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INFLUENCE OF UDHR AND ICCPR ON CONSTITUTION OF INDIA

Authored by - Dr. Ashu Dhiman

Designation - Asst. Professor at CLS, GIBS


HISTORY


The concept of Human Rights came into existence way before the International Humanitarian Law came into picture and this can be traced back to the code of Hammurabi in 1754 BC, then later Cyrus Cylinder came into picture on 539 BCE, After Cyrus cylinder, in 1215AD King John of England signed off a promised order to avoid a civil war and which order later come to known as Magna Carta order. It provided certain promises of the king which later came to known as Human rights. After Cyrus cylinder and magna carta, people started getting aware that the state cannot always do whatever it pleases and hence much more human rights declarations such as, the Petition of Right [1]1628, The United States Declaration of Independence[2] 1776, The declarations of the right of the man and of the citizen [3] 1789 and last but not the least Universal Declaration of the Human Rights [4]1948 and International Covenant on Civil and Political Rights was implemented to enforce the provisions of UDHR. Whereas concept of Humanitarian Law came into existence with a failed convention of Geneva back in 1864. Marx is majorly citied in relation as to the origin of the social development but he wasn’t the only theorist of that period to enhance the importance of the social and economic rights but in particular it was Thomas Paine who proposed in his “Rights of a Man” which related to a plan which resembles a system which relates to a social security system which further included children’s allowances, old-age pensions, maternity , marriage as well as funeral allowances and the publicly provide employment for the poor. If the valorousness of the early time cannot be resuscitated thus it would lead to a positive development in case the military of a country could be inspirit to take out a certain gratification in the professionalism that is shown while behaving with the humanitarian law.

UDHR and its influence on Constitution of India


The Universal Declaration of Human Rights was a non-binding document but Part III and Part IV of the Constitution of India 1949, are highly influenced by the UDHR. The makers of the Constitution had a huge impact from ideology of the said declaration. India sent the delegation to the United Nations to help in drafting the said document.

Most of the rights incorporated in the Constitution of India are somewhat similar to that of Universal Declaration of Human Rights; we can find them in two parts[5].


a) Article 2 to Article 21 of Universal Declaration of Human rights can be found in between Part III Fundamental Rights which are Article 12 to Article 35 of the Constitution of India.

b) Article 22 to Article 28 of Universal Declaration of Human rights can be found in between Part IV Directive Principals of State Policy which are Article 36 to Article 51 of Constitution of India

In the case of Charan Lal Sahu vs Union of India[6], the apex court reviewed the articles of Universal declaration of Human rights on the topic of Bhopal Gas leak. In another case of The Chairman, Railway Board & Ors vs Mrs. Chandrima Das[7], the court was of point of view that the International Covenants and Declarations which was adopted by the United Nations needs to be respected by all of the signatory States and the meaning given to the above words in those Declarations and Covenants have to be such as would help in effective implementation of those Rights. The application of the Declaration of Universal Human Rights and the principles enshrined under thereof may have to be read, if need be, into the domestic jurisprudence.




INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS


On 19th December 1966, the General Assembly at United Nations adopted International covenant on civil and political rights[8] and gives legal force to Universal Declaration of Human rights. Both declaration and covenant combined are known as International Bill of Rights.


The Universal Declaration of Human Rights was not binding in the nature and thus being enforceable it was not able to do any good, as the maxim says ibi jus ibi remedium that there should be a remedy available whenever the right of citizens are being violated by the state. Universal Declaration of Human rights failed to provide for any remedies and United States realised their mistake after two decades when they adopted this covenant.


This covenant makes its binding on the member states who is signatory to this covenant and those who ratified it. Article 2 of the said covenant directs the state to implement its policies and to provide remedies in case of violation of any basic human right.


India is not mere signatory for International Covenant on civil and political rights but India has also ratified the covenant[9]on 10th April 1979, which means the International Covenant on civil and political rights are enforceable in India (due to effects of ratification) [10]

[1]Available at: https://www.law.gmu.edu/assets/files/academics/founders/petitionofright.pdf visited on 19/04/2019. [2]Available at: https://www.constitution.org/us_doi.pdf visited on 19/04/2019. [3]Available at: https://www1.curriculum.edu.au/ddunits/downloads/pdf/dec_of_rights.pdf visited on 19/04/2019. [4]Available at: https://www.ohchr.org/en/udhr/documents/udhr_translations/eng.pdf visited on 19/04/2019. [5]Available at: https://archive.india.gov.in/spotlight/spotlight_archive.php?id=73#mf2 visited on 19/09/19. [6]Charan Lal Sahu vs Union of India 1990 AIR 1480 [7]The Chairman, Railway Board & Ors vs Mrs. Chandrima Das (2000) 2 SCC 465 [8]Available at: https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf visited on 20/04/2019 [9]Available at: https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND visited on 20/04/2019. [10]Available at: https://www.unicef.org/crc/index_30207.html visited on 20/04/2019.

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