Human Rights

We live in a wide and varied world and yet we share a common bond. The history
of humankind is marked by efforts to ensure respect for the dignity of all. The
concept of human rights was introduced and developed by thinkers from various
cultural and religious traditions. Important contributions to the
promotion of this idea was made by statesmen and lawyers and gradually written
norms establishing the protection of the rights of individuals were inscribed in
national laws. Steps were also taken to establish international human rights
standards, in particular in the nineteenth century and after the First World War.
However, it was only in the second half of the twentieth century
that a comprehensive international system of human rights promotion and
protection was set up. This was mainly due to the efforts of the United Nations, its
specialized agencies and regional intergovernmental organizations.
1.1 Tracing the History of Human Rights

where does the history of human rights begin? There are two different
approaches on studying its origin. One would argue whether its origin
should be traced to the legacy of European Enlightenment as a result of
which the concept of nation-state developed and morality became one of
the tools of governance. This ultimately brought down the feudal
structure and challenged the divine rights of the kings.
there is another theory that floated in the development of human rights history. It
is believed to be encrypted in the secular and religious traditions. The concepts of
progressive punishment can be traced to Hammurabis Code in ancient Babylon;
the Hindu and Buddhist religions offered the earliest defenses of the respect for all,
extended to the ecosystem; Confucianism promoted mass education; the ancient
Greeks and Romans endorsed natural laws and the capacity of each person to
question; Christianity and Islam advocated brotherhood and at
the same time, they endorsed a moral conduct during wars. Therefore, most of the
universal cultures tended to rationalize unequal treatment of people. But it is
equally true that the real foundation of human rights in the modern world lies in the
European enlightenment era. During this period the concern for rights of woman
and practice of slavery were addressed. Human rights are also rooted in the
philosophical laws of natural rights and natural law. Plato (427BC-348BC) can be
said to be the earliest philosophers who suggested the universal ethical conduct
and in a way indirectly advocated natural rights of people. Similarly Aristotle
(384BC-322BC) said that justice, virtue and rights according to the different

kinds of socio-politico constitution and circumstances. Cicero (106BC-43BC), one

the most renowned jurist and statesman laid down the
foundation of natural rights and human rights in his work 'laws' (52BC). According
to him there should be universal human rights laws that would go beyond
customary and civil laws. In Greece, there are evidences of equal freedom of
speech, equality before law, right to vote, right to
trade, similar rights were secured to the Romans by the 'jus civile' of the Roman
law. Thus, it can be a general agreement that the origin of the human rights is
usually agreed to be found in the Greco-Roman natural law and doctrines of
Stoicism.
1.2 The Enlightenment Thinkers

Thomas Hobbes: Hobbes Leviathan published in England in 1651 could be

considered as the first work on the power sharing between the king and the natural
rights of the individual. The leviathan world did not advocate the formal
restraint of power. It allowed few natural rights to the individuals who have
willingly delegated rest of their natural rights to the state or the ruler. Therefore,
Leviathan gave the concept of social contract i.e.:- the power to govern comes
from the consent of the governed.
John Locke: Locke advocated the natural liberty and equality of human beings.
According to Locke- Man was born free with a title to perfect freedom, and an
uncontrolled enjoyment of all the rights and privileges of the law of
nature, equally with any other man, or number of men in the world.; he had by
nature a power to preserve his property, that is, his life, liberty and estates
against the injuries and attempts of other men. Thus Locke was
considered as a strong advocate of natural rights. His influence could be seen in the
US Declaration of independence in 1776. Lockes contribution can also be
observed when we recollect the preamble of the universal Declaration of Human
Rights which says, Whereas it is essential, if man is not to be compelled to have recourse, as
a last resort, to rebellion against tyranny and oppression, that human rights should be protected
by the rule of law.

Baron de Montesquieu: Montesquieu's contribution in the Enlightenment

remains a landmark contribution on the power structures of government and
separation of power. He advanced the theory of social contract. He emphasized on
the idea that everyone was born with certain natural rights which no authority
could take away. This was the fundamental base of the French
Declaration of the Rights.

