The Constitution of India and Human Rights

Law of Intellectual Property Rights, Human Rights and Environment · Unit II · Topic 6 of 17 · 6 min read

The Preamble, Part III and Part IV as India's bill of rights; the widening of Article 21 from Maneka Gandhi to Puttaswamy; the use of international law (Article 51, Article 253, Vishaka, Jolly George); constitutional remedies and compensation; and where IP fits: Article 300A, free speech, and the right to health in Novartis.

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On this page

1. The Preamble
2. Part III: fundamental rights
3. Part IV and fundamental duties
4. Article 21 as the bridge
5. International human rights law in Indian courts
6. Remedies
7. Where IP fits in the Constitution
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Map the UDHR and the two Covenants onto the Constitution: civil and political rights in Part III, economic and social rights mostly in Part IV, and the courts’ method of reading Part IV into Article 21. Then show how international human rights law enters Indian law. End with the IP angle, which is what makes this paper different from a general human rights paper.

1. The Preamble

The Preamble promises justice (social, economic and political), liberty of thought, expression, belief, faith and worship, equality of status and opportunity, and fraternity assuring the dignity of the individual. The words “socialist” and “secular” were added by the Forty-second Amendment, 1976. The Preamble is part of the Constitution and a guide to interpretation (Kesavananda Bharati v. State of Kerala, 1973 INSC 91), and the values it names (dignity, liberty, equality) are the same as the UDHR’s.

2. Part III: fundamental rights

Articles	Right	UDHR / ICCPR parallel
14–18	Equality, non-discrimination, abolition of untouchability	UDHR 1, 2, 7
19	Six freedoms, including speech and expression	UDHR 19, 20
20–22	Protection in criminal matters, life and personal liberty, arrest	UDHR 3, 9, 11
21A	Free and compulsory education, 6–14 years (86th Amendment, 2002)	UDHR 26
23–24	Against trafficking, forced labour, child labour	UDHR 4
25–30	Religion; minorities’ cultural and educational rights	UDHR 18, 27(1)
32	Right to move the Supreme Court	UDHR 8

Article 13 voids laws inconsistent with Part III. Article 32 is itself a fundamental right; Ambedkar called it the heart and soul of the Constitution. Article 226 gives the High Courts a wider writ jurisdiction.

3. Part IV and fundamental duties

Directive Principles are not enforceable but are “fundamental in the governance of the country” (Article 37). They contain most ICESCR rights: Article 38 (social order and justice), 39 (adequate livelihood, distribution of resources, health of workers, children), 39A (legal aid), 41 (work, education, public assistance), 42 (humane conditions of work, maternity relief), 43 (living wage), 46 (weaker sections, Scheduled Castes and Tribes), 47 (nutrition, standard of living and public health), 48A (environment) and 51 (respect for international law and treaty obligations). Article 51A lists fundamental duties, including 51A(g) (environment) and 51A(h) (scientific temper).

4. Article 21 as the bridge

The courts closed most of the gap between Parts III and IV by widening Article 21:

Maneka Gandhi v. Union of India, 1978 INSC 16: the procedure under Article 21 must be fair, just and reasonable, and Articles 14, 19 and 21 are read together.
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, 1981 INSC 11: the right to life includes the right to live with human dignity and the bare necessities of life, adequate nutrition, clothing and shelter.
Olga Tellis v. Bombay Municipal Corporation, 1985 INSC 151: the right to livelihood.
Unni Krishnan v. State of A.P., 1993 INSC 40: the right to education, later Article 21A.
Consumer Education and Research Centre v. Union of India, 1995 INSC 76: the health of workers, read with Articles 39(e) and 43.
Paschim Banga Khet Mazdoor Samity v. State of West Bengal, 1996 INSC 621: failure of government hospitals to give emergency treatment violates Article 21; lack of funds is no excuse for the basic minimum.
K.S. Puttaswamy v. Union of India, 2017 INSC 801: privacy is a fundamental right, relying on the ICCPR and UDHR.
Navtej Singh Johar v. Union of India, 2018 INSC 790: dignity and equality of LGBT persons; section 377 read down.

The environmental cases under Article 21 are in the Unit I and Unit III notes.

5. International human rights law in Indian courts

India is dualist: treaties need legislation to change domestic law (Article 253 gives Parliament the power to legislate to implement them). In Jolly George Varghese v. Bank of Cochin (1980) the Court held that Article 11 of the ICCPR could not override the Civil Procedure Code, though it read the Code in the Covenant’s light. The later approach fills gaps: in Vishaka v. State of Rajasthan, 1997 INSC 604, the Court read CEDAW into Articles 14, 19 and 21 to frame guidelines on sexual harassment where there was no statute, holding that international conventions consistent with fundamental rights can be relied on in the absence of domestic law. The Protection of Human Rights Act, 1993 also defines human rights by reference to the Covenants (next note).

6. Remedies

PIL: relaxed standing and epistolary jurisdiction from the 1980s.
Compensation in public law: Nilabati Behera v. State of Orissa, 1993 INSC 113 (custodial death; sovereign immunity no defence to a constitutional claim), relying on Article 9(5) of the ICCPR.
Guidelines: D.K. Basu v. State of West Bengal, 1996 INSC 1508 (arrest and detention); PUCL v. Union of India, 1996 INSC 1509 (telephone tapping).
Continuing mandamus: used in the forest and pollution cases.

7. Where IP fits in the Constitution

IP as property. The right to property was removed from Part III by the Forty-fourth Amendment, 1978, and placed in Article 300A: no person shall be deprived of property save by authority of law. A patent or copyright is property, so its revocation or compulsory licensing needs a valid law, but there is no fundamental right to IP. Compare the UDHR’s Article 17 and the ICESCR’s silence on property.
Legislative competence. Patents, inventions, designs, copyright, trade marks and merchandise marks are in Union List entry 49.
Free speech and copyright. Copyright is a reasonable restriction on Article 19(1)(a); fair dealing and the education exception protect the speech side.
Health and patents. In Novartis AG v. Union of India, 2013 INSC 198, the Court read section 3(d) in the light of its purpose of preventing evergreening and protecting access to medicines. The Madras High Court had earlier (2007) rejected Novartis’ challenge that section 3(d) was vague and arbitrary under Article 14.
Food, farmers and communities. The PPV&FR Act and Biological Diversity Act can be read as giving effect to Articles 39(b), 47 and 48A and to the cultural rights of communities.

A point for analysis. India’s IP statutes protect human rights less through express rights language than through design: exclusions (section 3 of the Patents Act), compulsory licences, farmers’ privileges and benefit sharing. The courts have treated these as the statutory expression of Article 21 values. An LL.M. answer should say so, and note that no Indian court has yet struck down an IP grant directly on Article 21 grounds.

How this is examined

Likely long questions: “Discuss the constitutional provisions for the protection of human rights in India,” “The judiciary has transformed directive principles into enforceable rights through Article 21. Discuss,” or “Examine the place of international human rights law in Indian constitutional law.” Short notes: Article 21 and the right to health; Vishaka; Article 300A and IP; public law compensation. Organise by Preamble, Part III, Part IV and duties, then the judicial bridge, then remedies, then IP.