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Published: Friday 25th of January 2013

The Concept of Human Rights Essay Example

Introduction

The concept of human rights is as ancient as civilization. Over the years, its use and significance has been well articulated. It has become more prominent in the post World War II era, especially after the United Nation’s Declaration of Human Rights in 1948. The concept of Human rights does not have a specific definition. One definition states that human rights are those rights to which every person in any corner of the world ought to be deemed entitled to since they were born a human being. According to the Oxford Power Dictionary, human rights can be defined as the basic freedoms that everybody should have. Human rights emerged out of human capabilities and needs. In simple terms, human rights are meant for humans to meet their basic needs. They are rights that are crucial for a dignified and decent living and also human existence and sufficient development of the human personality. Human rights exist provided that humans exist. They are both inalienable and can’t be separated. Human rights mean the availability of conditions that are critical to the complete development and realization of the innate characteristics which a human being is born with. They are necessary for ensuring the dignity of every human being. Generally, man is outgoing, and he likes to stay together with others. Every human is social and lives in a group within the society. As a person, a human being has the right to life and right to a decent living. As a social being, and a key part of the community, he/she is entitled to other rights also, such as the right to freedom to express themselves, freedom of speech, belief, thought, and right to move freely among others. These rights are critical to the growth of human personality within the society where he/she resides.

Type of Human Rights

Generally, human rights can be grouped into two categories:
  • Those which are essential for the growth and development of the human personality – this category includes the right to cultural and educational rights, freedom of speech and expression.
  • Those which are essential for dignified and decent human existence – this category of human rights includes the right to fulfillment of basic requirements like food, shelter, clothing, health, and sanitation, among others.

The Characteristics of Human Rights

The following are the primary characteristics of human rights:
  • Comprehensiveness - Human rights are considered comprehensive. They include civil, political, socio-economic and cultural rights which are pertinent for a decent human living.
  • Universality - They are universally applicable to everyone. They are intended for every person in all countries without anyone being discriminated based on color, class, creed, language, sex or religion.
  • Justice ability – Human rights are meant to provide fairness for all.
  • Inalienability – Human rights and humans are inalienable and can’t be separated. One can’t exist without the other.
  • Non-absoluteness – Rights here aren’t absolute. Restrictions can be imposed on them.

The Philosophy of Human Rights

The philosophy of human rights tries to look at the fundamental basis of this term human rights. It also looks at what it entails and its validation. One philosophy of human rights states that human rights come from natural law, stemming from various religious and philosophical positions. On the other hand, some theories state that human rights are the basis of moral behavior which is a social outcome brought about by biological and social development. Human rights can also be depicted as a sociological pattern of rule setting. There are two theories that are dominant in the human rights field; these are the will and interest theories. While the will theory tries to explain the authenticity of human rights based on the human capacity for freedom, the interest theory, on the other hand, states that the primary function of human rights is to safeguard and promote important human interests. However, this concept has also faced some criticism. Various philosophers such as Edmund Burke and Karl Marx have criticized human rights. An international scholar from France, Alain Pellet, criticized human rightism as not acknowledging the notion of sovereignty. Canadian professor Charles Blattberg states that human rights discussions don't motivate people to advocate for values that the rights are supposed to affirm.

Development of the Term Human Rights

The concept of human rights can be attributed to natural rights ideas arising from natural law. Notably, the subject of human rights came about through the examination of extending rights to the natives by Spanish clergymen like Bartolome de Las Casas. Las Casas argued for equal rights to freedom of slavery for all human beings irrespective of religion and race. The concept of human rights received a strong backing with the emergence of Magna Carta in 1215 and the Bill of Rights in England around 1689 after the 1688 Revolution. Unlike John Locke and Thomas Hobbes, who talked about the partial surrender of a couple of natural rights, individuals were never to give up rights such as the right to liberty, property, and life since they were termed as inalienable. According to Locke's theory on natural rights, citizens always have a legitimate right to remove a government from power if it could not protect their rights. Years later (1776 to be precise), the American Declaration of Independence came into existence. It states that all men are created equal, and they are assured of inalienable rights such as the right to liberty, the right to life, and the right to the pursuit of happiness. The French Declaration of Rights of men and citizens as a consequence of the French revolution came about almost ten years later (1789). This Declaration stated clearly that men are born free and remain free and equal while enjoying the rights to liberty, property, security, and resistance to oppression. During the 19th century, human rights became prominent, especially on the slavery issue. Many reform-minded people, for example, British MP William Wilberforce strived to fight for the ending of slavery as a whole and the Atlantic slave trade. This was accomplished through the Slave Trade Act of 1907. In the 20th century, various human rights groups accomplished a lot of changes with regards to human rights. Labor unions in the west successfully championed for laws granting workers the right to strike, coming up with minimum working conditions and eliminating child labor. Rights for women were also achieved (especially the right to vote). Liberation movements in most countries were successful in defeating colonialism. There were also various movements by oppressed minorities, for instance, the civil rights movement for the African Americans. The setting up of the International Committee of the Red Cross and the initial Geneva conventions laid the groundwork for international humanitarian law that was later developed after the two world wars.

