Human Rights

1. Introduction

Human rights are rights inherent to all human beings, irrespective of a person’s nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. Everybody is equally entitled to human rights without discrimination.

These rights are all interrelated, interdependent and indivisible. In India, there are multiple ways of protecting human rights. The parliament and the executive are entrusted with the creation and implementation of the law of the land, while the judiciary protects its execution.

Besides these basic ‘institutions’ there are other bodies, who strengthen and enhance the existing mechanisms. Dedicated government agencies, socially inclined non- government organisations, local community groups and international co-operation agencies in fact provide the bulwark of human rights protection across the globe.

2. Concept of Human Rights

The modern concept of human rights developed in the aftermath of the Second World War.

The phrase “human rights” is relatively modern, its intellectual foundations can be traced through philosophy and time honoured concepts of natural law and liberty.

Respect and realization of human rights requires evolving a culture that is more sensitive to the basic needs of every human being.

It respects the need for ensuring to everyone justice, social, economic and political, and provides fair and equal opportunities for growth and development to every individual and group of people.

It protects everyone from being subjected to the whims of State and its arbitrary exercise of power and use of force by its agencies.

3. Protection of Human Rights

Human rights in simple language may be categorised as the fundamental rights to which every man or woman living in any part of the world is entitled by virtue of having been born as a human being, the rights that are required for the full and complete development of human personality.

Human rights are derived from the dignity and worth inherent in human person. The Courts in India have been recognising and enforcing the human rights as natural rights of mankind or as Constitutional mandates or as rights of an Indian in an independent polity.

Generally speaking, human rights are regarded as those fundamental and inalienable rights, which are essential for life as a human being. There is, however, no consensus as to what these rights should be.

Human rights may be interpreted as being different, according to the particular economic, social and cultural society in which they are being defined. Human rights have so far escaped a universally acceptable definition, presenting a problem to international regularisation.

Human rights represent claims which individuals or groups make on the society.

They include the right to freedom from torture, the rights to life, inhuman treatment, freedom from slavery and forced labour, the right of liberty and security, freedom of movement and choice of residence, right to fair trial, right to privacy, freedom of thought, conscience and religion,

freedom of opinion and expression, the right to marry and form a family, the right to participate in one’s government either directly or indirectly or through freely elected representatives,

the right to nationality and equality before the law. These rights cannot be compromised universally.

These rights are natural because they were derived from nature and could not be legally alienated by the ruler.

Definition:

The definition of the term still eluded all. In India, the Protection of Human Rights Act, 1993 defines human right as:
“Human rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India”.

The United States defined human rights in a policy document in 1978 and said:

“Freedom from arbitrary arrest and imprisonment, torture, unfair trial, cruel and unusual punishment and invasion of privacy. Right to food, shelter, health care and education and freedom of thought, speech assembly, religion, press, movement and participation in Government.”

Louis Henkin, a professor and Western Scholar defined human rights as “Claims asserted and recognised as of rights…. Against society as represented by government and its officials. In another definition, an International Legal Scholar, E. Donald Elliot, stated that human rights are “an opportunity guaranteed by the State to its citizens to enjoy the societal benefits and values existing in the given society”.

The concept of human rights falls within the framework of constitutional law and International law. For this purpose, it has been identified to

“defend by institutionalized means the rights of human beings against abuses of power committed by the organs of the State and at the same time to promote the establishment of human living conditions and the Multi-dimensional development of human personality”

4. Natural Rights as Human Rights

The appeal to equate natural rights with human rights is ordained in Vedas. The philosophy envisaged in Rig Veda commands that all human beings are equal and that conduct is just which is based on the principles of equality. Vedic ethics idealised an equality of treatment.

Atharva Veda ordains that all human beings are equal and that conduct is moral which is based on the principles of equality.

The philosophy of human rights appears to have its existence in the domain of natural law6. According to the philosophy of natural law jurists, the natural law denotes natural justice, an instrument which can harmonise the whole mankind and bestow happiness essential for good living of a society.

To the Greek philosophers, the Sophists, Socrates, Plato and Aristotle, natural law is both a way of living as well as thinking. Their philosophy has been that natural law enables a man to realise good life that is living according to virtue.

Aristotle argues that the philosophy of human rights derives its strength from the principles of natural law. Sophists also focussed on ethical and moral values to prepare the young men of Athens to be efficient citizens.

Grotious has a strong conviction that natural law is binding one overrules all other laws. They believe that natural law predicate men to recognise divine will in human affairs.

Man availing himself of natural law automatically participates in the wisdom of God. Grotious observes that by the inclusion of natural law in a legal system, it becomes the link between the minds of the men and the mind of God. Christ himself said

“Thou shalt love thy neighbour as thyself. All things, therefore, whatsoever you would that man should do to you, do you also to them”

Similarly, St. Thomas Aquinas (1225-1274), the first eminent theologist, in his famous work Summa Theological considered law as a means to end and therefore stresses that man ought to follow the divine law as embodied in Ten Commandments which is repository of all divine revealed wisdom contained in the scriptures.

