Human Rights : The Indian Context

The term Human Rights covers in its ambit those essential rights, defined or undefined which lead and contribute to the balanced development of Human Individual. The concept of Human Rights in modern times can be traced to Natural Law philosophers, who propounded these rights to protect Individual against the excesses of the state. However the International concern with Human Rights as enshrined in the U. N. Charter is not a modern innovation. It is in fact “Heir to all the great historic movements for man’s freedom to the enduring elements in the tradition of Natural Law and Natural Rights and in most of the worker’s great religious and philosophies and to the findings of contemporary science about inter relations of simple respect for human dignity and other community values1. The concept of Human Rights represents an attempt to protect the individual from oppression and injustices. They provide a human standard of achievement for all the people and all the nations2. These Rights are independent, inalienable and inviolable and hence universal.  The onset of Democratic movements all over the world and emergence of the idea of Human Rights led to the trend of guaranteeing basic Human Rights in the basic Laws i.e. the Constitutions all over the world. U. S. Constitution drafted in 1787 was first of such examples; the purpose of which was said to withdraw certain subjects from viccisitudes of political controversy and to place them beyond the reach of political majorities3 since they depended on the outcome of No Elections. The UN charter, expressing faith in fundamental Human Rights in the dignity and worth of human person, in the equal rights of man and woman, proposing to encourage respect for Human Rights and for fundamental freedoms for all without distinctions as to race, caste, sex, language or religion represents a significant advancement so far as faith in and respect for Human Rights is concerned. Universal Declaration of Human Rights declaring that everyone has a Right to life, liberty and security of person4 freedom from slavery or servitude5 cruel or inhuman or degrading treatment6 and arbitrary arrest7 and ensuring equality before Laws and Equal Protection of Laws8 represents the most concrete and universal texture of Human Rights in Human History.  It may be noted that the concept of Human Rights in a multiethnic, multi religious and diversified society like India which according to Pandit Nehru is the Museum of world religions; has a special significance, because the instances and occasions for violation and suppression of Human Rights are numerous due to needs of security, unity and Integrity and of Law and Order. It would be trite to observe that greater the variety of people and the Ethnicities, the greater shall be the kind of Relations amongst them and simultaneously there shall be greater number of occasions and instances of conflict wherein shall be called in the state to act as umpire amongst the people. In a society where the law has been conceived to be an instrument for bringing about the social change the people naturally develop the habit of looking towards the state for every social political or Ethnic conflict. This leads to the State Interference at every step of human relations and therefore numerous instances of suppression and abuse of Human Rights. But it must also not be forgotten that this situation also provides a fertile ground of experimentation in evolving means for combating Human Rights violations and oppressions and development of Human Rights jurisprudence.  Truly, therefore, Indian system from the very beginning has responded well to the Human Rights activism all over the world. The freedom fighters even before India as an Independent Nation came into being have expressed their willingness to join attempts towards establishing peace and harmony all over the world ensuring basic Human Rights to all members of Human society. In fact Congress Delegation had represented India in San Fransisco conference leading to signing of U. N. Charter. When the time for framing of the Constitution on attainment of Independence came into the force, the commitment to the cause of Human Rights was more than reflected in the final draft of Indian Constitution. The very Preamble wedded to the idea of socialistic pattern of society ensured social economic and political justice, liberty of thought, expression, belief, faith and worship, equality of status and opportunity to all9 without any distinction as to race, caste, sex, religion, place of birth etc. Abolishing untouchability and titles of all kinds barring military and academic distinctions10. The Constitution instituted equality, provided right to freedom of speech and expression, peaceful Assembly11 freedom from arbitrary arrest, protection of life and liberty12 right against exploitation, freedom of conscience and free profession, practice and propagation of religion,13 and educational and cultural rights14. It also provided teeth to these rights by making them enforceable by direct access to the Highest Court of the land i.e. the Supreme Court of India.  