The 'social contract theory' of Thomas Hobbes and John

Locke. Relate it with natural rights and their contribution to
the human rights concept of 19th century.
1.3 The Modern Concept of Human Rights
In the contemporary world, human rights are directly traced to the Universal
Declaration of Human Rights (UDHR) and subsequent treatise they are mainly
thought of as being political in nature as these rights are directed to the states and it
is the state's responsibility to ensure its effectiveness. Therefore, human rights are
primarily not interpersonal rights. According to Professor Alan Gewrith, Human
rights arise not from the general good, but from the conditions of human agency
and the logical structure of reasons. He argued that, since all normal
human beings engage in a self-conscious action in a way where his/her existence is
successfully protected. This leads to the universal acceptance of certain rights
which may be termed as human rights.
James Griffin saw human rights as the rights given in consistence with the
prevailing senses with the objective of universal good and functioning of human
autonomy.
According to John Rawls, all moral beliefs are inferential and such beliefs would
be broadly accepted only when it is in reflective equilibrium. It means that society
functions as a system of cooperation which is rational, reasonable, and free and
equal which rearranges itself to conceptualize social justice and in a way to
assure human rights.
1.4 Categorization of Human Rights

Human rights are not generic and abstract but they are numerous and at the same
time specific.
To simplify the understanding, human rights may be categorized broadly into
following types:
1. Security rights that are protected against criminal offences like murder, rape etc.
2. Rights against the abuse of legal system like false imprisonment, excessive
punishments
etc.
3. Freedom rights as in the areas of thought speech and expression.
4. Rights of political participation like forming an assembly, protest etc.
5. Equality rights that ensure non discrimination by the state and its agency.
6. Social rights that ensure basic healthcare, education and livelihood.
7. Minority rights which protect people from genocide, ethnic cleansing etc.
Most of the above rights have been incorporated in the UDHR and other treatises.
However, the idea of human rights has moral base and no country can shy away to

bring these rights in their domestic laws if they claim to be a responsible nation
irrespective of international laws and
treatises.
.5 Human Rights before the First World War
Prior to early 1930s there was no real concept of human rights in the International
law. There was a usual practice that human rights are state subject and
international agencies or other nations have no right to interfere in the sovereignty
of the country. Thus in case of human rights violation by the state and nonstate
actors on the individual, there was no proper mechanism to address such issues on
the international front. This made the concept of human rights nonexistent
and abstract in the law book of many governments. However two notable
achievements could be mentioned:
1. Abolition of slave trade: The nineteenth century saw a clear progress in the
abolition of slave trade. Slavery was made illegal in England in 1771 after
Somersetts case. By beginning of nineteenth century England and USA had
already passed the legislation to outlaw slave trade from their territory. The
Proclamation of 1863 by the President of United States Abraham Lincoln against
slavery is the best and famous example of the ongoing attempt to ban slavery at
that time. It is to be noted countries like Cuba and Brazil still practiced slavery in
their domestic land. Later on the anti slavery that International Law was
established in 1839, which could be considered as one of the oldest nongovernment
organizations that existed.
1.5.1 Causalities of War
1. This period also saw the concern for the individual causalities due to war or
people who were prisoners of war. Many countries agreed to safeguard the
minimum rights of the individual or foreigners imprisoned in a war or likewise.
Therefore, a seed of humanitarian law was sown during this time, which further
resulted in the establishment of the International committee of the Red Cross by
Henry Dunant.
1.6 The League of Nations and its approach towards human rights issue
After the First World War the League of Nations came into existence. It was then
considered as the principal international organization responsible for maintaining
peace and harmony in the world. Later, in 1919, Covenant on the League of nation
was concluded whose preamble was read as follows: The main aim of the
organization is to promote international cooperation and achieve international
peace and security.
The League of Nations passed International Conventions on the Abolition of
Slavery and the Slave trade in 1926. With this, slave trade was legally banned in
the international forum and the league promoted bilateral tie ups to make antislavery

