INDIA AND HUMAN INDIA AND HUMAN RIGHTSRIGHTS

Prof .Dr.T.S.N.SastryHead & Member Management Council,

Dept of Law University of Pune

“Human Rights” are the basic rights that every individual possess to enjoy the life and liberty freely with in the Jural postulations to have protection.

Apart from a set of do’s and don'ts, they define the moral, ethical, philosophical, sociological, legal values and attitudes in governing the human relationship.

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Human Rights repose their faith in the inherent dignity and well-being of a human person. Hence they are inalienable of a man and transcend time and territory in enhancing the quality of life of the human family.

They are fundamental virtues of every culture and nation in its governance.

Hence they are not a “gift of the West to the rest.” and are not the sole propriety of congregation or a community.

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All most all the Declarations on Human Rights from the Magna Carta to the French Declaration on the Rights of Man all are western in origin.

This type of Declarations are absent in the East.

Eastern thought uses the “Obligations Language” and not that of the Rights rigor.

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Philosophical PerceptionPhilosophical PerceptionA deeper examination of the Western

theories especially the natural law theory clearly depicts that the western conception also based on duties but not on rights solely.

For example, if we closely examine the Locke’s perception of Natural law, Locke in his political philosophy of possessive individualism advocate that the rights inalienable but cannot be taken away by a sovereign at will.

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Philosophical PerceptionPhilosophical PerceptionThe modern conception of human rights,

especially, the UDHR 1948 is not another declaration of Natural Rights. According to Joel Feinberg, “ all of the rights that have been characterized as ‘Natural Rights’ on the leading, manifestos can also called human rights, but…. Not all human rights are also by definition natural rights, but also that these rights have certain further epistemic properties and a certain metaphysical status.

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Philosophical PerceptionPhilosophical PerceptionIn respect to questions of moral

ontology and moral epistemology, the theory of human rights is neutral”

Apart from the epistemic and ontological neutrality, the modern conception of human rights is more comprehensive than thee traditional theory of natural rights.

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Meaning of Human Rights8

The modern concept of human rights basically have the following characteristics:

All and only humans have them;All human share them equally;Human Rights are not derived from any

special status; andHuman rights can be claimed against or from

all human persons and institutions.

Meaning of Human Rights9

From a cognitive point of view, the UDHR is a common standard of achievement for all peoples and all nations to be promoted by teaching and education.

Further, the inclusion of Economic, Social and cultural rights mixture with civil rights poses many problems. The second part are not fully guaranteed and are only directives to the States. Which means, if they are not implemented ,

Meaning of Human Rights10

they are only empty shelves at the mercy of the State. Hence the character of human rights lose their character and remain as ideals to a certain extent.

Because, these impose obligations upon the individuals, society, state Vis-à-vis each other.

Those the duties perspective is advocated in UDHR, it only impose duty to the extent they are realized.

Eastern PerceptionsEastern PerceptionsEastern though does not have the

equivalent for the English word ‘right’. In Sanskrit for example, the nearest equivalent of the term right is Yukta or Ucita (appropriate), or nyaya or dharma (obligation). In Chinese language, ‘right’ is translated into ‘chuan Li’ which means “power and interest”

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Eastern PerceptionsEastern PerceptionsEastern thought seems to realize that

‘rights talk’ is not significant unless there is first the acceptance of obligations to respect others rights.

Third, unlike the Western individualism, the Eastern thought conceived the individual as a part and parcel of the society. The realization of rights depends only upon the discharge of the mutual obligations to others.

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Eastern PerceptionsEastern PerceptionsFinally, the eastern thought is

obligation oriented and never raised the rights-talk is the built in safeguards in its socio-political structure against tyranny. Where as the, there are contradictions in the Western theories. Especially Lock maintained that the political sovereignty is not absolute but only limited.

In the Eastern perception that theoretically,

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Eastern PerceptionsEastern PerceptionsAn Emperor is supreme, but subject

to limitations imposed by the concept of Dharma. This is what otherwise referred to as the Raj Dharma. Raj Dharma is a complex term, because it imposes a number of obligations to be discharged towards the people . In the words of Manu, a king who fails to discharge the duties, destroy himself.