This Herculean effort of the founding fathers of Indian Constitution of breaking ground with the traditions and providing far reaching rights and freedoms to all Indian citizens were further strengthened and added to by a vivacious and dynamic judicial system with Supreme Court at the apex. It opened new vistas of Human Rights movement by liberally interpreting and expanding the meaning of Basic Human Rights. Art. 21 providing Right to life and personal liberty has been interpreted so liberally that now it covers in its ambit a variety of Rights that go to constitute personal liberty of man. Life does not mean a mere animal existence. It is the human dignity that gives substance to Human Rights,15 and therefore Right to life includes all those rights that make human life worth living. The Right to live with human dignity must mean and include protection of health and strength of workers, men and women and of the tender aged children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of dignity, educational facilities and human conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity.  The Right to personal liberty is one of the most, if not the most important of Human Rights16 and liberty of an individual is threatened the most when a person is arrested, with a view to providing the accused of penal offence the maximum opportunity of presenting his case Supreme Court has, in M. H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548 laid down that Right to free legal aid is as much a fundamental right as the right to live. When an accused has been sentenced by a Court and is entitled to appeal against the verdict he can claim legal aid if he is not able to afford the counsel, being indigent the State must provide a Counsel for him. The Court has emphasised that it is not a matter of charity on the part of State but a constitutional obligation. (ibid AIR 1978 SC 1548). In Hussainara Khatoon19 the Court has said that it is an essential ingredient of reasonable, fair and just procedure, to a person who is to seek his liberation through the Court process that he should have legal service available to him.  Much of the concern of Human Rights activism has been on the victims of Police atrocities committed in the name of maintaining Law and Order. Supreme Court in a catena of cases not only condemned Police atrocities but has gone on providing compensation to the victims of Police atrocities. In Khatri v. Bihar, AIR 1981 SC 1068 popularly known as Bhagalpur Blinding case the Supreme Court imposed a liability upon the State to pay compensation to the victims for violation of their personal liberties under Art. 21. The Court agreed that in the light of Dynamic Constitutional Jurisprudence such a claim of compensation could be made. In Rudulshah v. State of Bihar, AIR 1983 SC 1086 the Supreme Court of India granted monetary compensation amounting to Rs. 35000 to an ordinary citizen against the lawless act of Bihar Govt. which kept him under illegal detention for more than 14 yrs. after his acquittal.  In Peoples Union of Civil Liberties v. Union of India, AIR 1997 SC 1203 Supreme Court came down heavily on State sponsored killings and taking note of an Australian case i.e. Minister for migration and ethnic Affairs v. Teoh, (1995 Australian Journal of Law 423 and quoting International conventions on the point Supreme Court ordered Rs. 100000 each to the victims of State sponsored killings of detenues. In a recent case of D K Basu v. State of WB, AIR 1997 SC 610 Supreme Court speaking through Justice Kuldip Singh & Justice A. S. Anand has termed the death in police custody as the worst and most hienous crime. The Court has stressed time & again that police torture is disastrous to our Human Rights awareness and humanist Court order. In Raghubir Singh v. State of Haryana, AIR 1980 SC 1087 Supreme Court observed and I quote “we are deeply disturbed by the diabolical recurrence of Police Torture resulting in a terrible scare in the minds of common citizens that their lives and liberties are under a new peril. When the guardians of law gore human rights to death the Court has squarely placed the responsibility to remedy the situation on the State. The States at the highest Administrative and Political levels, we hope, will organise special strategies to prevent and punish brutality by Police Methodology.  It may be noted that the significance of these judgments is far wider than the punishment meted out to a few people. The strategy adopted by Courts quite clearly is to show to the Police force and the executive as well that the Courts will be stepping in more frequently to check these abberations.  As a corollary of the expanding Interpretation of Right to life under Art. 21 Supreme Court has gone ahead to declare right to health as a fundamental right. In State of Punjab v. Mohinder Singh Chawla, AIR 1997 SC 1225 Supreme Court emphasised that if the Govt. servant has suffered an ailment which requires treatment at a specialised approved Hospital, it is but the duty of the State to bear expenditure incurred by the employee for as Justice K. Ramaswamy and Justice G. B. Patnaik have asserted that “it is now settled that Right to Health is integral to right to life. The apex Court while passing strictures on the authorities responsible for upkeep of Govt. Hospitals has maintained that “Unfortunately due attention is not being paid for further maintenance and treatment in the Govt. Hospitals and mismanagement is not being presented.  Speaking on the Right to shelter, Supreme Court has noted that “Possession of real property is the basis for and symbol of wealth and influence in a society. But to poor, settlement without a fixed abode the right to residence guaranteed under Art. 19(1)(e) remain a mere teasing illusion unless the State provides them with dignity. Life means more than mere animal existence. An important aspect of the Right to life is that no person can live without the means of living. If this right is not treated as a part of the Constitutional right to life the easiest way of depriving a person to the right to life would be to deprive him right to livelihood. Such deprivation would not only denude life of its effective contents and meaningfulness but it would make one’s life impossible to live. There is thus a close nexus between the life and means of livelihood which alone can make life liveable with dignity.  