Human Rights and the
Constitution”.72
In this work, V.S. Mani, in “The Promise, the Content and the
Performance : The Human Rights Provisions in the Indian Constitution” critically
analyzed objective resolution, Part-III and Part-IV of the Constitution, social and
economic justice and expansive view of right to life and personal liberty in article 21
by the Supreme Court. Another article contributed by Abdulrahim P. Vijapur, in
“Domestic Application of the International Covenant on Civil and Political Rights –
with Special Reference to Rights of Minority in India” analyzed minorities rights
68
Ian Browonlie, Basic Documents in International Law, (Oxford University Press, New York, 2009). 69
B.N. Kirpal and Ashok H. Desai (et.al), “Supreme But Not Infallible : Essays in the Honour of the
supreme Court of India, (Oxford University Press, New Delhi, 2010). 70
Justice Dharmadhikari, “Human Values and Human Rights, (Universal Law Publishing, New Delhi,
2010). 71
Prof. S.R. Bhansali, Law Relating to Human Rights in International and National Laws and
Constitutions, (Universal Law Publishing, New Delhi, 2013). 72
K.P. Saksena (ed.) Human Rights and the Constitution, (Gyan Publishing House, New Delhi, 2003).
23
under the ICCPR and domestic implementation of International Covenants on Human
Rights through reporting and complaint procedures.
V.S. Mani, in “Human Rights and the United Nations : A Survey”,73
analyzed
normative contribution of the United Nations to the evolution of international human
rights and expansion of human life since Universal Declaration of Human Rights,
1948. P.P. Rao, in “Permeation of Human Rights Philosophy into Municipal Law”,74
analyzed fundamental rights with international human rights instruments and judiciary
role to construe the provisions of municipal law with international covenants and the
Declaration of Human Rights. Naorem Sanajaoba, in “International Dimensions of
Human Rights and International Obligations of India”,75
critically analyzed the state
obligations within the frame work of international human rights regime, Human
Rights provisions in U.N. Charter, and State practices to human rights.
Rajeev Dhavan, in “Treaties and the People : Indian Reflections”,76
explored
the background of treaty making power, restraints arising from incorporation doctrine
and ratification of treaties in Indian perspectives. He observed that treaties are
expanding regime of Global governance to accomtablity in democratic society. Gopal
Subramanium, in “Contribution of Indian Judiciary to Social Justice Principles
underlies the Universal Declaration of Human Rights”,77
critically examined Supreme
Courts role while deciding cases, expanding, horizons of right to life on basis of
human rights through judicial interpretation in various cases since UDHR, 1948.
73
V.S. Mani, “Human Rights and the United Nations : A Survey,” Vol.40, Journal of the Indian Law
Institute, 38 - 66 (1998). 74
P.P. Rao, “Permeation of Human Rights Philosophy into Municipal Law,” Vol.40 Journal of the
Indian Law Institute, 131 - 137 (1998). 75
Naoram Sanajaoba, “International Dimensions of Human Rights and International Obligations of
India,” Vol.40, Journal of the Indian Law Institute, 87 - 133 (1998). 76
Rajeev Dhavan, “Treaties and people : Indian Reflections”, Vol.39, Journal of the Indian Law
Institute, 1-46 (1997). 77
Gopal Subramanium, “Contribution of Indian Judiciary to Social Justice Principles underlying the
Universal Declaration of Human Rights,” Vol.50, Journal of the Indian Law Institute, 593 - 605
(2008).
24
Ranbir Singh, in “Human Rights and the People of India”,78
critically explored the
interface between human rights and the people of India. He examined after
independence, the Indian people were really enjoyed human rights. N.S. Kamboj, in
“Human Rights and Judicial Activism”,79
examined the role of NHRC and the
Judiciary to effective implementation of human rights. V. Hemalatha Devi, Sayed
Maswood and B. Yuvakumar Reddy, in “Right to Work as Fundamental Right:
Illusion or Reality”,80
analyzed constitutional provisions related to right to work with
international bill of rights and judicial pronouncements.
