UNDERSTANDING HUMAN RIGHTS IN INDIA
Author: Himanshi Jain, puursuing B.A.,LL.B. from Delhi Metropolitan Education, Noida
WHAT ARE HUMAN RIGHTS?
Human Rights are those basic rights which every individual gets the moment he/she is born. These rights are inherited by each and every one notwithstanding the sex, color, gender, religion, nationality etc. The act made for the sole reason to protect and promote human rights says that Human rights are the rights which are related to the life, equality, dignity and liberty. It is provided by the Indian Constitution and by the International Covenants. It is enforceable by the courts in case it is infringed by any means. It is also said that these Human Rights are not invented recently rather they have been important throughout the history. After World War II, the whole world united together and decided the rights and responsibility that every individual should have to protect the Human Rights.
Human rights are an idea to encourage equality and fairness in among the people of different nations. It is made to make sure they live their life without any fear, harassment and discrimination throughout their lives. Human Rights are nothing but the basic rights which an individual needs in day to day life and are essential to live their life with human dignity. Some of them are right to fair trial, right to life, right to speech, Freedom to practice any religion, Right to health, right to education and right to all basic amenities needed to have a standard living. Human Rights are generally applicable. People are created same as if the human is man or a woman, knowledgeable or undereducated, poor or rich, and so forth. Human rights also are understood as fundamental rights as in the year 1948. Universal Declaration of Human Rights, which would be mentioned in the constitution underneath the header of Fundamental Rights.
WHY ARE THEY IMPORTANT?
Bringing Human rights in reality can help us to remove agitation from the society also can make our society better to live in. There has been seen immense growth with regard to Human Rights In past few decades. It has been positive towards the society and towards the citizens, as they got to know about the human rights and solutions for problems of the same.
Human rights play a vital role when interacting with family, community, friends, and colleagues and also to maintain political and international relations. Hence, people should understand its importance and gain knowledge about the same. This will be of great help to promote justice and will be a positive outcome for people in different sectors.
WHAT CONSTITUTES HR?
Human Rights are the rights which are formed based on daily activities of the human. These Rights includes Civil rights and Political rights. This is to guarantee a person that he/ she can take part in civil or political field without any discrimination or inequality. Many rights are thus included in this such as: Right to privacy, Right to freedom of speech and freedom from torture. There are Economic, Social and Cultural Rights as well. This is to guarantee a person that he/ she can take active part in social or cultural activities. These rights include Right to Health, Right to Education and Right to work as well.
Human rights can be classified into five. They are mentioned and explained below:
4. Social and Cultural
5. Development Oriented
To strengthen the civil and political rights 17th, 18th, 19 centuries contributed so much and guaranteed all the citizens their civil and political freedom. These civil and political rights together are known as “Liberty Oriented Human Rights”. These protect the citizens and give them certain liberties against the state and its agencies which are enjoyed by each and every individual.
The contribution towards developing and promoting Economic, Social and Cultural rights were done in 20th century. 20th century also helped in developing and strengthening the rights of minorities as well. The development of Economic rights and Social rights were done by aiming at the upliftment of weaker section of the society. These Rights are utmost important for the development of human personality in all aspects. It is made sure that these rights are fulfilling the basic needs as recognized by the society for all the citizens. Economic, social, as well as cultural rights, and also minority rights, encompass the group named as "Security Oriented Human Rights." This is widely recognized as "Second Generation Human Rights." This is referred to as positive rights. The Universal Declaration of Human Rights proclaims Economic, Social, as well as Cultural Rights, and also Civil and Political Rights. Afterward, in Dec. 1966, the very same privileges were acknowledged in two separate agreements, the Covenant on Civil and Political Rights as well as the Covenant on Economic, Social, and Cultural Rights.
Human Rights Focused Advancement recently occurred in the twentieth century. These privileges oblige each person to take part in all areas of development, which include environmental rights that also enable the individual to appreciate resources such as air, water, natural resources, meals, as well as a pollution-free atmosphere, among many other items. These rights are denoted as Green Rights and are also known as “Third Generation of Human Rights”. The implementation of these rights is dependent upon the international cooperation which makes is call as Solidarity Rights. Solidarity Rights has a great importance among developing countries because it will guarantee them Right to peace, Right to good environment, Right to disaster relief assistance and much more.
