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Published: Fri, 02 Feb 2018
The Reality Of Human Rights
Human beings are rational beings. They by virtue of being humans possess certain basic and inalienable rights which are known as Human Rights. Since these rights are available to them by virtue of being human, as such they come into existence at the time of their birth. The Constitution of India as adopted in 1950 provides certain rights to its citizens known as the Fundamental Rights (Part-3, article 14-35). These rights are similar to those rights which are provided in Universal Declaration of Human Rights and the rights provided in International covenant on civil and political rights and International rights on social, economic and cultural rights. These rights emanate from sense of justice.
Human rights are ‘interdependent’ and ‘interrelated’, thus the right to food is related to the right to work, the right to health, the right to social services, and most importantly, the rights of women. Certain rights such as freedom from discrimination are crosscutting and intimately related to the enjoyment of several other human rights. However, the ‘indivisibility’ of priorities and inter-relatedness of human rights do not preclude the setting of priorities in human rights programming.
John Stuart Mill wrote ‘the only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual’. This rhetoric of rights is taken up by the international declarations and treaties on human rights. Although English law does not talk in terms of rights, individuals, whether they are patients, trade unionists or protesters, inevitably revert to such language. The image of human rights is, as Tom Campbell points out, ‘morally compelling and attractively uncompromising’; practicality, the rights of others, restraints on the public purse and not least public opinion do, however, require compromise and each of the essays explores the reality or validity of a claimed right.
Like any right, human rights are defined in connection with a view of common goals to be publicly achieved through political institutions. Hence, they cannot be defined independently of an adequate institutional setting. Their existence cannot be independent of the existence of courts that are empowered to judge states and challenge their sovereignty – or at least with the idea of such courts or similar instruments. These are courts ad hoc, with the sole purpose of securing human rights, which means, a political agenda of promoting that particular common good of protecting vulnerable individuals. These courts are not the interpreters of a universal and a-temporal truth, in the same way as human rights are not neutral principles. Institutions of this kind are not acting in a neutral ‘no-where’ zone, but they establish a community formed in connection with the common perception of human rights as a common goal – a common goal that ought to prevail when in conflict with other more specific goals of independent states and historical human groups.
UNIVERSAL DECLARATION: NATURE AND INFLUENCE ON HUMAN RIGHTS
The Universal Declaration of Human Rights is binding upon India, since it is a signatory to the said declaration. The very basis of this declaration is that the interest of one part of the world is bound up with the interests of human beings as a whole in every other part of the world. As Dr. Martin Luther King says, injustice anywhere is bound to lead injustice everywhere. Pains and troubles of one part of the human family may be religious or otherwise, cause the pain and trouble to the rest of the human family. This is fundamental concept underlying making of binding declarations and conventions in which the nations of the world have joined.
Influence of Universal Declaration of Human Rights on Indian Constitution
The Universal Declaration of Human Rights, which the United Nation Organisation, adopted on 10th December 1948, enumerates various Civil & Political Rights and Economic and Social Rights. This Declaration had a great impact on the philosophy and ideology of the Constitution framers, while the Constitution of India was in the making at that time. Many similar rights were incorporated in our Constitution under the headings Fundamental Rights and Directive Principles of the State Policy in Chapter III & IV respectively and these rights have a great significance for the Indian people as they have enabled every citizen of India to live freely and honourably. A human being gets full freedom to develop himself mentally and physically, through the principles imbedded by freedom fighters lead by Mahatma Gandhi.
At the time of Declaration of the Human Rights, the General Assembly proclaimed that the Universal Declaration was to be a common standard of achievement for all the people and all the nations, to the end that every individual and every organ of the society, keeping the declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the people of Member states themselves and among themselves and among the people of territories under their jurisdiction.