laws effective for the member countries. The league also faced issues regarding
minority rights. It was because, after the First World War, the political map of
Europe was redrawn and many ethnic groups became minority in their new
country. There was gross violation of their rights which was a great
concern for the League of Nations. However, this individual violation of the
human rights could not be addressed by the organization due to lack of clarity on
the status of human rights violation and international arrangements. According to
one of the celebrated political analyst Laard, he concluded thatThe assumptions of national sovereignty were almost accepted everywhere.
Regulations regarding the restrictions on the freedom of press, of speech and
expression, imprisonment for political offences, persecution on racial grounds,
all these things were deplored and denounced. But it was widely accepted that
they were ultimately the sole responsibility of the legal government of the
territory in question; and not therefore matters over which
foreign individuals or governments could take action legitimately.
1.7 Human Rights after the Second World War
Human rights and democracy were the moral bases on which the Second World
War was fought. As early as in 1941, the President of United States spoke of the
four essential human freedoms. Those were- (freedom of speech and expression,
freedom of every person to worship God in his own way, freedom from want and
freedom from fear). Thus, it was clear that the world was
aligning itself with the safeguarding of human rights protection globally. The
atrocities of Nazis were still fresh and it was a concerted effort of the world
community to join together and ensure that the future generations do not have to
witness the onslaught and barbarous act like in World Wars. What Hitler and its
Nazis had done to the Jews was declared as a crime against humanity.
Therefore, the main focus of the immediate post war crisis was to frame
International human rights laws and attempt started to create legal instruments
which could protect human rights of the individual against the state or non-state actors. One

of such endeavor could be about the

framing of the UN Charter in San Francisco in 1945. At the conference, the member delegates
agreed to an International Bill of Rights however it did not materialise.
The two World Wars had shaken even the most politically aggressive countries of the
world, particularly in Europe. This resulted in the self-realization by nations of the
injustice done to mankind in the struggle for political conquest.

The Preamble of UN Charter

The peoples of United Nations were determined to save succeeding generations

from the scourge of war, which twice in our life time has brought untold sorrow to
mankind, and to reaffirm faith in fundamental human rights , in the dignity and
worth of the human person , in the equal rights of men and women and of nations
large and small..

With the framing of the United Nations, human rights officially got its recognition
and today it has become the subject of concern for the international community.
Human Rights under the UN charter: In the San
Francisco Conference, it was agreed by the delegates that there should be an
International Bill of Human rights however, due to lack of
proper coordination, it was not given a shape, However, detailed provisions of
human rights was infused in the UN Charter which played a vital role in the future
making of covenants and agencies of human rights. Some of the provisions were as
follows:
United Nations
determined to reaffirm faith in the fundamental human rights, in the dignity and
worth of the human person in the equal rights of men and women and of nations
large and small.
international cooperation
in promoting and encouraging respect for human rights and for freedoms for all,
irrespective of caste, religion, sex and race would be equal for United Nations.
task for the
realization of promotion of human rights and fundamental freedoms.
provisions: higher standard of living
full employment
economic and social progress
international cultural and educational cooperation
international social health and related problems
cooperate in
achieving the set forth target in Article 55.
cil (ECOSOC) to make proper
recommendations for the promotion of human rights and fundamental freedom for
all.
It is to be noted that, the Charter is a global Constitution without a bill of rights and
it has not
defined human rights anywhere in the charter. There is also no provision in the
charter to make
the provisions as legal binding for the member states.
1.8 Limitation of United Nation with respect to human rights

Even though there was mention of human rights in the main body of the charter, it
did not any way made the member state commit to the cause. With certain
provisions as in Article 55(c) read with Article 56 simple advised member states to
follow and practice human rights as prescribed in Article 55. Therefore without
any legal obligations to the implementation of human rights it proved
weak and ineffective when it was brought in the practice. Nevertheless, the
political thinkers believed that in spite of such limitations United Nation could be
applauded to initiate the human rights concern effectively on international
platform.
Under Article 68 of the UN Charter empowers, Economic and Social Council
(ECOSOC) to constitute a commission for the promotion of human rights and such
other commissions as may be required for the performance of its functions.
Accordingly a commission on human rights was approved by the general assembly
on February 12, 1946.
The commission was composed of 18 members who were elected by ECOSOC.
Each state member
selected its own representatives. The Commission as determined by its terms of
reference, was
directed to recommend and report on the following terms.
1. on International Bill of Rights.
2. the protection on minorities.
3. discrimination on grounds on religion, sex, race and language.
4. international declaration and conventions on civil liberties, status on women,
freedom of expression.
The commission has set up intensive machinery and procedures to monitor
compliance by states with regard to international human rights law and investigate
any kind of human rights violation.It is done mainly by sending a fact finding
missions to countries.
1.10 Human Rights Council (HRC)
In one of the World Summit in New York 2005 number of global
issues were discussed and it was finally decided that UN Human
Rights Council should be formed which shall be responsible for the
protection of human rights and fundamental freedoms for all
without any kind of distinction. On March 2006, the General
Assembly adopted a resolution to establish Human Rights Council
based in Geneva. It shall function as subsidiary organ of the
General Assembly.
1.10.1 Composition of HRC

