HUMAN RIGHTS

INTRODUCTION

Human Rights – Two simple words but when put together they constitute
the very foundation of our existence. Human Rights are commonly
understood as “inalienable fundamental rights to which a person is
inherently entitled simply because she or he is a human being”.

There is no denying that all human beings are entitled to certain ‘basic’
and ‘natural’ rights meant for a dignified existence as a human being. A
dignified living environment with freedom coterminous with that of others,
to one and all is the central tenet of human rights.

Human rights are conceptualized to be certain rights that are inherent or

occur naturally to individuals as human beings, having existed even in
the ‘state of nature’ before the development of societies and emergence
of the state. As widely recognized, the State cannot be accepted as the
fundamental source of these rights.

They inhere in individuals by virtue of their birth as a human itself. The

State is accepted and understood merely as a recognizer, guarantor and
protector of these rights.

The State, as its concept exists today, cannot act to the detriment of the
inherent rights of an individual, or for that matter, the collective
conscience of individuals as a community or a society.

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Alternatively the natural or human rights are recognized as legal rights,
constitutional rights etc depending upon their assimilation in statutes or
constitution of a nation, or, even fundamental rights as per terminology
awarded to them in the statute or the constitution.

DEFINITION OF HUMAN RIGHTS

The Universal Declaration of Human Rights (UDHR), 1948, defines

human rights as “rights derived from the inherent dignity of the human
person.” Human rights when they are guaranteed by a written
constitution are known as “Fundamental Rights” because a written
constitution is the fundamental law of the state.

Dr. Justice Durga Das Basu defines “Human rights are those minimal
rights, which every individual must have against the State, or other
public authority, by virtue of his being a ‘member of human family’
irrespective of any consideration. Durga Das Basu’s definition brings out
the essence of human rights.

CHARACTERISTIC AND NATURE OF HUMAN RIGHTS

1. Human Rights are Inalienable – Human rights are conferred on an

individual due to the very nature of his existence. They are
inherent in all individuals irrespective of their caste, creed, religion,
sex and nationality. Human rights are conferred to an individual
even after his death. The different rituals in different religions bear
testimony to this fact.

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 2. Human Rights are Essential and Necessary - In the absence of
human rights, the moral, physical, social and spiritual welfare of an
individual is impossible. Human rights are also essential as they
provide suitable conditions for material and moral upliftment of the
people.

3. Human Rights are in connection with human dignity – To treat

another individual with dignity irrespective of the fact that the
person is a male or female, rich or poor etc. is concerned with
human dignity. For eg. In 1993, India has enacted a law that
forbids the practice of carrying human excreta. This law is called
Employment of Manual Scavengers and Dry Latrines (Prohibition)
Act.

4. Human Rights are Irrevocable: Human rights are irrevocable. They

cannot be taken away by any power or authority because these
rights originate with the social nature of man in the society of
human beings and they belong to a person simply because he is a
human being. As such human rights have similarities to moral
rights.

5. Human Rights are Necessary for the fulfillment of purpose of life:

Human life has a purpose.

6. The term “human right” is applied to those conditions which are

essential for the fulfillment of this purpose. No government has the
power to curtail or take away the rights which are sacrosanct,
inviolable and immutable.

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 7. Human Rights are Universal – Human rights are not a monopoly of
any privileged class of people. Human rights are universal in
nature, without consideration and without exception. The values
such as divinity, dignity and equality which form the basis of these
rights are inherent in human nature.

8. Human Rights are never absolute – Man is a social animal and he

lives in a civic society, which always put certain restrictions on the
enjoyment of his rights and freedoms. Human rights as such are
those limited powers or claims, which are contributory to the
common good and which are recognized and guaranteed by the
State, through its laws to the individuals. As such each right has
certain limitations.

9. Human Rights are Dynamic - Human rights are not static, they are
dynamic. Human rights go on expanding with socio-eco-cultural
and political developments within the State. Judges have to
interpret laws in such ways as are in tune with the changed social
values. For eg. The right to be cared for in sickness has now been
extended to include free medical treatment in public hospitals
under the Public Health Scheme, free medical examinations in
schools, and the provisions for especially equipped schools for the
physically handicapped.

10. Rights as limits to state power - Human rights imply that every
individual has legitimate claims upon his or her society for certain
freedom and benefits. So human rights limit the state’s power.