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The Hindu Philosophy of human rights enlisted from Vedas, veda, srutis, smritis, Dharmasastras and Nitisastras of Manu, Yajnavalkya, Narada, Sukra,and Vidhura, puranas, Ithihas, the Arthasastra of Kautilya all have developed the concept of human rights on the concept of ‘dharmo rakshathi rakshathaha’ (Protect dharma, dharama protects you).

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Further, they declared with a caution to create oneness in the minds of the people that all human being belong to one family and all men are equal through the concepts of vasudhaiva Kutumbakam and Sarva Manava Saubrathauya.

The Bhakti Movement spearheaded by a number of poets, philosophers, and other social personalities, like Kabir, Ramnanad, Kamal, Dadu, Farid, Vallabhacharya, Tulsi Daso Buddha, Annamayya, et.al., advocated the concept of human rights.

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Middle Ages and Human Middle Ages and Human rightsrightsThe Mohammadan period

particularly, the sufi tradition also advocated the tradition of human rights through religious freedom. Muthiyudin Ibn Arabi, the great sufi saint, dounded the doctrine of Wahdat al-wujud, oneness of being. This doctrine had far reaching affect on the Muslim rulers, especially Emperor Akbar who found the quality of religions through his Din-E-Elahi.

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Modern PeriodModern PeriodThe British period followed by the

freedom movement made significant contribution for the development of human rights, especially that of the rights of women and oppressed classes.

The Bill of Rights of 1920 of Gopalakrishna Gokhale and the Common Wealth of India Bill 1925 specified the declaration of Rights.

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Modern PeriodModern PeriodThe Motilal Nehru Committee in its

1931 Karachi session adopted a resolution on Fundamental Rights and Social Change which has became a back bone for the modern part of human rights both national and international arena.

These contributions have not been considered by the British as part of the International movement, as they feared that their misdeeds will be exposed in the international spectrum.

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International ScenarioInternational ScenarioModern international conceptions of human rights

can be traced to the aftermath of World War II and the foundation of the United Nations.

Article 1(3) of the United Nations charter set out one of the purposes of the UN is to: "[t]o achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, gender, language, or religion"

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International ScenarioInternational ScenarioThe rights espoused in the UN charter

would be codified in the International Bill of Human Rights, composing the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights

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International ScenarioInternational ScenarioThe UDHR urges member nations to

promote a number of human, civil, economic and social rights, asserting these rights are part of the "foundation of freedom, justice and peace in the world." The declaration was the first international legal effort to limit the behaviour of states and press upon them duties to their citizens following the model of the rights-duty duality.

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International ScenarioInternational ScenarioThe Universal Declaration was bifurcated

into two distinct and different covenants, a Covenants on Civil and Political Rights and another Covenant on Economic, Social and Cultural Rights. Over the objection of the more developed states [Capitalist], which questioned the relevance and propriety of such provisions in covenants on human rights, both begin with the right of people to self-determination and to sovereignty over their natural resources.

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International ScenarioInternational ScenarioThe above rights are divided into

First Generation. Second Generation, Third Generation or Group Rights.

In the contemporary era the most important rights discussed are: Environment, Water, Reproductive rights; Fetal Rights; Lesbian, Gay, Bisexual, Transgender (LGBT) rights, Rights of Elderly, Disabled, Trading Rights.

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Human Rights CouncilHuman Rights CouncilThe United Nations Human Rights

Council (UNHRC) is an inter-governmental body within the United Nations System. The UNHRC is the successor to the United Nations Commission on Human Rights (UNCHR, herein CHR), and is a subsidiary body of the United Nations General Assembly.

The council works closely with the Office of the High Commissioner for Human Rights (OHCHR) and engages the United Nations

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Human Rights CouncilHuman Rights CouncilThe members of the General Assembly

elect the members who occupy the UNHRC's forty-seven seats. The term of each seat is three years, and no member may occupy a seat for more than two consecutive terms. The seats are distributed among the UN's regional groups as follows: 13 for Africa, 13 for Asia, 06 for Eastern Europe, 08 for Latin America and the Caribbean, and 07 for the Western European and Others Group.

