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英国法律专业作业:为权利而斗争 Fighting for Rights

时间:2017-06-12 13:38来源:www.ukassignment.org 作者:cinq 点击:
本文是英国法律专业留学生作业范文,主要内容是讨论1925年印度的“权利宣言”,以此来研究基本权利。
1925年印度全国人大通过了“权利宣言”,在随后的会议在1927年举行的马德拉斯举行成立的声明要求基本权利的任何未来的宪法框架之后,Motilal Nehru下一个委员会是由国会任命的研究基本权利。
在印度政府法案颁布后不久,对权利的争夺受到了沉重打击,1935通过了没有权利法案,令印度领导人失望。这是沙布鲁委员会在1945年度先后强调书面代码基本权利和制宪会议的需要,因此在响应提出了宪法中人权纳入强有力的需求。
宪法的序言宣布印度是一个主权、社会主义、世俗和民主的共和国。“民主”一词是指政府从人民的意志中获得权力。它给人一种感觉,他们都是平等的”,不论种族、宗教、语言、性别和文化。“宪法序言承诺公平,社会、经济、政治、思想自由、表达、信念、信仰和崇拜,地位平等和机会,保证个人和博爱国家的统一和完整性的所有公民的尊严。
 
In 1925 the Indian National Congress adopted the ‘Declaration of Rights.’ In subsequent session held at Madras held in the year 1927 demanded incorporation of a ‘Declaration of Fundamental Rights’ in any future constitutional framework following which, a committee under Motilal Nehru was appointed by the National Congress to study the fundamental rights.
 
The rights emphasized by the Motilal Nehru Committee Report were:
 
Personal liberty, inviolability of dwelling place and property
Freedom of conscience, and of profession and practice of religion
Expression of opinion and the right to assemble peaceably without arms and to form associations
Free elementary education
Equality for all before the law and rights
Right to the writ of Habeas Corpus
Protection from punishment under ex-post facto laws
Non-discrimination against any person on grounds of religion, caste or creed in the matter of public employment
Equality of right in the matter of access to and use of public roads, wells etc.
Freedom of combination and association for the maintenance and implementation of labor and economic factors
Right to keep and bear arms
Equality of rights to man and woman
There was a big blow to the fight for rights as soon after this the Government of India Act, 1935 was passed without any bill of rights much to the disappointment of the Indian leaders. It was the Sapru Committee’ in the year 1945 that successively stressed the need for a written code of fundamental rights and the Constituent Assembly, thus in response raised a forceful demand for the inclusion of human rights in the Constitution.
 
1.2 Human Rights and the Indian Constitution
The Indian Constitution was framed by the Constituent Assembly of India, which met for the first time on December 9, 1946. The Constitution of India gave primary importance to human rights. To quote Guha, “The demand for a declaration of fundamental rights arose from four factors.”
 
Lack of civil liberty in India during the British rule
Deplorable social conditions, particularly affecting the untouchables and women
Existence of different religious, linguistic, and ethnic groups encouraged and exploited by the Britishers
Exploitation of the tenants by the landlords
The Constituent Assembly incorporatedthe substance of the rights proclaimed and adopted by the General Assembly in the Universal Declaration of Human Rights in the constitution of India In the year 1948, when the Constitution of India was in the making, the General Assembly proclaimed and adopted the Universal Declaration of Human Rights, which definitely influenced the framing of India’s Constitution.
 
The Constitution of the Republic of India which came into force on 26th January 1950 with 395 Articles and 8 Schedules, is one of the most elaborated set of fundamental laws ever adopted in the world. The plethora of rights are much more than the American bill of rights.
 
The Preamble to the Constitution declares India to be a Sovereign, Socialist, Secular and Democratic Republic. The term ‘democratic’ denotes that the Government gets its authority from the will of the people. It gives a feeling that they all are equal “irrespective of the race, religion, language, sex and culture.” The Preamble to the Constitution pledges justice, social, economic and political, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and fraternity assuring the dignity of the individual and the unity and integrity of the nation to ail its citizens.
 
1.3 Institutional Framework and Human Rights
India is divided into twenty nine (29) States and seven Union territories (centrally administered). The Constitution of India provides for division of legislative functions between Parliament and the State Legislatures to devolve the administrative system and thus ensuring rights at local level as well.
 
