Constitutionalism and Human Rights in India: Promise, Paradox and Practice

Human rights are fundamental rights of all human beings, regardless of race, sex, nationality, ethnicity, gender, faith, etc. Human rights include the right to live with dignity and liberty, right to education and work, freedom of speech and expression, freedom from oppression and slavery, and many more. Everyone is entitled to these rights, without discrimination. Although concept of human rights is not a very new thing for Indian civilisation, it is rooted there in our culture. At the same time, Indian society would had been probably one of the worst societies in the world practicing number of social evils degrading the life and value of human beings - like caste discrimination, sati prathta etc. Human rights in India underwent lot of ups and downs. Post-independence, most of the human rights as declared by UDHCR were reflected as Fundamental Rights in Indian Constitution, which was adopted on 26 January 1950. We also witnessed a number of historical judgements which further strengthened human rights in India. The last five years remained in news for various new trends in both - violations as well as strengthening of human rights in India. The paper attempts to outline such recent trends in last five years (2014-2019) in India.

Human rights are fundamental rights of all human beings, regardless of race, sex, nationality, ethnicity, gender, faith, etc. Human rights include the right to live with dignity and liberty, right to education and work, freedom of speech and expression, freedom from oppression and slavery, and many more. Everyone is entitled to these rights, without discrimination. Although concept of human rights is not a very new thing for Indian civilisation, it is rooted there in our culture. At the same time, Indian society would had been probably one of the worst societies in the world practicing number of social evils degrading the life and value of human beings - like caste discrimination, sati prathta etc. Human rights in India underwent lot of ups and downs. Post-independence, most of the human rights as declared by UDHCR were reflected as Fundamental Rights in Indian Constitution, which was adopted on 26 January 1950. We also witnessed a number of historical judgements which further strengthened human rights in India. The last five years remained in news for various new trends in both - violations as well as strengthening of human rights in India. The paper attempts to outline such recent trends in last five years (2014-2019) in India.

Human Rights are those rights that are inherent in our nature and without which we cannot exist as humans. This paper attempts to analyse the role of Writs and Judicial Activism in the protection of Human Rights in India, as well as to analyse key Landmark Judgements issued by the Supreme Court. The Supreme Court of India was critical in protecting human rights and granting redress through Writs. Individual and state rights are frequently safeguarded in the existing state system in order to establish Rule of Law. When human rights are violated, it is the judiciary that plays a positive role in interpreting the rights and thus guiding or checking the state accordingly. The concept of judicial activism is fluid, allowing an Egalitarian society to become a reality. In some ways, judicial activism has been imposed on the judiciary by an insensitive and irresponsible administration that disregards the interests of the people. As a result, the judiciary should exercise restraint and develop a code of ethics for judges while engaging in Judicial Activism, and should only use it as a last resort. Human rights are those that are inalienable to us as beings of humanity and without which we are unable to function as such. Because we are all human, there are claims that are made. Human rights in the Indian Constitution are discussed in the paper. The goal of the essay is to analyse how the Indian judiciary and judicial activism contribute to the protection of rights in that country. India has made a substantial contribution to the protection of rights since gaining its independence. Although India's constitution does not have a detailed Bill of Rights, efforts have been made to make them realities. The Indian judiciary was essential in making these rights a reality.

The Constitution of India serves as the primary legal framework for the protection of human rights in India, deeply influenced by the Universal Declaration of Human Rights (UDHR).It translates international human rights ideals into enforceable domestic law through a unique structure that balances individual liberties with social welfare. Part III of the Constitution enshrines Fundamental Rights, which are justiciable civil and political liberties(such as equality, freedom of speech, and the right to life)that protect citizens against state excesses. Complementing these are the Directive Principles of State Policy(Part IV),which, while non-justiciable, provide a moral and political mandate for the state to achieve socio-economic justice. Through proactive judicial activism, the Indian Supreme Court has further expanded these rights- most notably under Article 21- to include the right to privacy, education, and a clean environment. Ultimately, the Constitution acts as a "Social Document" designed to preserve human dignity and foster a just society through robust legal and institutional safeguards like the National Human Rights Commission(NHRC).

