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?

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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."