Manoj Kumar Sinha, in “Right to Education: National and International
perspectives”81
analysed International Human Rights related to right to education and
Indian Constitutional and various statutory provisions and policy of the Government
of Education. J. Mahalakshmi in “Social Security of Workers in India: A Human
Rights Perspective”82
analysed Social Security Laws applicable to organised workers
and unorganised workers, constitutional provisions and International instruments
dealing to right to Social Security. Knljit Kawr, in “Remedies under International
Law to victims of Human Rights violation”83
analysed compensatory mechanism to
provide compensation for victim of Human Rights violation. He analysed
international mechanism for violation of Human Rights to victim of Human Rights
violation, Justice S. Rajendra Babu, in “Human Rights Agenda: A Perspective for
78
Ranbir Singh, “Human Rights and the People of India”, Vol.40, Journal of the Indian Law Institute,
114-120 (1998). 79
N.S. Kamboj, “Human Rights and Judicial Activism”, Vol.41, Journal of the Indian Law Institute,
110 - 115 (1999). 80
V. Hemalatha Devi, Sayeed Maswood and B. Yuvakumar Reddy, “Right to Work as Fundamental
Rights : Illusion or Reality?”, Vol.44, Journal of the Indian Law Institute, 269 - 272 (2002). 81
Manoj Kumar Sinha, “Right to Education: National and International Perspectives”, Vol.48, Indian
Journal of International Law, 188 – 207 (2008) 82
Dr. J. Mahalakshmi, “Social Security of Workers in India: A Human Rights Respective”, Vol.XXXII,
Indian Bar Review, 389 – 408 (2005) 83
Kuljit Kaur, “Remedies under International Law to victims of Human Rights Violations,” Vol.XXXII,
Indian Bar Review, 499 – 509 (2005)
25
Development”84
analysed right to development in context of declaration on the Right
to Development. He explored that right can be guaranteed to everyone in the present
day.
Dr. S.R.S. Bedi, in “The Role of the Judges in the Age of Human Rights – An
Analysis of Human Dignity,”85
Critically analysed the jurisprudential foundation and
explanation on the part played by the U.N. and landmark judgments of the ICJ.
Gurjeet Singh, in “Role of National Human Rights Commission in the context of
Review of Laws, Implementation of International Instruments of Human Rights,”86
examined the role and responsibilities performed by the NHRC in accordance with the
statutory requirements and review of laws and implementation of International
Human Rights Law in India. Arvind P. Datar, in “Our constitution and its self-
inflicted wounds”87
critically analysed to Constitutional Amendments which is
responsible for a socialist and a republican form of state. Rajeev Dharan, in
“Promise, Promise.....: Human Rights in India”88
critically analysed
compartmentalization of Human Rights into ESR and CPR and its constitutional
background of India.
S. Ruseel, in “Individual under International Human Rights Law. The
Expanding Horizon,”89
critically analysed state sovekiyinty and place of individual in
the era Human Rights under International Law. K.D. Gaur, in “International Human
84
Justice S. Rajendra Babu, “Human Rights Agenda : A Perspective for Development,” Vo.45, Journal
of Indian Law Institute, 157 – 171 (2003) 85
Dr. S.R.S. Bedi, “The Role of the Judges in the Age of Human Rights – An Analysis of Human
Dignity,” Vol.1, Nuds Law Journal, 73 – 108 (2007) 86
Gurjeet Singh, “Role of National Human Rights Commission in the context of Review of Laws,
Implementation of International Instruments of Human Rights, Vol.32-33, The Banaras Law Journal,
103 – 108 (2003 – 2004) 87
Arvind P. Datar, “Our Constitution and its Self – Inflicted Wounds”, Vol.10 Indian Journal of
Constitutional Law, 92 – 112 (2008) 88
Rajeev Dhavan, “Promises, Promises...: Human Rights in India; Vol.39, Journal of the Indian Law
Institute, 149 – 185 (1997) 89
S.Russel, “Individual under International Human Rights Law: The Expanding Horizon”, Cochin
University Law Review, 367 – 391 (2002)
26
Rights Vis – A – Vis Human Rights Movements in India. It Strengths and Weakness
,”90
analysed development of International Human Rights and Human Rights
movement in India and effects of violation of Human Rights to developing Countries.