The Universal Declaration of Human Rights promulgated by the United Nations, to which India was a party, proclaimed basic human rights, although it did not provide for any machinery for its enforcement. The historical struggle for political freedom in India had made a declaration of Fundamental Rights inevitable. In fact, the Indian Declaration at the Round Table Conference had pressed for the enactment of Fundamental Rights in the Constitution which, it was expected the British Parliament would pass. Also, World War II saw human behaviour at its worst and what were considered as Natural Rights of people came to be fine tuned into Human Rights. United Nations took upon itself the role of the crusader for Human Rights. As the preamble of United Nations Charter declared it was determined “to reaffirm faith in fundamental Human Rights, in the dignity and worth of human person, in equal rights of man and women and of the Nations large and small”. Universal Declaration of Human Rights was adopted in 1948 followed by Covenants on Political and Civil Rights and Social, Economic and Cultural Rights in 1966.
India adopted its Republican Constitution in 1950 and included a special part on Fundamental Rights. The Universal Declaration of Human Rights adopted and proclaimed by the General Assembly of the United Nations on the 10th of December 1948 is indeed one of the precious events in the ongoing march of mankind in the direction of refining civilization. A standard code of Human Rights for the entire homo sapiens race was made applicable to the whole globe and it was what mankind had been striving over for centuries. Now what is understood is that ‘the premises for the Universal Declaration is that the entire mankind is treated as one member of one human family; the rights are inalienable and are considered on the foundation of freedom, justice and peace. Dignity of the human person is acclaimed and men and women with equal rights are indeed to march ahead for the promotion of social progress and for the better standards of life and environment of such freedom. The topic of human rights is of universal concern and it cuts across all ideological, political and cultural boundaries. Respect for human rights is one of the cardinal principles for an effective operation of Constitution, Law and the Government of any country. Article 1 of the Universal Declaration of Human Rights is based on two assumptions namely,
The right to liberty and equality is man’s birth right and cannot be alienated,
Because man is rational and a moral being, he is different from other creations on earth and, therefore, is entitled to certain rights and freedoms which other creators do not enjoy.
Here it is contentatious to note the words of Prof. Upendra Baxi, who holds that ‘I take it as axiomatic that the historic mission of the contemporary human rights is to give voice to human suffering to make it visible and to ameliorate it. Laying down the very basis of the Human Rights, the commendable author goes on to continue that ‘the ethics of human rights emerges as a tradition of critical morality by which the positive morality of human rights practices themselves may be judged. Respect towards the other as a co-equal human is a groundwork of an ethic of human rights, furnishing universal valid norms for human conduct and the basic structure of a society.’  Every societal culture encapsulates beliefs, sentiments, symbols that impart sense to the notion of being human, no matter in how many different registers of inclusivity. These societal human rights cultures relate to global cultures of human rights. They are shaped by the golden cultures and in turn shape them.
Also, though they were added later by way of amendment, the fundamental duties enshrined in the Constitution of India, contained in Part IV A, are in consonance with Article 29 (1) of the Universal Declaration of Human Rights, which says, “everyone has duties to the community in which alone the free and full development of his personality is possible”. ‘We must reaffirm faith in recognition of the inherent dignity and inalienable rights of all citizens as the foundation of freedom, justice and peace in the world, which implies obligations and responsibilities.’ Human rights, thus, go hand in hand with responsibilities. It is very necessary that all citizens should be made aware of the potential of Article 51A relating to fundamental duties as a means to ensure the protection of human rights. Thus is an effortless task to establish that the Universal Declaration is a pioneer documentation of Human Rights of the mankind at large, as contemplated, adopted and accepted by the International Community. Hereby, the demand for effective protection of Human Rights has also gained prominence by this Declaration.
CONSTITUTIONAL PROTECTION OF HUMAN RIGHTS IN INDIA
A major step in drafting the International Bill of Human Rights was realized on 10 December 1948, when the General Assembly adopted the Universal Declaration of Human Rights as a common standard of achievement for all peoples and nations. However, at same time when the Universal Declaration was being made, the Constitution of India was also in making. Part III and Part IV of the Constitution were specifically created, with an interest of providing for the Human Rights in the Constitution itself and on a further comparison of the two documents, it is found that the two are conspicuously similar and tend to give effect to promote the standard of the Human being as such and also to secure him the natural rights, which formed a part of his right to live a peaceful and amicable right.