Since the World War, international cooperation has been made to preserve the peace and interests of the human community, and representative results include the creation of international organizations and the establishment of international human rights treaties and norms(conventions). In particular, as the issue of human rights protection is recognized as a significant governmental matter, each country is striving to find a means to secure the legal effectiveness of international human rights norms within the country. However, given that the contents of international human rights norms are generally similar to the contents of the constitutional basic rights of the countries that accepted them, it has been discussed that it is necessary to incorporate international human rights norms into the Constitution and recognize the same effect as the Constitution (or constitutional basic rights). However, there is a counterargument that the constitutionalization of international human rights norms cannot be evaluated as desirable because it could undermine the foundation of the national legal system and people’s sovereignty. In addition, it may be questioned whether the constitutionalization of international human rights norms must be premised in securing the legal effectiveness of international human rights norms and their usefulness in constitutional adjudication. This article, focusing on the actual cases of the Constitutional Court of Korea, reviewed what legal and systematic status the Constitutional Court has recognized in international human rights norms and how they have been used in actual adjudication. According to this review, it seems the Constitutional Court sometimes directly used international human rights norms as constitutional norms(standard of review), but a close analysis of related decisions shows that the Court does not use international human rights norms as a direct criterion for constitutional adjudication and uses them as supplementary material for interpreting constitutional basic rights and principles. In particular, the Constitutional Court shows a pragmatical attitude of using it as a supplementary material for constitutional interpretation without judging the legal status of international human rights norms. The Constitutional Court's strategy of using international human rights norms as significant material for constitutional adjudication without shaking the legal system is a dynamic constitutional interpretation process that can localize the universal content of international human rights norms while maintaining the public autonomy of members of the legal community. Through this, international human rights norms will be able to secure a balance of universality and locality, legitimacy and effectiveness, abstraction and specificity, moral legitimacy and democratic-political legitimacy. However, the Constitutional Court is generally considered passive in using international human rights norms in constitutional interpretation, and, in reality, only a few international human rights norms are used, and furthermore, there is no in-depth argument for justification of use of international human rights norms in cases, so it is confirmed that international human rights norms are used superficially and decoratively. In order to improve this, it is necessary to consider preparing a system or practice that actively refers to and properly considers international human rights norms in constitutional adjudication. Above all, it is necessary to fully review related international human rights norms and discussions in the process of constitutional interpretation and establish a faithful method of argumentation of connection and integration that ultimately converts discussions of international human rights norms into constitutional discourse.

Economic Sanctions Against Human Rights Violations

Artificial Intelligence (AI) is playing an increasing role in humanitarian space requiring the integration of human rights into AI and human rights-based approach (HRBA) into law and policy relating to the Climate Change-induced Disaster Displacement (CiDD) in India. AI has the potential to significantly impact low-emission, climate-resilient development as well as CiDD. The UN Climate Change Initiative on AI for Climate Action investigates how AI might be used as a potent instrument to advance and intensify climate action that is revolutionary and pragmatic. Therefore, the CiDD crisis must also be re-imagined and operationalised for protecting human rights instead of posing risks to inherent human dignity and human protection at the intersection of National Disaster Laws (NDL), National Climate Law Frameworks (NCLF) and International Human Rights Law (IHRL). The institutional capabilities of the AI-driven systems pose challenges to the human rights of the CiDD population that has become a threat multiplier. Therefore, AI technologies must be designed and developed to incorporate diagnostic, formative, and summative digital assessments of the CiDD situations. The digital assessments must be integrated with NDL, NCLF, and IHRL frameworks to facilitate the protection of human rights. In protecting human rights, the changing climate conditions have necessitated a specific legally binding international Human Rights Protection Framework (HRPF) during CiDD situations. Therefore, India can create AI-driven automatic decision-making (ADM) systems in collaboration with Asia–Pacific countries or otherwise to protect human rights in CiDD scenarios. Thus, in India and elsewhere, AI technologies, AI policies, and accountability systems operationalise human rights protection and contribute to attaining Sustainable Development Goals (SDGs) in climate statecraft and beyond. In this chapter, I explore the space to integrate AI into NDL, NCLF, and IHRL frameworks with the human rights-based approach (HRBA). I investigate the questions around legal and policy considerations, such as the divergences and convergences of AI norms between NDL on CiDD and the protection of human rights in India. Can AI help national governments better prepare for CiDD migration? What are the specific AI tools and AI best practices that India can adopt for operationalizing the ADM systems and integrating them with the NDL and IHRL framework? Can AI be used to direct and operationalize the IHRL framework in the CiDD crisis? Should AI Ethics be invoked to plug gaps in CiDD emergency and raise standards above the minimum requirements of IHRL obligations in India? Would the age of algorithmic humanitarianism be sufficient for protecting human rights in CiDD prosceniums?

