HUMAN RIGHTS: INTRODUCTION

INTRODUCTION
Human beings are rational beings and by virtue of their being human, they possess certain
basic and inalienable rights, which are commonly known as Human Rights. According to the
New International Webster's Comprehensive Dictionary of the English Language, literally the
word "right" means anything done in accordance with or conformable to truth or fact, correct,
true, accurate, not mistaken, conformable to a standard of propriety, fit, suitable and the word
"human" means pertaining to characterising man or mankind. However, human rights being a
generic term embrace civil rights, civil liberties, social, economic and cultural rights. It is
therefore difficult to give a precise definition of the term human rights. However, the rights
that all people have by virtue of human existence are defined as human rights. These rights
become operative with the human birth and are inherent in all the individuals, irrespective of
their caste, creed, religion, sex and nationality. These rights are essential for all, as they are
consonant with their freedom, dignity and are conductive to physical, moral, social and
spiritual welfare.
NATURE OF HUMAN RIGHTS
As for as the nature of human rights is concerned, two main approaches, the
philosophical and pragmatic approach were adopted to explain the nature of human rights
from time to time.
i) The Philosophical or Theoretical Approach: The philosophised or theoretical approach
has been categorized in five more theories to explain the rights of man.
a) The Natural Rights Theory: According to this theory, human rights are inherent in the very
nature of human being. Homo sapiens possess these rights because of the very fact that it is a
human, a whole, a master, a master of itself and of its acts by natural law.1 Therefore, the
growth of concept of the 'Rights of Man' has been closely associated with the traditional
natural law theories, as a matter of fact the notion of individual rights has never been
projected as a special feature in these theories, and law as such implies both duties and
rights.2 As such, duties and rights are co-related with each other. D. D. Raphael has rightly
observed that, "The rights are rights against other people, and the duties are duties to other
1

1
Page.65,J. Maritain, The Rights o f Man and Natural law, Macmillan. 1951.
Page

2
Page.55,Political Tlwory and the Rights of Man, Macmillan, 1967, D.D. Raphael. ‘'Human Rights Old and
New”. In D.D. Raphael, (ed.).

©Legal Education Awareness Foundation 2017

people. Thus a system of natural law, a system of duties which all men have to others, is at
the same time a system of rights which all men have against others." 3
b) The Legal Right Theory: The theory of natural rights has been criticized by many scholars,
and in turn advocates in favour of the legal rights theory. According to this theory, the rights
are the creation of state. As such, they are neither absolute nor inherent in the nature of man.
All rights such as right to life, liberty or property are artificially created by the law of the
land.4 These fundamental rights are the right of self preservation, which can be protected by
state only in better manner than by any other means. 5 The theory extended that these rights
can be recognized by the state only for its enforcement, and if state cannot recognize it, it
cannot be enforced.6
c) The Historical Theory of Rights: The historical theory maintains that the rights are the
creation of historical process. A long standing custom in the course of time concretize in the
specific form of right. Ritchie's comments in this context, that, " those rights which people
think they ought to have are just those rights which they have been accustom to have , or
which they have a 'tradition' (whatever true or false) of having once possessed. Custom is
primitive law".7
d) The Social Welfare Theory of Rights: This theory is also known as the Social Expediency
theory. The advocates of this theory are of the opinion that law, custom and natural rights all
are conditioned by social expediency.8 The social welfare theory has played important role in
the development of number of human rights. As such, large number of social rights and
economic rights have been incorporated in the Universal Declaration of Human Rights.9
e) The Idealistic Theory of Rights: The idealistic theory of rights is also known as personality
theory of rights. This theory insists on the inner developments of man, on the development of
his full potentiality. Hence, it treats rights of personality as a supreme and absolute right.
According to this theory all other rights have been denied from right of personality and are
conditioned by it.10

3
Page 57, Political theory and the Rights o f Man.
4
Eddy Asirvatham, “Political theory*’.
5
Page 16, Dr.U.Chandra, Human Rights, law Agency. Allahabad. 1999.
6
Page 16, Dr.U.Chandra, Human Rights.
7
Page 66- 82,D.G.Ritichle. Natural Rights {Phibophical .Series). Allen and Unwin. London.
8
. Dr. Gokulesh Sharma, Human Rights and Legal Remides. Deep and Deep Publications, New Delhi, 2001.p
70.
9
Page 1-2, Dr. V.K. Anand, Human Rights, Allahabad Law Agency, Mathhra Road IJ.P
2

10
idea of Universal truths that all must be recognized people were to work for the common good. Aristotle
Page

(384*322 B.C) wrote in Politics that Justice, virtues and rights change in accordance with different kinds of
constitutions and circumstances..

