Human Rights: Protection and Purpose
Former Supreme Court Judge Justice B N Srikrishna emphases the need for faithful and unstinted enforcement of human rights for the civilisations of the world to truly qualify to be called human civilisations, bereft of barbarism and cruelty
The concept of human rights has existed under several names in European thought for many centuries, though perhaps coming into prominence since the time of King John of England. After the king violated a number of ancient laws and customs, by which England had been governed, there was a popular upheaval and his subjects forced him to sign the Magna Carta, or the Great Charter, which enumerates a number of rights of the people, which later came to be thought of as ‘human rights’. They included, inter alia, the right of the church to be free from governmental interference, the rights of all free citizens to own and inherit property and be free from excessive taxes. The Magna Carta also recognised the right of widows who owned property, to choose not to remarry, and established the principles of due process and equality before the law. It also contained provisions forbidding bribery and official misconduct.
One discerns distinct trends of ideas in the political and religious traditions in other parts of the world that have today become known by the term ‘human rights’. Those traditions called on the rulers to rule justly and compassionately, and delineated the limits of their power over the lives, property, and activities of their citizens. The major difference, however, was that those traditions did not recognise any enforceable rights in the subjects, as against the rulers.
In the eighteenth and the nineteenth centuries in Europe, several philosophers proposed the concept of ‘natural rights’, rights belonging to a person by nature and because of being a human being; not by virtue of citizenship in a particular country or membership in a particular religious or ethnic group. This concept was vigorously debated and rejected by some philosophers as baseless. Others saw it as a formulation of the underlying principle on which all ideas of the political and religious rights of citizens and religious liberty were based.
In the late eighteenth century, two revolutions occurred, which drew heavily on this concept. In 1776, most of the British colonies in North America proclaimed their independence from the British Empire. That resulted in the U.S. Declaration of Independence. The U.S. Declaration of Independence loftily proclaims:
“We hold these truths to be self-evident; that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness…”
In 1789, the people of France overthrew the monarchy and established the first French Republic. This revolution gave birth to the “Declaration of the Rights of Man”.
The term natural rights, though popularly used initially, later fell into desuetude, but the concept of ‘universal rights’ struck roots. Philosophers like Thomas Paine, John Stuart Mill and Henry David Thoreau expanded the concept, giving it form, flesh and figure. Thoreau is the first philosopher to use the term “human rights” in his treatise: Civil Disobedience. This work was extremely influential on individuals as different as Leo Tolstoy, Mahatma Gandhi and Martin Luther King. Gandhi and King, in particular, seem to have drawn inspiration for their ideas on non-violent resistance to unethical government actions, from this work.
Other early proponents of human rights were English philosopher John Stuart Mill, in his Essay on Liberty, and American political theorist Thomas Paine in his essay—The Rights of Man.
During the middle and late 19th century, a number of issues came to the fore, many of which we now would consider as human rights issues. They included slavery, serfdom, brutal working conditions, starvation, wages, child labour, and in the Americas, the “Indian Problem”, as it was known at the time. A bloody war was fought in the United States of America, over slavery that came close to destroying a country founded only eighty years earlier on the premise that, “all men are created equal”. Russia freed its serfs the year that war began. The emancipated American slaves and the freed Russian serfs had to wait for many more decades, before they could see any real degree of freedom or basic rights.
The end of the nineteenth century and the beginning of the twentieth century witnessed many specific civil rights and human rights movements that affected profound social changes. Labour unions pressed for and succeeded in bringing about laws granting workers the right to strike, establishing minimum work conditions, forbidding or regulating child labour, establishing safe and humane conditions of work etc. The women’s rights movements succeeded in gaining for many women, the right to vote. National liberation movements in many countries succeeded in driving out colonial powers. Mahatma Gandhi’s movement to free India from British rule was a noteworthy instance. Nelson Mandela’s struggle to rid the country of apartheid is another.
The modern human rights movement did not invent any new principles. It was different from what preceded it, primarily in its explicit rejection of political ideology and partisanship, and in its demand that governments everywhere, regardless of ideology, adhere to certain basic principles of human rights in their treatment of their citizens. It gave a demanding voice to the citizens, to hold to account the governments on their obligations towards ensuring compliance with the basic rights of the people.
Human rights are broadly of two kinds—negative and positive. Negative rights are those that prohibit actions that are harmful to the physical, mental or emotional aspects of a human being. Every human being has the right to live a dignified life as a human. Anything that interferes with this is prohibited by all civilised nations. Right to life, privacy, humane punishments etc are examples of negative rights. Positive rights are usually political and economic rights, like the right to food, shelter, education, and so on. While there seems to be a consensus that negative rights are non-derogable and States have to ensure them, as to the latter kind of rights, there is no unanimity on whether they can be enforced against a State, irrespective of its economic and political conditions.
The Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly on December 10, 1948, without a dissenting vote. It was the first time the nations of the world came together to make a declaration mentioning human rights by name, and it has virtually become the charter for the modern human rights movement. The United Nations Charter, Universal Declaration of Human Rights, and UN Human Rights Covenants were adopted and implemented in the aftermath of the holocaust and revelations coming from the Nuremberg war crimes trials, which shocked the conscience of the world.
Right thinking people all over the world realised that advances in technology and changes in social structures had rendered war a real threat to the continued existence of the human race. A large number of people in many countries lived under the control of tyrants, having no recourse but war, to relieve often intolerable living conditions. Unless some way was found to relieve the lot of these people, they could revolt and become the catalyst for another wide-scaled, and possibly, a nuclear war. For the first time, representatives from the majority of governments in the world came to the conclusion that basic human rights must be protected, not only for the sake of the individuals and countries involved, but to preserve the human race. Everyone, everywhere, has the right to live with dignity. That means that no persons should be denied their rights to—education, adequate housing, food, water and sanitation, the highest attainable standard of health, and other economic, social and cultural rights. However, while economic, social and cultural rights were marginalised for much of the 20th century, now a larger number of individuals and organisations are acting to reclaim these rights. Nevertheless, still greater efforts are needed to ensure the respect, protection and fulfilment of these rights for everyone, everywhere.
In the present context, there is a need to focus on and to address the pressing human rights concerns of the day, which are:
• The global epidemic of mass-forced evictions;
• the widespread denial of access to essential health services;
• discrimination against people living with HIV/AIDS;
• discrimination against girls and minorities in access to education.
There appears to be a growing perception that hunger, homelessness and preventable diseases are not inevitable social problems or purely the result of a lack of resources, but more often than not, the result of laws, policies and actions that undermine people’s human rights.
Economic, Social and Cultural Rights
The following are recognised as economic, social, and cultural rights of every human being:
• The right to adequate housing, including protection from forced eviction and access to affordable, habitable and culturally appropriate housing;
• cultural rights, including the rights of minorities and indigenous people, to preservation and protection of their cultural identity;
• the right to education, including the right to free and compulsory primary education, and to progressively available, accessible, acceptable
and adaptable education;
• the right to food, including freedom from hunger and access at all times, to sufficient nutritious food or the means to obtain it;
• the right to health, to the highest attainable standard of physical and mental health, including healthy living conditions and available, accessible
and acceptable quality health services;
• the right to water and sanitation—physically and economically accessible, and safe;
• the right to work and rights at work—the right to freely chosen work and to just and fair conditions of employment, protection against
forced labour, and the right to form and join trade unions.
Implementation of Human Rights
States, through national governments, have the primary responsibility to ensure human rights. They must equally respect, protect and fulfil economic, social and cultural rights. Where States lack the necessary resources to realise economic, social, and cultural rights, they should seek and receive international assistance to do so. Very often, the violation of those rights is not just because of inadequate resources; it is a matter of unwillingness, negligence and discrimination.
There is increasing cooperation seen amongst States in matters of international trade agreements. Multinational companies have their head offices and operations control in one country and yet operate in another. States support other countries through international development assistance. They act together through international financial institutions. If all this is possible by international cooperation amongst States, why should not they also have human rights obligations beyond their borders? In these and other cases, governments must ensure that they do not violate human rights abroad, that they protect the population of other countries from abuses caused by those they should regulate, and they should act to support the realisation of human rights universally, ensuring non-discrimination and the protection of the most vulnerable sections. Multinational and national companies must also contribute to human rights and ensure that there are no violations, no matter where they operate. In fact, it must be realised that assistance to marginalised people is not a matter of charity; it is a human rights obligation. There is increasing international clamour for the legal enforcement of economic, social and cultural rights, and for bringing an end to grave abuses that target marginalised and excluded people.
Human Rights in India
The Constitution of India seeks to achieve its objectives by guaranteeing certain Fundamental Rights in Part III and mandating certain Directive Principles in Part IV. The Fundamental Rights guaranteed in Part III are designed to ensure negative human rights, and Article 13 declares any attempt by the State to curtail or infringe them as unconstitutional and void. The Directive Principles enumerated in Part IV are declared by Article 37 to be fundamental in the governance of the country, and the State is mandated to act in accordance with those principles when making laws, although they are not enforceable in a court of law.