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DEVELOPMENT OF HUMAN RIGHT

The UN Charter, 1945

The United Nations Charter was drafted, approved and unanimously

adopted by all the delegates of the 51 states, who attended the United
Nations Conference at San Francisco The UN Charter contains
provisions for the promotion and protection of human rights. The
importance of the Charter lies in the fact that it is the first official
document in which the use of ‘human rights’ is, for the first time
traceable and which also recognized the respect for fundamental
freedom.

The Universal Declaration of Human Rights, 1948

The Universal Declaration of Human Rights was adopted by the General

Assembly of the United Nations on 10th December, 1948. The
Declaration consists of thirty Articles and covers civil, political, economic,
social and cultural rights for all men, women and children. The
declaration however is not a legally binding document. It is an ideal for
all mankind.

International Covenants on Human Rights

The Universal Declaration of Human Rights, 1948 was not a legally

binding document. It lacked enforcements. This deficiency was sought to
be removed by the U.N. General Assembly by adopting in December,
1966, the two Covenants, viz,

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 1. International Covenant on Civil and Political Rights and

2. International Covenant on Economic, Social and Cultural Rights.

The two International Covenants, together with the Universal Declaration

and the Optional Protocols, comprise the International Bill of Human
Rights. The International Bill of Human Rights represents a milestone in
the history of human rights. It is a modern Magna Carta of human rights.

LEGAL STATUS OF HUMAN RIGHTS IN INDIA

India has had a history of its own, in-so-far human rights of its
inhabitants are concerned. Ruled by despotic rulers/kings and emperors,
its public, probably was never aware of the concept of human rights.
While European and other western countries got a taste of real time
concept of human rights with the advent of Magna Carta era, the
concept of human rights remained alien, or at the most, so intermittent
that the people of India would have never bothered to think of their
existence with certain rights by the virtue of their being born as humans.
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The intermittent periods were those isolated period of history when some
benevolent individual had the reigns in their hand as the ruler/kings and
emperors. The colonial rule in India gave much impetus to recognition of
certain rights. The struggle for independence was marked with uprisings
for individual and societal rights. There was mass awakening and
recognition of rights that were inherent to human existence. The end of
World War II was a turning point in the history of struggle for human
rights worldwide and the world community rose to the occasion by
endeavouring hard for recognition of human rights that would have
universal application.

By virtue of being one of the signatories to the United Nation Declaration

of Human Rights on December 10, 1948, India became one pioneering
countries of the world to have made a commitment to respect and
protect the human rights declared and accepted by the United Nations
Organizations. Induced by its people's struggle for freedom, India very
promptly incorporated some of the widely accepted human rights as
fundamental rights in the Indian Constitution.

The Constitution of India epitomizes the testament of the people of India

to protect and promote the fundamental freedoms and rights of all
human beings. The Constitution of India provides elaborate provisions
for all classes of human rights. Part- III relating to the Fundamental
Rights deals with the civil and political rights which and are justifiable in
nature; meaning thereby, that they are enforceable through a Court of
Law. The economic, social and cultural rights are contained in Part IV of
the Constitution which lays down Directive Principles of State Policy. The
later are non-enforceable in a court of law, but, are fundamental to
governance of country

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HUMAN RIGHTS DEVELOPMENT IN INDIA


1829 - The practice of sati was formally abolished by Governor
General William Bentick.


1929 - Child Marriage Restraint Act, prohibiting marriage of minors
under 14 years of age is passed.


1955 - Reform of family law concerning Hindus gives more rights
to Hindu women.


1973 - Supreme Court of India rules in Kesavananda Bharati case1
that the basic structure of the Constitution (including many
fundamental rights) is unalterable by a constitutional amendment.


1978 - SC rules in Menaka Gandhi v. Union of India2 that the right
to life under Article 21 of the Constitution cannot be suspended
even in an emergency.

1985-6 - The Shah Bano case3, where the Supreme Court recognized
the Muslim woman's right to maintenance upon divorce, sparks protests
from Muslim clergy. To nullify the decision of the Supreme Court, the
Rajiv Gandhi government enacted The Muslim Women (Protection of
Rights on Divorce) Act 1986


1989 - Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act , 1989 is passed.