The Human Rights can be broadly categorized into two heads which are:
Right for Citizens
Rights for all the persons.
There are some rights which are given only to the citizens of the state. For reference, Article 15, 16, 19 and 29 are conferred upon the citizens only. They can be enjoyed by the citizens living within the territory of India whereas other rights given in Part 3 of Indian Constitution are conferred to all citizens and non- citizens.
CHARACTERISTICS OF HUMAN RIGHTS
Human Rights are INALIENABLE which means that no one bestows us with these rights and nobody can deprive us with these rights. Human Rights are recognized universally which means it guaranteed all the citizens living all over the world regardless of their religion, community, caste, sex, gender, age, social and political status as well. Civil and Political rights should be given along with their economic, social and cultural rights. It is said that Economic and Social objectives cannot be achieved if political freedom is not given to the citizens.
Many other characteristics of Human Rights are explained below:
1. Human Rights are utmost essential for the ethical, societal and spiritual welfare of the individual. Human Rights are indispensable in nature as it provides environment which adds physical and moral life of the society.
2. Human Rights allow each person to live with dignity regardless if it’s a male or a female, rich or poor. For reference, in 1993 an act was passed in India to ban manual scavenging. The Act was named as Employment of Manual Scavengers and Dry Latrines (Prohibition) Act, 2013.
3. Human Rights are guaranteed universally to all the people living all over the world. No particular class is being privileged over Human Rights. They are accepted universally without any consideration and exception. Certain values such as Dignity and equality are the basis for Human Rights.
4. Human Rights are ‘Inalienable in nature which means that nobody can take them away from any individual. Hence, they are inherited by us so we cannot give it away, renounce them in any manner. These rights are absolutely same for all the people without any discrimination whether the person is alive or dead. For reference, all the rituals of certain religion is practiced even at the time of death which makes it crystal clear that Human Rights are granted to a person who is dead as well. Furthermore, a person confessing his/ her crime asking to be punished for the same to the police cannot be a valid statement as it infringes Article 21 of Indian Constitution.
5. Human Rights are Dynamic in nature. They are constantly changing and are dependent on various factors such as Political, Economic and Social factors. For reference, Right to be cared when sick is now enlarged in such a manner where it also includes free medical treatment in government hospitals and many schemes has also been introduced for the same. Medical examination in schools for free is also mandatory. Schools should be now equipped with urgent materials especially for physically handicapped children are mandatory as well.
6. Human Rights are not absolute in nature. There are always some restrictions on the enjoyment of certain rights and freedoms. The restrictions are conferred upon the Human Rights for common good. Each rights comes with certain restriction was have been attested by the legislature of the state.
7. Human Rights restrain state’s power in certain way. Citizen has a right to demand rightful things from the state for common good. The restriction on the state is conferred on them in the form of obligations to not interfere in one’s personal life and depriving the citizens from certain rights. There are six freedoms embodied under Article 19 of Indian Constitution which cannot be deprived to the citizens in any manner. Indian Constitution had also given certain obligations on the state in form of Directive Principles provided in part 4 to make a just society in the country.
WHO PROTECT HUMAN RIGHTS?
Human rights are closely connected with different rights and responsibilities. Human rights are enjoyed by people only if other people are responsible to respect their rights. So, to enjoy human rights one has a responsibility to fulfill towards other people and the community. So for example if someone wants to exercise his right to speech then he needs to protect the right of privacy of the other person.
On the other hand, government has its own responsibility so that people of the state can enjoy their human rights. The government has to establish and implement the laws which respects and protects every individual’s human rights. For example right to education is regarded as a human right which government has a responsibility to fulfill so that individuals can enjoy such right by making laws and providing good quality education and facilities with regard to it. Is government fails to do so, and then it might infringe the human rights of the people of the state.
India is also a signatory of UDHR (Universal Declaration of Human Rights). UDHR has a main role to safeguard al the cultural, economic, political, social and civil rights of all the individuals. Indian Constitution also protects and promotes human rights in the form of Fundamental Rights. Human rights alike to fundamental rights are guaranteed by birth and can never be amended.
