PUCL Bulletin, January 2004
The ever expanding horizon of human rights
-- By M.A. Rane
The sky is the limit. The scope of Human Rights encompasses the entire spectrum of human life of the right to live with dignity. No UN Charter or Constitution of any country defines the term Human Rights. They are only listed in the various UN Charters and Constitutions of a number of States. Their sweep is expanding continuously by the human rights organizations (HROs) and the Courts of law dealing with their enforcement.
The term Human Rights came into usage when on December l0, l948 the United Nations General Assembly adopted Universal Declaration of Human Rights (UDHR). The preamble of the Charter states inter alia “whereas 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…
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort to rebellion against tyranny and oppression, that human rights should be protected by rule of law”.
The UDHR stipulates Human Rights in 30 Articles including inter alia application of rights and freedoms set forth in the Declaration to which everyone is entitled without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (Art 2), Right to Life, Liberty and Security of Person (Art 3), no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Art 5), Right to Equal Protection of the Law (Art 7), right to presumption of innocence until proved guilty according to law in a public trial (Art 11), Right to Own Property and not to be deprived of the same arbitrarily (Art l7), Right to Freedom of Thought Conscience and Religion (Art l8), right to freedom of opinion and expression including right to receive and impart information and ideas through any media (Art l9), Right to Freedom of Peaceful Assembly and Association (Art 20), Right to Social Security (Art 22), right to work to free choice of employment to just and favourable conditions of work and to protection against unemployment (Art 23), and so on. In fact the UDHR adopts all human freedoms and rights asserted and acquired by man from those in authority during the course of his long history.
The UDHR was followed by several International Covenants and Conventions adopted by the UN General Assembly from time to time to which most of the member countries including India have subscribed. Those are International Covenant on Economic, Social and Cultural Rights, l966, International Covenant on Civil and Political Rights, l966, Optional Protocol to the International Covenant on Civil and Political Rights, l966, Convention on the Elimination of All Forms of Discrimination Against Women l979, Declaration of Rights of the Child l959, International Convention on the Elimination of all Forms of Racial Discrimination l966, and Declaration on the Right to Development.
If one goes through the contents of the UDHR and the several Covenants, Conventions and Declarations adopted by the UN General Assembly as set out hereinabove, one will appreciate the vastness of the compass of Human Freedoms and corresponding human rights.
Though the term Human Rights came into vogue after the UDHR was adopted by the UN Assembly in l940, human freedoms and the corresponding human rights are as old as human society when rule of law was adopted to resolve disputes between citizens inter se and citizens and the ruling authority. The human rights were described as civil liberties, Bill of Rights or Fundamental Rights as described in our Constitution. The citizens organizations formed to promote and protect the rights against their violation were described as Civil Liberties Unions. All open and democratic countries had Civil Liberty Unions. Even an enslaved country like India had a Civil Liberties Union formed under the Presidentship of Jawaharlal Nehru in l936. They served the people and fought to protect their Human Freedoms and Human Rights.
In incorporating Fundamental Rights in Part III and Directive Principles of State Policy in Part IV, our Constitution makers were not only influenced by the UDHR just adopted by the UN General Assembly on December l0, l948, but also by the history of human freedom as unfolded by Bill of Rights of Great Britain, the Constitution of USA and the French Revolution. “Liberty, Equality and Fraternity” the watchwords of the French Revolution have been verbally incorporated in the Preamble to our Constitution. At the same time the genesis of the adoption of Fundamental Rights and Directive Principles is the experience our people gathered in our fight for independence from the British Imperialists. As early as in 1931, the Karachi Session of the Indian National Congress passed a resolution on Basic or Fundamental Rights that are now adopted in our Constitution by enlarging their scope and enriching the same. It is now acknowledged that the Karachi Resolution was the handwork of M.N. Roy in consultation with Nehru and Patel as Roy attended the Session as Dr. Mahmood. In or about 1944 when it was clear to Roy that the Allies will succeed in World War II against the Fascists, and Great Britain will be under a compulsion to grant independence to the Indians, M.N. Roy and his erstwhile Radical Democratic Party framed a Draft Constitution of India embodying in it Fundamental Human Rights.
It is a sheer coincidence that at or about the time when the UDHR was adopted by the UN General Assembly, the framing of the Constitution of India was on the anvil in the Constituent Assembly. Our constitution makers adopted in Part III of the Constitution Fundamental Rights that were made enforceable by the High Courts and the Supreme Court. In Part IV, the Constituent Assembly adopted Directive Principles of State Policy many of which were also in the nature of Human Rights. They were not enforceable in courts of law. However, after the end of the traumatic experience of the Emergency declared by Mrs. Indira Gandhi in June l975, our Supreme Court played an activist role in liberally and broadly interpreting the Fundamental Rights by even reading some of the Directive Principles in some of the Fundamental Rights and overruling some of the previous judgments of the Court. In 1978 the judgment of the Supreme Court in Maneka Gandhi’s case overruled Gopalan’s case (1950) and interpreted liberally Art 21 protecting life and personal liberty, ruling that the embargo of “procedure established by law” meant a procedure which is “reasonable, fair and just”. It was a major departure from the literal interpretation of the clause adopted in Gopalan’s case. The ruling in Maneka Gandhi’s case opened a vista of new judicial era of enlargement of the scope of the fundamental rights in our Constitution.
After the Emergency Rule ended in l977 the Supreme Court in its activist role, inferred several rights from Art 21 and other articles in the Part on Fundamental Rights. It is not the scope of the essay to enumerate all such human rights inferred from various Articles in the Chapter on Fundamental Rights read with Directive Principles of State Policy.