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 
1992 - A constitutional amendment establishes Local Self-
Government ( Panchayati Raj ) as a third tier of governance at the
village level, with one third of the seats reserved for women.
Reservations were provided for scheduled castes and tribes as
well.


1993 - National Human Rights Commission is established under
the Protection of Human Rights Act.


2001 - Supreme Court passes extensive orders to implement the
right to food.

SUPREME COURT ON HUMAN RIGHTS

The progress of any society is dependent upon proper application of law

to its needs and since the society today realizes more than ever before
its rights and obligations.

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The judiciary has to mould and shape the law to deal with such rights
and obligations. It is thus clear that within certain limits judges have the
power of profoundly influencing the system of law and contributing to its
substance. Courts enable the law to keep pace with the changing
conditions.

Numerous illustrations can be presented from the laws of various

countries which show that courts with their creative function kept the law
abreast with time without any formal change in it. This process of
development of law is so well illustrated by how from A.K. Gopalan to
Maneka Gandhi, it took the supreme court of India more than a quarter
of a century to read a new dimension into Art 21 of the Indian
constitution.

Safety of life and liberty of a person are most significant Human Rights in
any ordered society. The Protection of Human Rights Act, 1993 has now
defined "Human Rights30" Under the Act31 "Human Rights" means the
rights relating to life, liberty, equality and dignity of the individual
guaranteed by the constitution. The rights relating to life, liberty, equality
and dignity of the individual are guaranteed by part III of Indian
Constitution.

In the beginning the judiciary has a conservative attitude towards this

right and checks only bad provisions, judiciary limited the scope of the
expression personal liberty, to bodily restrains only. In A.K Gopalan V.
State of Madras32 personal liberty was held to mean liberty of the

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physical restrains of body only. In this case, the majority held that the
expression, 'procedure established by law' means procedure prescribed
by the law of the state i.e. this right is guaranteed against executive
arbitrariness and if the following conditions are satisfied, once liberty
may be deprived:

(i) There should be a law

(ii) Law should be a valid law

(iii) The procedure laid down by law should be followed.

Court refused to infuse in that procedure the principles of natural justice.

The court also arrived at the conclusion that Article 21 excluded
enjoyment of the guaranteed under article 19 Because, Article 19,
according to the court, postulated legal capacity to exercise the rights
guaranteed by it.

But this restrictive interpretation of the Article 21 has not been accepted
in the subsequent cases. The term life cannot be confined only to take
away of life.

In an American case (Munn v. Illinois)33, it was held that, right to life

means something more than mere animal existence. The Supreme
Court of India upheld this in Kharak Singh v. State of U.P34 and said Art
21 means not merely the right to the continuance of person’s animal
existence, but a right to the possession of his organs, his arms and legs
etc.

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In the case of Anwar v. State of Jammu & Kashmir35, it was held that
the protection guaranteed under article 21 extends to all persons, not
merely citizens, including even persons under imprisonment. A prisoner
has the right to freedom of expression reading and writing except in so
for as it is circumscribed by the fact of imprisonment.36

In Menaka Gandhi v. Union of India37 Indian Supreme Court

pronounced a landmark judgment that the procedure contemplated by
Article 21 should be in conformity with the principles of natural justice
and unless it was so, it would be no procedure at all; the requirement of
Article 21 would not be satisfied.

It was a turning point when the Supreme Court held that any state action
affecting life and liberty of a person has to be ‘right, just, fair and
reasonable and not arbitrary, fanciful and oppressive’. Thereafter, there
appeared era of progressive judicial activism for protection of human
rights. In the post–Maneka period court’s activism blossomed and
flourished. The Supreme Court, in its anxiety to protect human rights,
has at times undertaken the roles of both organs of the government, the
legislature and the executive.

Prior to the decision of Maneka Gandhi in 1978, Art 21 was constructed

only as a guarantee against executive action unsupported by law, as
was held in Gopalan case. However, Meneka Case opened up new
dimensions and laid down, that it imposed a limitation upon legislative
action also. A great transformation has come about in the judicial
attitude towards the protection of human rights of persons. From Goplan
to Meneka, thus judicial exploration has completed its trek from North to
South Pole.

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In Maneka’s case, the supreme court has widened the scope of the
words 'personal liberty' and said ‘the expression personal liberty’ in
Article 21 is of widest amplitude and it covers a variety of rights which go
to constitute the personal liberty of a man and some of them have been
raised to the status of distinct fundamental rights and given protection
under Article 19. Further the Supreme Court held that the mere
prescription of some kind of procedure is not enough to comply with the
mandate of Article 21.