The United Nations and Human Rights

Article 55 of the UN Charter (1945) mandates the United Nations to promote universal respect for and observance of human rights and the freedom for all. In accordance with the UN charter, which provided for the creation of a commission for the promotion of human rights, a commission was established in 1946 that was headed by former first lady, Eleanor Roosevelt. This commission worked rigorously and eventually in September 1948 presented before the General Assembly the draft declaration on human rights. After several changes to the draft document, the Universal Declaration on Human Rights was eventually unanimously adopted on 10th December 1948 by 48 member states (in the absence of eight states that included South Africa, Saudi Arabia, and the then Soviet Union). In light of this, every 10th of December is usually observed as the Universal Declaration of Human Rights Day. The UDHR contains 30 articles and guarantees every human being in the whole world decent living standards and social security. This declaration embodies several cultural, religious and traditional values that are stated as follows:
  • Observance and safeguarding of these criteria including contractual obligation.
  • Respect for the dignity and human rights, tolerance and significance of the criteria applicable to individual and group relations in social life.
Therefore, this declaration of human rights has ensured human rights and freedom for all people without discrimination against color, race, sex, and religion. The United Nations Declaration on Human Rights is centered on the following four promises:
  1. The state plays the role of the protector and promoter of human rights.
  2. The rights are universal.
  3. An individual bears rights.
  4. The rights incorporate political, economic, social, cultural and civil aspects of all humans.
The United Nations adopted two other instruments in 1966 that supplemented the UN Declaration on Human Rights. The first one is referred to as the ICCPR (International Covenant on Civil and Political Rights), while the second one is called the ICESCR (International Covenant on Economic, Social and Cultural Rights). Over two-thirds of UN member states have ratified these two instruments. Other than the above, there is also the Optional Protocol to the International Covenants on Civil and Political Rights, where an offended person is entitled to the right to appeal. Therefore, the UN declaration together with the two covenants and the protocol mentioned above make up the International Bill of Rights. The objectives of the UN declaration have been stated in the first line of the declaration. This declaration can be summed up as follows; The foundation of freedom, justice, and peace in the whole world is through the acknowledgment of the equal and inalienable rights of all human beings. In short, every person has been guaranteed a dignified living free from brutality. There are other documents which have supplemented the United Nations Declaration on Human Rights:
  • The Convention on Political Rights for Women.
  • Convention on suppression and punishment of apartheid crimes.
  • International Convention on Prevention of Punishment on Crimes of Genocide.
  • United National Educational, Scientific and Cultural Organization (UNESCO) convention against educational discrimination.
  • The supplementary convention on slave trade and slavery abolition, institutes, and practices.
  • The International Convention on elimination of all kinds of Discrimination.