So, as our preamble protects the dignity of the human. To protect the rights guaranteed under part 3 one can approach Supreme Court under article 32. Supreme Court has been given a power under Article 13 to make any law void which infringes the rights of people. Hence, Supreme Court becomes the guardian of the rights.
Parliament established Protection of the Human Rights Act, 1993 which gives a meaning of Human rights as Right to life, liberty, equality and dignity of the individuals and is also guaranteed by the constitution and is enforceable by the courts in India. This act also makes it compulsory to establish NHRC (National Human Rights Commission), SHRC (State Human Rights Commission) and HRC (Human Rights Courts).
“NATIONAL HUMAN RIGHTS COMMISSION” (NHRC)
Section 3 contained under Protection of the Human Rights Act, 1993 makes it mandatory to establish a NHRC in adherence with the central government. The NHRC was constituted by the central government in 1993. The main aim of NHRC is to protect and promote human rights. The PHRA Act 1933 contains many sections which talks about the composition, functions and the procedure of NHRC. NHRC has been important and plays crucial role by retaining faith of common people on India's criminal justice system, promoting and protecting Human Rights. NHRC is authorized to give various recommendations with respect to health, education, custodial deaths, and encounters by police etc. NHRC is also permitted to take suo-moto decisions.
Apex court in a case[i] interpreted a provision that when Supreme Court refers a matter with regard to Human Rights to the commissions by applying its power given to them under article 32 then commissions will not be confined to section 36(2). Supreme Court held that commission is an individual body and is not restricted to be in compliance with the Supreme Court. It will function individually. It was said by the Supreme Court that, nothing can stop us from using our power and commission is not restricted by any means to be in compliance with the apex court. The common aims of both are to protect and promote Human rights in near future.
“STATE HUMAN RIGHTS COMMISSION” (SHRC)
The PHRA Act, 1933 made it mandatory to establish a commission at state level. It will name as "The name of the state" Human Rights commission. They will be allowed to function and will be given the authority as per the act.
In D.K Basu vs. State of West Bengal [ii]the apex court questioned about no establishment of SHRC from the date the act was passed. Even the national capital of India didn't have any SHRC till date even after passing the judgment regarding the same. Supreme Court made it mandatory to compliance with the provisions mentioned in the PHRA Act and adheres to it as there were zero efforts made to consult the Chief justice of High Court regarding the establishment of session court of Human Rights.
SUPREME COURT ON HR
Supreme Court is regarded as the guardian of all the fundamental rights. Its main function is to protect the rights of all individuals. India is the signatory of the major international conventions on Human Rights and our Indian Constitution is based on this in the form of Fundamental Rights mentioned under PART 3. The concept of separation of powers makes it easy for the judiciary to protect the Human Rights. Our Indian Constitution under article 32 and 226, one can approach the Supreme Court and High Court respectively if there is an infringement of the fundamental rights.
So, Supreme Court therefore has protected and promoted Human Rights through the following judgments:
In the Maneka Gandhi case[iii] court defined the meaning of Personal liberty in wider sense. Court held that infringes ones personal liberty will be violative to Article 14 and 19 and 21 as they three are interconnected
In the Shah Bano case court held that Muslim women has a right to maintenance and hence court protected the rights of Muslim women going beyond the personal law whereas, the Muslim community found the judgment against the Muslim Sharia Law.[iv]
A landmark judgment was passed back in the year 2017 where 3 judges were against the Triple Talak and 2 judges upheld it. As the final verdict triple talak was held unconstitutional as it was violative to the rights of Muslim women.
Another historical judgment was passed where earlier women were not allowed to enter the sabarimala temple but Supreme Court protecting the rights of women allowed them to enter in the sabarimala temple by the reason that devotion should not be gender discriminated. It should be allowed to all without any discrimination with regard to gender.
Supreme Court back in 2018 gave a landmark judgment with regard to homosexuality by decriminalizing it in Indian Penal Code by saying that it is violative of Article 14, 15, 19 and 21 enshrined in the Indian Constitution. Only section 377 of Indian Penal Code was decriminalized.