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HR and the ConstitutionHR and the ConstitutionThe Constitution of India inspired by

the ideals of UDHR and of its own.. The Preamble underlines the need to secure to all its citizens,

Justice: Socio, Economic and PoliticalLiberty: Liberty of Thought,

expression, belief, faith and worship Equality of Status and Opportunity

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HR and the ConstitutionHR and the ConstitutionDignity: Fraternity assuring the

dignity of the individual and the unity and integrity of the Nation.

A number of Civil and Political Rights as Fundamental Rights in Part (III)

Economic, Social and Cultural Rights as (DPSP)

A number of Legislations have been adopted by the Parliament to protect the rights of women, minorities, Deprived Classes, children.

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HR and the ConstitutionHR and the ConstitutionThe Supreme Court of India from

the beginning carefully interpreted the Provisions of the Constitution,. However, many a times it refused to interpret the provisions of the International Covenants as Part of Municipal law. Especially during the period of Emergency it refused to impose the obligations of human rights against the tyrannical acts of the Government.

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HR and the ConstitutionHR and the ConstitutionAfter the Emergency, especially from

the Case of Maneka Gandhi onwards it gave primacy of the international provisions and started reading the DPSP as part of the Fundamental Rights.

Interpreting the right to Life and Liberty it gave the widest amplitude. Today a number of rights which were not part of the constitution explicitly are made part of it through judicial interpretation of due process of law by the Judiciary.

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HR and the ConstitutionHR and the ConstitutionThe expansion of Art.21 expanded

and said that right to live with dignity is not animal existence. It includes, clean and healthy environment, right to food, shelter, education, health, livelihood, pollution free water and air, protection against hazardous industries, emergency medical aid, privacy, right to fair train, right to speedy trial, right to shelter, freedom from torture, Right to Legal Aid,

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HR and the ConstitutionHR and the ConstitutionRight to Information, Right to

Privacy, Sexual harassment at workplace, Rights of Vulnerable Groups and marginalized groups etc., have been made part and parcel of the constitution of India.

However, the constitution too specifies that the rights can be achieved only on the correlation of its ancient concept of Dharma.

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Human Rights Act .Human Rights Act .For better implementation of

Human Rights, the Government of India enacted the Human Rights Act in 1993.

According to Section 2 (D) of the Act, Human Rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by court in India.

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Human Rights ActHuman Rights ActThe NHRC shall consist of the

following: a) a Chairperson who has been a

Chief Justice of the Supreme Court;(b) one Member who is or has been, a Judge of the Supreme Court;(c) one Member who is, or has been, the Chief Justice of a High Court;(d) two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.

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Functions of the Functions of the CommissionCommissiona) inquire, suo motu or on a petition

Presented to it by a victim or any person on his behalf, into complaint of (i) violation of human rights or abetment thereof or;(ii) negligence in the prevention of such violation, by a public servant;

(b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;

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Functions of the Functions of the CommissionCommission(c) visit, under intimation to the

State Government, any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make recommendations thereon

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Functions of the Functions of the CommissionCommission(d) review the safeguards provided by

or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective in implementation;

(e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;

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Functions of the Functions of the CommissionCommission(f) study treaties and other

international instruments on human rights and make recommendations for their effective implementation;

(g) undertake and promote research in the field of human rights.

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Functions of the Functions of the CommissionCommission(h) spread human rights literacy among

various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;

(i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights.

(j) such other functions as it may consider necessary for the protection of human rights

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Human Rights ACTHuman Rights ACTIt also established the State

Human Rights Commissions and Advocated Human Rights Courts. The latter is yet to see the light of the day.

Apart from these, it has special Commission for vulnerable groups, such as minorities, children, women, disabled, Sc & Sts. Etc.

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ConclusionConclusionWhatever the constitution and the

Judiciary advocated, the rights can not be realized until and unless as specified in the Indian philosophy that the Duty casted on the individual need to be discharged.

The UN in order to create the awareness across the globe adopted a number of programmes through the Human Rights Education which is the most important tool.

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