Broad Categories of Human Rights under UNDHR

This declaration has ensured two broad categories of rights, that is, socio-economic and cultural rights, and civil and political rights. Socio-economic rights include the following:
  • Right to social security for the elderly, sick, widowed and unemployed.
  • Right to preserve and spread culture.
  • Right to work, come up with trade unions and equal pay for equal work.
  • Right to marry and have a family and also right to property ownership.
  • Right to leisure and rest.
  • Right to adequate food, adequate living standards, and health.
  • Right to partake in cultural life.
Civil and political rights, on the other hand, encompass the following:
  • Right to fair trial.
  • Right to freedom from slavery.
  • Right to life, security, and liberty of individuals.
  • Freedom of expression, thought, belief, conscience, faith, and religion.
  • Right to equality of individuals before the law, right to judicial solutions, and right to freedom from random arrests, exile or detention.
  • Freedom from punishment or torture.
  • Right to belong to a nationality.
  • Freedom of movement and right to asylum.
  • Right to be included in public affairs, to vote and equal access to public service.
  • Right of one to express oneself, right to freedom of speech and peaceful assembly.
In 1993, a conference on human rights was held in Vienna, Austria that dealt with issues non-selective standard application and universality of human rights. According to the document agreed upon at the conference, all humans are indivisible, depend on one another, universal and relate with one another. Human rights must be treated fairly and equally by the international community on a similar footing and with a similar emphasis. While the importance of regional and national distinctiveness and different cultural, historical and religious backgrounds should be considered; it is the responsibility of the state, irrespective of the economic, cultural or political system, to advance and protect every human right and basic freedoms. A question that has occasionally been asked by some human rights activists is whether the infringement of the sovereignty of a nation-state can be permitted to preserve and protect against the infringement of human rights. The general response has always been ‘yes' since the actions of a state towards its citizens can't be regarded as private anymore, and it is the responsibility of the whole international community to guarantee every person’s protection against human rights violations.

The Human Rights Concept in India

Since time immemorial, India has always committed herself to the human rights ideals. To be consistent with the UNDHR, part 3 of India’s constitution provides for basic human rights, thus ensuring justice, freedom, and equality for all Indians. Moreover, part 4 titled Directive Principles of State Policy guarantees socio-economic rights. India's struggle for freedom from British rule was also seen as a fight for human rights. In India, the six basic rights consist of both collective and individual rights, but emphasis has been put on a person's right to equality of opportunity for all, including the ones who belong to the disadvantaged group of the society in the nature of protective discrimination. Articles that concentrate on protective discrimination are 14, 15, 16, 17, 29, 38, 46, 330, 332, 334 and 335. They guarantee an equal social order. Under article 17, the elimination of ‘untouchability' has been allowed by the constitution. And its practice in any way has been termed as a public offense. In addition, articles 16 (4), 15 (4) and 335 handle the reservation of seats to ensure admission into various educational institutes and posts for appointment to various S.Cs and S.Ts services as a way of guaranteeing and securing socio-economic justice. The state legislature and union seats have been reserved for the S.Ts and S.C s. Thirty percent of seats in Orissa state have been reserved for women belonging to urban and rural local bodies.

Protection against Human Rights Violations in India

There is no consistency in the extent of the violation of human rights. Instances of human rights violations in India are in abundance, and they are also recurring. Most of these cases include murder, prostitution, rape, child labor, sexual harassment, domestic violence, political violence, riot victimization, ethnic hatred, communal violence that have resulted in the loss of human lives and property, genocide, discrimination based on class, worker exploitation and extreme action from the state. However, two fundamental questions arose; how can protection against human rights violations be guaranteed? Through which techniques can human rights in India be protected? Ever since the 1980s, one type of technique or mechanism for the safeguarding of human rights of the distressed, poor and disadvantaged groups emerged. This mechanism is referred to as SAL (Social Action Litigation) or PIL (Public Interest Litigation (PIL) or Social Interest Litigation (SIL). India's Supreme Court has gone ahead and recognized these litigations, thus allowing human rights activists and other citizens, in general, to agitate for the enforcement and safeguarding of human rights of the socially and economically disadvantaged persons of the society who cannot go to court on their own. In addition, the Supreme Court via liberal interpretation and the utilization of the Public Interest Litigation method has strived to protect the rights of human beings in the following ways:
  • Through expanding the extent of human rights – The scope of the right to personal liberty and life has extended to other areas like the right to earn a livelihood, live in a dignified manner, swift trial, education, medical care, housing, and right against sexual harassment, bondage, solitary confinement, etc.
  • Through the provision of short-term relief to victims and aggrieved individuals through either compensations or what is referred to as compensatory reliefs.
  • Through monitoring of state-controlled institutions such as jails, police stations, juvenile homes and mental asylums by the judiciary.
  • Through democratizing access to justice via the Public Interest Litigation (PIL) petition filed by human rights activists or various citizens of goodwill on behalf of the disadvantaged and poor people of the society.
  • By recommending new methods of fact-finding – In most instances of human rights violations, the Supreme Court of India has appointed various commissions of inquiry or officers for fact-finding missions and conducting investigations. Through carrying out this latest kind of investigative litigation, the Supreme Court of the land and the high courts have requested institutions like CBI, the National Human Rights Commission (NHRC) and other NGOs to assist them in the investigation of human rights violations.