©Legal Education Awareness Foundation 2017

ii) Pragmatic Approach: Besides, philosophical or theoretical approach, another way to
look at the meaning and nature of human rights is pragmatism. Every right whether perceived
as inalienable or otherwise can have validity and effectiveness only through some process or
institution. Thus, it cannot be defined without reference to some institutional structure.
Human Rights cannot be defined without reference to institutional settings, therefore,
existence of an internally agreed catalogue of human rights, becomes necessary. This should
be minimal definitional guide to understand the essence of human rights and fundamental
freedom.11

Characteristics of human rights:

1. Inalienable: Human rights are deliberated on an individual due to the very nature of
his existence. They are innate 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.
2. Essential to human existence: Human rights are needed to maintain the moral,
physical, social and spiritual welfare of an individual. Human rights are also essential
as they provide suitable conditions for material and moral upliftment of the people.
3. Associated to human dignity: Treating another individual with utmost respect
regardless of the fact that the person is a male or female, rich or poor, is a matter of
human dignity. No one should be treated to be inferior to other or should be treated as
hooligans. It is essential even for a civilised society.
4. Irrevocable: These rights cannot be taken away by any power or authority because
they 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. Essential for the fulfilment of purpose of life: Human life has a purpose. The phrase
“human right” is applied to those conditions which are essential for the fulfilment of
this purpose. No government has the power to curtail or take away the rights which
are sacrosanct, inviolable and immutable.
6. Universal: Human rights are not a domination of any privileged class of people.
Human rights are universal in nature, without consideration and without exception.
3
Page

11
Page 77, Human Rights and Legal Remedies.

©Legal Education Awareness Foundation 2017

 The values such as divinity, dignity and equality which form the basis of these rights
are inherent in human nature.
7. Never absolute: Man is a social animal and he lives in a civic society, which always
put certain limitations 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.
8. Dynamic: The idea of basic rights to human change with the change in time and
societal understanding. Human rights are available to everyone or are attributed to
even a section of population. The example of this would be that of today’s women,
who now enjoy more rights that are considered to be the essential ones to them for
their existence as compared to those enjoying decades before.
9. Rights as limits to state power: Human rights infer that every individual has legitimate
claims upon his or her society for certain freedom and benefits. So human rights limit
the state’s power. These may be in the form of negative restrictions, on the powers of
the State, from violating the inalienable freedoms of the individuals, or in the nature
of demands on the State, i.e. positive obligations of the State.

CONCEPT OF HUMAN RIGHTS

The concept of Human Rights dates back to the very dawn of human civilization, and
quite often appears clearly, enshrined in all the great religions of the world, whether it is one's
duty towards a neighbour. The concept of universal brotherhood and fraternity of mankind
coupled with a sense of compassion towards one's fellowmen, has its origins in several
religious beliefs both before and after the Christ. Therefore, the roots of human rights are
found very deep in the eternity. The world's all major religions have a humanist perspective
that supports human rights, despite the difference in the contents .Human rights are also
rooted in ancient thought and in the philosophical concepts of 'natural law' and 'natural
rights'. A few Greek and Roman Philosophers recognized the idea of natural rights. Plato
(427-348 B.C) was one of the earliest writers to advocate a universal standard of ethical
conduct. In recorded history and ancient scriptures, there are references, to the basic human
rights, though not referred to by that name. Modem Historians credit to by that concept of
Magna Carta.
Human rights, in fact, are derived from dignity and worth inherent in the human person and
4
Page

that the human person is the central subject of human rights and fundamental freedom, in

