(1 ) Meaning of ‘Human’ in the context of  Human Rights  

The concept of human rights has developed after the United Nations adopted the resolution “Declaration of Human Rights, 1948” on 4th December, 1948. It accepted the proclamation issued by the Franklin  D. Roosvelt on 6TH January, 1941 propounding four freedoms:

1. Freedom of speech 2 Freedom of faith 3 Freedom from want 

4 Freedom from fear

The question is what meaning is to be given to the word ‘Human’. According to United Nations Declaration, it is

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of human family is the foundation of freedom, justice and peace in the world.”

In the Preamble of the said Declaration, the significant word is “dignity” and “  Human Family “ The Supreme Court in Menka Gandhi case AIR 1981 S C 746 while interpreting Article 21 of the Constitution of India held that right to live is not merely confined to physical existence but it includes within its ambit the right to live with human dignity. Elaborating the same view the Court in Francis Coralie Vs Union Territory of Delhi AIR 1978 S C 597 further explained 

 ‘Human Dignity’ implies right to bare necessities of life such as adequate nutrition, clothing and shelter etc.

The Indian concept of human being is that he is a member of the family of the society . He is brother, or sister in a family: A brother is treated with love, compassion. He is helping hand in the hour of need. It implies the concept of equality as well.

Article V of the Universal Declaration of Human Rights, 1948 embodies this concept.

Article I

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

In Gita the concept of equality has been extended unto animals and plants as well.

While we consider about human rights, we should approach it in the same sense of brotherhood, in other words “Brotherhood Consciousness”.

In Article 51A (e) of the Constitution of India, the Fundamental Duties provides:

“(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.”

We have to examine the approach of the authority or person while dealing with persons before them. 

Police treats – persons under custody as Criminal. Administrative Authorities – normally the attitude is indifferent   Professional ( lawyers etc.) treat as client.

Doctors as patientTradesman etc – as Customers In all cases human approach is necessary. 

The spirit of brotherhood is embedded while considering human rights  and that should be given primacy.

( 2 ) Origin of Rights:

The next question is how the right originates. When a human being is born, he has right to live. He possess certain basic and inalienable rights which are commonly known as human rights. Human rights, being the birth right are therefore inherent in all the individuals irrespective of their caste, creed, religion, sex and nationality.

( 3 )  Kinds of Rights

The Universal Declaration of Human Rights, 1948 enumerates various rights in 30 Articles. Economic, Social and Cultural Rights, 1966 and International Convent on Civil and Political Rights (1966) further enumerated economic, social and cultural rights.

( A ) Civil and Political Rights

Civil rights and liberties are referred to those rights which are related to the protection of the right to life and personal liberty. They are essential for a person so that he may live a dignified life. Such rights include right to life, liberty and security of persons, right to privacy, home and correspondence, right to own property, freedom from torture, inhuman and degrading treatment, freedom of thought, conscience and religion and freedom of movement.

Political rights may be referred to those rights which allow a person to participate in the Government of a State. Thus, right to vote, right to be elected at genuine periodic elections, right to take part in the conduct of public affairs, directly or through chosen representatives are instances of political rights.

The nature of the civil and political rights may be different but they are inter-related and interwoven, and therefore, it does not appear logical to differentiate them. This reason alone led to the formulation of one Covenant covering both – civil and political rights into one Covenant, i.e. International Covenant on Civil and Political Rights.

These are the rights which may be termed as negative rights in the sense that a government is required to abstain from doing those activities that would violate them. Specifically, these rights protect citizens from acts of murder, torture, cruel and unusual punishment, ex post facto legislation, the denial of habeas corpus and imprisonment without due legal process. Notable point in these rights is that they are capable of immediate and full realization without significant costs being incurred.

( B ) Economic, Social and Cultural Rights

Economic, social and cultural rights are related to the guarantee of minimum necessities of the life to human beings. In the absence of these rights the existence of human beings is likely to be endangered. Right to adequate food, clothing, housing and adequate standard of living and freedom from hunger, right to work, right to social security, right to physical and mental health and right to education are included in this category of rights. These rights are included in the International Covenant on Economic, Social and Cultural Rights.

These rights require active intervention on the part of States. The enjoyment of these rights requires a major commitment of resources and therefore their realization cannot be immediate as in the case of civil and political rights.