It consists of 47 members who are elected directly and individually by secret ballot
by the majority of the member of the General Assembly.
The membership is based on equitable geographical distribution. 13 member from
African Group,13 from Asian Group, 6 from Eastern European Group and 7 from
Western European
group and other states.
Membership is open to all members of General Assembly.
1.11 Universal Declaration of Human Rights

In 1946 UN Commission on Human Rights were constituted to frame the

International Bill of Rights, It was an attempt to create human rights instrument
globally and for all nations and people. The drafting committee consisting of
eight countries were formed which was chaired by Eleanor Roosevelt. Following
many sessions and meetings, on 10 December 1948, the UDHR (Universal
Declaration on Human Rights) resolution was passed by 48 members of the UN
General Assembly and the 8 communist countries abstained from voting. These 48
states had backed the Declaration as the common standard of achievement for all
peoples and all nations. The Universal Declaration consisted of 30
Articles along with Preamble. This was the first cornerstone in a process to evolve
the International Bill of Rights. The International Bill of Rights includes UDHR,
ICCPR and ICESCR. The three together forms International Bill of Rights out of
which the UN General Assembly had to wait another two decades for the last two
to become effective. The two International covenants were adopted in 1966
codifying the two sets of rights mentioned in the Universal Declaration.
International Covenant on Civil and Political Rights and International Covenants
on social Economic and Cultural Rights came into force in 1976.
The UDHR was passed in the General Assembly without any vote of dissent
however there were eight countries who abstained from voting. These countries
were mainly communist ideology in the likes of Poland, USSR etc,

Human Rights are given to us by the virtue of birth, only because we are human.
These are inseparable, inter-dependent and there is no discrimination in provision
of these rights. Human rights are what every human being is entitled to; to allow
them freedom to live a dignified, secure life of their choice. They include rights
related to the safety of the person; the right to be free from coercion by other
individuals, groups or governments; the right to social benefits, rest
and leisure; and the right to a good basic education and many more such rights.
In Hindu philosophy, dharma is perhaps the closest word to 'human rights'.
Actually, dharma has many levels of meaning: law, norms of conduct, truth, right,
ritual, justice, morality, destiny, religion, and more. 'Vasudhaib Kutumbakam' (the
world is our family) is the underlying Hindu philosophy. In particular, this
philosophy says that rights are not confined to humans alone;
animals and plants also have such rights. (In fact, this is a part of the Jain
philosophy too.) Human rights are not rights only; they are also duties, and both
are inter-dependent. Hindu philosophy looks at society and the universe as a
whole. This differs from the Western view of the 'individual-based' notion of
human rights. In fact, most Asian societies reject the individualistic
approach to human rights. The Buddhist doctrine, for example, does not accept the
concept of life based on the self or ego. It emphasises the holistic nature of things.
The rock edicts of Ashoka (in the 3rdcentury BC) proclaim the emperors concern
for the well being of the hill-dwellers. This line of thinking shows concern for the
disadvantaged people, runs through all the ages and has produced bold advocates
like Jyotiba Phule, Periyar and Ambedkar in the recent years.
India passed the Protection of Human Rights Act in 1993. In spite of this and the
fact that India has signed the IBR, people are not treated as equals and there is a
great divide in the society based on the caste, creed and religion. Almost every
week you can read about incidents which can distinctly be linked with human
rights violation making headlines in the newspapers.
What can a country, especially one that has signed the ICCPR or the ICESCR, do
to make these universal rights available to its people? The economic rights, of
course, would depend on the resources that a nation can muster. But
what about the civil and political rights? According to the Vienna Declaration,
poverty and backwardness cannot be offered as reasons for not subscribing to
the universal nature of human rights. It is hence important to know that being
citizen of India what rights do we have according to Constitution of India and if
trespassed what legal action can be taken against it. Human rights like education,

health, food, work, information; clean environment, peace, etc are accessed by all
even children, women, disadvantaged, minorities, bonded labourers and prisoners.
All laws and regulations laid by the constitution and law enforcing agencies are
binding for the protection of rights and violation of these may lead to prosecution.
But it is also true that internal and external destructive powers in the countryterrorism, civil movements, militancy etc. mock our legal system. It also aims to
endanger the unity and integrity of India.
In the personal context several rights are granted to citizens. Civil and political
rights are the entitlements relating to fair and equal treatment, to justice and
political freedom and to general security, Some of them are

ivacy, family, home and marriage.

