HUMAN RIGHTS IN INDIA: A BRIEF STUDY

Reading time : 8 minutes

Contents

INTRODUCTION

MEANING OF HUMAN RIGHTS

ORIGIN OF HUMAN RIGHTS

EVOLUTION OF HUMAN RIGHTS IN INDIA

1.      The Ancient Era

2.      The Medieval Era

3.      The Modern Era

HUMAN RIGHTS IN CONTEMPORARY INDIA

CONCLUSION

INTRODUCTION

To deny people their human rights, is to challenge their very humanity.”

-Nelson Mandela

India is home to a diverse population, and therefore is considered to be a prime example of a multicultural and legally pluralistic society. Not only are the laws supposed to be constructed in a manner that honours all communities, but they are such that it adequately represents all communities as well. Such equal representation was recognised by the framers of the Constitution as an imperative one, since it was to ensure that a majoritarian influence could be avoided in order to protect minority interest. But before delving into the bigger issue of collective or group rights, it is of key importance to focus on individual rights. Each individual, by virtue of his birth in a country is entitled to certain rights that are to ensure that he can live a secure and fulfilling life. These individual rights are grouped together under the term ‘human rights.’[1] It is often a risk borne by individuals that their personal life may be adversely affected by the arbitrary rule of an authority figure, more often the Government of the country. It is the role of human rights in this case, to protect the citizens against any possible breach in their fundamental rights that may hamper their personal growth and in turn may impede the growth of society as a whole. India, with its large population, faces a substantial risk of possibly tampering with the fundamental rights of its citizens. It is often that while attempting to secure ‘national interest’, ‘individual interest’ is compromised, leading to a lack of faith in the Government among the people. While there has been a strong Centre, we have been lacking a strong opposition since a significant amount of time. This, in theory as well as practice, is detrimental for a country’s growth since a weak opposition would mean that there are no checks being maintained on the Government. That leaves room for corruption and therefore misuse of such power. Along with the misuse comes a blatant disrespect for human rights. While India, through its years has been vocal about the protection of human rights and has even passed numerous judgements to ensure the same, the recent decline in the rights available to people has been a cause of serious concern. If the human rights violations that have taken placed in recent years go unreported and unnoticed, it may be paving way for a possibly grim future.

MEANING OF HUMAN RIGHTS

Human rights, in the broader sense, are those rights that are necessary to maintain a sense of dignity and self-esteem in every individual’s life. In abstract terms, it adds a sense of humanity to a politicised lifestyle and ensures that the social and psychological needs of people are being preserved. This is necessary to avoid the stagnation of society, since society is made up of efficiently functioning individuals who need to grow in order to collectively help the society grow. Due to the subjectivity of rights that individuals can possibly possess, the scope of human rights cannot be fixed or narrow in a democratic society. The Protection of Human Rights Act, 1993 (PHRA), that was implemented in India defines human rights under Section 2 (d) as those rights pertaining to life, liberty, equality and dignity as prescribed by the Constitution and the International Covenants.[2] These are enforceable in the court of law and the judiciary and the Government of India shall actively work to ensure that these rights are obtained by all citizens.

ORIGIN OF HUMAN RIGHTS

If one was to attempt to trace the origins of the concept of human rights, it would be discovered that it has existed since the very establishment of simple societies. The nature of human rights is dynamic and it has changed in its definition and scope with the passage of time. Political theorists have widely discussed the origin of human rights and have often discussed the possibility of the existence of the State being directly intertwined with human rights. The political theorist, Harold Laski, in his theory known as ‘Law of Nature’, the principle of morality commands that we do not harm others in terms of their life, liberty or possession and let others protect their interests and live life securely.[3] He also theorised that in sum, a State is known by the rights it maintains. John Locke, an English Philosopher, went ahead to elaborate further stating that all individuals are born with various ‘unalienable’ natural rights.[4] These were known as fundamental rights and they included ‘life, liberty and property’.

 These natural rights were necessary to ensure social solidarity and balance. While these theories were lost in time, the horrors of the Second World War led to a call for strict standards of human rights, since humanity suffered a crippling blow during this period. [5] There were already different statutes present such as the Magna Carta, the English Bill of Rights, etc but they were deemed to be insufficient since they were not inclusive of women and minority or depressed groups. This meant that there was a gaping loophole in the framing of charters until the early 19th century.

