Human Rights

Introduction:

Human rights are as old as human civilization; but their use and
relevance have been well defined during the recent years. It has
gathered more importance in the post-second-world war period,
particularly after the United Nation’s Declaration of Human Rights
(UNDHR) in 1948.
Meaning:
There is no precise definition of Human Rights. The Oxford Power
Dictionary (1993) defines human rights as the ‘basic freedom that all
people should have’. The human rights ‘basically emerge out of
human needs and capabilities. In a simple language, human rights are
meant for human beings to satisfy their basic needs.
In a broader sense, the human rights are “those rights to which every
man and woman inhabiting any part of the world should be deemed
entitled by virtue of having been born a human being” (Kashyap). In
other words, human rights are those rights which are essential for a
dignified and a decent human living as well as human existence and
adequate development of human personality.

Human rights are held by all human beings and human rights exist as
long as human beings exist. Both are inalienable and cannot be
separated. Precisely, human rights imply availability of “Such
conditions which are essential for the fullest development and
realization of the innate characteristics which nature has bestowed
him/her with, as a human being”. They are essential to ensure the
dignity of every person as a human being’.
Man is gregarious and he loves staying together. Every human being,
as a social being, lives in a group in the society. As an individual, he
has a right to life and right to a decent living. As a social being, and an
inseparable part of the society/community, he too has other rights,
like: right to freedom of speech, expression, thought, belief and faith
and right to move freely. Thus, human rights are essential for the
development of the human personality in society, where he lives.
Types of Human Rights:

Human rights in general, may be of two types:

(a) Rights which are essential for the dignified and decent human
existence, and
(b) Rights which are essential for adequate development of human
personality.
Rights under the first category include right to fulfillment of basic
human needs like food, shelter, clothing, health and sanitation,
earning one’s live-hood and the like.
The second category of human rights comprises of right to freedom of
speech and expression, cultural and educational rights.
Characteristics of Human Rights:
Human rights possess the following characteristics:
1. Inalienability:
Both human beings and human rights are inalienable and inseparable.
One can not stay without the other.
2. Comprehensiveness:
Human rights are comprehensive. They include socio-economic, civil,
political and cultural rights which are relevant for a decent human
living.
3. Universality:

Human rights are universally applicable to one and all. These are
meant for all individuals of all nations, without there being any
discrimination on grounds of caste, class, colour, sex, creed, language
and religion.
4. Justice ability:
These rights are also justiciable.
5. Non-absoluteness:
These rights are not absolute and there can be restriction imposed on
these.

Development of the Concept Human Rights:

The concept of human rights was further strengthened with the
emergence of Magna Carta (1215) and Bill of Rights (England) 1689,
following the glorious Revolution of 1688. Unlike Thomas Hobbes
(1588-1679) and John Locke (1632-1704) talked of partial surrender of
a few natural rights; Rights like right to life, liberty and property were
never to be given up as those were inalienable rights. The basic
concept of Lockes theory of natural rights was that the citizens have
always a legitimate right to overthrow a Government if it failed to
protect the citizens’ rights.
Almost a century there after came the ‘American Declaration of
Independence’ (1776) which affirmed that ‘all men are created equal’
and that they are assured of several inalienable rights like ‘right to life,
liberty and the pursuit of happiness’.
Nearly a decade later, in 1789, came the famous ‘French Declaration
of Rights of men and citizens’ as an outcome of the French Revolution,
the same year. It proclaimed in all clear terms that ‘men are born free’
and they remain ‘free and equal in the enjoyment of rights of liberty,
property, Security’ and resistance to oppression’.
THE UN and Human Rights:

Art. 55 of the united Nations Charter (1945) provides that the world
body ‘shall promote universal respect for and observance of human
rights and fundamental freedom for all’. In pursuance of the UN’S
Charter, which provided for setting up of a Commission for promotion
of human rights, a Commission, headed by Mrs. Eleanor Roosvelt was
constituted in 1946.
The Commission worked hard and finally presented before the U.N’s
General Assembly the draft declaration of human rights in September,
1948. After several modifications in the draft, the Universal
Declaration of Human Rights (UDHR) was finally adopted unanimously
on 10 December, 1948 by 48 member-states (with the abstention of
eight states including the then Soviet block nations. South Africa and
Saudi Arabia).
Thus 10th day of December every year is being ceremoniously
observed as the Universal Declaration of Human Rights Day, all over
the world. The Universal Declaration of Human Rights which has been
described as the ‘Magnacarta of mankind’, runs into 30 Articles and it
ensures every citizen of the world “social security and a decent
standard of living”.
In totality, the Declaration represents various cultural,
traditional and religious values which are stated below:
(1) Respect for human rights and dignity, tolerance, importance of the
criteria applicable to individual and group relations in social life.
(2) Observance and safeguarding of these criteria including
contractual obligations and so on. (Final Report of the Round Table
Meeting on Human Rights-reproduced in the UNESCO-Teaching of
Human Rights-Vol. IV, 1985, P-76)
Thus, U.N’s Declaration of Human Rights has ensured human rights
and fundamental freedom for all without distinction of race, colour,
religion and sex. ‘
The UNDHR is based on the following four promises:
1. Individual is the bearer of rights
2. The State acts as the promoter and protector of rights
3. The rights include civil, political, economic, social and cultural
aspects of all human beings
4. The rights are universal.
In 1966, the U.N adopted two other instruments as supplements to the
U.N’s Human Rights Declaration of 1948. One is known as the
‘International Covenant on Economic, Social and Cultural Rights
(ICESCR)’ and the other one is known as the ‘International Covenant
on Civil and Political Rights (ICCPR)’. More than two-third member-
states of the UN have already ratified these two covenants.
There is also a third one the Optional Protocol to the International
Covenants on Civil and Political Rights on the basis of which an
aggrieved person is entitled to enjoy the right to appeal. Thus, the
UNDHR (i) accompanied by two other covenants and the protocol as
described is the International Bill of Rights.
The highlights of the objectives of the UNDHR have been
stated in the opening line of the Declaration which reads as
follows:
‘Recognition of the equal and inalienable rights of all members of the

human family is the foundation of freedom, justice and peace all over
the world”. In brief, every individual has been ensured of “a dignified
living free from brutality”.
A few other documents have also supplemented the UNDHR
and those are:
(1) International convention on prevention of Punishment on crimes of
Genocide (1948),
(2) Supplementary convention on abolition of slavery, Slave trade,
institutes and practices (1956),
(3) Convention on Political Rights for women (1952),
(4) UNESCO convention against discrimination in Education,
(5) International convention on elimination of the forms of
Discrimination (1965) and
(6) Convention on suppression and punishment of Crimes of the
apartheid (1973).
Two Broad Categories of Human Rights Existing Under UNDHR:
The Universal Declaration of Human Rights has guaranteed two broad
categories of rights — such as: (1) Civil and Political Rights (2) Socio-
economic and Cultural Rights.
The details are given below:
1. Civil and Political Rights include the following:
(i) Right to life, liberty and security of persons
(ii) Right to freedom from slavery and servitude
(iii) Right to freedom from inhuman torture or punishment
(iv) Right, without decimation, to Equality of Persons before law, equal
protection of law, right to judicial remedies, and right to freedom from
arbitrary arrest, detention or exile.
(v) Right to fair trial
(vi) Right to freedom of thought, expression, belief, faith, conscience
and religion
(vii) Right to freedom of speech and expression and peaceful assembly
(viii) Right to take in Government affairs, and equal access to Public
Service, right to vote
(ix) Right to freedom of movement and right of asylum
(x) Right to Nationality
2. Socio-economic and Cultural Rights cover the following:
(i) Right to work, equal pay for equal work and right to form trade
unions.
(ii) Right to social security during old age, sickness, widowhood and
unemployment.
(iii) Right to marry and have family and right to property.
(iv) Right to preserve and propagate one’s culture.
(v) Right to food, health and adequate standard of living.
(vi) Right to rest and leisure.
(vii) Right to participate in cultural life.
The Vienna Conference of 1993:
An International Conference on Human Rights was held in Vienna in
June, 1993 to deal with new emerging issue like, (a) Universality of
human rights and (b) Application of non-selective standard.
An extract from the document agreed upon in the Vienna
Conference is given below for reference:
“All human beings are universal, indivisible, interdependent and