Human Rights are Indespensible and Inevitable

Lack of human rights may hinder the ethical, natural, societal and spiritual
development of individuals. Human rights are extremely essential for the
development of a conducive environment to augment the physical and
moral life of society.
Human Rights Support and Advocate the Esteem of Humans
Thus, human rights advocate that every individual should be treated with esteem
irrespective of gender, social or economic status. For instance, a law was passed in
India in the year 1993, which forbade human beings from transporting human
excreta. This law is called 'Employment of Manual Scavengers and Dry Latrines
(Prohibition) Act'.
3. Human Rights are Universal
No one class of people, however privileged they may be, have a monopoly over
human rights. They are essentially universal
4. Human Rights are Inalienable
'Inalienable' means unable to be taken away. When we say human rights are
inalienable we are saying that the rights are inherent in us and we cannot give it
away or renounce it. For example, if an individual gives, even in writing, telling
the police that he should be arrested for a crime that he has committed and be
locked up without a trial, it cannot be considered a valid statement. This would be
a violation of his/her basic human right to
5. Human Rights are Dynamic
Human rights are ever changing, constantly dependent on the change in the
political, economic, social or environmental structures of the State. For example,
the right to adequate treatment during illness has been conferred through various
schemes of the Government of India. Some of these schemes include free medical
treatment in public hospitals and regular and free medical examination and free
medical consultation for schools and providing education to the physically
challenged

6. Human Rights are Essential for Gratification of Aspirations

Every human being is entitled to attain his/her aims in life. Human rights refer to
those requirements which are absolutely essential to attain this aim. These essential
rights should not be curtailed by any authority.
7. Human Rights are Never Absolute
.
Humanity lives in a society which invariably places some limitations on certain
privileges and freedoms. Human rights are those restricted privileges or
prerogatives, which are beneficial for the society or humanity at large. These are
acknowledged and attested by the state through its legislation. Each of these
rights comes with restrictions
8. Human Rights Restrains State Power.
Human rights imply that all citizens have rightful demands upon his or her society
for certain freedoms and assistance. Thus we could say that human rights confine
the power of the government. They either essentially levy limitations on the
power of the government to prevent the violation of the basic human rights of
individuals, or they may lead to setting up of certain obligations for the
government for non- interference in the personal life of citizens. This is clearly
indicated in the six freedoms mentioned in the Right to Freedom in the Indian
Constitution. (Article 19 1.5)
1.16 India's Freedom Struggle, Human Rights and Constituent Assembly
The struggle for Human Rights in India gained momentum during the rule of the
Britishers. It was during the British rule that the Indians witnessed grave
violation of their rights. One of the biggest examples of such violations is the
Rowlatt Act of 1919, which provided extensive powers to the British Government.
It allowed British officials to carry out indefinite arrests, detention
of individuals and allowed them to perform/ execute warrantless searches and
seizures. It also restricted people from public gatherings and censored the media.
Therefore, the extensive powers given to the officials resulted in the gross violation
of human rights of the masses. Similarly, the Vernacular Press Act (1878), the
Indian Councils Act (1892), the Indian Councils Act (1909) etc, also were marked
by the violation of basic human rights of individuals. Later, on due to the rise of
the feeling of nationalism amongst the Indians, the struggle for the attainment of
human rights began in India. To do so the Indians not only opposed the Britishers
by various revolts but also developed and placed certain demands before the
Britishers, for the achievement of their basic human rights. One such demand was
the Nehru Commission Report of 1928 (with Motilal Nehru as its Chairman).