Along with the realisation for global human rights came the formulation and establishment of the UN Charter that contained numerous provisions for ensuring the fulfilment of human rights or fundamental freedoms. This charter ensured that a sense of accountability could be established and the countries that were part of this could also claim the rights present in it. In 1948, the Universal Declaration of Human Rights (UDHR), that was a part of the International Bill of Human Rights, stated human rights to be a matter of global concern and absolute in its nature. It argued that these rights were absolutely indispensable.[6]

The Universal Declaration of Human rights encapsulated civil, economic, social, cultural and political rights that were necessary for every individual to ensure their personal growth. However, the UDHR is not legally binding or enforceable but instead plays an advisory role in the making of laws of different nations. The UDHR acted as a foundation for the formulation of the European Convention on Human Rights (ECHR) of 1950 which protected the human rights of those nations that were a part of the Council of Europe. Eventually, the European court incorporated the Human Rights Act of 1998 along with the ECHR in order to ensure that the rights and freedoms of the citizens of United Kingdom.[7]

EVOLUTION OF HUMAN RIGHTS IN INDIA

In brief, it is easy to say that India incorporated the sphere of human rights with the help of the Constitution and also by formulating statutes and provisions of its own (for example, the PHRA), but there’s a history behind the development of the concept of human rights in India. This evolution can be best explained by dividing it into three periods: the Ancient times, the Medieval era and the Modern times. 

1.     The Ancient Era

The concept of human rights is widely believed to be present since the Vedic time and enumerated in several Vedas. The Vedics believed that the king is not only to rule with peace and prosperity, but is also to ensure that the rights of all his people are protected and promoted. Manu formulated various economic and political rights for the people which were highlighted in the Arthashastra.[8] Kautilya went ahead to argue that the happiness of the State is fully dependent on the happiness of its people, thereby highlighting further the importance of individual rights. Faiths such as Buddhism and Jainism ardently propagated the principles of equality and morality while Ashoka propounded ideals of peace and liberty.[9] Ancient civilisations and scriptures were characterised by the constant call for ensuring human rights for all.

2.     The Medieval Era

The Medieval Era mainly relates to the Mughal period in India. Most historians often cite the example of Akbar, whose rule was known as the ‘Golden Age’ since he practiced the concept of religious tolerance and peace among all communities. He went as far as attempting to unite all faiths by charting out a plan of Deen-E-Illahi which preached the concept of secularism and tolerance.[10] It combined the best features of different faiths in order to create one simple policy. Later on, a similar process of tolerance was propagated by his son, Jahangir.

3.     The Modern Era

This is highlighted by the start of the British rule. The British rule, as we all know, was highlighted by multiple gross violations of human rights in India. The introduction of the Regulation Act of 1773 by the British suppressed the economic, social, political as well as cultural rights of the people of India.[11] Basic rights had been suspended, leading Indian leaders to call for the need to fight for the freedom they had lost in order to reestablish a safe country for all Indians. The Constitution of India Bill, 1895, for the first outcry that demanded the restoration of all those liberties and freedoms that had been lost by the Indians. Another major development was the Bill ‘Mrs. Besant’s Common Wealth of 1925’ that highlighted seven essential individual rights that could be claimed by each individual.[12] But while there were atrocities suffered in the hands of the British, there were major progressions made a well.

Raja Ram Mohan Roy worked actively for the abolishment of Sati and to legalise widow remarriage which was achieved during the same period, thereby showing a significant consideration for the rights possessed by women that had been ignored since decades. The topic of women’s education was greatly encouraged by Jyotibai Phule who also worked to ensure a discrimination-free society for depressed classes.[13] Therefore, there were significant progressions made during this time that cannot be ignored.