1.3.1 India and the Universal Declaration
India is the signatory to the Universal Declaration of Human Rights. A number of fundamental rights guaranteed to the individuals in Part III of the Indian Constitution are similar to the provisions of the Universal Declaration of Human Rights. The following chart makes it very clear.
 
In the landmark judgment, Keshavananda Bharati v. State of Kerala,[1] the Supreme Court observed, “The Universal Declaration of Human Rights may not be a legally binding instrument but: it shows how India understood the nature of human rights at the time the Constitution was adopted.” Constitutional interpretation of Human Rights in India has been strongly influenced by the Declaration. India further ratified the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights on March 27, 1979. The Optional Protocol to the International Covenant on Civil and Political Rights, 1989, however, was not ratified by India.
 
1.3.2 Fundamental Rights and Human Rights
The judicially enforceable fundamental rights which encompass all seminal civil and political rights and some of the rights of minorities are enshrined in part III of the Constitution (Articles 12 to 35). As it can be noted that Fundamental rights differ from ordinary rights in the sense that the former are inviolable. None of the law, ordinance, custom, usage, or administrative order can abridge or take them away them. Any law violating any of the fundamental right will be held void. Chief Justice Subba Rao in the landmark judgement Golak Nath v. State of Punjab had rightly observed, “Fundamental rights are the modern name for what have been traditionally known as natural rights,”
 
The Supreme Court of India in other judgment recognized these fundamental rights as ‘Natural Rights’ or ‘Human Rights’. In ADM Jabalpur v. Shukla, Justice Beg observed, in the similar tone, “the object of making certain general aspects of rights fundamental is to guarantee them against illegal invasion of these rights by executive, legislative, or judicial organ of the State.”
 
The list of the Fundamental Rightsenshrined in the Constitution of India, which serves to be purposeful in our analysis of rights denied and rights ignored and rights violated through the issue of human trafficking.Article 14 right of all persons to equality before the law. Whereas,Article 15 prohibits the State from discriminating against any citizen on grounds of religion, race,caste, sex or place of birth, and prohibits any restriction on any citizen’s access to any public place, including wells and tanks. Under separate headArticle 16 i.e. Equality of opportunity for all citizens in matters of public employment is guaranteed. Both Articles 15 and 16 enable the State to make special provisions for the advancement of socially and educationally backward classes, for such castes and tribes as recognized in the Constitution (known as the Scheduled Castes and Scheduled Tribes) require very special treatment for their advancement.
 
In different connotation Article 17: Abolishes untouchability and makes its practice an offence punishable under law. The right to freedom of speech and expression mentioned in Article 19: This encompasses the right to freedom of speech and expression, the right to assemble peaceably without arms, the right to form associations or unions, the right to move freely throughout the territory of India, the right of residence, and the right to practice any profession, or to carry on any occupation, trade or business. This right is reserved only for the citizens.
 
In Chairman Railway Board and others v. Chandrima Das[2] the Supreme Court, in Anwar State of Jammu and Kashmir it was held that non-citizens could not claim fundamental rights provided under Article 19.
 
It observed that:
 
Fundamental rights are available to all the persons of this country and those who are not citizens of this country and who come here as tourists or in any other capacity, are entitled to the protection of their lives in accordance with the Constitutional provisions. They also have a right to life in this country. Thus they also have the right to live with human dignity so long as they are here in India. Article 14 which guarantees equality before law and equal protection of laws within the territory of India is applicable to “person” who would also include both the “citizens” of this country and non-citizens. In this case, a Bangladeshi national Mrs. Khatoon was gang raped by the Railway employees in a room at the Yatri Niwas of the Howrah Railway Station in West Bengal. The Calcutta High Court allowed compensation of a sum of rupees 10 lakhs to her for having been gang raped. Upholding the decision of the High Court, the Supreme Court held that as a national of another country, she could not be subjected to a treatment, which was below the dignity, nor could she be subjected to physical violence at the hands of Government employees who outraged her modesty. According to the tone and the tenor of the language used in Article 21, they are available not only to every citizen of this country but also to a person of another country. The Apex Court also held that since the word ‘life’ has been used in Article 21 of the Constitution as a basic human right in the same sense as understood in the Universal Declaration of Human Rights of 1948, there is no reason why it should be given a narrow meaning.


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