Just by way of illustration I may refer to some of the various human rights inferred by the Supreme Court with the assistance of Lawyers committed to Human Freedoms and Rights. They cover the subjects among others of threat to life, dangers of atomic energy and radiation, child offenders, en masse release of under trial prisoners in jail for period exceeding the maximum sentences that may be passed against them, delay in bringing to trial, delay in execution of an accused sentenced to death, protection of environment that sustains or adversely affects life such as forests, pollution of air and water and excessive noise, legal aid, fair treatment of prisoners consistent with human dignity, natural justice, right to education, right to livelihood, rights against torture, speedy trial, rights of under trial prisoners and so on. From Art l9 ensuring freedom of speech and expression, several rights such as freedom of the press, right to information etc were inferred. Arbitrariness in any legislation or an executive act has been struck down Under Art 14 guaranteeing equality before the law and equal protection of the laws. Under Art 12 the Supreme Court gave a broader meaning to the term State to include all wings of Government such as the Public Service Undertaking.
Before the declaration of Emergency there were hardly any Human Rights Organizations or Civil Liberties Unions in India in April l974 Jayaprakash Narayan along with the Gandhians who agreed with him, V.M. Tarkunde with other Radical Humanists and freedom loving citizens like Justice M.C. Chagla, Nani Palkhivala and other formed an HRO called Citizens For Democracy (CFD) with the objects among others of protecting civil liberties and democratic rights, as it was clear that Mrs. Indira Gandhi was destroying or emasculating one by one the great democratic institutions such as the Parliament, the Judiciary, the Congress Party, the Bureaucracy and the Press, CFD was one of the leading HROs that openly resisted the Emergency rule. During the Emergency JP permitted members of political parties, who were not detained under MISA to form a platform known as Peoples’ Union for Civil Liberties (PUCL). In 1980 the PUCL front was converted into a membership organization. Today PUCL is one of the leading HROs in India.
Thereafter there was a proliferation of several HROs and NGOs formed by freedom loving young men and women who had chosen to work among the deprived sections of the society for their uplift. The press cooperated with the HROs, NGOs, lawyers and courts of law in exposing the violation of human rights, particularly of the weaker sections of the people. The recognition by the High Court and the Supreme Court of Public Interest Litigations (PIL) filed by persons or organizations having no personal interest in the said litigations led to the flowering of Human Rights. The PUCL Mumbai Branch was the first to file a PIL in Bombay High Court on behalf of the pavement dwellers and slum dwellers sought to be forcibly evicted and deported from Bombay by A.R. Antulay, the then CM of Maharashtra. The combined efforts of the courts, lawyers, HROs, NGOs, the Press and public spirited citizens led to the vast expansion of the horizon of Human Rights. Now sky is virtually the limit!
It is on account of the pressure of HROs and public demand and international pressure, our Parliament enacted. The Protection of Human Rights Act l993 to provide for the constitution of National Human Rights Commission, State Human Rights Commissions in States and Human Rights Courts for better protection of human rights. The said Act purports to define Human Rights in Section 2 (c) as “the rights relating to life, liberty and equality and dignity of the individual guaranteed by the Constitution or embodied in International covenants and enforceable by Courts in India”. Section 2 (f) defines “International Covenants” to mean “International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on 16th December 1966”. In my opinion the definition is not restrictive. It describes Human Rights by incorporation of the Human Rights enumerated in the Fundamental Rights in our Constitution and the two International Covenants adopted by the UN General Assembly. They cover the entire field of Human Rights.
I would like to emphasize with respect that the National and State Human Rights Commissions are not wings of the Government. They are independent institutions that function as checks and balances like courts of law, election commission etc which are essential for successful functioning of democracy. Democracy is not just holding elections and of the rule by the elected representatives. It consists of a large number of independent institutions that provide checks and balances to elected representatives.
The majority of cases of violation of Human Rights that come up before the courts or the Human Rights Commissions relate to the conduct of the Police vis-à-vis the citizens. It is in the very nature of things that the Police interact with the citizens at various levels. No society can dispense with the police. But the Police should protect Human Rights instead of violating them. The police should be friends of the people not their tormentors, their protectors, not their predators. In order to de-link the police from the politicians, in l978 the Police Commissioner recommended the formation of an independent Commission for appointment, transfer and promotion of the police personnel. The Report is still gathering dust in red tape. There is also a suggestion that there should be a division of the police forces in two streams. One should be entrusted with maintenance of law and order (including protection of their Ministers) and prevention of crimes. The other should deal exclusively with investigation into crimes and prosecution of the accused. These are suggestions worth considering. The HROs, the Human Rights Commissions, and Police themselves in their own interest, should plead and press for such reforms in the Police Administration.
Lastly I would point out that an overwhelming section of the citizens who belong to deprived and poor sections of the people, do not enjoy human rights. Where is equality of opportunity between the children of the rich and powerful and those of the poor? Where is the right to life of dignity enjoyed by the tribals, the landless labourers, artisans and other rural and urban poor? They are half starved and their children die at an early age due to under nourishment. Still we are supposed to be self sufficient in food! Where do they get potable drinking water, minimum health care and sanitation? The Dalits and women continue to be discriminated in society. The minorities are at the mercy of the fanatics of the majority community. Such classes of people are generally ill-treated and not protected by the Police and other authorities. The rich and the powerful are capable of purchasing their human rights. Therefore I humbly submit that Human Rights Commissions should concentrate on protecting the Human Rights of such weaker sections of the society with aid and assistance of the HROs and NGOs working among them. – Mumbai, 10th December 2003
(Speech delivered on December 10, 2003, the Human Rights Day at a function organised by the Maharashtra State Human Rights Commission in Mumbai)
Home | Index | What's new