Protection of Human Rights

By Dr. P. J. Sudhakar (Additional Director General (M&C), PIB, Bhopal), New Delhi, December 10, 2013 (Washington Bangla Radio): Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal  and egalitarian which are applicable to everyone and everywhere. These rights may exist as natural rights or as legal rights, in local, regional, national, and international law. The doctrine of human rights in international practice, within international law, global and regional institutions, in the policies of states and in the activities of non-governmental organizations, has been a cornerstone of public policy around the world. According to Section 2(1) (d) of Protection of Human Rights Act 1993, 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 Courts of India. The recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. There are three generations of human rights. First-generation is civil and political rights (right to life and political participation), second-generation is economic, social and cultural rights (right to subsistence) and third-generation is solidarity rights (right to peace, right to clean environment and right to development). World’s Human Rights day is being observed across the world on 10th December every year.


Historical Perspective

The Magna Carta (1215 AD) issued by King John of England was one of the earliest document on human rights. One of the oldest records of human rights is the statute of Kalisz (1264), giving privileges to the Jewish minority in the Kingdom of Poland such as protection from discrimination and hate speech. The ancient world did not possess the concept of universal human rights. The true forerunner of human rights discourse was the concept of natural rights which appeared as part of the medieval Natural law tradition that became prominent during the Enlightenment with such philosophers as John Locke, Francis Hutcheson, and Jean-Jacques Burlamaqui, and featured prominently in the political discourse of the American  and the French Revolution. The two major revolutions occurred during the 18th century, in the United States (1776) and in France (1789), leading to the adoption of the United States Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen respectively, both of which established certain legal rights. Additionally, the Virginia Declaration of Rights of 1776 and United States Declaration of Independence, 1776 encoded into law a number of fundamental civil rights and civil freedoms. These were followed by developments in philosophy of human rights by philosophers such as Thomas Paine, John Stuart Mill and G.W.F. Hegel during the 18th and 19th centuries. The system of slavery which is violative of human rights was abolished in Britain by enacting Slavery Abolish Act 1833 and the United States all the northern states abolished the institution of slavery between 1777 and 1804.

UNO and Human Rights

The provisions of the United Nations Charter provided a basis for the development of international human rights protection. The preamble of the charter provides that the members "reaffirm faith in fundamental human rights, in the equal rights of men and women" and Article 1(3) of the United Nations charter states that one of the purposes of the UN is: "to 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, sex, language, or religion". Article 55 provides that the United Nations shall promote that the UN shall promote the universal respect for, and observance of human rights and fundamental freedoms for all.

The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly in 1948. Although the UDHR was a non-binding resolution, it is now considered to have acquired the force of international customary which may be invoked in appropriate circumstances by national and other judiciaries. The UDHR urges member nations to promote a number of human, civil, economic and social rights, asserting these rights as 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. International humanitarian law also deals with human rights. The Geneva Conventions came into being between 1864 and 1949 as a result of efforts by Henry Dunant, the founder of the International Committee of the Red Cross. The conventions safeguard the human rights of individuals involved in armed conflict, and build on the Hague Conventions of 1899 and 1907.  Within the UN machinery, human-rights issues are primarily the concern of the United Nations Security Council and the United Nations Human Rights Council, and there are numerous committees within the UN with responsibilities for safeguarding different human-rights treaties. The most senior body of the UN in the sphere of human rights is the Office of the High Commissioner for Human Rights. The United Nations Human Rights Council, created at the 2005 World Summit to replace the United Nations Commission on Human Rights, has a mandate to investigate violations of human rights. The Human Rights Council is a subsidiary body of the General Assembly and reports directly to it. It ranks below the Security Council, which is the final authority for the interpretation of the United Nations Charter. The Council is based in Geneva, and meets three times a year; with additional meetings to respond to urgent situations. Economic and Social Council (ECOSOC) of UNO is the main body to carry out the functions of protection of human rights. On the basis of ECOSOC directives UN Commissioner for human rights, UN Commissioner for refugees was established. The UNO General Assembly passed several UN Conventions and treaties like Complete Elimination of Discrimination against Women (CEDAW), Child Right Convention 1989, and Elimination of Racial Discrimination etc. There are several UN Human Rights Committees to monitor the implementation of UN Conventions. The Committees includes, the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Committee Against Torture, the Committee on the Rights of the Child, the Committee on Migrant Workers. The Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights together called as Bill of Rights which deals with the core of International Human Rights Law.