Adultery was found unconstitutional under section 497 of the Indian Penal Code since it contravenes the women's rights and appears to violate article 21 of the Indian constitution.[ix] The court had ruled that although adultery is no longer illegal, it still is a legitimate cause of divorce, but it'll be considered a crime if infidelity gives rise towards the abetting of suicide. Therefore in case, the person will be put on trial under section 306 of the Indian Penal Code, 1860.
HOW HUMAN RIGHTS WERE DEVELOPED
1. “MAGNA CARTA, 1215”
The Great Charter of 1215 is regarded as the most remarkable constitutional charter from all history. To protect the arbitrary acts of the king was the main purpose behind enacting the charter. The charter contains 63 clauses which provide all the citizens their legal and civil rights. This also protects barons from giving biased yet inequitable taxes. The English church got freedom from the interferences done by dominant class of that time. On 15th June 1215 Magna Carta was permitted to the English Baron by King John of England. It was done because the English barons refused giving those unjust taxes and asked the king to sign the charter in return.
2. “THE ENGLISH BILL OF RIGHTS, 1689”
The English Bill of Rights was enacted on 16th December, 1689 by British Parliament. This was another source for the development of human rights philosophy. It was declared that The English Bill of Rights, 1689 is supreme over the crown. It was hence cleared that the king has no authority to supersede it. All the rights, liberties and laws were codified and clarified in it for the citizens. The basis of the whole Bill was that it will be supreme and will provide sovereignty to the nation.
3. “THE AMERICAN DECLARATION OF INDEPENDENCE, 1776”
The American declaration of Independence was the document of United States which was approved on 4th July, 1776 by Congress. Then there was a separation of 13 American British colonies from Great Britain. This declaration has a great impact all over the history because it shows that there is right to revolt if government does not provide or promote natural or inalienable rights of all the citizens.
4. “THE U.S BILL OF RIGHTS, 1787”
The Constitution of Unites States was enacted on September 17th, 1787. The omission of Bill of Rights which guaranteed private rights and liberties to all the citizens was clearly evident. Around 12 amendments were then proposed by Madison to get added in the Constitution. State Legislature then ratified those amendments proposed and ten of them were collectively regarded as Bill of Rights. Those amendments were mainly to protect the citizens from the officials of the state in case of abusing their powers.
5. “THE FRENCH DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN, 1789”
National Assembly on 4th August 1789 publically announced the Rights of Man and of the Citizens. The Rights were concise to 17 Articles. It was of great importance in the history not only for France but also for whole Europe. Due to this a whole new social and political order was formed and old regimes were put to an end. Therefore, many Countries took France Constitution as the basis of their Constitution and the framers gave immense importance to the Human Rights of the citizens.
6. “DECLARATION OF INTERNATIONAL RIGHTS OF MAN, 1929”
Post - World War I, numerous queries regarding Human Rights and Fundamental Freedoms emerged. The Institute of International Law then adopted a Declaration of International Human Rights in 1929. It made it very clear that all of the rights assured and encouraged by numerous constitutions are not just for residents of the state, but for all men who live anywhere else in the world. The constitutions of France and the United States of America, in particular, were studied.
7. “THE U.N CHARTER, 1945”
In 1945, UN Charter was the first official document which was approved on large scale unanimously by 51 states at once. These states attended the United Nations Conference which held at San Francisco. The Charter contained 8 Human Rights which were to be promoted and protected for all the citizens of the states. It was an important document because it was the first official document which adopted Human Rights and recognized them and respected the basic rights of all humans.
8. “THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948”
In 1948, General Assembly of United Nations adopted Universal Declaration of Human Rights. It took place on December 10th 1948. The declaration recognized rights for all categories of citizens living in the state. The rights contain all civil, social, political, economic as well as cultural rights as well. This declaration was not of legally binding nature. In 1948, Universal Declaration of Human Rights contained 30 articles which were shown to the world at large and Human Rights were recognized for the first time universally. Soon after many covenants, conventions, treaties were held to keep Human Rights out of jeopardy.