The Nehru Report not only proposed constitutional reforms for India but also
demanded a Dominion Status for India and universal suffrage for all, including the
religious and ethnic minorities. It also laid emphasis on limiting the power of the
Government and proposed to protect the fundamental rights of the people, which
were denied most frequently by the colonial administration.
The next development took place in 1931, when the Indian National Congress
approved several resolutions for the protection of fundamental civil rights and
social rights of the Indians. Minimum wage, abolition of untouchability and the
abolition of forced labour were some of the issues adopted in the ensuing
resolutions.
A notable development during the period took place on December 1948, when the
United Nations General Assembly accepted and implimented the Universal
Declaration of Human Rights. Besides this, the United Nations also requested its
member nations to recognise the basic human rights in
the corresponding constitutions of their countries. This development had a
significant impact on the Constitution of India
1.17 Human Rights in the Constitution of India

The work of drafting the Constitution of India was done by the Constituent
Assembly. The Constituent Assembly began its work on December 9, 1946. After
several discussions and debates the Constitution of India was
finally adopted on January 26, 1950. The framers of the Indian Constitution were
greatly influenced by the idea of human rights and most of the human rights
incorporated in the Universal Declaration of Human Rights.
While the civil and political rights have been incorporated in Part III of the Indian
Constitution, i.e. (Fundamental Rights). The Economic Social and Cultural
Rights have been incorporated in Part IV of the States Policy). The Constitution
of India as said above, provides some Fundamental Rights to its citizens. The
fundamental human rights ascertained by the Constitution of
India, were influenced by many rights that had been endorsed by several countries.
England's Bill of Rights (1689), the United States Bill of Rights (December 15,
1791) and the
Declaration of the Rights of Man and Citizen of France (created during the
Revolution of 1789)
were the main influences that went into the making of the Fundamental Human
Rights of the Constitution of India. The Fundamental Rights are included in Part
III of the Constitution. (Articles 12-35). These rights were finalized by a
committee of the Constituent Assembly headed by Sardar Vallabhbhai Patel.

*These rights have not been defined in the Constitution but it has been agreed upon
that they are essential which is why they are called Fundamental Rights because
they are the most essential rights and are above all ordinary laws. Thus unlike
ordinary laws they can be altered only through a constitutional amendment.
Contrary to other justifiable rights the Fundamental rights are protected by a
constitutional remedy. Thus the Fundamental Rights are not absolute but have been
subjected to certain restrictions. (*by way of an application direct to the supreme
court under Article 32, Part III.)
The Indian Constitution assures certain Fundamental Rights to all the citizens of
India. The Constitution of India gives the greatest priority to these civil liberties.
They are guaranteed to be above all other laws of the nation. They encompass
many basic individual rights like equality before the law, freedom of speech and
expression, freedom of association and peaceful assembly, freedom of religion and
the right to constitutional remedies for the protection of civil rights, for instance
the Habeas Corpus. The Fundamental Rights were incorporated in the Indian
constitution with the aim to eradicate the inequalities and discriminatory social
practices of the past. They abolished the practice of untouchability and also forbid
differentiation on the basis of gender, religion, race, caste, or place of birth. It also
prohibited discrimination between human beings and atrocities like forced labour.
They even protected cultural and educational rights of minorities by safeguarding
the right to retain their unique culture and discrete languages. The minorities were
also given the freedom to set up and execute their own educational institutions.
There are six Fundamental Rights enshrined in the Indian Constitution.
Right to Equality Right to Freedom Right against Exploitation
Right to Freedom of Religion Cultural and Educational Rights
Right to Constitutional Remedies
Right to Property has been deleted from the list of Fundamental
th Rights by the 44 Constitutional Amendment Act of 1978. Now it is
a legal right under Article 300(A)
In 2002, Article 21(A) was incorporated by the 86th constitutional amendment act.
Primary education has also been made a Fundamental Right under the Right to Life
and Personal Liberty. It says that "the children in the age group of six to fourteen
years shall be provided free and compulsory education" by the State. Fundamental
Rights are not absolute but have been subjected to certain restrictions. The
Constitution equips the states with the provision of imposing restrictions on these
rights at times, for upholding the independence, sovereignty and integrity of India.
Nevertheless, the right to life and personal liberty cannot be suspended. Similarly,
the six freedoms (Right to freedom) also bear some
restrictions. They can be suspended automatically during the state of emergency