Righteous' rights

‘Right’ as an English word conveys various meanings depending upon its usage but since the purpose of writing this piece is to examine ‘Rights of an individual’, it would be appropriate to zero in on the meaning assigned to it in the dictionary which is proximate to the intended discussion. Oxford defines it as fair claim; legal or moral entitlement; lawful.

Individual right in terms of political and legal parlance would thus mean a fair claim and legal or moral entitlement. An individual seeks the settlement of such fair claims or entitlements from the society within the available political and legal framework. Denial thereof, often result in complaints, dissatisfaction and may eventually lead to upheavals of such systems which demonstrate insensitivity to the aspirations of collective individuals with commonality of complaints of denials.

Jeremy Bentham, in his “Theory of Legislation” says “Rights are in themselves advantages; benefits; for him who enjoys them.” He however intricately linked them to obligations and goes on to say “Obligations on the contrary, are duties; charges; onerous to him who ought to fulfill them.”

In furtherance of his theory he propagates that the State through legislation ought to be happy to provide rights but is loathe to impose obligations upon its citizens. To quote, “The Legislator ought to confer rights with pleasure since they are in temselves a good; he ought to impose obligation with reluctance since they are in themselves an evil”.

In this realm where State confers rights happily to avoid an onerous situation for itself, it will always ensure the conferment of benefits or rights which outweigh the value of the corresponding obligation. He thus proceeds to say that “The only object of Government ought to be greatest possible happiness of the community” and “the happiness of an individual is increased in proportion as his sufferings are lighter and ferver and his enjoyments greater and more numerous.

Bentham thus talks of rights, its enjoyment which the legislator should confer upon its subjects with the minimum imposition of corresponding obligation, which is the ugly side of a right.

Now this raises another question, is an individual dependent only on the rights conferred upon it by the State or are there some rights which exist beyond the realm of magnanimity of the State? or does this mean that some rights exist naturally but are satisfied by the arrangement of the State, or are they an amalgamation of both.

In an article “Are there natural human rights” its author Mincael Boylon talks of unrest in various countries today and talks of rights available to an individual in a socio-political set up. While analyzing such a concept, he draws heavily on the thoughts of various prominent scientists of legal jurisprudence and makes out a case that such rights are natural rights not captive to time and place and are based on a sound argument that all people are entitled to at least a minimum level of well being and the liberties and goods necessary to ensure minimal well being of people in the society.

The article goes on to examine the approach propounded by Amartya Sen and Martha Nusslaum, “described as capability thoroughly based on capacity of people to act via public policy and strategies that promote individual liberty and opportunity to such individuals to seek such goods which a person feels will promote his or her own well being. Such views are in consonance with the views of Maslow who put such needs of an individual in a hierarchal order of preference, with the basic needs such as food, water and clothing as prime needs, to be addressed first.”

Thus two situations emerge, i.e. the first where the State is obligated to confer rights upon the citizens and the second the rights which occur naturally, which an individual priortises according to the universally acknowledged similarity of needs such as food, clothing, shelter, health, education etc. but are still to be addressed by the State. These rights occur naturally but essentially have also to be guaranteed by the State because the citizen or an individual perceives them and rightly so as his legitimate aspirations that the State has to address.

Natural rights are what one may understand as “Human Rights”, which are the legitimate expectations of a citizen based on their perception which are broadly uniform across the world, because such perceptions and expectations are deeply ingrained in the natural needs and natural human behaviour.

These are the basic approaches to the concept of rights and it is to be examined as to how does our Constitution address them and how our Courts have adopted and fine tuned these schools of thoughts to address the issue of individual and human rights.

Our Constitution acknowledges and encases such rights of an individual in its Chapter III more commonly known as Fundamental Rights. Judicial pronouncements have cemented them by declaring them to be a part of the basic structure of the Constitution, inalienable and not amenable to deprivation except suspension in certain situations, but of course subject to reasonable restrictions dictated by law.