India’s National Human Rights Commission (NHRC)

In accordance with the protection of the Human Rights Act (1993), India's premier National Human Rights Commission was constituted in 1993, and its first chairperson was former chief justice, Shri Ranganath Misra. This commission consists of only one chairperson and other members appointed by the president of India. The chairperson is supposed to be an ex-chief justice of India’s Supreme Court. The NHRC comprises of five members, of whom one should be a judge of the Supreme Court, the other a chief justice of a state high court, and the remaining two must be selected from among other individuals who are knowledgeable or experienced in matters relating to Human Rights. The chairperson plus the other members are supposed to hold office for a duration of five years or until they turn 70. Also, the NHRC enjoys independence from the methods of appointing its members, their security of tenure and other legal guarantees assured to them. Moreover, it enjoys financial independence. On the recommendation of a body comprising of India’s chief justice, Prime Minister, Speaker of the Lok Sabha, home minister, the Lok Sabha’s opposition leader and the deputy chairman of Rajya Sabha, the president appoints the chairperson together with the rest of the members. The president has the powers to remove the members of the NHRC on the grounds of either incapacity on an inquiry carried out by the Supreme Court or misbehavior. Also, the National Human Rights Commission has some ex-officio members such as the National Commissions for STs and SCs chairpersons, National Commission for Minorities chairperson and the National Commission for Women chairperson. The services of these commission heads are efficiently used in the common interest. With regards to complaints of violations of human rights, the commission has its investigating team. It can also team up with any other investigative agency of the State or Central government. The human rights commission of Orissa state has lately been set up under the leadership of Justice Shri Mahapatra. One of the members appointed is former State Chief Secretary SM Patnaik.

How Does It Work?

While investigating the complaints received, the commission shall enjoy the powers of a Civil Court trying a suit using the 1908 Code of Civil Procedure. The NHRC can call for witnesses and enforce their attendance, obtain any evidence on affidavits, produce any document, request for any public record and give out commissions for any witness examinations. While investigating the complaints of infringements, the NHRC may request for information from the respective government and convince itself as to the concerned authority or government’s action in the case. Also, it can have its inquiry if it doesn’t receive any response from the respective authority.
The commission can then take any of the steps highlighted below after the completion of the inquiry:
  • Get in touch with the Supreme or High Court for proper directions.
  • Recommend prosecutions for the guilty party.
  • Recommend the release of the interim monetary relief to those directly affected or their family members.

The Functions of the NHRC

Below are the major functions of the commission:
  • To get involved with an ongoing judicial proceeding that involves the claims of human rights infringements.
  • To promote research on Human Rights.
  • To investigate various human rights violation complaints.
  • To promote social activism.
  • To encourage literacy on human rights.
  • To assess current human rights laws.
  • To suggest ways of successfully implementing the laws.

The Role of the NHRC

It is evident that this commission has no power to take any binding decision. It has to rely on other bodies like the High Courts or the Supreme Court, or even the respective state or central governments to put into effect its recommendations. In addition to the above, the National Human Rights Commission (NHRC) also encounters various drawbacks. In many cases, its role is one of requesting the respective governments to investigate claims of human rights infringements it has received and then notify the commission of the actions to be taken. Furthermore, it also requests the CBI to conduct investigations and then report its findings. In spite of all these limitations, the commission has thus far done a commendable job in thwarting violation of human rights and safeguarding them. Also, the commission has efficiently handled cases of infringement on human rights brought about by things such as custodial deaths, terrorism and insurgency in areas like North-Eastern states, Kashmir and Punjab, sexual harassment, among others. It has also made progress in dealing with matters concerning prison and police reforms, juvenile home improvement and refugee and emigrants.