©Legal Education Awareness Foundation 2017

short, whatever adds, to the dignified and free existence of a human being is to be regarded as
human rights evolution, although the crystallization of the concept took a long term. Initially
the natural rights propounded by political philosophers in the bygone ages and the concept of
human rights were derived as separate entities; the later is unanimously defined as an all-
encompassing one.12The concept of human rights, though, central to international law is
poorly understood. There is no agreement in its meaning, nature, and content. It is a concept
very much contested not only between East (representing former Socialist states and West
(representing liberal-democratic states) but also between developed and developing countries.
Each group of nations has a different perception of Human rights.
These are as follows:

i) Western View: Human rights in the West do not enjoy a permanent position. They have no
eternal source criteria of a cosmic order. The entire sources are either imaginary or like the
Habeas Corpus, Magna Carta, the French Charter of Human Rights and the ten amendments
to the American Constitution, are documents of a regional nature and are the product of the
peculiar political and social conditions existing in Britain, France and America. There the
concept of the fundamental rights has developed along with human consciousness. And these
rights have been one by one out of the agreements during the protracted struggle between the
people and the king or other rulers, for the division of powers, the decision of the parliament,
charter declarations and the theories put up by the political thinkers.

ii) Socialist View: According to Karl Marx and Lenin, the real fountain head of the
fundamental rights is the dialectal process of history. These rights have not been conferred on
man by nature but are the product of this process, playing their role in the various stages of
history; they must finally come to an end in the Communists 'classless society'. To begin
with, these rights helped the bourgeois class in overthrowing the feudal society and
establishing the 'Capitalist Society'. Later on, the proletariat's used them as a weapon in their
class struggle against the capitalist. Now under the Socialist order these rights protect the
interests of the toiling people and finally for the sake of freedom and equality, human rights
will be cancelled under the rule of Communism.
5

12. Page 42, Vijay Kumar, Human Rights Dimensions and Issues. Vol. I. Anmol Publications Pvt. Ltd.,
Page

New Delhi.

©Legal Education Awareness Foundation 2017

iii) Religious View: The world's all major religions have a humanist perspective that supports
human rights despite the difference in the contents. The conception may be felt to originate in
the ideas of mercy, kindness, and pity on human beings in various scriptures, Vedas, the holy
book of one of the ancient religion, and throws a prism of light on friendly dealing and
behaviour with all creatures of the world what to say of only human beings.

"Oh Lord! Let my eye view be firm in order that all creatures may look at me by friendly
sight. In the same way one also may see all creatures with friendly sight and all of us
(creatures) may see others in friendly view. "13

The same concept can be derived from the contents of 'The Bible', where from Paul
formulated his doctrine of equality in the following words: "There is no such thing as Jew
and Greek, slave and freedom, male and female, for you are all one person in Christ Jesus".14

INTRODUCTION OF HUMAN RIGHTS IN INDIA

Since the days of the Indus Valley Civilization, Indian culture has been the product of
a synthesis of diverse cultures and religions that came into contact with the enormous Indian
sub continent over a very long stretch of time. As Jawaharlal Nehru notes, there is “an
unbroken continuity between the most modern and the most ancient phases of Hindu thought
extending over three thousand years.” The rights of man have been the concern of all
civilizations from time immemorial. The concept of the rights of man and other fundamental
rights was not unknown to the people of earlier periods. The Babylonian Laws and the
Assyrian laws in the Middle East, the Dharma of the Vedic period in India and the
jurisprudence of Lao-Tze and Confucius in China, have championed human rights throughout
the history of human civilization. The Indian concept perceives the individual, the society and
the universe as an organic whole, everyone is a child of God and all fellow beings are related
to one another and belong to a universal family.
LEGAL POSITION IN INDIA
Ancient Hindu Law of Human Rights Scholars who have spent long time in
lucubration on the Hindu "Dharmasastras" and the "Arthasastras" and other legal treatises of
the past have discovered an amazing system, which, inter alia, regulates the duties of Kings,
6