Human Rights and Indian Constitution

Dr. B.R. Ambedkar, the crusader of human rights and chairman of drafting committee of Indian Constitution incorporated several provisions of human rights in Indian Constitution under Part III of Fundamental Rights from Article 14 to 32 and Directive Principles of State Policy from Articles 36 to 51 like Right to Equality, Right to Freedom, Right against Exploitation, Minorities Educational Cultural Rights and Right to Constitutional Remedies. Articles 14 to 18 of the Constitution guarantee the right to equality to every citizen of India. Article 14 embodies the general principles of equality before law and prohibits unreasonable discrimination between persons. Article 14 embodies the idea of equality expressed in Preamble. Article 15 relates to prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Article 16 guarantees equality of opportunity in matters of public employment. Article 17 abolishes ‘Untouchability’. Article 18 abolishes titles, Article 19 deals with freedom of speech and expression and article 21 to Right to life and liberty. The Supreme Court of India is having the power of judicial review and can strike down any legislation and executive orders which are violative of provisions of Indian Constitution. In case of violation of fundamental human rights the citizens can move to Supreme Court under Article 32 and High Courts under Article 226 for restoration of rights by operating the writ jurisdiction of judiciary. The preamble of the Constitution of India encapsulates the objectives of the Constitution-makers to build a new Socio-Economic order where there will be Social, Economic and Political Justice for everyone and equality of status and opportunity for all. This basic objective of the Constitution mandates every organ of the state, the executive, the legislature and the judiciary working harmoniously to strive to realize the objectives concretized in the Fundamental Rights and Directive Principles of State Policy.

National Human Rights Commission (NHRC)

The National Human Rights Commission (NHRC) was set up under the Protection of Human Rights Act, 1993. It is headed by a former Chief Justice of Supreme Court of India. Presently Justice KG Balakrishnan is chairman of NHRC. One of the primary functions of NHRC is to receive complaints and initiate investigations into violations of human rights by public servants by acts of commission and omission or through negligence on their part and to prevent violation of human rights. During the year 2012-13, 80,764 cases were registered for consideration and the Commission disposed off 66,346 cases. The Commission also transferred 7,045 cases to the State Human Rights Commissions (SHRCs) for disposal as per the Protection of Human Rights Act, 1993 (as amended by the Protection of Human Rights (Amendment) Act, 2006). During the said period, the Commission recommended payment of interim relief in 275 cases amounting to Rs. 8.67 crore. The Chairperson of the National Commission for Scheduled Castes, the National Commission for Scheduled Tribes and the National Commission for Women are deemed to be Members of the Commission for the purpose of discharge of functions of the programmes and projects taken up by NHRC. These functions were assigned to the Statutory Full Commission which includes Chairperson of the National Commission for Minorities also. The Chairperson of the National Commission for Protection of Child Rights is a special invitee to the Statutory Full Commission meetings. The Statutory Full Commission meetings are being convened on a quarterly basis. It is now an accepted proposition that good governance and human rights go hand in hand.  As per the information received from the State Governments, 23 States have so far set up SHRCs. The NHRC holds regular interactions with the SHRCs to explore and further strengthen areas of cooperation and partnership. NHRC is a member of the International Coordinating Committee (ICC) of National Institutions for the Promotion and Protection of Human Rights, and a Founder Member of the Asia Pacific Forum (APF) of National Human Rights Institutions. The Commission has been encouraging the efforts of non-governmental organizations (NGOs) and institutions working in the field of human rights. In this regard, the Commission has set up a Core Group with selected NGO representatives as members to serve as a monitoring mechanism. The National Human Rights Commission has been holding Camp Commission sittings in the States to ensure speedy disposal of cases towards ensuring the better protection and promotion of human rights. The NHRC also appoints rapporteur to report the commission on human right violation. A number of efforts have been made to abolish the system of manual scavenging and to ameliorate the living and working conditions of manual scavengers as well as safai karamcharis. Legislation was passed in 1993 namely, The Employment of Manual Scavengers and Construction of Dry Latrines Prohibition Act, 1993 which inter-alia prohibits use of dry latrines and provides for imprisonment for one year and or a fine up to Rs.2000/- on those who employ manual scavengers for cleaning dry latrines. The National Scheme for Liberation and Rehabilitation of Scavengers (NSLRS) aims to liberate the manual scavengers from the obnoxious practice of carrying night soil manually.