INTERNATIONAL CONVENANTS ON HUMAN RIGHTS
The Universal Declaration of Human Rights adopted in the year 1948 was not legally binding on the countries. To remove this later in year 1966 two covenants were adopted by U.N General Assembly. First one was International Covenant on Civil and Political Rights (ICCPR) whereas another was named as International Covenant on Economic, Social and Cultural Rights (ICESCR). The international Bill of Human Rights comprised of these two covenants, Universal Declaration on Human Rights along with optional protocols. These together achieved a milestone in the human history. It was regarded as the modern Magna Carta of Human Rights.
Countries all over the world accepted the Universal Declaration of Human Rights as there own establishment. From 1948 to 1966, the primary objective of the UN Human Rights Commission was always to generate a system of law comprising Human Rights which could afterward be imposed and executed.
The Human Rights Commission generated two main docs: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) (ICESCR). They have been proclaimed International Law in 1976. The above two documents, including the Universal Declaration of Human Rights, were also made reference to as 'International Bill of Human Rights.'
The International Covenant on Civil and Political Rights (ICCPR) talks about issues like the right to life, freedom of opinion, religious practice, and the right to vote. Food, nutrition, public schooling, and housing are one of the problems discussed by the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The above covenants have been made official and eliminating discrimination.
As according Article 26 of the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee would be established (ICCPR). The commission will be composed of 18 human rights specialists. The advisory board will focus on ensuring that now the member nations are going to abide even by Act's agreed terms.
Countries who ratified the ICCPR agreed on that Human Rights committee should look into the matter where citizens have put allegations on the state that it has violated their rights. It should make sure that the complainant has exhausted all his/ he legal remedies with that regard and is then complaining to the committee. If committee investigates and upholds the allegations then it can publish the results and will compel state to take steps to restore their rights.
There are many civil and political rights mentioned in International Covenant on Political and Civil Rights which are similarly mentioned in Indian Constitution as well. India on March 27th 1979 signed and ratified both International Covenant on Civil and Political Rights as well as International Covenant of Economic, Social and Cultural Rights.
In the landmark judgment of Jolly George Varghese & Anr v. Bank of Cochin, The apex court observed that even if a provision is mentioned in International Covenant on Political and Civil Rights (ICCPR), 1996 and is not mentioned in Indian Constitution does not mean that the covenant is enforceable in India.
[i] Paramjit Kaur v. State of Punjab, Available at: https://www.casemine.com/judgement/in/5609ad37e4b0149711410d34 (last visited on May 13, 2020) [ii] An Upsurge of Custodial Deaths in India, Available at: https://blog.ipleaders.in/an-upsurge-of-custodial-deaths-in-india-an-analysis-of-d-k-basu-v-state-of-west-bengal/#Case_analysis_DK_Basu_v_State_of_West_Bengal_AIR_1997_SC_610 (last visited on May 13, 2020) [iii] Maneka Gandhi vs. Union of India, 1978 AIR 597, 1978 SCR (2)621 Available at: https://blog.ipleaders.in/maneka-gandhi-v-union-of-india/ (Last visited on May 13, 2020) [iv] Mohd Ahmed Khan v/s Shah Bano Begum, Available at: https://www.legalserviceindia.com/legal/article-216-case-analysis-mohd-ahmad-khan-v-s-shah-bano-begum.html (last visited on May 13, 2020) [v] Shayara Bano v. Union of India Case Analaysis, Available at: https://lawcirca.com/shayara-bano-vs-union-of-india-case-analysis-triple-talaq-case/ (last visited on May 13, 2020) [vi] Indian Young Lawyers Association v. State of Kerala, Available at: https://privacylibrary.ccgnlud.org/case/indian-young-lawyers-association-and-ors-vs-the-state-of-kerala-and-ors (last visited on May 13, 2020) [vii] Navtej Singh Johar v/s Union of India, Available at: https://www.legalserviceindia.com/legal/article-6402-case-summary-navtej-singh-johar-v-s-union-of-india.html (last visited on May 13, 2020) [viii] Joseph Shine v. Union of India, Available at: https://privacylibrary.ccgnlud.org/case/joseph-shine-vs-union-of-india (last visited on May 13, 2020) [ix] “Adultery no longer a criminal offence in India”, Available at: https://www.bbc.com/news/world-asia-india-45404927 (last visited on May 13, 2020)