HUMAN RIGHTS IN CONTEMPORARY INDIA

The Constitution of India, under Part III encapsulates the various fundamental rights that are available to the citizens of India. This was done to ensure that the UDHR could be adopted in such a way that it could be considered legally enforceable. Articles 14-30 under Part III have laid down the possible rights available to citizens. Additionally, Part IV contains Directive Principles that provide the State with supplementary suggestions in order to ensure the welfare of its people. Initially the judiciary had a rigid view while considering cases, they later adopted the concept of Audi Alteram Partem in order to approach cases in a flexible manner and add subjectivity to cases. This can be considered with the example of the interpretation of Article 21, which after the case of A.K. Gopalan v State of Madras, where the interpretation had nearly been narrowed down to right to life being equal to animal existence.[14] But the landmark case of Maneka Gandhi v Union of India widened the scope of Article 21 and went as far as connecting Articles 14 (Right to Equality), Article 19 (six fundamental freedoms) and Article 21 (Right to Life and Liberty).[15] Right to Life now also honours a man’s culture, tradition and attempts to safeguard an individual from all possible fundamental right violations.

The case of Kharak Singh v State of UP discussed how Right to Privacy was to be included under Article 21. In this case, a detained individual’s name had been recorded and the petitioner had argued against this since he believed that it violated his sense of privacy.[16]

Similarly, in the case of D.K. Basu v State of Bengal, which was a case pertaining to custodial death, the Supreme Court laid down guidelines for the treatment of those who were detained.[17] It was being discovered that prisoners were being treated cruelly and were often mercilessly abused in the hands of the police, without even being able to claim possible legal safeguards against such treatment. The court held that such behaviour was a violation of human rights and therefore needed to be condemned in order to protect those who were detained.

Under Olga Tellis v Bombay Municipal Corporation, Right to Life was further correlated to the Right to Livelihood. It was argued that livelihood greatly affects an individual’s standard of living and therefore cannot be held separately from the Right to Life.[18] The court held that should a person be restrained from earning the livelihood they wish to secure, their life would lose meaning and therefore their rights would ultimately be violated.

The rights also specifically focus on the betterment of women and children, as seen in the following cases.

In Unni Krishnan v State of AP, primary education for children was made compulsory, and this can also be found in Article 21 A of the Constituion (under Part III).[19] Every child is entitled to fre,e and compulsory education till they complete the age of fourteen years. People’s Union of Civil Liberties v Union of India saw that all child labourers were to be released immediately and they were to be compensated for their efforts. Additionally, Public at large v State of Maharashtra witnessed children being protected from sexual slavery.[20]

Similarly, in Vishaka v State of Rajasthan, the Court called for establishment of basic guidelines to protect women from sexual harassment at workplaces.[21] This was while keeping Article 14, 19 and 21 (the golden trio) in mind. Additionally, Associate Bank Officers v State Bank of India called for equal pay for women as against men and to get rid of the evident discrimination that was present against women in the organisation. This was to maintained while understanding the scope of Article 14 of the Constitution. State of Maharashtra v Madhukar Narayan Mandlikar interpreted Article 21 in a different manner by protecting the life and liberty of sex workers.[22] Here it was held that even a woman of ‘easy virtue’ cannot have her privacy being violated, which was a deviation from the previous judgement as seen in Tukaram v State of Maharashtra, where the court ruled against the victim on the basis of the fact that she was of ‘easy character’. [23]

In recent years, there have also been other cases that instil a sense of hope in the judiciary’s capacity to uphold human rights. The case of Naz Foundation v Govt. of NCT of Delhi was a landmark case which stated that viewing consensual homosexual sex between two individuals as a crime was a gross violation of the fundamental rights as per our Constitution. Majorly depending on Articles 19 and 21, it argued that it was harming an individual’s privacy by hindering their sexual orientation and thereby leading them to live their life in secrecy and fear. Along with this, it was also to be noted that it was a violation of Article 21 since it does not allow a human to live according to their own preferences and therefore inhibits their shot at obtaining a good quality of life. Not only this, it was also a stance that was discriminatory and backwards in nature. It was, therefore, considered to be a violation of human rights. This led Section 377 to be struck down.

The Sabrimala case also honoured women’s Right to Religion (Article 25) and upheld the belief that they could not be excluded from visiting the temple. However, they also held religious beliefs and attempted to govern while following a middle path.

