This article is written by Anuj Sharma, Student, Department of Law (LLB 3 years), University of Jammu.
Keywords:
- Rights and definitions by various jurists
- Evolution of rights
- Human rights
- Position adopted by different constitutions
- Contemporary position
Abstract:
This article seeks to give a brief introduction about what rights are, different types of rights and how different jurists have given their interpretation over the years. It then seeks to dive into how the concept of human rights has evolved over centuries, how human rights have become indispensable in any modern democratic setup and how it has grown into a global phenomenon. The article also goes into intergovernmental organizations and their adoption of fundamental rights and various enforcement machineries setup by them for redressal in case of violations. The article then gives a brief view regarding how the concept of rights has been incorporated by various countries in their constitutions.
RIGHTS
A right is an entitlement. In simple terms, it means the standard of permitted action.
Salmond: A right is an interest recognized and protected by a rule of right’. It is an interest respect for which is a duty, and disregard of which is a wrong.
Since right is always conferred by law, we shall dive deep into the concept of legal right;
Holland: Holland defines legal right as the capacity residing in one man of controlling, with the assent and assistance of the state the actions of others’.
Roscoe Pound observes that legal rights entails;
- An interest which is secured and protected by law;
- A recognized claim to act forbearances by another or by all to make the interest effective;
- The capacity of creating or altering rights;
- The privileges and liberties and
- As an adjective, it is meant to give effect to recognize and give effect to moral rights.
Gray: A legal right is “that power which the man has, to make a person or persons to do or restrains from doing a certain act or acts so far as the power arises from society imposing a legal duty upon the person or persons. He states that the “right is not the interest itself, it is the means to enjoy the interest secured”.
Hon’ble Supreme Court of India in State of Rajasthan vs Union of India [1], stated that “Legal rights in the strict sense are correlatives of legal duties and legal rights are defined as the interests which the law protects by imposing duties on other persons. But the legal right in the strict sense means right is the immunity from the legal power of another. Immunity is no subjection at all”.
Types of legal rights:
- Perfect rights and imperfect rights
- Positive and Negative Rights
- Real and Personal Rights
- Proprietary and Personal Rights
- Public and Private Rights
- Inheritable and Uninheritable Rights
- Right in repropria and Right in realiena
Human rights
Broadly speaking human rights may be regarded as those fundamental rights which are essential to live as human beings. Human beings are rational beings. Every human possess certain basic, inherent and inalienable rights which are commonly known as human rights. These are defined as all those rights which are essential for the protection and maintenance of dignity of individuals and create conditions in which every human being can develop his personality to the fullest extent. Thus these are also referred to as fundamental rights, basic rights, inherent rights, natural rights and birth rights.
The Universal Declaration of Human Rights (UDHR), 1948 defines human rights as “Rights derived from the inherent dignity of the human person.”
Section 2 (1)(d) of the Protection of Human Rights Act, 1993 defines “human rights” as- “Human Rights are the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India”.
CHARACTERISTICS AND NATURE OF HUMAN RIGHTS
- Human Rights are Inalienable
- Human Rights are essential and necessary
- Human Rights are in connection with human dignity
- Human Rights are Irrevocable
5. Human Rights are Necessary for the fulfillment of purpose of life
6. Human Rights are Universal
7. Human Rights are never absolute
8. Human Rights are Dynamic
9. Rights as limits to state power
Historical background
The Cyrus Cylinder (539 B.C.)
After the city of Babylon was captured by armies of Cyrus, the king freed all the slaves and established a rule of equality, freedom to choose religion of choice, etc. all these formed what came to be known as Cyrus cylinder, and is regarded today as world’s first charter of human rights.
The idea of human rights spread quickly to other parts of the world like India, Greece, etc.
The Magna Carta (1215)
In England, King John violated numerous ancient laws and customs after coming to power which created a lot of resentment among the people. He was then forced to sign the “Manga Carta”. It is also popularly known as the “Great Charter”. The document was the first of its kind and laid down the foundation of what is known as human rights in the modern world. It separated the church from governmental interference, provided property and other rights to all subjects, established due process of law, and brought about many monumental changes.
Petition of Right (1628)
The next recorded milestone in the development of human rights was the Petition of Right, produced in 1628 by the English Parliament and sent to Charles I as a statement of civil liberties. The Petition of Right asserted few principles: (i) no tax without authority; (ii) establishes habeas corpus; (iii) limitation of martial law; etc.