The Best Bakery Justice Case and the NHRC

It might not be appropriate to talk about the new role that the commission has lately played in the re-opening of the Best Bakery case and three other riot-related cases like the Godhra massacre through bringing them before the Supreme Court on a Special Leave Petition (SLP). The National Human Rights Commission, in the SLP, requested for further investigation by an independent body and had sprayed for setting aside the impugned judgment in the Best Bakery case. In the Godhra disaster, 59 people were burnt alive on board the Sabarmati Express at Godhra. On the other hand, the Sardarpura Case is associated with the death by suffocation of 33 persons in a room in the village of Sardarpura, Mehsana. 39 individuals, including ex-Member of Parliament Jafri Ehsan, lost their lives. The National Human Rights Commission got a chance to visit Vadodara after the Best Bakery case judgment was delivered, which led to the acquittal of 21 individuals accused of burning 14 people alive on March 2002 in Vadodara because 41 witnesses became somehow ‘hostile' and thus no substantial evidence could be found against those accused.
In the SLP, the NHRC argued that the notion of a fair trial is a constitutional requirement and is clearly recognized as such in particular provisions of the constitution. The National Human Rights Commission has gone to the Supreme Court as it believed that the judgment on the Bakery case by a fast track court made people to lose faith in the justice system. Therefore it was up to the Supreme Court to analyze the judgment, look at its reasoning and also look into the basis on which the Modi government challenged it before the High Court a day prior to the Supreme Court's hearing of the NHRC's petition. While asserting detail of fair trial in the Bakery case, the commission declared that any violation of a right to fair trial not only infringes on fundamental rights under the constitution but also violates internationally recognized human rights. The NHRC went on to mention that every time a criminal gets off scot-free, the society at large is the one that suffers since the victims become disheartened and the criminals are encouraged. In addition, the NHRC has prayed the Supreme Court for uncovering the truth and delivering justice in order for the offenders to face punishment. A critical witness in the Best Bakery case, Zahira Saikh, who became ‘hostile' while under pressure, also requested for a retrial of the case outside Gujarat and had further claimed that vital evidence was shut out via intimidation and threats. In a three-judge bench, the apex court of the land, headed by chief justice Khare has changed NHRC’s SLP to a PIL petition and has requested Modi’s government in Gujarat to present within two weeks the details of the statements made by the witnesses in the bakery case before the Vadodara trial court and the police. On the other hand, the state has gone to the high court at Gujarat to appeal the Best Bakery case. The National Human Rights Commission's role, in this case, has strengthened the cause of human rights protection in India against violation and miscarriage of justice. Its alertness and awareness has increased public awareness on the significance of human rights.

The Future of Human Rights in India

The increase in Naxalite and terrorist activities has a significant impact on human rights in India. The loss of human lives and property and mass killings is on the rise in places like Kashmir, Jammu, and Orissa. One fault of human rights enforcement is the lack of enforcement techniques. The powers to enforce human rights can be termed as weak, hence ineffective. In India, the process of ensuring a fair trial mostly takes long, is expensive and, therefore, the poor cannot afford it. This eventually leads to delayed justice for victims of human rights violations. The ideal safeguard for human rights is the media, whose role of highlighting cases of human rights violations and enhancing public awareness is vital. The media assists in creating an alert and vigilant public. Media reports concerning the sale of small children in Andhra Pradesh and by tribals in Orissa, and also starvation deaths in Kahalandi district (Orissa) are eye-openers when it comes to cases of human rights violations. The human rights movement will have a brighter prospect in India if the people are assured of their right to information. They must be aware of what’s happening around them. If correctly developed, such a mechanism of ensuring the right to know will guarantee the protection and promotion of human rights and also prevent their infringement. People have to wake up to this expectation.

Conclusion

Firstly, the National Human Rights Commission’s input towards the prevention of human rights violations is commendable. It has ensured the safeguarding of human rights. Through various workshops, media publicity and seminars, the commission has educated the masses to ensure efficient promotion and protection of human rights and thwart all forms of mental and physical torture. Moreover, this commission has encouraged non-governmental organizations to defend the poor and distressed against any violations and thus enjoy their rights as human beings. Thirdly, the NHRC has spared no effort in ensuring that the central and state governments are made accountable, answerable and responsive to human rights issues and also to take necessary action against anyone that violates human rights in India. Furthermore, the highest court of the land (The Supreme Court) and high courts have made important contributions (via orders issued to the governments in PIL issues) in dealing with grievances against human rights violations caused by government excesses. In India, Public Interest Litigation (PIL) actions have been successful in various crucial human rights violation cases for instance:
  • The Anil Yadav case, where the police blinded 33 suspected criminals.
  • ]The citizens for democracy case where TADA detainees were handcuffed while kept in rooms, and while being transported to court and back.
  • The Hussainana case (with regards to the plight of many under trial prisoners in Bihar jails.
The list goes on. All in all, human rights are still universal to all, and they must be campaigned for.
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