interrelated. The International Community must treat human rights

globally in a fair and equal manner on the same footing and with the
same emphasis.
While significance of national and regional particularities and various
historical, cultural and religious backgrounds must be borne in mind, it
is the duty of the State regardless of their political, economic and
cultural system to promote and protect all human rights and
fundamental freedoms”.
Often the human rights activists ask a question can infringement on
Sovereignty of a nation-State be permissible for protection of and
safeguard against human rights violation. The answer is always in the
positive and the supporting argument is that the treatment of a State
towards her citizens is no more ‘private’ and it is the ‘just and rational
concern’ of the International Community as a whole to ensure every
citizen’s protection of and safeguard against human rights.
Human Rights in Indian Context:
From the ancient days India has been committed to the ideals and
doctrine of human rights. In conformity with the UDHR, the
Constitution of India, in Part III, provides for sue types of Fundamental
Rights ensuring equality, justice and freedom to all citizens of India.
The Part IV captioned ‘Directive Principles of State Policy” also ensure
Socio-economic justice and rights. India’s fight for freedom from the
clutches of the British rulers was also viewed as a struggle for human
rights.
Our six fundamental rights comprise both individual rights and social
rights but emphasis has been put on individual’s right ‘to equality of
opportunity for all including those belonging to the weaker and
disadvantaged section of the ‘Society in the nature of ‘Protective
discrimination’.
Articles 14, 15, 16, 17, 29, 38, 46, 330, 332, 334 and 335 dealing
elaborately with ‘protective discrimination’ ensure ‘an egalitarian
social order’. Abolition of untouchability has been given a
constitutional sanctity under Art 17 of the Constitution and its practice
in any form has been declared as a public offence.
Art 15(4), Art 16(4) and Art 335 deal with reservation of seats for
admission into educational institutions and reservation of posts for
appointment to different services for the S.Cs and S.Ts as a
mechanism to ensure and secure social economic justice. Seats in the
Union and States Legislatures have been kept reserved for the S.Cs
and STs. In the State of Orissa, 30% of seats have been kept reserved
for women in the rural and urban local bodies.
Safeguards against Violation of Human Rights in India:
The scope of violation of human rights is not uniform and consistent. It
varies from one country to another and time to time. The cases of
violation of human rights in India are exhaustive plenty as well as
repetitive. It has taken several forms, such as: murder, rape,
prostitution, child and bonded labour, riot-victimisation, sexual
harassment, domestic violence, Custodial violence, Political violence,
terrorist attack, communal violence leading to loss of lives and
property unemployment, poverty, illiteracy, ethinic hatred, genocide,
group and caste rivalry, starvation death, caste and social
discrimination, gender discrimination, exploitation of workers and
excessive state action.
But here the two relevant questions arose:
(a) How to protect human rights from violation? and
(b) Through what mechanism. Can the human rights in India be
safeguarded?
Since 1980s’ there has evolved a novel type of mechanism for the
protection of human rights of the poor, distressed, exploited and the
disadvantaged groups of people. This is popularly known as Public
Interest Litigation (PIL) or Social Action Litigation (SAL) or Social
Interest Litigation (SIL).
The Supreme Court of India has not only recognised but also
entertained such litigations, enabling the public spirted citizens and
the Social activists to fight for protection and enforcement of human
rights of the poor and the socially and economically disadvantaged
people who have no access to move the Court on their own.
The Supreme Court of India with liberal interpretation and through the
literal use of the P.I.L. mechanism, has sought to protect human rights
in the following manners; such as:
1. By widening the horizon of human rights:
The scope of right to equality and the right to life and personal liberty
have caused wider areas like right to speedy trial, free legal aid, right
to live with dignity, right to earn livelihood, right to education,
housing, medical care, clean environment, right against fortune,
sexual harassment, solitary confinement, bondage, servitude
exploitation and the like.
2. By democratizing access to justice through P.I.L. petition filed by
Public Spirited Citizens, and Social activists on behalf of the poor,
disadvantaged and weaker sections of the community.
3. By providing interim relief to the victims and aggrieved persons
through payment of compensation or through ‘compensatory reliefs
4. By judicial-monitoring of State-run Institutions like Jails, Reformatory
homes, juvenile homes, mental asylums, Police Station and the like.
5. By advising new techniques of fact-finding:
In several cases of violation of human rights, the Supreme Court has
appointed “Commissions of Inquiry” or has deputed officers for
investigation and fact-finding. By exercising this new type of
‘Investigative litigation’, the Supreme Court and the High Courts have
sought the assistance of institutions like NHRC, CBI and such other
expert bodies and N.G.O’s to investigate into the violation of Human
Rights.
National Human Rights Commission (NHRC) in India:
In pursuance of the protection of the Human Rights Act, 1993, India’s
first National Human Rights Commission was constituted on 29
September 1993, with Hon’ble Shri Ranganath Misra, the Ex. Chief
Justice of India as its first Chairperson.
The NHRC shall consist of one Chairperson and such other Members
who shall be appointed by the President of India. Former Chief Justice
Hon’be Shri A.S. Ananda is leading the NHRC at present. The
Chairperson must be a former Chief Justice of the Supreme Court of
India.
It has five members, of whom one must be a judge of the Supreme
Court, another must be a Chief Justice of a State High Court, and two
others must be chosen from among persons having knowledge of or
practical experience in matters relating to Human Rights. The
Chairperson and other members of the Commission shall hold office
for a period of five years or till they attain the age of 70 years,
whichever is earlier.
The Commission enjoys autonomy from the method of appointment of
its members, their fixity of tenure and other statutory guarantees so
assured to them. The Commission also enjoys financial autonomy.
The President appoints the Chairperson and other members of the
commission on the recommendation of a multi- member body
comprising the Chief Justice of India, the Prime Minister, Home
Minister, the speaker of the Lok Sabha, Leader of the Opposition in the
Lok Sabha and Rajya Sabha, the Deputy Chairman of Rajya Sabha.
The Chairperson and the members of the Commission are removed
from office by the President on the grounds of proved misbehaviour
and in capacity on an inquiry conducted by the Supreme Court. The
NHRC has also several ex-officio members like the Chairpersons of the
National Commission for SCs and STs, chairperson of the National
Commission for Women and the Chairperson of the National
Commission for Minorities whose services are also effectively utilized
in the common interest.
The Commission has its own investigating staff to investigate into
complaints of human rights violation. It can also make use of the
services of any officer of investigating agency of the Central or State
Government. The Orissa State Human Rights Commission has been
recently constituted under the chairmanship of justice Shri D.P.
Mahapatra. A retired State Chief Secretary Sr. SM Patnaik has been
taken as one of its members.
Procedure of Work:
While conducting inquiry into the complaints received by the
Commission, it shall enjoy all powers of Civil Court trying a suit under
the Code of Civil Procedure, 1908. The Commission can summon and
enforce the attendance of witnesses, receive evidences on affidavits,
requisition any public record, produce any document and issue
Commissions for examination of any witness.
While inquiring into the complaints of violation of human rights, the
Commission may call for information or report from the concerned
Government or authority and satisfy itself as to the action taken by
the concerned Government/authority in the matter. It may also hold its
own inquiry, if no response is received from the concerned
Government and Authority.
After the inquiry is completed, the Commission may take any of the
following appropriate steps:
It may:
1. Recommend prosecution of the guilty public servant;
2. Approach the Supreme Court or High Court for appropriate direction
3. Recommend sanction of interim monetary relief to the victims or
their family members.
Commission’s Functions:
The N.H.R.C has following functions:
(i) To inquire into complaints of violation of Human rights.
(a) To intervene in a judicial proceeding involving allegations of human
rights violation:
(iii) To promote research on human rights
(iv) To spread human rights literacy
(v) To encourage social activism
(vi) To review existing human rights laws
(vii) To recommend measures for their effective implementation
Role:
It is clear that the NHRC enjoys no power to take any binding decision.
It has to depend on other agencies like the Supreme Court or High
Courts, or concerned Central and State Governments to enforce its
recommendation.
The Commission also faces several limitations. In most cases, its role
is one of the ‘Post Offices’, asking the Central or State Governments to
investigate into complaints of human rights violation so received and
to inform the Commission about the actions taken.
It also asks the CBI to investigate and report.
Despite all limitations, the NHRC has so far done a marvellous job in
preventing human rights violations and protecting human rights The
NHRC has effectively dealt with violation of human rights caused by
the activities of terrorism and insurgency in Punjab, Jammu & Kashmir
and in North-Eastern States, custodial deaths, rape, physical and
mental torture, sexual harassment and the like. It has made
Commendable work in matters like Police and Prison reforms,
improvement of Juvenile Homes. Problems of refugees and emigrants
and Kidnap victimization.
NHRC and the Best Bakery Justice Issue:
It may not be irrelevant to discuss here the new role; the NHRC has
played recently in reopening the Best Bakery Case and other three
riot-related cases including Godhra carnage by filing before the
Supreme Court on Special Leave Petition (SLP).
The Commission in the SLP has sought further investigation by an
independent agency and has sprayed for setting aside the impugned
judgement in the Best Bakery Case. (The Times of India, August 1,
2003). In the Godhra Carnage, 59 persons were burnt alive aboard
Sabarmati Express at Godhra (Gujarat). The Sardarpura Case relates