13. Yajur Veda., Hymn No.36-38

Page

14. Page 70, Human Rights and Legal Remedies.

©Legal Education Awareness Foundation 2017

judges, subjects and judicial as well as legal procedures. The message is "Dharma" as the
supreme value, which binds kings and citizens, men and women. Human rights gain meaning
only when there is an independent judiciary to enforce rights. Here, the Dharmasastras are
clear and categorical. The independence of the judiciary was one of the outstanding features
of the Hindu judicial system. Even during the days of Hindu monarchy, the administration of
justice always remained separate from the executive. It was, as a rile, independent both in
form and spirit. It was the Hindu judicial system that first realized and recognized the
importance of the separation of the judiciary from the executive and gave this fundamental
principle a practical shape and form. The case of Ananthapindika v. Jeta reported in the
vinaya-pitaka,' is a shining illustration of this principle. According to it, a Prince and a private
citizen submitted their cases before the law court arid the court decided against the Prince.
The Prince accepted the decision as a matter of course and as binding on him. The volition of
the principle of separation of the judiciary from the executive was largely the result of the
Hindu conception of law as binding on the swearing. Law in Hindu jurisprudence was above
the sovereign. It was the Dharma. The laws were then not regarded as much as a product of
supreme Parliaments and Legislatures as at present. Certain laws were regarded as above all
human authority. Such, for instance, were the natural laws, which no Parliament, however
supreme, could abolish. "The State was not zacerdotal, nor even paternalistic; even the King
was subject to the law, as any other citizen and the 'Divine Right' of Kings known to western
political science was unknown to India. On the whole, the aim of the ancient lndian State may
be said to have been less to introduce an improved social order, than to act in conformity. The
realization of this vast perspective is assured in the Dharmasastras by the wonderful scheme
or co-ordination of conduct adapted to different conditions, status and situations of life. The
scope of dharma takes in its vast sweep human rights as well.
As Nagendra Singh remarks:
“The individual and ancient India existed as a citizen of the State and in that capacity he had
both rights and obligations. These rights and duties have largely been expressed in terms of
duties (Dharma) - duties to oneself, to one's family, to other fellowmen, to the society and the
world at large. The basis of ancient human rights jurisprudence was Dharma - the ideal of
ancient Indian legal theory was the establishment of socio-legal order free from traces of
conflicts, exploitiltions and miseries. Such a law of "Dharma" was a model for the universal
legal order.''
7
Page

©Legal Education Awareness Foundation 2017

There are many references in the Vedas, which throw light on the existence of human rights
in ancient lndia. The Vedas proclaim liberty of body (Tan), dwelling house (Skridhi), and life
(Jibase). In 1367 B.C. Bahmani and Vijayanayar Kings are stated to have entered into an
agreement for the humane treatment of prisoners of war and the sparing of lives of the
enemy's unarrled subjects." Human rights have always occupied a place of paramour
importance in India's rich legacy because India believed in the principle, "Vashudhaiva-
kutumbakam, i.e. welfare of all Justice Rama Jois eloquently sums up this legacy thus:
According to Raadharma, the King was given the power only to enforce the law.
Dharmasasiras did not confer on or recognise any legislative power in the King. This is the
most important distinction between Kingship in India and the concept of Kingship in the
West. But under the Kingship as recognised and established under the Dharmasastras, the
laws were those laid down by the Dharmasastras themselves. They did not authorise the King
to lay down new laws or emerald provisions of the Dharmasastras. On the other hand,
Dharmasastras also laid down the laws governing the conduct of the King himself . Legal
literature of the Hindu period owes much to the distinguished law givers of the times as well!
As to the two EPICS and the Arthasastra (Kautilya) and Sukranitisara. We are not concerned
with the legal history of 56 the India of those days, which was quite advanced but with the
constellation of rights and duties, which constitute human rights. Kautilya's Arthasastra
asserts that "in the happiness of the subjects lies the happiness of the King, and what is
beneficial to the subjects is his own benefit." Kautilya also disapproved of the theory of royal
absolutism and subordinated the King also to the law. Similarly, Shantiparva prescribes that a
king may be punished if he does not following the path of the Dharma.

Throughout much of history, people acquired rights and responsibilities through their
membership in a group – a family, indigenous nation, religion, class, community, or state.
Most societies have had traditions similar to the "golden rule" of "Do unto others as you
would have them do unto you." The Hindu Vedas, the Babylonian Code of Hammurabi, the
Bible, the Quran (Koran), and the Analects of Confucius are five of the oldest written sources
which address questions of people’s duties, rights, and responsibilities. In addition, the Inca
and Aztec codes of conduct and justice and an Iroquois Constitution were Native American
sources that existed well before the 18th century. In fact, all societies, whether in oral or
written tradition, have had systems of propriety and justice as well as ways of tending to the
health and welfare of their members.
8
Page

©Legal Education Awareness Foundation 2017