He believes that precepts of natural law teach us to live honourably; to injure no one; and to give every man his due.

The natural law contents in Hugo Grotious, Thomas Hobbes, John Locke,
Rousseau and Immanuel Kant strongly propagate the existence of human rights securing of life, property and happiness and subjects by the social institutions.

Thus the principle of natural law hammers out a charter of human rights to be protected as the basis of survival of the human being.

The crux of the natural law philosophy is that it makes the life, liberty and property the cardinal rights of man, which greatly dominates and influence the future course of the development of human right philosophy the world over.

5. Recognition of Rights for all Human beings

The human rights are the modern name for what had been traditionally known as natural rights in India, Greece, Rome and elsewhere.

Notwithstanding all the polemics of natural law jurists, the condition of man all over the world remained greatly unchanged. He was still in the shackles though he had known of the “natural rights of man” through the philosophy of natural law.

The situation changed with the dawn of Renaissance – the intellectual revival which inundated Europe with new ideas of all the spheres of human life. It opened a new vista in the era of human life.

The result was that even the king in England was forced to sign Magna Carta (the great charter of human rights) said to be the first mile-stone on the road to the liberties of people of England in 1215 A.D.

The philosophy of human rights was added and strengthened specifically after the introduction of Magna Carta. The Magna Carta was followed by the Petition of Rights, 1627 and the Bill of Rights, 1639.

The Bill of Rights may be said to be the third charter of human rights which assured the natural law rights to the people.

Events in England profoundly affected France and other countries of the Continent with the result that France Declaration of the Rights of Man came into existence in 1789 with the prime objective to resist oppression on man. Declaration not only set out a number of human rights…. but clothed them in political philosophy with the words

“the main aim of all political associations is the protection of natural and imprescriptibly rights of man…. liberty, property, security and resistance to oppression.”

In American Continent, the Charter of New Plymouth of 1620 expressed the principles of human rights. Similarly, the Declaration of Independence in the United States of America firmly resolved to hold the truth of existence of human rights to be self- evident declaring that all men are created equal;

that they are endowed by the creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that whenever any form of government becomes destructive of these ends,

it is the right of the people to alter or to abolish it, and to institute a new government laying its foundation on such principles, and organising its powers in such forms, as to them shall seem most likely to affect their safety and happiness….

but when a long train of abuses and usurpations, pursuing invariable the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government and to provide new guards for their future security.

It is in this spirit that Western nations too are making hue and cry for protection and promotion of human rights.

The outbreak of Second World War brought a strong conviction of urgent need to safeguard the political and civil rights of individual every where, and to provide for economic and social security and determination to safeguard such rights.

The appalling atrocities during the War led to strong movement for the international protection of fundamental human rights. The Charter of the United Nations, the legal child of World war, represents a significant advancement so far faith in and respect for human rights is concerned. It contains a numerous reference to human rights.

The rights of individual were made an international concern. Human rights are mentioned for the first time in an international treaty (not counting the treaties for the protection of minorities concluded after the First World War, which related to the rights of special groups but not to human rights in general) because the drafters of the Charter were looking behind the facts of war to its causes, that is to say, to the existence of conditions which makes the wars possible.

The present day journey of human rights had started after the Second World War and first cohesive effort by the International Community for the promotion and protection of human rights was their agreeing to the Charter of the United Nations in 1945,

basically aimed at saving this world from the scourge of war which had brought untold sorrow to the human kind and re-affirming faith in fundamental human rights, in the dignity and worth of human persons, in the equal rights of men and women and of nations large and small,

which culminated in the drafting of various human rights instruments, such as, Universal Declaration of Human Rights, International covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, etc. and setting up of institutions like Commission on Human Rights, etc.

The provisions concerning the human rights run throughout the U.N. Charter “like a golden thread”.

There are as many as seven references— in the Preamble; among purposes of the U.N. [Art. 13]; among the responsibilities of the General Assembly [Art. 13(2)]; among the objectives of the International Economic Co-operation [Art. 55(c)]; among the functions of the Economic and Social Council (ECOSOC) [Art. 62(2)];

as a responsibility of one of the Commissions of Economic and Social Council (ECOSOC) [Art. 68]; and among the objectives of the Trusteeship system [Art. 76(c)].

A pledge to co-operate in promoting at least implies a negative obligation not so to act as to undermine human rights. When the member countries felt that they have greatly weakened the contents of Charter clauses, so an attempt was made by drawing up in 1948 the “Universal Declaration of Human Rights and Fundamental Freedoms”.

This was the First step in formulation of an International Bill of human rights.