The Constitution of the United States of America (1787)
USA has the oldest written constitution in the world. Bill of Rights was incorporated in the constitution itself which established basic human or fundamental rights which are given to everyone without discrimination. These include right to bear arms, right to protest, etc.
France
After the abolishment of the absolute monarchy in France and the stage for the establishment of the first French Republic was set. The Declaration of the Rights of Man and of the Citizen was adopted by the National Constituent Assembly which marked the first step toward writing a constitution for the Republic of France. The Declaration proclaims that all citizens are to be guaranteed the rights of “liberty, property, security, and resistance to oppression.”
UN Charter and Human Rights
The charter of the United Nation also known as United Nation Charter of 1945. It was the fundamental treaty of united nation. The UN charter articulated a commitment to hold human rights of citizen and outline a broad set of principles relating to achieving highest standard of living, addressing economic, social, health and related problems and universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. The UN charter was drafted on 14 August 1941 and it was signed on 26 June 1945 in San Francisco, California USA. It was affected from 24 of October 1945. There was 51 original members countries of the charter. It entered into force on 24 October 1945 after being rectified by the original 5 permanent members of Security Council.
Universal Declaration of Human Rights
In January 1946, the UN Economic and Social Council established a commission on human right comprising of 18 members from various nationalities. The commission is a standing body of UN was constituted to undertake the work of preparing what was initially conceived as an international Bill of rights. The commission established a special universal declaration of human rights. The Drafting committee chaired by Eleanor Roosevelt to write the article of declaration.
Once a committee finished its work in May 1948. The draft was further discussed by the commission on human rights, the economic and social council and the third committee of the general assembly before being put to vote in December 1948.
The universal declaration of human right was adopted by the general assembly as resolution no. 217 on 10 December 1948 in Paris as the third united nation general assembly was held there of the then 58 members of UN, 48 voted in favor , non- against and 8 absented.
The universal declaration of human rights enumerated the basic postulate and the principle of human rights in a most comprehensive manners. It dealt not only with the civil and political rights but with social, economic and cultural rights as well.
The declaration consists of a preamble and 30 articles. The provisions of the declaration are classified into 4 categories as follow—
1. General Article 1 and 2
2. Civil and Political Rights (Article 3 to 21)
3. Economic, Social and cultural right (Article 22 to 28)
4. Concluding (Article 29 to 30)
Enforcement machinery:
Human Rights Committee: The Human Rights Committee was established in 1976 in accordance with part IV of the International Covenant on Civil and Political Rights. It consists of 18 members elected by States parties for a term of four years. The main concern of the Committee lies in monitoring the implementation of the International Covenant on Civil and Political Rights and its Optional Protocol. The Human Rights Committee performs following functions: a) The Committee studies the reports submitted by States parties on measures adopted by them to give effect to the rights recognized under the covenant and make suggestions and general recommendations to the States parties. b) The Committee under certain circumstances receives and considers communication in which a State party claims that another State party is not fulfilling its obligations under the present covenant. c) The Committee, in case of disputes between State parties, appoints an ad-hoc conciliation Commission to make available to such states parties good offices of the conciliation commission with a view to an amicable solution of the matter; and d) The Committee receives and considers communications from individuals who claim to be victims of a violation of any of the rights set forth in the Covenant. The Committee forwards its views to the State Party concerned and to the individuals.
Indian context:
The Constitution of India guarantees Fundamental Rights to all citizens under part 3 of the contitution. These are grouped into 6 categories:
- Right to equality (Articles 14–18)
- Right to freedom (Articles 19–22)
- Right against exploitation (Articles 23–24)
- Right to freedom of religion (Articles 25–28)
- Cultural and educational rights (Articles 29-30)
- Right to constitutional remedies (Article 32-35)
An individual whose right has been violated can directly approach the highest court of the land i.e the supreme court of India and seek remedies. Article 32 and article 226 of constitution of India itself provides for 6 types of writs that can be used by the court to enforce a right when it has been violated. However these rights are not absolute in nature[2] and as subject to reasonable restrictions like public moral, security of the state, etc.[3]
Conclusion:
Human rights have grown to take a global significance and have become irreplaceable in character. What once was viewed as a privilege that only rich countries can afford has now become an indispensable part of lives of everyone as it is guaranteed by most of nations. There are proper enforcement machinery in place that ensures their enforcement.
[1] 1977 AIR 1361, 1978 SCR (1) 1
[2] https://www.casemine.com/judgement/in/574c36e8e561090f2a0eaec9