Articles 19 & 21 of the Constitution of India are the most fundamental amongst fundamental rights and are a clone of human rights. They are the finest examples of acknowledgment of these natural rights by our Constitution, while other rights such as Articles 14, 15, 21A, 22 etc. are the rights which the State is obliged to confer upon the citizens. Such rights thus provide a scaffolding to the natural rights of a citizen, to conjure up a harmonious, happy world for him.

Beginning with stern interpretation of protecting human life and liberty while commenting upon laws aimed at preventive detention, to defining the rights of a person sought to be arrested to the rights of an under-trial and progressing on to acknowledge social realities, poverty; and to grant rights to industrial workers, to pavement dwellers, to hawkers, health, education; and all such conceivable natural rights were woven into a fine fabric made resistant to impregnation by the coarse pin pricks of the executive.

The quest of the Courts to ensure quality life to the citizens of the country have sculpted this concept of fundamental rights by chiselling them with the tool of judicial review.

Even some concepts which existed in Chapter IV of the Constitution such as Article 39(a)(e)(f) and Article 42, have through judicial pronouncements been made appendages to Article 21.

Some defining pronouncements would reveal the path the Courts have trudged painstakingly on its path to evolutionise natural rights.

Declaring that the right to life included the “finer graces of human civilisation”, the Supreme Court in P. Nalla Thampi v. Union of India, virtually rendered this fundamental right a repository of various human rights.

Thus, it includes :

the right to live with human dignity; Francis Coralie Mulin v. Administrator, Union Territory of Delhi,
right to healthy environment, M. C. Mehta v. Union of India, Bandhua Mukti Morcha v. Union of India.
The right (healthy environment), itself includes the following :—

Pollution free water and air; B. L. Wadhera v. Union of India, & Indian Council for Enviro-legal Action v. Union of India.
Protection against hazardous industries, Vellore Citizens Welfare Forum v. Union of India.
Free education upto 14 years of age : J. P. Unnikrishnan v. State of Andhra Pradesh.
Emergency medical aid, Parmanand Katara v. Union of India.
Right to health; State of Punjab v. Mahinder Singh Chawla.
Privacy, Peoples Union for Civil Liberties v. Union of India. Rights of Pavement Dwellers — Olga Tellis.
Right to shelter, U.P. Avas Avam Vikas Parishad v. Friends Co-operative Housing Society Ltd.
Rights to livelihood, which includes right of succession, Madhu Kishwar v. State of Bihar.
Timely medical treatment in Government Hospital, Paschim Bengal Khet Mazdoor Society v. State of West Bengal.
We have to be grateful to our forefathers for their magnificent vision in codifying these aspirations of natural rights of an individual and by ensuring the independence of judiciary which is the singular factor which has helped the acknowledgment and growth of human rights by placing benevolent interpretation on just three words of Article 21 “Life and Personal Liberty”. Accepting letters as writ petitions and entertaining Public Interest Litigation were revolutionary steps enabling and empowering a citizen to approach the Courts for Mandamus to State to redress a situation of denial or deprivation of a right to an individual or collectively to the society. These were extremely wise moves as they provided a safety valve to the society simmering with discontent upon denial of rights by the State.

The looming question then still is that after the Courts acknowledge the human rights or natural rights and make them inalienable, who enforces them and who translates them into a real, concrete, conferment upon an individual?

The logical conclusion would be that although some rights are natural rights which form the basis of decent human existence and which every individual across the globe expects to enjoy, the same are to be conferred by the State, like any other right that the State is obligated to confer and the distinctive line between these two kind of rights is likely to blur at the stage of decision making by the State at the time of conferment.

Failure of the State to do so, is likely to result in complaints and collective commonality of such complaints can cause friction and unrest, the likes of which we have witnessed enormously in few countries recently.

In the course of the governance and management of a society the serious implications of denial of natural human rights, which an individual righteously demands and expects should not be under estimated. Constant neglect can lead to a volcanic situation, which in the wake of its eruption has the power to deluge the whole system with molten lava of anger. Courts can only provide the safety valves, and a temporary reprieve.

Author Name: Hon'ble Mr Justice Mahesh Grover