Could Domestic Courts Enforce International Human Rights Norms? An Empirical Study of the Indian Supreme Court Since 1997

The constitutional guarantee of human rights may be considered to be fundamental rights in the sense that every constitution is a fundamental law of the land. However, human rights are not the exhaustive source of constitutional law which is enforceable by the apex court. Consequently, usages and customs are considered to have full force of the law and thus can be enforceable if not inconsistent with the fundamental rights under the constitution. Similarly, human rights instruments as such would also pave a foundation for such rights as would be enforceable by the law. Whenever the court considered that a particular human rights instrument contains similar elements of the fundamental rights, it becomes a part of the constitutional law of the land and can be enforced in a like manner. This constitutional aspect of human rights is the subject matter of this chapter, which critically examines the province of the Indian apex court together with a treatment of all consequences which result from the guarantee of human rights in the Constitution of India. This chapter also provides a brief outline of various rights as recognized in the international covenants, the Constitution of India and judicial enforceability of various human rights in India.

The research study tries to find out the relationship between Human Rights protection and policing. Human Rights are inalienable rights. These rights are available to all human beings just being a human. The fight for justice, freedom and human dignity is eternal and the values inherent in human rights will always constitute a benchmark for humanity. Thus, human rights are what make us human. They are the principles by which we create the sacred home for human dignity. Human rights are the expression of those traditions of tolerance in all cultures that are the basis of peace and progress. ‘Human Rights’ is a twentieth century name for what has been traditionally known as ‘natural rights’, ‘birth rights’ or, in a more exhilarating phrase, the ‘rights of man’. So, it is the foremost duty of the state to promote and protect the human rights of its citizens. There are many agencies of the government through which it tries to safeguard the human rights. Police is the important agency of the government, which duty is to protect the human rights. There is a close relationship between policing and human rights. Police is a State List subject under Indian Constitution. The Indian Police Act, 1861 shapes the organization, management and functioning of the police department in India. It is blamed that before Independence the British misused the Indian Police, and after Independence it is being misused by the Indian Politicians and governments in power for their narrow interest. We do not find substantial change in the role and behavior of Indian Police over the seventy eight years of Indian Independence. Indian People do not have trust on the Police, rather approaching to the police for the protection of human rights the tendency among people is to run away from the policing in India. Also, there is a nexus between criminals and police in India. Indian police are blamed to be inefficient and non-professional to the great extent. With such a hypothesis, the research paper tries to find interrelationship and interdependence between human rights and policing in India. Here, the problems, challenges and limitations of Indian police are also required to be addressed while investigating the role of police in the promotion and protection of human rights in India. The paper aims to find out some workable solutions after comprehensive study of human rights and policing in India.

Role of National Human Rights Commission in Upholding Human Rights in India

The book - Human Rights in India, edited by Satvinder Juss is a timely collection that critically examines the contradictions that are inherently present in the country’s human rights framework. The book sets out to examine the gap between the constitutional and legal commitments to human rights in India and the actual delivery of those rights in practice. Through twelve interdisciplinary chapters, it investigates diverse contexts, including freedom of speech, national security, gender violence and global governance. The book offers a multifaceted critique of India’s legal, political, and social structures by revealing how human rights are both constitutionally guaranteed and institutionally denied. The book is targeted towards a varied audience including Researchers, Legal practitioners, Activists, Civil society Organisations and most importantly, students in the field of law and public policy.

The protection of human rights and civil liberties in India has evolved through a complex interplay between the judiciary, civil society, and the state. This paper examines the significant roles played by the Indian judiciary and civil society organizations in safeguarding human rights and promoting civil liberties. By analyzing landmark judicial decisions, the activism of civil society, and the challenges they face, the article provides insights into the current state of human rights in India and highlights areas for further improvement. Additionally, the interaction between these two entities demonstrates their critical roles in fostering a culture of rights in a diverse and pluralistic society.