Government Initiative

India is a signatory to several international UN conventions on Human Rights. Indian Parliament enacted Protection of Human Rights Act 1993 and set up Nation Human Rights Commission (NHRC). In order to protect the human rights of children, SCs, STs, BCs, Minorities, Women and Safai Karmcharis set up National Commission for Protection of Children’s Rights, National Commission for Schedule Castes, National Commission for Schedule Tribes, National Commission for Minorities, National Commission for Women and National Commission for Safai Karmcharis. State Human Rights Commissions and Human Rights Courts were also set up in the country under the provisions of Protection of Human Rights Act 1993. Government has also taken several initiatives, welfare programmes and development activities for protection and promotion of human rights of people. The civil and criminal laws of our country also have in –built mechanisms to safeguard the rights of the individuals and provide special protection to the most vulnerable sections of society. The Government also set up Human Rights Courts for protection o human rights. Several human rights legislations were enacted by the Indian Parliament in tune with the letter and spirit of fundamental rights and Directive Principles of state policy enshrined in the Constitution. Some of the important legislation includes Prohibition of Sati Act, Dowry Prohibition Act, Untouchability Offences Act, Civil Rights Act, Prevention of Atrocities against SCs and STs Act, Juvenile Justice Act and Legislation on Prevention of sexual abuse of Children and Women.

Human Rights and the Environment

The Constitution (Forty-second Amendment) Act 1976, added a new Part IV-A, dealing with “Fundamental Duties” in the Constitution of India. Article 51-A of this Part enlists ten fundamental duties. It is interesting to note that this Part was added on the recommendations of Swarn Singh Committee bringing the Constitution of India in line with Article 29(1) of Universal Declaration of Human Rights. There are two basic conceptions of environmental human rights in the current human rights system. The first is that the right to a healthy or adequate environment is itself a human right (as seen in both Article 24 of the African Charter on Human and Peoples' Rights, and Article 11 of the San Salvador Protocol to the American Convention on Human Rights). The second conception is the idea that environmental human rights can be derived from other human rights, usually – the right to life, the right to health, the right to private family life and the right to property. This second theory enjoys much more widespread use in human rights courts around the world, as those rights are contained in many human rights documents. The onset of various environmental issues, especially climate change and global warming have created potential conflicts between different human rights. Human rights ultimately require a working ecosystem and healthy environment, but the granting of certain rights to individuals may damage these. Such as the conflict between right to decide number of offspring and the common need for a healthy environment, as noted in the tragedy of the commons. Environmental rights revolve largely around the idea of a right to a livable environment both for the present and the future generations. Primarily, Indian Constitution makes two fold provisions. On the one hand, it gives directive to state for protection and improvement of environment. On the other hand the citizens owe a constitutional duty to protect and improve natural environment. There are enough provisions in the Indian Constitutions to protect the environment. Government has also taken various steps for protection of environment. What is required- is to enhance mass consciousness regarding protection of environment. We would not only be conscious about our fundamentals rights of getting clean environment but also fundamental duty to protect it. If human civilization has to be protected from annihilations, pollution must be prevented.

Environment rights and Indian Constitution includes Article 21 which constitute right to get pollution free water and air. Article 48 of Directive Principles of State Policy directs that the State to take steps to organize agriculture and animal husbandry on modern and scientific lines. Again Article 48-A requires the State to take steps to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51-A says that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures. By showing deep concern about healthy environment for leading a healthy life the Supreme Court observed, that, "Art. 21 protects right to life as fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and prevention of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental, ecological, air and water pollution etc should be regarded as amounting to violation of Art. 21.

Role of Judiciary in Protection of Human Rights

Judiciary in every country has an obligation and a Constitutional role to protect Human Rights of citizens. As per the mandate of the Constitution of India, this function is assigned to the superior judiciary namely the Supreme Court of India and High courts. The Supreme Court of India is perhaps one of the most active courts when it comes into the matter of protection of Human Rights. It has great reputation of independence and credibility. The judiciary must therefore adopt a creative and purposive approach in the interpretation of Fundamental Rights and Directive Principles of State Policy embodied in the Constitution with a view to advancing Human Rights jurisprudence. The major contributions of the judiciary to the Human Rights jurisprudence have been two fold: (1) the substantive expansion of the concept of Human Rights under Article 21 of the Constitution, and (2) the procedural innovation of Public Interest Litigation. The Supreme Court enhanced the scope of Article 21, Right to life and liberty by interpreting it to Right to safe environment and Right to health.