The Concept of human rights is as old as the ancient concept of natural rights based on natural law. The expression “human rights” is of recent origin emanating from international charters and conventions especially in the Post Second World War.
But these rights had been recognized and respected by all religions in the ancient India.
It could be found that the Rig Veda cites three rights as basic human rights, namely, Body, Dwelling place and Life. The Maha Bharata speaks about the importance of freedoms of individuals in a state.
It also sanctions revolt against the king who is oppressive and fails to perform his functions of protection.
In Manu Samhita, Manu developed three notions of Civil, Legal and Economic rights. Buddhism and Jainism emphasized the principles of equality and non-violence.
Muslim rulers even formulated rules for the protection of women and children during war. Emperor Akbar took certain measures for the protection of the rights of the citizens.
However, the first serious move was initiated by the U N General Assembly in December 1948 to protect human rights by adopting “Universal Declaration of Human Rights”
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” —Article 1 of the United Nations Universal Declaration of Human Rights
Human rights are "basic rights and freedoms that all people are entitled to regardless of nationality, sex, national or ethnic origin, race, religion, language, or other status." Human rights are conceived as universal and egalitarian, with all people having equal rights by virtue of being human however these rights may exist as natural rights or as legal rights.
Charles R. Beitzin his book,The Idea of Human Rights, says that: “if the public discourse of peacetime global society can be said to have a common moral language, it is that of human rights.”
However, Human rights were defined first by the Scottish philosopher, John Locke (1632-1704) as “absolute moralclaims or entitlements to life, liberty, and property”.
We find the best-known expression of human rights is in the ‘Virginia Declaration of Rights’ in 1776 which proclaims that “All men are by nature equally free and independent and have certain inherent rights, of which, when they enter a state of society, they cannot, by any compact, deprive or divesttheir posterity.”
The principles of Human rights are not to be construed as a bunch of high-strung ideals of international law for the establishment of a utopian society, rather it is to be found and engraved in our daily lives to ensure a better and brighter future for mankind by creating an environment which would be conducive for the free and proper development of the human mind and soul.
Origin of the idea Human Rights:
Though the Rig Veda contemplates the bedrock of Human Rights in its earliest meaning, with the coming of the Later Vedic Age and the society being divided on the basis of ‘Varna’ was evidence of the mere mockery of the earlier concept of human rights.
The ancient world did not possess the concept of human rights in the modern sense of the term. Ancient societies had "elaborate systems of duties... conceptions of justice, political legitimacy, and human flourishing that sought to realize human dignity, flourishing, or well-being entirely independent of human rights" and so much so that in Ancient India, China and Greece, some of the most cultured and civilized races in the ancient world were open to the practice of slavery. Even in the pre and post independent United States of America, slavery, one of the vilest forms of Human rights violation was rampant.
However gradually with the passage of time human rights violations of various forms were being recognized and such practices were no more being tolerated under the blanket of “tradition” and “custom”.
The modern concept of human rights was developed during the early Modern period and the true forerunner of human rights discourse was the concept of natural rights which appeared as part of the medieval Natural law tradition, became prominent with such philosophers as John Locke, Francis Hutcheson, and Jean-Jacques Burlamaqui, and featured prominently in the political discourse of the American Revolution (1776) and the French Revolution (1789). These Two major revolutions during the 18th century brought forth the adoption of the United States Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen respectively, both of which established certain legal rights. Additionally, the Virginia Declaration of Rights of 1776 encoded into law a number of fundamental civil rights and civil freedoms.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights that among these are Life, Liberty and the pursuit of Happiness.”
—United States Declaration of Independence, 1776
Such developments and documents merely laid down noble ideals and thoughts but these were far from being implemented and realised to their fullest potential.
In the 19th century, human rights became a central concern over the issue of slavery. A number of reformers, such as William Wilberforce in Britain, worked towards the abolition of slavery. In the United States, President Abraham Lincoln rallied against the southern plantation owners’ practice of employing slaves which culminated in the outbreak of the Civil War. After the war the 13th amendment, banned slavery, the 14th amendment, assured full citizenship and civil rights to all people born in the United States, and the 15th amendment, guaranteed African Americans the right to vote. A very bold and handsome step towards securing human rights indeed.
In Western Europe and North America, labour unions brought about laws granting workers the right to strike, establishing minimum work conditions and forbidding or regulating child labour. The women's rights movement succeeded in gaining for many women the right to vote. National liberation movements in many countries succeeded in driving out colonial powers- one of the most influential being Mahatma Gandhi's movement upholding the principle of Ahimsa, i.e. kindness and non-violence towards all living things, as the guiding force.