The procedure prescribed by law has to be fair, just and reasonable not
fanciful oppressive or arbitrary, otherwise it should not be a procedure at
all the requirements of Article 21 would not be satisfied. A procedure to
be fair or just must embody the principles of Natural justice. Natural
justice intended to invest law with fairness and to secure justice, the
court said ‘law should be reasonable law’ and not merely an enacted
piece of law.’

This wider interpretation of Article 21 becomes the starting point for the
evolution of the law relating to judicial intervention in Human Rights
Cases. In fact Article 21 of the Indian Constitution is a fundamental right
having its origin in Human Rights.

Mr. Justice S.R.Das in his judgment in Gopalan's case gave an

illustration that “if a law provided that the cook of the Bishop of
Rochester be boiled in oil it would be valid under Article 21”. This view
stood for 28 years until it came to be overruled by the court's judgment in
Maneka Gandhi's case a judgment that was largely inspired by the
dynamic and creative approach of justice Bhagwati.

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THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

Article 1 Right to Equality

Article 2 Freedom from Discrimination

Article 3 Right to Life, Liberty, Personal Security

Article 4 Freedom from Slavery

Article 5 Freedom from Torture and Degrading Treatment

Article 6 Right to Recognition as a Person before the Law

Article 7 Right to Equality before the Law

Article 8 Right to Remedy by Competent Tribunal

Article 9 Freedom from Arbitrary Arrest and Exile

Article 10 Right to Fair Public Hearing

Article 11 Right to be Considered Innocent until Proven Guilty

Article 12 Freedom from Interference with Privacy, Family, Home and

Correspondence

Article 13 Right to Free Movement in and out of the Country

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Article 14 Right to Asylum in other Countries from Persecution

Article 15 Right to a Nationality and the Freedom to Change It

Article 16 Right to Marriage and Family

Article 17 Right to Own Property

Article 18 Freedom of Belief and Religion

Article 19 Freedom of Opinion and Information

Article 20 Right of Peaceful Assembly and Association

Article 21 Right to Participate in Government and in Free Elections

Article 22 Right to Social Security

Article 23 Right to Desirable Work and to Join Trade Unions

Article 24 Right to Rest and Leisure

Article 25 Right to Adequate Living Standard

Article 26 Right to Education

Article 27 Right to Participate in the Cultural Life of Community

Article 28 Right to a Social Order that Articulates this Document

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Article 29 Community Duties Essential to Free and Full Development

Article 30 Freedom from State or Personal Interference in the above

Rights

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OBJECTIVES OF HUMAN RIGHTS:

a. To promote interdependence among countries in all areas of

cooperation by identifying country’s common strengths and opportunities
which will help reduce poverty and improve the quality of life for people
whilst developing a knowledge-based society within country and
enhancing community and people empowerment;

b. To expand the trade and financial market within country and increase
the bargaining power of Asian countries in lieu of competition and, in
turn, enhances country’s’ economic competitiveness in the global
market;

c. To ultimately transform the continent into community, capable of

interacting with the rest of the world on a more equal footing and
contributing more positively towards mutual peace and prosperity.

d. To prepare case studies on the rising custodial deaths, killings in

encounters and related issues for ensuring that human rights education
must address the need of evolving new structures of knowledge and
accountability to impart new skills and sensitivities amongst holders of
State power so as to make them more responsive to the culture of
human rights and values of democracy.

e. To necessitate human rights education to evolve strategies and

schemes for tackling such attitudes like employing bonded labour,
practising untouchability, perpetrating sati and help members internalise
more humane and egalitarian approach in their social relations.

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f. To help stop legal social and economic discrimination against women
and their exploitation in different ways.

g. To promote human rights education as a catalyst in bringing out

attitudinal and social change among the management of fire works,
glass, stone crushing and related industries for reducing the prevalence
of child labour in these and other hazardous industries to zero.

CONCLUSION

In the present era, the human rights refers to more than mere existence
with dignity. The International Institute of Human Rights in Strasbourg
divides the human rights into three generations.