to the asphyxiated death of 33 people in a room in Sardarpura Village
in Mehsana distinct. In the Golbarga society case, 39 people including
Ex-MP. Ehsan Jafri were killed.
The NHRC visited Vadodara after the judgement in the Best Bakery
Case was delivered acquitting 21 people, accused of burning a live 14
people in Vadodara on March 1, 2002, as 41 witnesses had turned
“hostile” and no substantial evidence could be established against the
accused.
The contention of the NHRC (stated in the SLP) was that the concept of
‘fair trial’ is a constitutional imperative and is explicitly recognised as
such in the specific provisions of the Constitution. ‘The NHRC has
knocked the door of the Supreme Court as it felt that Bakery case
judgement by a fast track court had resulted in erosion of People’s in
the justice delivery system and it is left to the Supreme Court to
Scrutinize the Court judgement and analyse its reasoning and look into
the grounds on which the Modi Government challenged it before the
High Court a day before the Supreme Courts hearing of the petition of
N.H.R.C.
Asserting ‘detail of fair trial’ in the Best Bakery case, the NHRC
observed that. “Violation of a right to fair trial is not only violation of
fundamental rights under our Constitution but also violate of
internationally recognised human rights.” The Commission further
observed that ‘whenever a criminal goes unpunished, it is the Society,
at large, which suffers because the victims become demoralized and
criminals are encouraged’.
The Commission has prayed the Apex Court for ‘unearthing the truth
and rendering justice so that criminals are punished’. Added to the
Zahira Saikh, a Key witness in the Best Bakery Case, who had turned
“hostile” under pressure, has also sought retrial of the case outside
Gujarat and has further alleged that “crucial evidence was shut out
through threats and intimidation.”
The Hon’ble Supreme Court in a 3-judges Bench, headed by Chief-
Justice V.N. Khare has converted the SLP of the NHRC to a PIL petition
and has asked the Narendra Modi Government in Gujarat to submit
within two weeks details of the statement made by the witnesses in
the Bakery case, both before the Police and the Vadodara fast-track
trial court. In the mean time, the State Government has also gone on
appeal to the Gujarat High Court in the Best Bakery Case. (The TOI,
August 9, 2003).
Here the role of the NHC has strengthened the cause of protection of
human rights against arbitrary violation and miscarriage of justice, if
only. Its vigilance and alertness have enhanced public awareness of
the importance of the Human Rights.
Concluding Observation:
The NHRC’s contributions to prevent unholy violation of Human rights
are commendable. It has taken note of promptly ensuring safeguard of
rights. Through Seminars, workshops, and media- publicity, the
Commission has educated Public and Government officials including
Police, Jail, para-military and army-personnel to ensure effective
promotion protection of human rights, keeping away all kinds of
physical and mental torture.
Secondly, the NHRC has also encouraged NGOs to take up the cause
of the poor and distressed in safe enjoyment of their rights as human
beings.
Thirdly, the Commission has left no stone unturned to make the
Central and State Governments answerable accountable and
responsive to all human rights issues and to take appropriate action
against the human rights violators.
Fourthly, the Supreme Court and the High Courts have made
significant contributions, (through their directives issued to the
Governments in PIL matters) in addressing public grievances against
violation of human rights caused by acts of State-arbitrariness and
Government excess.
PIL actions in India have been effective and commendable in several
important human rights violation cases, such as:
(a) Hussainana Khatoon Case (in respect of plight of thousands of
under-trial prisoners in Bihar jails);
(b) Anil Yadav Case (relating to blinding of 33 suspected criminals by
Bihar Police;
(c) In Citizens for Democracy Case (in Assam) (relating to handcuffing
the TADA detenues while kept in rooms and while transported to the
courts and back and death in Police lock-up in Calcutta. This list is only
illustrative and not exhaustive).
Future of Human Rights Movement in India:
Increase in terrorist and Naxalite activities have a serious
consequential impact on Human Rights in India. Mass-killing continues
and loss of human lives and property is on the increase in Jammu &
Kashmir and in the Naxalite affected districts of Orissa.
The most serious flaw of human rights lies in an absence of
enforcement-mechanism. The powers to enforce human rights are
weak and thus, of no use. In India, process to ensure ‘fair-trial’ is
prolonged, circuitous expensive and thus, not accessible to poor.
Hence, a delayed justice violates human rights.
Lastly, the best safeguard of human rights lies in the positive role of
the Media publicity which generates public awareness and builds up
an alert and vigilant public opinion. The media-reports on starvation-
death in Kalahandi District in Orissa and sale of infants by the tribals
in Orissa and Andhra Pradesh are the eye-openers relating to violation
of human rights.
The human rights movement has always a brighter prospect if the
people of India are assured by their right to information. They must
know what is happening around them. Such a mechanism to ensure
right to know if rightly developed, can ensure both promotion and
protection of human rights and prevention of their violation. We have
to wake up to this expectation.