The guaranteed Fundamental Rights enumerated in Part III are mostly on the lines of the human rights enumerated in the Universal Declaration of Human Rights and provide, inter alia, for the following:
• That the State shall not deny to any person equality before the law and equal protection of the laws (Article 14)
• Prohibition of discrimination on grounds only of religion, race, caste, sex or place of birth (Article15)
• Equality in matters of public employment ( Articles 15, 16)
• Abolition of untouchability (Article17)
• Abolition of titles (Article18)
• Right to freedom of speech and expression [Article19(1)(a)]
• Right to assemble peacefully [Article19(1)(b)]
• Right to form associates or unions [Article19 (1)(c)]
• Right to move freely throughout the territory of India [Article 19(1)(d)]
• Right to reside in any part of the territory of India [Article19(1)(e)]
• Right to practice any profession, or to carry on any occupation, trade or business [Article19(1)(g)]
• Right against double jeopardy in criminal trials; right against being subjected to retrospective criminal legislation; right against being compelled
to be a witness against oneself (Article 20)
• Protection of life and liberty except according to fair procedure established by law (Article 21)
• Right to free and compulsory education to all children of the age of six to fourteen years (Article 21-A)
• Prohibition against exploitation of forced labour and trafficking in human beings (Article 23)
• Prohibition of employment of children in certain occupations (Article 24)
• Right to freedom of conscience and the right to profess, practice and propagate any religion (Articles 25-28)
• Protection of the rights of minorities and their right to establish and administer educational institutions (Articles 29-30)
• The right to move the Supreme Court (Article 32) and the High Courts (Article 226) for appropriate relief in case of violation of Fundamental Rights
The rights guaranteed under Article 19 are made subject to reasonable restrictions that may be imposed by the State, in the interests of security, friendly relations with foreign states, protection of the sovereignty and integrity of the country, public order, decency, or morality. The High Courts and the Supreme Court have been made the arbiters of whether the restrictions imposed are reasonable and fall within the Constitutional exceptions.
The Directive Principles contain mostly economic rights, intended to usher in an egalitarian State, wedded to socialistic principles and for uplifting of the socially and economically backward sections of the society. Inasmuch as the implementation of these rights would impose large financial burden on the State, there is no enforceable right created in the citizens in respect of these. Article 38, however, declares that the State shall strive to promote the welfare of the people and a social order in which justice—social, economic, and political, permeates all institutions of the national life.
Protection of Human Rights Act
The protection of human rights was further ensured by the enactment of the Protection of Human Rights Act, 1993. The Act established the National Human Rights Commission, State Human Rights Commissions and Human Rights Courts for protection of human rights. The National Commission is empowered to inquire into and investigate complaints of human rights violations and recommend appropriate relief measures to the Government. At the state level, similar functions are entrusted to State Commissions. The Human Rights Courts are established for trial of offences in connection with human rights violations. The term ‘human rights’ is defined in Section 2(d) of the Act, to mean “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”.
This definition has been intentionally made expansive enough to accommodate within its ambit, all human rights known, recognised and protected, all over the civilised world.
The recognition and protection of human rights is but the acknowledgement of the dignity of the human race, and are designed to enable each individual human to lead a life of fulfilment and achieve the maximum potential of the talents imbued by nature upon that individual.
It is, by the faithful and unstinted enforcement of these rights that civilisations of the world can truly qualify to be called human civilisations, bereft of barbarism, cruelty and conduct shocking to the human conscience. It would also be the best guarantee to humankind against looming spectres of holocausts, genocides, violent conflicts and mindless annihilation of the human race in the name of wars. If peace of body, mind, and spirit be the ultimate objective of the human beings, protection of Human Rights is the categorical imperative of modern life.
A former Judge of the Supreme Court of India, Justice Bellur Narayanaswamy Srikrishna’s name is synonymous with the ‘Srikrishna Commission’ he headed from 1992-1998, which probed the Mumbai riots of 1992-1993. The report, submitted in 1998, generated widespread debate, both in India and abroad. He was the Chairman of the Sixth Central Pay Commission, which submitted its report in March 2008. He was invited by the Centre for South East Asia Studies, University of California, Berkeley to be the Keynote Speaker at a seminar on “Justice and the Law” in September 2008, and by the United Nations High Commissioner for Refugees to attend a seminar on refugee laws in Delhi and an international conference on the same subject in Geneva and Berne in October 2000. A Supreme Court judge from 2002-2006, Justice Srikrishna was appointed as the Chief Justice of the High Court of Kerala in 2001. A polymath, he speaks seven languages fluently, and has a deep interest in philosophy, culture, music and education; he has studied playing Carnatic music on violin.