In view of the Directives of the Constitution to the State that it shall endeavour to protect and improve the Environment and to safeguard the forests and wild life of the country (17) and of the fundamental duty of the citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures, (18) Supreme Court in the case of Vellore citizen Welfare forum v. Union of India (19) has evolved the Precautionary Principle and Polluter Pays Principle which means that Environmental measures by the State Govt. and statutory authorities must anticipate, prevent and attack the causes of environmental degradation and whereas the threats of serious and irreversible damage, lack of scientific certainty should be used as a reason for postponing measures to prevent environmental degradition. It was with this view in mind that Supreme Court ordered 292 industrial units for shifting away from the Taj Trapezium. (20) In another significant development Supreme Court while passing strictures against the State for enormous Pollution levels on Delhi Roads has held it to be the duty of the State to provide pollution free atmosphere to the people at large.  In Vishakha v. State of Rajasthan, AIR 1997 SC 3011 Supreme Court speaking through Justice J. S. Verma, Justice Sujata V. Manohar and Justice B. N. Kirpal has stressed that each incident of sexual harassment results in the violation of the fundamental rights to life and personal liberty including the Right to work in a profession of ones choice. The right to life means the right to live with dignity and an in dignified life at one’s work place means deprivation of one’s precious right to life, freedom to choose one’s profession. In M. C. Mehta v. The State of Tamil Nadu, AIR 1997 SC 699 Supreme Court emphasising the importance of childhood and quoting from Wordsworth has stressed that the “child is the father of man” to enable him fathering a valient and vibrant man the child must be groomed well in formative years of his life. He must receive education, acquire knowledge of man and material and blossom in such an atmosphere that on reaching the age he is found to be a man, a man with a mission who matters so far as the society is concerned, Ibid AIR 1997 SC 699. The Court expressed the hope that sufficient measures shall be taken by Govt. so that the closing years of 20th century would see us keeping the promises made to our children by our Constitution about half a century ago and let the child of 21st century find himself into that heaven of freedom which our Poet laureat Rabindranath Tagore has spoken in Gitanjali.  Despite these stupendous efforts and achievements on human rights front by the founding fathers of Indian Constitution and the Supreme Court the goal of Human rights as a common standard of achievement for all people is still far off. The Supreme Court pronouncements at best have had only a marginal impact on the overall human rights situation in the country. Police authorities are increasingly resorting to human rights violations and as a force have been absolutely casual about torture. The dramatic pronouncements and off the cuff remarks by the Supreme Court have not nudged the authorities from their cocoons and the human rights are continued to be violated with impunity. Many cases taken up with so much of fanfare and publicity like the Bhagalpur blinding case, and Kamala case has been forgotten by the judiciary. Almost nothing has been done on the Tehri and Narmada dam displacement issue. The Courts have also been unable to cope with the challenges of civil rights both social and economic. Innumerable examples can be quoted wherein the Supreme Court has woefully fallen short of guaranteeing civil rights — be they related to the agrarian reforms, police torture or even the simple 1978 order that nobody would be chained. By taking recourse to the grounds of security of the State, the Executive is often able to get away with murder literally. Similarly there is the view that the Courts often act in instances which are convenient and comfortable but would rarely stick their necks out in cases involving the powerful. How can the constitutional authorities including the Supreme Court can be said to have fulfilled their Constitutional obligations?  In the closing years of 20th century, when there is a hightened sense of individual and group rights, these problems in the way of achieving common standards of Human Rights have assumed added significance. The solution naturally lies in the greater public awareness, enlightened nation and a vigilant people against entrenchment of autocratic and authoritarian values. The ramparts of defence against tyranny and misrule, as justice H. R. Khanna has put it, lie in the hearts of the people. The Constitution, the Courts and the laws can act only as aids to strengthen those ramparts; they do not and cannot furnish substitutes for those ramparts. If the ramparts are secure, anyone who dares to tamper with the liberties of the citizens would do so at his own peril. If however the ramparts crack down, no Constitution, no Court, no law would be able to do much in the matter. AIR 1998 (Jour) 53.

Author Name: A. P. Singh