J.L. Kaul and Anju Vali Tikoo, in “Revisiting Award of compensation for violation of
Fundamental Human Rights: An analysis of Indian Supreme Court Divisions”91
analyed the doctrine of compensation in case of violation basic Fundamental Human
Rights as envisaged by the Supreme Court.
P.S. Seema, in “Incorporation of International Human Rights Documents into
Indian Law- Response of the Supreme Court”92
explored to the jurisprudence
developed by the Supreme Court of India while decided cases in incorporated
International Human Rights Law into India and constitutional Scheme of
incorporation. Noor Mohd. Bilal, in “International Human Rights Law and
International Humanitarian Law – convergence and concerns”93
analysed the
International Human Rights Law with regard to observant and promotion of Human
Rights; and relationship between Human Rights Law and Humanitarian Law in
modern International Law, Dr. Rajkumar Upadhay, in “ Western and Indian concept
of Human Rights: AN overview”94
analysed the Human Rights concept in Western
countries and Indian approach of Human Rights.
90
K.D. Gaur, “International Human Rights Vis-à-vis Human Rights Movements in India: Its strengths
and weakneses”, vol.43, Journal of Constitutional and Parliamentary Studies, 165 – 184 (2009) 91
J.L. Kaul and Anju Vali Tikoo, “Revisiting Award of compensation for violation of Fundamental
Human Rights: An analysis of Indian Supreme Court Decisions”, vol.43, Journal of Constitutional
and Parliamentary Studies, 185 – 211 (2009). 92
P.S. Seema, “Incorporation of International Human Rights Documents into Indian Law – Response of
the Supreme Court”, Cochin University Law Review, 1 – 19 (2006) 93
Noor Mohd. Bilal, “International Human Rights Law and International Humanitarian Law –
Convergence and concerns”, vol.XII, Kashmir University Law Review, 73 – 90 (2000) 94
Dr. Rajkumar Upadhyay, “Western and Indian Concept of Human Rights: An overview”, All India
Reporter, Jour 123 – 128 (2010)
27
Robert Mc. Corquodale and Penelope simous, in “Responsibility beyond
Borders: State Responsibilities for Extraterritorial Violations by Corporation of
International Human Rights Law”95
analyse the extraterritorial obligation of states
under International Human Rights Law and states responsibility and International
Human Rights Law. Justice P. Sathasivam, in “Role of Court in protection of Human
Rights”96
analysed the Supreme Court activist role while deciding cases through
which International Human Rights incorporated V.G. Ranganath, in “Human Rights -
A Judicial Analysis”97
analysed the Supreme Court recognised basic Human Rights.
The above review of literature shows that in fact the authors have widely
concentrated evolution of International Human Rights and Human Rights in India and
in various issues related Civil and Political Rights; and Economic, Social and Cultural
Rights. Some authors’ occasionally analysed Supreme Court role to applying
International Human Rights Law while deciding cases before it. It is evident that
scholars have analysed various issues related to Human Rights in jurisprudential
aspects including International conventions and treaties. But no authors
systematically have been explored and formulated incorporation of International
Human Rights particularly social and economic rightsin relation to executive,
legislative and judiciary. It clearly shows that there is no systematic research on this
topic. Therefore, in this research work is attempt to explore and formulate role played
by legislative, executive and judiciary to incorporate Socio – economic rights of
International Human Rights Law in India.
95
Robert Mc Corquodale and Pendope Simons, “Responsibility Beyond Borders: State Responsibility
for Extraterritorial violations by Corporations of International Human Rights Law”, vol.70, The
Modern Law Review, 598- 625 (2007). 96
Justice P. Sathasivam, “Role of Courts in Protection of Human Rights; All India Reporter,Jour 65 – 71
(2012) 97
V.G.Ranganath, “Human Rights – A Judicial Analysis”, All India Reporter, Jour 204 – 208 (2013).
