ARTICLE 21 AND INTERNATIONAL HUMAN RIGHTS INSTRUMENTS
While international treaties do not automatically become part of domestic law upon ratification,[1] the Constitution provides, as Directive Principles of Sate Policy, that the government “shall endeavour to foster respect for international law and treaty obligations in dealings of organized people with one another,”[2] and also authorises the central government to enact legislation implementing its international law obligations without regard to the ordinary division of central and state government powers.[3] The Supreme Court of India has frequently interpreted in light of India’s international law obligations.[4]
Justice A .S. Anand argues that any interpretation of a national law or constitution which advances the cause of human rights and seeks to fulfil the purposes of international instruments must be preferred to a sterile alternative.[5] He further argues that it is a proper part of the judicial process and a well established judicial function for national courts to have regard to the international obligations undertaken by the country in question whether or not these have been incorporated into domestic law for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law.[6]
In Nilabati Behera v State of Orissa[7] while justifying its award of compensation for infringement of the right to life, the Court referred to the ICCPR[8], which indicates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right.
In Prem Shankar Shukla v Delhi Administration[9] while dealing with the handcuffing of prisoners and other humiliations inflicted on persons in custody, the Supreme Court of India observed:
After all, even while discussing the relevant statutory provisions and constitutional requirements, court and counsel must never forget the core principle found in Article 5 of the Universal Declaration of Human Rights, 1948[10]: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’.
In Hussainara Khatoon cases,[11] the Supreme Court not only advanced the prison reform in favour of under-trials but also declared the right to speedy trial as an essential ingredient of Article 21. Reaffirming as well as paving way for the implementation of Article 14, clause (3) (c) of the International Covenant on Civil and Political Rights[12] which lays down that everyone is entitled “to be tried without delay” and Article 16 of the Draft Principles on Equality in the Administration of Justice which provides that everyone shall be guaranteed the right to prompt and speedy hearing the Court directed the release of all those under trials against whom the police had not filed charge sheets within the prescribed period of limitation. Such persons were directed to be released forthwith as any further detention of such under trials would be according to the court, a clear violation of Article 21.
In Sunil Batra v Delhi Administration[13] the Supreme Court took note of Article 10 of the ICCPR which states as that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. The Court then opined that:
The State shall take steps to keep up to the Standard Minimum Rules for Treatment of Prisoners recommended by the United Nations, especially those relating to work and wages, treatment with dignity, community contact and correctional strategies. In this latter aspect, the observations we have made of holistic development of personality shall be kept in view.[14]
The Court further emphasized that the Declaration of the Protection of All Persons from Torture and other Cruel, Inhuman or Degrading Treatment or Punishment adopted by U.N. General Assembly[15] has relevance to our decision.[16]
Conclusion
Thus, the Court has interpreted article 21 with the widest possible amplitude so as to include within its ambit basic human rights guaranteed by international human rights instruments though that has not been incorporated in national legislation.[17]
The Court, from time to time, injects flesh, blood and vitality into the skeleton of the words used in Article 21 of the Constitution in consonance and harmony with international human rights instruments, and gives colour and content to the expressions made therein, and also provides it with the skin of living thought. Thus, in the wake of all the above cited cases it is becoming evident that the Indian Judiciary has evolved itself as a saviour of mankind by interpreting Article 21 of the Constitution in the widest possible manner. The Supreme Court has interpreted right to life in the lights of international documents to include right to pollution free environment, right to livelihood, freedom from noise pollution etc. The Court day-by-day is enhancing the ambit of right to life and personal liberty. There is considerable scope for further expansion of the content of Article 21 by the judiciary with the objective of taking India forward towards a modern industrial society.
[1] E.g., State of Madras v G. G. Menon, AIR 1954 SC 517.
[2] Indian Constitution arts. 51(c), 253.
[3] Ibid.
[4] See, e.g., People’s Union for Civil Liberties v Union of India, AIR 1998 SC 568; Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461; Jolly George Verhese v Bank of Cochin, AIR 1980 SC 470.
[5] Justice Anand, ‘The Domestic Application of International Human Rights Norms’ (1998),
[6] Ibid.
[7] AIR 1993 SC 1960, at 1970.
[8] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force on 23 March 1976) 999 UNTS 171 (ICCPR).
[9] AIR 1980 SC 1535, at 1537.
[10] See Universal Declaration of Human Rights, (adopted 10 December 1948, UNGA Res.217.
[11] Hussainara v Home Secretary, AIR 1979 SC 1360 at 1364; Hussainara Khatoon (I) v Home Secretary, AIR 1979 SC 1369; Hussainara (III) v Home Secretary, Bihar, AIR 1979 SC 1377.
[12] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force on 23 March 1976) 999 UNTS 171 (ICCPR).
[13] AIR 1980 SC 1579.
[14] Ibid. at 1603.
[15] Resolution 3452 of 9 December, 1975.
[16] A word of caution is necessary, however, regarding judicial legislation through reading into municipal law the provisions of international instruments. The courts must act with due circumspection. When Parliament itself has not seen fit to incorporate the provisions of an international convention into domestic law, judicial development of the common law must not be seen as a back door means of importing an unincorporated convention into municipal law. A treaty which has not been incorporated into municipal law cannot operate as a direct source of individual rights and obligations under that law. See also, Supra n 67.
[17] Certain principles of international law of human rights (e.g. right not to be tortured, etc.) are binding on all States because they have acquired the status of ‘jus cogens’ and are part of the customary international law.
About the Author
Adv.Abhaykumar Dilip Ostwal
Advocate, Supreme Court of India
B.S.L. LL.B. LL.M. (University of Birmingham, UK), C.C.F.&M.J. (Gold Medallist), D.I.T.
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