The idea of Human rights was unknown to all was building in such a background but it still did not enjoy an international recognition.
The outbreak of the two World Wars, and the huge losses of life and gross abuses of human rights that took place during them, were a driving force behind the development of modern human rights instruments. The “League of Nations” was established in 1919, following the end of the 1st World War and enshrined in its charter a mandate to promote many of the rights which were later included in the Universal Declaration of Human Rights.
At the 1945 Yalta Conference, the Allied Powers agreed to create a new body to supplant the League's role; this was to be the United Nations. The United Nations has played an important role in international human-rights law since its creation.
International Sanctions of Human rights:
The International Bill of Human Rights is an informal name given to one General Assembly resolution and two international treaties established by the United Nations. It consists of the
(a) Universal Declaration of Human Rights (adopted in 1948),
(b) the International Covenant on Civil and Political Rights (1966) with its two Optional Protocols and
(c) the International Covenant on Economic, Social and Cultural Rights (1966).
The two covenants entered into force in 1976, after a sufficient number of countries had ratified them.
The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General Assembly on 10th December 1948 in Paris. It consists of 30 articles which have been elaborated in subsequent international treaties, regional human rights instruments, national constitutions and laws.
Below the articles are discussed in short:
All human beings are born free and equal in dignity and rights.
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Everyone has the right to life, liberty and security of person.
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.(implying forced labour)
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Everyone has the right to recognition everywhere as a person before the law.
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
No one shall be subjected to arbitrary arrest, detention or exile.
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law...
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honour and reputation.
(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
(1) right to seek and to enjoy in other countries asylum from persecution...
(1) right to a nationality.
(1) Men and women of full age have the right to marry and to found a family
(1) right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
Right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Right to freedom of opinion and expression; this right includes to seek, receive and impart information and ideas through any media and regardless of frontiers.
(1) right to freedom of peaceful assembly and association.
(1) Everyone has the right to take part in the governmentof his country.(right to vote)
(2) Everyone has the right of equal access to public servicein his country.
Right to social security and ...is entitled to realization of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of workand to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal payfor equal work.
(3) Everyone who works has the right to just and favourable remunerationensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unionsfor the protection of his interests.
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
(1) Everyone has theright to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(1) Everyone has the right freely to participate in the cultural lifeof the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by lawsolely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Other International covenants recognising some vital Human rights:
The International Covenant on Civil and Political Rights (ICCPR)is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976. It commits its parties to respect the civil and political rights of individuals, including inter alia the
-right not to be discriminated,
-right against forced labour,
-right to life,
-right against torture,
-right to equality before the law,
-right to equal protection of law,
-every child shall be registered immediately after birth
-freedom of religion,
-freedom of speech,
-freedom of assembly,
-electoral rights and
-rights to due process and a fair trial ...etc.
As of December 2010, the Covenant had 72 signatories and 167 partiesand India is of the signatories.
The International Covenant on Economic, Social and Cultural Rights (ICESCR), like the previous covenant is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976. It commits its parties to work toward the granting of economic, social, and cultural rights (ESCR) to individuals, inter alia including
-labour rightslike proper working environment, free choice of employment, fair remuneration, right against unemployment,
-right to health,
-right to adequate food,
-right to family,
-right to food, clothing, housing,
-the right to education, and
-the right to an adequate standard of living...etc
As of July 2011, the Covenant had 160 parties.
The European Convention on Human Rights (ECHR)(formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the Convention and new members are expected to ratify the convention at the earliest opportunity. It lays down basically the same rights as laid down by the “International Bill of Human Rights” (i.e. the UDHR, the ICESCR and the ICCPR together)
Legal Status of the International Bill of Human Rights:
The UDHR represents the first global expression of rights to which all human beings are inherently entitled. Accordingly the intent behind this document would probably be to guarantee these rights everywhere in the world. Yet human rights laws today are seen as emanating from various sources and not from the UDHR itself. Whether these sources eventually trace back to the UDHR is to be debated, however it does seem clear that in spite of its noblest efforts the UDHR has been time and again failed to effectively enforce its provisions and in achieving its aim.
The United Nations Human Rights Councilhas beencreated at the 2005 World Summit to replace the United Nations Commission on Human Rights, and has a mandate to investigate violations of human rights. It ranks below the Security Council, which is the final authority for the interpretation of the United Nations Charter. The Human Rights Council may request that the Security Council take action when human rights violations occur and the Security Council may also refer cases to the International Criminal Court (ICC)even if the issue being referred is outside the normal jurisdiction of the ICC.
