Important Constitutional Amendments from Human Rights Perspective

Abstract

The republic of India has always been acknowledged for the significant characteristics it contains which was embedded by the constitutional draftsmen taking into consideration the international perspective of the inalienable Human Rights convention passes by the United Nations in 1948.

The Constitution of India in its Chapter III contains binding fundamental rights which, if analyzed, resembles  the Universal Declaration of Human Rights, 1948. The Fundamental Rights of the Constitution of India are prima facie human rights which are also inalienable.

With time, the Republic of India has witnessed numerous constitutional challenges and the legislature has amended the Constitution several times, in order to uphold and preserve the constitutionality. The judiciary in this regard held that the Constitution of India maybe amended but the ‘Basic Structure Doctrine’ shall not be amended, considering the approach our constitutional draftsmen had for the Constitution.

The current manuscript is not only concerned with many significant constitutional amendments from Human Rights/ Fundamental Rights aspect but also it reserved limited study of international human rights perspective and its history. 

Introduction

According to the United Nations (U.N.), Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more.[1]

The Universal Declaration of Human Rights is the paramount international custodian of human rights and was proclaimed by the United Nations General Assembly in Paris on 10 December 1948.[2]

According to The Protection of Human Rights Act, 1993[3], “Human Rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.[4]

India is a signatory to the Universal Declaration of Human Rights. India adopted the Indian Constitution on 26 December, 1949, which was enforced on 26 January, 1950. The Indian Constitution was highly influenced by the Universal Declaration of Human Rights, 1948. By careful analysis of the Universal Declaration of Human Rights and Part III and Part IV of The Constitution of India, it may be concluded that The Constitution of India was highly influenced by the Universal Declaration of Human Rights.[5]

Fundamental Rights and Directive principles were being fashioned and approved by the Constituent Assembly on December 10, 1948 and the General Assembly of the United Nations adopted the Universal Declaration of Human Rights. The Declaration may not be a legally binding instrument but it shows how India understood the nature of Human Rights.[6]

Human rights are universal and inalienable[7] which means that these rights cannot be taken away at any cost except  for the procedure established by law which seeks to punish a person found guilty of violating rights of another  person.

Part III of the Constitution of India bestows Fundamental Rights which in may be termed as civil and political rights whereas Part IV of the Constitution of India contains Directive Principles of State Policy (DPSP) which includes all social, economic and cultural rights.[8]

Historical Background

The “Rig Veda”, one of the four sacred texts of Hinduism, clearly declares that all human beings are equal. The “Atharva Veda” goes to a greater extent and talks about various Rights and obligations or Duties.[9]

The sources of human rights can also be traced back to the theory of Natural Rights which was acquired from the hypothesis of Natural Law, offered for consideration by Ancient Greek Stoic Philosophers and expanded by Thomas Hobbes and John Locke.[10]

The contemporary world’s concept of human rights as a fundamental right is the result of  the constant evolution of laws concerning human rights. The phenomenon of human rights is not new for the human race and events advocating human rights have occurred from time to time in various parts of the world.

The modern day international human rights jurisprudence was established on 10 December, 1948, in response to the “barbarous acts which outraged the conscience of mankind” during the Second World War. (1939 – 1945)[11] and almost simultaneously, The Constitution of India was also being prepared. It has been established that The Constitution of India was highly influenced by the Universal Declaration of Human Rights.[12]

Constitutional Amendments

The Constitution of India is ever evolving is referred to as a “living document” and due to the fact that it constantly endeavors to grant broad protection to fundamental rights or human rights and bestows functional mechanism to the country while the term “Ever Evolving” refers to the constant amendments made by the legislature in order to protect the rights of the citizens of India.

The Indian masses had also faced a lot of humiliation and suffering during the colonial rule and therefore, it was a prolonged demand of Indians, to acquire these rights and the Constituent Assembly had to incorporate these rights into the new constitution. For this purpose, a Committee on Fundamental Rights headed by Sardar Patel was  created to enumerate these rights[13] and on 26 January, 1950, the Constitution of India was enforced.

On 12 May, 1950, four months after the enforcement of the Constitution of India,  the Nehru government drafted the Constitution (First Amendment) Act, 1951[14], which was concerned with Article 19, and aimed at adding sub-clause 2 of Article 19(1) of Constitution of India.[15]Article 31A & 31B as well as the Ninth Schedule were also inserted to Article 31 through First Amendment Act, 1951.[16] The amendment brought special provisions for advancement of socially and economically backward classes.

The function of amending the Constitution falls within the ambit of Article 368 of The Constitution of India, but it is to be underscored that such amendment shall not infringe the basic structure doctrine of the Constitution.Therefore, there are not manyfundamental right amendments. Parliament cannot destroy the fundamental structure of the Constitution, it can only modify the provision thereof within the framework of the original instrument,for its better effectuation.[17]

The Constitution (Twenty-Fourth Amendment) Act, 1971, inserted clause 4 to Article 13 of Constitution of India, it read as “Nothing in this article shall apply to any amendment of this
Constitution made under article 368”.[18]The amendment also empowered the legislature to abridge any Fundamental Rights including the rights in Article 32 to reach to the Apex Court for the enforcement of Fundamental Rights.[19]

The Constitution (Forty-Second Amendment) Act, 1976,[20]also known as ‘mini constitution’[21]inserted Chapter IV A with title “Fundamental Duties” under Article 51A of the Constitution of India. The said amendment also inserted Article 32-A, 39-A, 43-A, 48-A in the Constitution of India.

The Constitution (Forty-Fourth Amendment) Act, 1978,[22] not only amended Article 368 in order to safeguard fundamental rights but also repealed Article 31 (Right to Property). The said amendment bestowed amendments to Article 19, 22, 30, 31-A, 31-C, and Article 38. 