28
1.6 Research Methodology
It is a doctrinaire research. The processes of incorporation of social and
economic rightsof international human rights law into India are analysed and in which
social and economic rightsare separated from international human rights law. The
research identified the methods of incorporation of social and economic rightsof
international human rights laws into India which has been explored, analysed and
formulated through methods of legislative, executive and judicial incorporation. The
doctrine of international human rights has been analysed with reference to application
in India.
There are various stages involved in the research process.
1) All the international human rights are listed out.
2) All the social and economic rights of international human rights are
systematically listed out from international human rights.
3) Identified various incorporation mechanisms of social and economic rights
international human rights set out in the Indian Constitution.
4) Legislature incorporation of social and economic rights of international
human rights is identified.
5) Judiciary’s roles of application of social and economic rights of international
human rights through interpretation of various laws are identified.
6) Executive incorporation of social and economic rights of international
human rights of central government programs is culled out.
7) Roles of legislature, executive and judicial incorporation of social and
economic rights have been critically analysed.
29
All the core social and economic rights are classified in to seminal rights;
adequate standard of living; social security; and right to property. Further these rights
are divided into right to education, work, found family, the minimum rights required
for adequate standard of living – food, water, housing and health. The Social security
includes rights related to organized and unorganized workers and in case of
unemployment, old age, sickness and disablement; and finally the right to property.
The right to property is guaranteed as one of the economic, social and cultural rights.
The era of science and technology guaranteed individual’s intellectual as a property.
For the purpose of this research each chapters are classified into three methods of
incorporation i.e. legislative, executive and judicial. The Indian stages of
incorporation has analyzed into four periods. The first period of incorporation related
from 1950 after the adaptation of Universal Declaration of Human Rights (UDHR) by
United Nations General Assembly (UNGA) up to the enactment of international
covenants 1966. The second period is from 1966 to 197998
. The third period is from
1979 to 199399
. The fourth period is from 1993100
to 2013.
The research work is applied explorative, formulate, analytical and critical
methods. The international human rights laws have been explored. The core
international economic, social and cultural rights have separated from the
international human rights law. The constitutional mechanism for incorporation of
international human rights has critically studied. Through this incorporation
mechanism, of the legislative, executive and judiciary role has been analysed. The
incorporative methods have been classified into legislative, executive and judicial.
The legislative, executive and judicial methods of incorporation was adopted by India
98
India has ratified both covenants on 10th
April 1979 99
India has enacted the Protection of Human Rights Act, 1993 that incorporated most of the basic
standard recommended by Amnesty International. 100
Id.
30
that legislature has responsible for enacting laws, executive formulated policies for
welfare of the people and judiciary interpret the law made by legislature and its role to
do complete justice under article 142101
. The process has been studied into four
periods in which roles of methods of incorporation i.e. mechanism has been critically
studied. For the purpose, the Acts of Parliament, executive programs and judiciary
role for incorporation of social and economic rights of international human rights has
been listed out. Thereafter sources are classified chronologically for the purpose of
the study.
1.7 Sources of Data
International treaties and conventions related to social and economic rights,
Constitution of India, Acts of Parliament, executive programmes of social and
economic rightsand decision of the Supreme Courts on social and economic rights are
considered as the primary sources. Articles, books, dissertations, writs-ups of the
eminent scholars on the human rights and review of cases are considered as secondary
sources of data. The judgments of the Supreme Court downloaded from the AIR
InfoTech, SCC online and executive programs of the Government of India are
downloaded from internet resources.
1.8 Delimitation
This study is confined to core international instruments relating to social
and economic rightsthat are adopted by United Nations General Assembly. The
legislative incorporation of social and economic rightsof international human rights
law is considered as Act of Parliament when it merely touches the economic and
social rights. Similarly executive, judicial incorporation are referred to Union
executives and Supreme Court respectively. The Supreme Court cases are taken
101
The Supreme Court has power to grant equitable relief to eradicate injustice while exercising its
jurisdiction.