Constitutional guarantees for the human rights of our people were one of the persistent demands of our leaders throughout the freedom struggle. It was made as far back as in 1895 in the Constitution of India Bill, popularly known as the Swaraj Bill, which was inspired by Lokmanya Tilak. The demand was repeated in Mrs. Anne Besants’ Commonwealth of India Bill, finalized by the National Convention of Political parties in 1925, by the Motilal Nehru Committee in 1928, at the Karachi session of the Indian National Congress in 1932 and by the Tej Bahadur Sapru Committee, 1944-45.
Greatest legal luminaries of our country participated in the Constitutional debates and on the basis of the human rights Jurisprudence of 1950, Part III of the Constitution containing the Chapter on Fundamental Rights was evolved. On the analogy of the Irish Constitution, other rights came to be included in Part IV and were called the Directive Principles of State Action.
The distinction between fundamental rights and human rights is that the political decisions lead to fundamental rights while the moral principles lead to human rights. The above-mentioned distinction between human and fundamental rights is based on a distinction between morality and ethics. Human rights indicate moral universalistic principles, while fundamental rights form the particularistic ethics of the community in which they play the functional role of fundamental norms that legitimise ordinary law. Accordingly, human rights are universal because of their being grounded only on the notion of person, transcending any particular context. Fundamental rights, instead, are characterised by their function within a particular judicial and political system, regardless of the scope of this system. 
Fundamental Rights are provided to the citizens by the Constitution of India. The Fundamental Rights and Duties are among the vital sections of the Constitution and prescribe the fundamental obligations of the state to its citizens and the duties of the citizens to the state. These are the essential elements of the constitution and they were developed by the Constituent Assembly of India between 1947 and 1949. Part III of the Constitution of India describes the Fundamental Rights offered to the country`s citizens. Fundamental Rights are essential human rights that can be offered to every citizen irrespective of caste, race, creed, place of birth, religion or gender. Fundamental Rights are subjected to specific restrictions and enforceable by courts. These are equal to freedoms and these rights are essential for personal good and the society at large.
Fundamental Rights are preserved as they guarantee civil liberties to all the citizens of the country for a calm and pleasant life. These are individual rights and comprise freedom of speech and expression, freedom to practice religion, equality before law, freedom of association and peaceful assembly and the right to constitutional remedies for the safeguard of civil rights by means of writs such as habeas corpus. The concept of providing the fundamental rights to the citizens has been taken from the England`s Bill of Rights; United States Bill of Rights and also France`s Declaration of the Rights of Man. Anyone who is violating the fundamental rights will face punishments in the court of law.
Dr. Bhim Rao Ambedkar, the Founder Father of Indian Constitution made a cautionary note on the eve of adopting the constitution of India:
Will history repeat itself? Will the Indians place the country above their creed? Or will they place creed above country? It is not certain. But this much is certain that if the parties place creed above country, our independence will be put in jeopardy a second time and probably be lost for ever.
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
INSTITUTIONAL APPROACH TO HUMAN RIGHTS PROTECTION
Institutionalization of human rights goes hand in hand with paraphernalia of governance, and is as old or new as system of governance Institutionalization process can be seen either through the Constitutions or through legislations. Magna Carta (thirteenth century) should be considered first step towards institutionalization of human rights. The second step must be the Bill of Rights (eighteenth century) under American Constitutional mandate and the third step is under UN mandate, UDHR (1948). Since then institutionalization of human rights has not looked back.
The Government of India did realise the need to establish an independent body for promotion and protection of human rights in the light of Paris principles. The establishment of an autonomous National Human Rights Commission by the Government of India reflects its commitment for effective implementation of human rights provisions under national and international instruments in India through institutional mechanism. The Preamble of the Protection of Human Rights Act, 1993Act states to provide for the constitution of a National Human Rights Commission (NHRC), State Human Rights Commission in States and Human Rights Courts for better protection of Human Rights and for matters connected therewith or incidental thereto. Section 2 (d) of the Act defines human rights as rights relating to life, equality and dignity of the individual guaranteed by Constitution or embodied in the international covenants and enforceable by Courts in India. This broad definition of human rights has constitutional connotations but whether judicial pronouncements of the Supreme Court enlarging the ambit of human rights under the Constitution would also fall under this definition is a question of far larger implication.