 The Constitution (Sixty-First Amendment) Act, 1988,[23] reduced the voting age from 21 years to 18 years for any elections.

The Constitution (Eighty-Sixth Amendment) Act, 2002,[24]inserted Article 21-A (Right to Education) and added 11th duty under Part IV-A. The said amendment also bestowed changes in Part III, Part IV and Part IVA of the Constitution.

Conclusion

Human rights are the fundamental rights in life without which the prosperity of an individual human is not possible. The human rights advocate the basic rights of which like fundamental rights and human rights which every individual in the society deserves. The fundamental rights have been referred to as basic structure doctrine of the constitution because it might be the philosophy of our Constitutional draftsmen that such rights shall not be withdrawn from a person at any cost arbitrarily.

From the above study it shall be concluded that the fundamental rights mentioned in part III of the Constitution are prima facie human rights. By self analysis, it shall be concluded that the fundamental rights in the Constitution and Directive Principles of State Policy are very much identical to each other.

CREDITS: Varchaswa Dubey, BBA LL.B. (H.), JECRC University, Jaipur


[1] Human Rights, Global Issue, United Nations, Available at: https://www.un.org/en/global-issues/human-rights#:~:text=Human%20rights%20are%20rights%20inherent,and%20education%2C%20and%20many%20more.

[2] Universal Declaration of Human Rights, United Nations, available at: https://www.un.org/en/about-us/universal-declaration-of-human-rights

[3] Act No. 10 of 1994, [8th January, 1994], available at: https://www.indiacode.nic.in/bitstream/123456789/15709/1/A1994____10.pdf.

[4] Section 2(d), ibid.

[5]Dhar, Kaushik, Domestic Implementation of Human Rights (February 19, 2012). Available at SSRN: https://ssrn.com/abstract=2007967 or http://dx.doi.org/10.2139/ssrn.2007967.

[6]Kesavananda Bharati Sripadagalvaru  vs. State of Kerala, AIR1973SC1461 : 1973 4SCC225.

[7]UNFPA, Human Rights Principles, United Nations Population Fund, 2005, available at: https://www.unfpa.org/resources/human-rights-principles.

[8]Kothari, J, ‘Social Rights and the Indian Constitution’, 2004 (2) Law, Social Justice & Global Development Journal (LGD), available at:http://www.go.warwick.ac.uk/ elj/lgd/2004_2/kothari.

[9]Religious Beliefs & Human Rights, Human Rights Group, Dec 1 ,2017, Available at: https://hrgindia.co.in/2017/12/01/religious-beliefs-human-rights/.

[10] Human Rights: Nature and Constituents, University of Mumbai, Pg 4, Available at: http://archive.mu.ac.in/myweb_test/SYBA%20Study%20Material/fc.pdf.

[11]What is The Universal Declaration of Human Rightsand why was it Created?, Universal Declaration of Human Rights , Amnesty International, Available at: https://www.amnesty.org/en/what-we-do/universal-declaration-of-human-rights/#:~:text=The%20UDHR%20was%20adopted%20by,for%20freedom%2C%20justice%20and%20peace.

[12] Supra Note 5.

[13] Rajbir Singh Dalal, FUNDAMENTAL RIGHTS ENSHRINED IN INDIAN CONSTITUTION Provisions and Practices, The Indian Journal of Political Science Vol. LXX, No. 3, July-Sept., 2009, pp. 779, Available at: : https://www.jstor.org/stable/42742760

[14]The Constitution (First Amendment) Act, 1951. Date on which the Act came into force: 18-6-1951 (Date of Assent), available at: https://legislative.gov.in/amendment-acts

[15]Dr Makkhan Lal, Fundamental rights and the constitutional amendments (1947-1977), 20 July, 2018, Available at: https://www.vifindia.org/article/2018/july/20/fundamental-rights-and-the-constitutional-amendments-1947-1977

[16]Rachit Garg, The peculiar case of Article 31B of the Indian Constitution, January 20, 2021, Available at: https://blog.ipleaders.in/peculiar-case-article-31b-indian-constitution/

[17] Kesavananda Bharati Sripadagalvaru and Ors v. State of Kerala, AIR 1973 SC 1461

[18]The Constitution (Twenty-Fourth Amendment) Act, 1971, Legislative Department, Ministry of Law and Justice, Government of India, Available at: https://legislative.gov.in/constitution-twenty-fourth-amendment-act-1971

[19] Negi Mohita, Amendment of Fundamental Rights (Constitution of India), Available at: https://www.yourarticlelibrary.com/essay/amendment-of-fundamental-rights-constitution-of-india/24876

[20]The Constitution (Forty-Second Amendment) Act, 1976, Legislative Department, Ministry of Law and Justice, Government of India, Available at: https://legislative.gov.in/constitution-forty-second-amendment-act-1976

[21]Advocatespedia, 42nd amendment: a mini constitution, Available at: https://advocatespedia.com/42nd_amendment:_a_mini_constitution

[22] The Constitution (Forty-Fourth Amendment) Act, 1976, Legislative Department, Ministry of Law and Justice, Government of India, Available at: https://legislative.gov.in/constitution-forty-fourth-amendment

[23]The Constitution (Sixty-First Amendment) Act, 1988, Legislative Department, Ministry of Law and Justice, Government of India, Available at: https://legislative.gov.in/constitution-sixty-first-amendment-act-1988

[24]The Constitution (Eighty-Sixth Amendment) Act, 2002, Legislative Department, Ministry of Law and Justice, Government of India, Available at: https://legislative.gov.in/constitution-eighty-sixth-amendment-act-2002

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