31
irrespective of ratio decidendi or obiter dicta. The analysis of incorporation
mechanism in India reveals the usages of words transformation that is interchanged
for the concept of incorporation. Hence, both concepts are addressed for this research
purpose.
1.9 Limitations
The research explores, formulates and critically examined the incorporation
of social and economic rights of international human rights into India. For the
purpose, processes of incorporation have been done through the Act of Parliament;
application of international human rights by the Supreme Court while deciding or
taking interpretation of statutes; and union executive welfare programmes. These are
studied under four periods (1950 to 2013). It is necessary to compile and edit them in
an organized way to set a complete picture about the given issues. Therefore many
Acts of Parliament, Constitutional Amendments, Union Governments’ welfare
programmes and Supreme Courts judgments were quoted in verbatim.
1.10 Plan of study
The research work has divided into seven chapters. The first chapter is
Introduction, the second is the Background, the third is Seminal Rights, fourth is
Right to Adequate Standard of Living, fifth is Social Security, sixth is Right to
Property and the last chapter is Conclusion. The introductory chapter list out the
research questions to be answered, application of methodology, review of literature,
sources of data used for to get answers for the research questions.
The second chapter, Background is divided into three parts. First part
deals with development of international human rights law, second part deals about
economic and social rights; and third part deals that economic and social right in
India. The first part the development of international human rights law have been
32
traced and analysed. The enumerations of human rights in international bill of human
rights102
have been discussed. The second part deals with core international
instruments that depicted social and economic rights have been listed out. The third
part discussed social and economic rights in India as found is constitution103
and
Human rights Act and institutional mechanism, the role of judiciary in incorporation
or application of international human rights while interpreting and deciding cases.
This chapter also identified that the list of international human rights and application
or transformation of these rights are into India in various process of incorporation.
The third chapter titled as Seminal Rights. It includes basic essential
rights to development of individuals such rights are education, work and found
family. The chapter divided into three heads. The first heads deals right to education
second head deals right to work and thirdly right to found family discussed. The role
of legislature, executive and judiciary incorporation of related periods discussed. The
fourth chapter deals about Right to Adequate Standard of Living. These are basic
rights without the right human being cannot live as human being. Hence, this chapter
divided into right to food, water, Housing and health and that are elaborately
discussed in international instruments and incorporated in to India through legislature,
executive and judiciary. The sixth chapter deals with Right to Property. The
right to property has considered as controversial because that protects ‘haves’ against
‘have-nots’. It clearly has characteristic of social rights with significant implications
for the distribution of social goods and wealth. The right to property has major
implications for several important social and economic rights such as right to work,
the right to enjoy the benefits as right to work, the right to enjoy the benefits of
102
The International Bill of human rights consist of the Universal Declaration of human rights called as
soft law, International covenants on Civil and Political Rights, 1966 and International Covenants on
Economic, Social and Cultural Rights, 1966, both are called “hard law”. 103
Part-III (Fundamental rights) and Part-IV (Directive principles of state policies) of the Indian
Constitution, 1950.
33
scientific progress, the right to education and the right to adequate housing. John
Locks rightly called right to property as natural rights such as right to life and liberty
which human beings could not be deprived of. Now-a-days property is considered as
key concepts to the legal order. The state’s economy depends on the property. During
1950s & 1960s western world has converted private property into public property
through nationalization process. Hence, the right to property is not mentioned in
binding covenants.104
Now the Supreme Court of India has recognized right to
property as a human rights.105
The right of claim of adverse position is considered as
human right. The protection of traditional knowledge and intellectual property are
also comes under right to property and same was elaborately analyzed.
The final chapter is conclusion and it sum ups the findings, trends of
incorporation and recommendations.
104
Id, art.31-B. 105
Justices Dalveer Bhandari and H S Bedi noted, "The right of property is now considered to be not
only a constitutional or statutory right but also a human right." Quoting from a decision passed by
an English court, the Bench said, "Human rights have been historically considered in the realm of
individual rights such as right to health, right to livelihood, right to shelter and employment, etc.
But now human rights are gaining a multifaceted dimension. Right to property is also considered
very much a part of the new dimension."
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