(  4 ) Violation Approach

The question is what is the best way to ensure the progressive realization of human rights. One way is the “violation approach” whereby human rights are closely monitored to publicize abuses and hold state accountable for upholding the law and implementing the human rights commitments. The Civil and political rights can be included. They are enforceable under State laws. They ensure fundamental freedom, security, protection of life and political rights. In India such rights are guaranteed under Fundamental Rights in Part III of the Constitution of India. These rights are enforceable under law.

( 5 ) Development Approach

The 1986 Declaration of human rights adopted by the U.N. A ssembly describes the right to development as an inalienable human right by virtue of which every human person and all people are entitled to participate in contribution to and enjoy economic, social and cultural and political development in which human rights and fundamental freedoms can be fully realized.

These rights can be categorized:

1. Right to Health   2 Right to Education   3 Right to food and housing

4  Right to employment 5  Right to fair distribution of income and natural resources

Appropriate economic and social reform should be carried out with a view to eradicate all social injustices.

All these rights are duties of the State to its citizens.

( 6 ) Right to Education

Article 26 of Universal Declaration of Human Rights that everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages.

The Supreme Court in Mohini Jain vs. State of Karnataka (1992) 3 SCC 666 held that the right of education is fundamental right under Article 21 of the Constitution of India. In Unni Krishnan vs. State of A.P. the Supreme Court affirmed the above view but held that free education is available to children until they complete the age of 14 years.

Article 21A of the Constitution, inserted by the Eighty Sixth Amendment in 2002 make the Right to Education a fundamental right. The Right of Children to Free and Compulsory Education Act, 2009 was enacted. Section 12 of the Act provides for reservation for weaker sections in all schools providing elementary education. The section provides a reservation of at least 25% of the strength of the class in private schools for the children belonging to weaker section and disadvantaged group. Section 15 to 17 provides the right of admission to school at any time of the year.

Problem:

1. The Act does not speak about improving the present existing government schools but speaks about establishing new ones in backward Areas.
2. Establishment schools – infrastructure, teachers
3. Supervision of Schools
4. No law can force a child to educate himself. Parent responsibility to send child, parents to be educated.

( 7 ) Right to Food

The first assertion of the belief that every human being is born with inherent right to food is generally created to a famous 1941 speech by President Franklin Roosvelt of the U.S.A. called the ‘Four Freedom’ speech – Freedom from want

Article 11 of the International Covenant on Economic, Social and Cultural Rights recognizes the right of every one to be free from hunger.

India’s right to food effort accelerated in 2001 with a law suit brought by Civil Liberties NGO in Rajasthan. It aimed to force use of the country’s food stocks for prevention of hunger. The Supreme Court laid down guidelines.

The Supreme Court of India in both Krishen Pattnaik & Another vs. State of Orissa and People’s Union of Civil Liberties vs. Union of India recognized the right to food under the right to life stipulated under Constitution of India.

The Union Government draft Right to Food (Guarantee of Safety and Security) Act insists on “the physical , economic and social right of all citizens with adequate nutritious food”.

 ( 8 ) Economic Rights

The right to live will be meaningless unless a person has economic rights. This implies fair distribution of wealth, right to employment. The Preamble of the Constitution of India states”

“We the people of India, having solemnly resolved to constitute India with a Sovereign, Socialistic, Secular Democratic Republic and to secure to all citizens – 

Justice – social, economic and political

The social justice will be when there is economic justice. Article 14 of the Constitution of provides for equality before law or the equal protection of laws.

If there is no law, the question of application of the concept of equality becomes meaningless.

Economic justice – implies

1. Fair distribution of natural resources
2. Right to employment

The question of employment is a complex problem. It is necessary to give opportunity to work who are unemployed. In absence of any employment the right to live will be meaningless.

( 9 ) Enforceability of Human Rights

Section 2(d) of the Protection of Human Rights Act, 1993 defines ‘human rights’ as under:

“2(d) ‘Human Rights’ – means the right relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution as embodied in the International Covenant and enforceable by Courts in India.”

If there is no law on a particular subject, it cannot be enforced in the Courts of law. One can approach the High Court under Article 226 and the Supreme Court of  India under Article 32 of the Constitution of India that his right to life is being violated as enshrined under the Constitution of India. 

It is for the State to make effective laws for enforcement of human rights.

  Lecture delivered by Mr. Justice Sudhir Narain 

( Former Judge, Allahabad High Court )

  on  19.11 2018 in Law Department of Allahabad University.