Although basic human rights standards and principles enjoy universal agreement, the gap between rhetoric and reality is indeed wide. The daily litany of human suffering and inhumanity is all too familiar with human rights denied and violated in many and varied ways. The challenge is to close that gap, to bring together the respective strengths of different institutions in the society – the legislature, the executive and the judiciary to work in tandem, creating synergies for a sustainable enjoyment of all human rights for each and every individual.
The expression of ‘Human Rights’ was not expressly defined in Indian legal structure till enactment of the Protection of Human Rights Act, 1993. However, one must not construe, directly or indirectly, that the human rights movement was started in post-independent era only after 1993. In the pursuit for a just society, rather than an ordered socio-political society, Indian Constitution, its constitutionalism and Indian Judiciary especially Supreme Court of India have been advocating protection of ‘human rights’ from its inception.
The Protection of Human Right Act, 1993 has been enacted pursuant to the directive under Article 51 of the Constitution and also the commitments taken at Vienna conference. It defines human right as 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.
Section 37 of the Protection of Human Rights Act, 1993 empowers the Government to constitute one or more special investigative teams consisting of such police officers as it thinks necessary for the purpose of investigation and prosecution of offences arising out of violations of human rights. The Commission’s power to utilize the services of any officer or investigating agency of the Government for conducting any investigation pertaining to the inquiry is however made dependent on the concurrence of the Government by section 14(1).
The Human Rights Courts constituted under section 30 of the Protection of Human Rights Act, 1993 is competent to entertain any complaint or take cognizance of any case complaining violation of right to privacy due to obtrusive surveillance of police and give appropriate relief both under criminal as well as civil law. Human Rights Court is also competent to award compensation under section 357, Criminal Procedure code.
Under the Human Rights Protection Act of 1993 (amended in 2006), the NHRC has the power to “visit, notwithstanding anything contained in any other law for the time being in force, 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 thereof and make recommendations thereon to the Government.”
The establishment of the National Human Rights Commission (NHRC) under the Protection of Human Rights Act has also helped focused on the issue of custodial violence committed by police in India and ill-treatment of detainees, constituting a serious denial of basic human rights by the police. The NHRC took prompt measures to monitor incidents of custodial violence leading to death. It ordered that all cases of death or rape in custody should be reported to it within 24 hours. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 passed by the UN General Assembly on December 10, 1984 and came into force on June 26, 1987. India signed the convention ten years later, in 1997. The International Covenant on Civil and Political Rights (ICCPR) obliges signatory states to “ensure” that rights set out in that treaty, including the right to freedom from torture is available to one and all.
The Protection of Human Rights Act 1993 empowers the national and state human rights commissions in India to inquire into violations of human rights and failures to prevent such violations, and where necessary to intervene in cases pending before the courts where approval is granted by the court. This law grants the commissions many opportunities to take a lead role. It is a wide mandate of the sort envisaged by the Paris Principles on human rights institutions. It offers ample ground to assert and stand uncompromisingly on human rights principles in all cases.
From its inception the Commission attracted much suspicion because of its status as a government institution. However, in seventeen years period it was able to establish its integrity and commitment. The Commission was able to demonstrate its ability to work independently and impartially, which is borne out by its recommendations. Even if the Commission is a very small step in the daunting task of the implementation of human rights at the national level, it remains a very significant step. Considering India’s extensive territorial domain, the vastness of its population and the complexity of social structure, cases of violation of rights, whether attributable to the agencies of the State or to the private individuals or groups, may occur despite its best efforts.
