EMERGING CHALLENGES RELATING TO HUMAN RIGHTS – By Aafreen Naaz

INTRODUCTION

Human beings are rational beings. They by virtue of being humans possess certain basic and inalienable rights which are known as Human Rights. 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.

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.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.

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.

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.

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.

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.

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 expression of ‘Human Rights’ was not expressly defined in Indian legal structure till enactment of the Protection of Human Rights Act, 1993. 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. 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.

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.

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 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.

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.

CONCLUSION

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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