Preface List of Contributors Introduction Progressive Nuances in International Human Rights Paradigm 1. The Historical Development of International Human Rights, Michelo Hansungule 1. Introduction 2. Some Historical Perspectives on Human Rights 3. Universal Rights 4. The European View 5. Human Rights as Moral Ideas in Diverse Societies, Religions, and Cultures 6. Africa 7. Middle East (Islamic World) 8. Asia 9. Post-War Developments 10. Conclusion 2. Civil and Political Rights, Joshua Castellino 1. Introduction 2. The Covenant 3. The Rights Package 4. Future Challenges 3. An Introduction to Economic, Social and Cultural Rights: Overcoming the Constraints of Categorization through Implementation, Vinodh Jaichand 1. Introduction 2. Historical Development 3. Similarities and Differences in Content of ICCPR and ICESCR 4. The Norms and Enforcement 5. On Justiciability: An Example of the Protection of ESC Rights in a Region 6. On Justiciability: Domestic Enforcement 7. Conclusion 4. Women's Rights in International Law, Mmatsie Mooki, Rita Ozoemana, Michelo Hansungule 1. Introduction 2. Recognition of Women's Rights: United Nations Charter and the International Bill of Rights 3. Women's Rights in other United Nations Convention 4. Convention on the Elimination of all forms of Discrimination against Women 5. United Nations Groundbreaking Conferences 6. Violence Against Women 7. Conclusion 5. Globalization and Human Rights, Heli Askola 1. Introduction 2. Globalization 3. Economic Globalization and Human Rights 4. Political, Social and Cultural Globalization and Human Rights 5. Conclusion 6. Role of the UN in the Promotion and Protection of Human Rights, Elvira Dominguez-Redondo 1. Introduction 2. From Codification to Efficiency: The Different Phases of the Human Rights Discourse within the United Nations 3. Normative Development of the UN System of Protection and Promotion of Human Rights 4. Charter-based and Treaty-based Monitoring Mechanisms: Public Special Procedure and the Work of the Committees 7. Attributes of Successful Human Rights on-Governmental Organizations (NGOs) - Sixty Years After the 1948 Universal Declaration of Human Rights, George E. Edwards 1. Introduction 2. NGOs & Human Rights NGOs 3. Ten Characteristics of Successful Human Rights NGOs 4. NGO Self-Regulation Via Codes of Conduct and Ethics 5. Conclusion 8. Do States have an Obligation under International Law to Provide Human Rights Education?, Paula Gerber 1. Introduction 2. Human Rights Education (HRE) in International Law 3. Obstacles to the Realization of HRE 4. Conclusion 9. Application of International Standards of Human Rights Law at Domestic Level, Joshua Castellino 1. Introduction 2. The Codification of International Human Rights Standards as Law 3. Domestic Implementation of Rights: The 'Engine Room' of Universal Instruments of Human Rights 4. Conclusion 10. Role of Regional Human Rights Instruments in the Protection and Promotion of Human Rights, Azizur Rahman Chowdhury, V. Seshaiah Shasthri, Md. Jahid Hossain Bhuiyan 1. Introduction 2. European Human Rights Treaties and Their Implementation 3. The Inter-American Convention on Human Rights, 1969 4. The African Charter on Human and Peoples' Rights, 1981 5. Concluding Remarks Index

Despite global, regional and national initiatives in protection of human rights defenders which have not proved effectively in the ground reality. There are instances of human rights defenders are humiliated, harassed and victimized globally including in India. The National Human Rights Commission (NHRC) of India has reported many cases pertaining to violence against human rights defenders in different parts of the country. Over the years, the Commission has been observing an increasing trend and pattern of human rights violations of defenders. Hence, it is pertinent to assess the situation of human rights defenders in the largest democracy of the world. The present study aims to understand the nature and extent of violence against human rights defenders. A total number of twenty five cases were selected from National Human Rights Commissions (NHRC) and analyzed within case and cross through case study method. The study found that the defenders of human rights were victimized by State and Non-State Actors and perceived as a vital challenge for protection of human rights in India. Finally, the paper suggests synergetic strategy of Governant, corporate and civil society organizations to work together in strengthening special protection for human rights defenders in democracy. Key words: Human rights defenders, violence, victimization, human rights, India.