SUPREME COURT OF INDIA IN RECOGNIZING AND ENFORCING HUMAN RIGHTS
Courts can also play a critical role in enforcing economic, social and cultural rights, providing relief to individuals and ensuring that governments implement constitutionally guaranteed economic, social and cultural rights. The role of Supreme Court, in this regard, is phenomenal. The concepts involved with the human rights are dynamic per se. The terms “Life”, “Liberty”, “Equality” and “Dignity” is not defined either in the Constitution of India or Statute. Only through “judicial interpretation”, we conceive the scope and domain of these ever growing and affluent concepts of human existence. Human emancipation against all forms of subjugation or exploitation of State, society or individual is fought on these concepts. All these concepts are so closely juxtaposed in a human life, it will lose its edge and shine in the absence of others.
The human rights record of the Indian Supreme Court is, by and large, a product of the post-Emergency period in Indian politics. Partly because of its desire to atone for its mistake in deciding the infamous habeas corpus case,  and thereby to recover the moral ground that it had lost among the public, the Supreme Court began an activist phase, interpreting constitutional rights liberally to expand the domain of freedom. Its focus on human rights was also politically acceptable given that the Janata government in power between 1977 and 1979 could only favourably look upon a Court which was trying to address some of the worst legacies of the Emergency such as the abuses in prisons. Thus, in a series of cases the Court expanded the legal rights of detainees and under-trials,  addressed custodial deaths  and extra-judicial killings, awarded compensation for violation of fundamental rights, and expanded the substantive meaning of equality through affirmative action.  The Court has also expanded the rights of women including rape victims  and the rights of children. Its commitment to human rights continues to inspire public admiration, as the public reaction to the recent Best Bakery Case  shows. In many of these cases, the Court has liberally interpreted the constitutional provisions, reading international law into domestic law. Many of these human rights rulings were made possible through a procedural revolution that is a unique Indian contribution to the world, through the democratization of standing to sue and through such innovative devices as a continued mandamus and judicial commissions of inquiry. The Court has converted an ordinary list of fundamental rights into a veritable weapon of the weak through creative judicial interpretation. In this, the Court was doubtless riding a human rights wave, driven by a range of social movements that were sprouting all over India in the aftermath of the Emergency, and were seeking refuge in the Court after finding that bureaucratic and traditional political avenues of action were proving to be more intractable.
The Supreme Court gave the lead and moved forward to enlarge Fundamental Rights by a process activist interpretation, while constitutional legislation lagged behind. The Court read into the word ‘life’ in Art. 21 of the Constitution of India several other human rights – the right to live with human dignity, the right to clean and healthy environment, right to education upto 14 years of age, right to emerging medical aid, right to health, right to shelter, right to livelihood, right to fair and speedy trial and right to free legal aid, right to compensation, rights of children, rights against torture, rights of prisoners and so on. The important point here is that some of these rights which are contained in the Chapter on Directive Principles in Part IV have, on account of the widening of Art. 21. “crossed over” imperceptibly from Part IV into Part III. Similarly, the Supreme Court has spelt out the right to freedom of the press and the fundamental right to freedom of information from the fundamental right to freedom of speech and expression in Art. 19(1)(a).
Human rights are institutionalized by means of their transformation into positive law. When human rights are guaranteed by a written Constitution, they become enforceable fundamental rights. The foundation of fundamental rights is essentially a foundation for judicially enforcing human rights.
Thus it is concluded that with the spread of human rights jurisprudence across the world it has become necessary to measure compliance of State and non State actors against a universal standard of measurement of such rights. This would enable us to examine the variations and challenges that countries such as India are currently facing in their quest to extend such universally accepted human rights to our citizens. Therefore, developing such universally acceptable human rights indicators would certainly go a long way in placing checks and balances upon nation States towards compliance and pressurize non compliant States into recognition and respect for human rights. International human rights standards embody universal values of respect for human dignity and human well-being. They not only provide the foundations of a humane, just and a progressive society, but also a compelling normative framework for the formulation of national and international policies and strategies for human development.
With the advent of National Human Rights Commission, human rights protection has taken a leap in India. The most important facet is institutionalization of the human rights protection process and mechanism. But a case is made out always regarding incompleteness of the protection and proliferation process when institutional requirements are not clearly emphasized by the statutory mandate or the lack of civil-political will for upholding human rights becomes writ large. The process of institutionalization takes a protection regime close to people and adds value to the system of governance.
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