The United Nations Security Council has the primary responsibility for maintaining international peace and security and is the only body of the UN that can authorize the use of force. It has been criticised for failing to take action to prevent human rights abuses, including the Darfur crisis, the Srebrenica massacre and the Rwandan Genocide. For example, critics blamed the presence of non-democracies on the Security Council for its failure regarding.
On April 28, 2006 the Security Council adopted resolution 1674 that reaffirmed the responsibility to protectpopulations from genocide, war crimes, ethnic cleansing and crimes against humanity" and committed the Security Council to action to protect civilians in armed conflict and such serious and heinous crimes against humanity.
However the contention remains about the liability of the State parties to such international convention to enact or to give effect to the provisions laid down in these conventions. According to most modern day political scientists, international law can only be enforced in the field of state law after its has been specifically adopted by the concerned state because these international conventions are amongst states and not individuals and thus binding only upon the states.
In India the source of national legislations is the constitution. The constitution has provided for in its various articles subjects with which the government is to bother itself in the proper running of the country. Chapter III deals with some of the basic rights granted to all the citizens of India and some of these also protect the aliens.
Five main Fundamental Rights specified in the Constitution:
A) Right to Equality: enshrined in articles 14-18
14: Equality before law and the equal protection of the law.
15: Prohibition of discriminationon grounds of religion, race, caste, sex or place of birth-Social equality and equal access to public areas.
16. Equality of opportunity in mattersof public employment- All citizens can apply for government jobs
17. Abolition of untouchability-The Untouchability Offences Act of 1955 (renamed to Protection of Civil Rights Act in 1976) provided penalties for preventing a person from entering a place of worship or from taking water from a tank or well.
18. Abolition of titles-Aristocratic class titles such as Rai Bahadurs and Khan Bahadurs in India — these titles were abolished. However, Military and academic distinctions can be conferred on the citizens of India.
B)Right to Freedom
19. Protection of certain rights regarding freedom of speech, etc.- right of an individual to participate in public activities. The phrase, "freedom of press" has not been used in Article 19, but freedom of expression includes freedom of press.(held by Privy Council in Channing Arnold v. King Emperor, AIR 1914 PC 116, 117.)
This specified right shall also include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print...Right to Information was laid down by Bhagwati J. in S.P. Gupta v. Union of India
20. Protection in respect of conviction for offences.- no person accused of any offence shall be compelled to be a witness against himself. "Compulsion" in this article refers to what in law is called "Duress". This article is known as a safeguard against self incrimination.
21. Protection of life and personal liberty- This is probably the most important article of the constitution which has received a very wide interpretation for the decades. The popular idea of the Indian judiciary was that rights which are not specified in Part III of the Constitution does not enjoy legal sanction or protection under the Indian law. Held in A.D.M Jabalpur v. Shukla, AIR 1976, S.C. by the apex court that Constitution does not recognise any natural rights or any common law rights other than those expressly stated therein.
However, post 1978, the attitude of the judiciary changed and judicial construction started playing a vital role in developing and evolving the rights ensured to the Indians in the backdrop of International conventions and norms. In Maneka Gandhi v. Union of India, AIR 1978, SC, Justice Bhagwati held that what is necessary to be seen is and what is the text to be applied to determine whether a right sought for a petitioner is an integral part of a named fundamental right, or par-takes of the same basis, nature and character of any specified fundamental right.
The phrase “Personal Liberty” is of the widest amplitude and includes variety of rights not specifically mentioned in the constitution but which are regarded as integral rights for the fulfilment of Article 21.
Such extended rights provided by judicial construction of the article are:
a)Right to Privacy: held in Kharak singh v. State of U.P (AIR 1963 S.C)
b)Right to travel abroad: held in Satwant Singh v. Asst. Passport Officer, New Delhi
c) Right to speedy trial: Hussainara Khatoon v. Home Secretary, State of Bihar (AIR 1976 SC)
d) Right to provide legal assistance: held in M.H. Hoskot v. State of Maharashtra (AIR 1978)
e) Right of prisoners to treated with humanity: Charles Shobraj v. Superintendant, Central Jail, Tihar (AIR 1978 SC)
f) Right not to be imprisoned for inability to fulfil contractual obligation: Jolly George Verghese v. Bank of Cochin(AIR 1978)
22. Protection against arrest and detention in certain cases.- No one can be arrested without being told the grounds for his arrest. If arrested, the person has the right to defend himself by a lawyer of his choice. Also an arrested citizen has to be brought before the nearest magistratewithin 24 hours.