First-generation human rights are fundamentally civil and political in

nature, as well as strongly individualistic in nature; the Second-
generation human rights are basically economic, social and cultural in
nature, they guarantee different members of the citizenry with equal
conditions and treatment; the Third-generation human rights refers to the
right to self-determination and right to development.

It is true that nobody is perfect, and this also applies to our judiciary. As
in some cases like ADM Jabalpur v. S. K Shukla67 our Judiciary failed to
satisfy the need of Human Rights.

The five senior most judges of Indian Supreme Court including the Chief
Justice struck down the Habeas Corpus. On this day during the
Emergency the Supreme Court sank to its lowest when it decided the
infamous Habeas Corpus Case with the following conclusion:

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In view of the Presidential Order dated 27th June 1975 no person has
any locus to move any writ petition under Article 226 before a High Court
for habeas corpus or any other writ or order or direction to challenge the
legality of an order of detention on the ground that the order is not under
or in compliance with the Act or is illegal or is vitiated by mala fides
factual or legal or is based on extraneous considerations.

The Presidential Order referred to was the one issued during Emergency
declaring that the right of any person to move any Court for any
enforcement of the rights conferred by Articles 14, 21 and 22 of the
Constitution and all proceedings pending in any Court for the
enforcement of the above mentioned rights shall remain suspended for
the period during which the Proclamation of Emergency are in force.

As a consequence with the expansion of scope of human rights, the

ambit of safeguarding the rights also increases, as a result, the judiciary
should toil more to prevent the violation of human rights.

Judiciary is the only organ which can translate these rights into reality;
which is not possible without the help of the judicial officers of the
respective courts.

Ultimately after many ups and downs the Indian judiciary is playing a role
incomparable in the history of judiciaries of the world. It must, therefore,
prove itself worthy of the trust and confidence which the public reposes
in it.

The judiciary must not limit its activity to the traditional role of deciding
dispute between two parties.

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But must also contribute to the progress of the nation and creation of a
social order where all citizens are provided with the basic economic
necessities of a civilized life, viz. employment, housing, medical care,
education etc. as this alone will win for it the respect of the people of the
country.

I from the bottom of my heart congratulate the Academy’s effort to

organise such regional conferences which certainly creates a forum for
the judicial officers to develop a national dialogue of emerging
challenges and also to contribute towards the excellence of the judicial
system.

With conviction, I can say that with such conferences and training
programmes organised more frequently; it will facilitate in achieving our
challenges at ease.

The brief survey of the above mentioned cases shows that the activism
of the Indian Supreme Court to protect the children from various type of
exploitation.

Although the Supreme Court made laudable directions and suggestions

in many instances to protect basic rights of poor children, unfortunately
these directions and suggestions are not followed and implemented by
the government machinery effectively.

In this regards, the performance of the Indian Judiciary stands out as a

signal contribution to the implementation of human rights generally and
that of Child Rights in particular.

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As such in the M.C. Mehta v. State of Tamil Nadu and Goodricke Group
Ltd v Center of West Bengal Supreme Court of India emphasized on
national Constitution and international instruments, including the
Convention on the Rights of the Child, the Indian government is required
to ensure that children do not engage in hazardous work.

In Lakshmi Kant Pandey v Union of India with object of ensuring the

welfare of the child J. Bhagwati directed the Government and various
agencies to follow some principles as their constitutional obligation to
ensure the welfare of the child. Also judiciary has taken the lead to save
the child from exploitation and improve their conditions. To mention a
few, the Asiad case (1981), L.K.Pandey case (1994), M.C.Mehtas case
(1991), Vishal Jeet v. Union of India (1990), and Gaurav Jain v.

Union of India (1997) are some of the famous decisions where the
judiciary has shown enough courage to uphold the interests of the
children and spared no one to improve the working conditions of the
child workers.

The judiciary has always made concrete efforts to safeguard them

against the exploitative tendencies of their employer by regularizing their
working hours, fixing their wages, laying down rules about their health
and medical facilities.

The judiciary has even directed the states that it is their duty to create an
environment where the child workers can have opportunities to grow and
develop in a healthy manner with full dignity in consensus of the
mandate of our constitution.

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BIBLIOGRAPHY

• http://shodhganga.inflibnet.ac.in.

• http://nhrc.nic.in

• http://www.legalservicesindia.com.

• http://legacy.fordham.edu.

• http://www.ohchr.org

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