C) Right against Exploitation
23. Prohibition of traffic in human beings and forced labour.
24. Prohibition of employment of children in factories, etc.
The right against exploitation, given in Articles 23 and 24, provides for two provisions, namely the abolition of trafficking in human beings and Beggar (forced labour),and abolition of employment of children below the age of 14 years in dangerous jobs like factories and mines. Child labour is considered a gross violation of the spirit and provisions of the constitution. Beggar, practised in the past by landlords, has been declared a crime and is punishable by law.
D)Right to Freedom of Religion
25. Freedom of conscience and free profession, practice and propagation of religion.
26. Freedom to manage religious affairs.
27. Freedom as to payment of taxes for promotion of any particular religion.
28. Freedom as to attendance at religious instruction or religious worship in certain education institutions.
E)Cultural and Educational Rights
29. Protection of interests of minorities.
30. Right of minorities to establish and administer educational institutions.
Right to Constitutional Remedies against violation of Fundamental Rights
Right to constitutional remedies empowers the citizens to move a court of law in case of any denial of the fundamental rights. For instance, in case of imprisonment, the citizen can ask the court to see if it is according to the provisions of the law of the country. If the court finds that it is not, the person will have to be freed. This procedure of asking the courts to preserve or safeguard the citizens' fundamental rights can be done under Article 226 of the Constitution to a High Court within whose jurisdiction such right has been violated or under Article 32 to the Supreme Court. The courts can issue various kinds of writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and certiorari. When a national or state emergency is declared, this right is suspended by the central government
Rights as laid down in Constitution under Directive Principles of State Policy
Part IV of our Constitution contains the Directive Principles of State policy and lays down certain rights the state should grant to its people:
Article38: State to ensures social security
Article 39: State to secure:-
a) right to livelihood
b) proper distribution of ownership and control of resources
c) to ensure economic equality
d) equal pay for equal work for man and women
e) to provide to children with opportunities and facilities for healthy and proper development and protect youth from exploitation.
f) free legal aid and equal justice for economically weaker sections (Article: 39A)
g) public assistance in case of old age, sickness and disablement (Article 41)
h) provisions for free and compulsory education for children (Article 45) and so on...
Article 37 of the Constitution clearly states that Directive Principles are not enforceable by any Court. It is argued that these are not any mandatory and compulsory rights provided by the Constitution, rather guidelines or principle to direct the state towards a better society. These principles are moral only.
However the Directive Principles are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
Indian Legislature in securing Human Rights:
The Parliament has passed an act, named the Protection of Human Rights Act, 1993 which has come in to force on the 28th day of September, 1993.
The National Human Rights Commission (NHRC) of India is an autonomous statutory body established on 12 October 1993 and the State Human Rights Commission is also a statutory body subordinate to the NHRC which isto be set up in each state by the respective State Government under the above Act.
Functions of NHRC and SHRC
a) inquire into violations of human rights or negligence in the prevention of such violation by a public servant.
b) visit any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates and make recommendations
c) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation.
d) review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures
e) study treaties and other international instruments on human rights and make recommendations for their effective implementation
f) undertake and promote research in the field of human rights
g) spread literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means
h) encourage the efforts of NGOs and institutions working in the field of human rights
i) such other function as it may consider it necessary for the protection of human rights.
j) take suo motu action, if required in a case if the victim is not in a position to access a court.
With the rise in the percentage of literacy and with the growing trend of various groups, institutions and N.G.Os educating the mass regarding its rights and privileges, human rights as we know it in the modern sense has received much importance in the world today. Institutions, groups and Non-governmental Organisations have all come forward together in support and to protect the basic human rights in a world where the material difference between the “haves” and the “have-nots” is ever gaping and discrimination and injustice is meted unto the poorer and weaker sections of the society without the slightest pang of conscience. India was appreciably secured the rights of its people under the Constitution and under the Protection of Human Rights Act, 1993, but in a country which is the biggest democracy of the world, bureaucratic high-handedness is an evil the people has to live with and the administrative and the judiciary may at times function in an obtuse fashion. As Wendell Phillips had said, “eternal vigilance is the price of liberty”, we can only strive towards a society where men and women receive the respect and dignity they deserve and are treated equally amongst equals and enjoy the inalienable rights freely.
Soumyadeb Sinha(5th yr.)
Department of Law, Calcutta University(Hazra Campus)