However, despite all these progressions, India has regressed greatly in the past few years. The Jammu and Kashmir issue has been the greatest violation of human rights and it has not been covered adequately by the Government. Not only was it a very arbitrary decision to revoke the special status of Jammu and Kashmir, the aftermath of the move followed mistreatment of the residents of the same. While Right to Internet is now a fundamental right, and that includes being able to access high speed 4G Internet, all Internet had been suspended in Kashmir for the longest time after the decision was made. Arbitrary arrests were being made of citizens, political leaders, journalists, etc without much reason being provided for doing the same. And while the Internet has been restored, it is still only stuck at 2G speed, which still shows that below average standard of living that is being made available to the residents of Kashmir.[24]

The PHRA calls for the establishment of a Human Rights Commission at Centre and State levels. At Centre levels, it is supposed to be given the power to conduct trials and take decisions that are supposed to be enforceable. While it has made significant decisions, like the investigation during Godra riots[25], in recent years its power has been reduced and there has not been much action taken by the Commission despite the violations occurring around it. NGOs, which have been given a special power under the PHRA, have been more proactive in ensuring that such violations are brought to light and justice is delivered to those who seek it.

During Lockdown, Domestic Violence cases have been on an all-time rise yet no action has been taken against those despite reports stating the same and providing statistics to prove such claims. Arrests by police officers during lockdown on the pretext of ‘violation of covid rules’ have led to arbitrary detention and even ill treatment of prisoners. There were a few cases reported such as a case in West Bengal where a man was beaten to death by the police simply due to the fact that he had stepped out to procure basic necessities. [26]

The lives of journalists have been in danger too since there have been arrests made simply on the pretext of ‘national security’ and ‘public interest’ but no further explanation has been provided as to the rationale behind all these arrests. Not only does it violate the freedom of expression, but it also violates the Right to Privacy. [27]Multiple detentions are taking place simply due to the application of a draconian Sedition Law that hasn’t observed much change since the British era. Yet there has been barely any accountability that has been claimed for all these violations of human rights.

CONCLUSION

India has seen tremendous progress in the scope of human rights since the time it was implemented through the various Acts and Provisions, up until now. There have been multiple cases that have sought to uphold individual rights to ensure that the citizens enjoy a high quality of life and enjoy all those freedoms, liberties and rights that our forefathers sought so hard to acquire. It has been a culmination of their efforts, and our ancestors’, that we enjoy the freedoms and rights available to us now, and it is their sacrifices that have led us so far. The Judiciary itself has played an active role in ensuring that the needs of the citizens are met and that no Act can prevail which threatens the safety of people. But in the past few years, India has been moving backwards and seems to be entering a period of regression when considering the ambit of Human Rights. Along with the examples cited above, even when we consider the haphazard implementation of the CAA and the NRC (that took place in Assam), we see how many people were displaced or are at the danger of being displaced from the country of their origin without the safety of an alternate refuge. This could cause a nation-wide crisis that the country is not yet equipped for, and it could further push down India in the Human Rights Index (India has already fallen a few ranks since previous years, thereby signifying a fall in the human rights that are ensured to people). This regressive phase can only be considered temporary if the Government takes accountability and considers the real welfare of the state before making further decisions, and only then can we truly honour the progressions that we have made in the past.

“Man was born free, but everywhere he is in chains.” – Jean-Jacques Rousseau


[1] Human Rights in the Constitution of India, Available at : http://mls.org.in/books/H-2537%20Human%20Rights%20in.pdf

[2] Analysis of Human Rights in Modern Era, Available at: https://blog.ipleaders.in/analysis-human-rights-modern-era/

[3] The Declaration of Independence and Natural Rights, Available at: https://www.crf-usa.org/foundations-of-our-constitution/natural-rights.html

[4] Id.

[5] Protection of Human Rights in India: A Review, Available at: https://niu.edu.in/sla/online-classes/Amartish-Kaur_Human-Rights.pdf

[6] Supra note at 2.

[7] Id.

[8] Human Rights in India: History and Development, Available at: https://www.legalbites.in/human-rights-in-india-history-development

[9] History and Development of Human Rights in Indian Context, Available at: http://www.iosrjournals.org/iosr-jhss/papers/Vol.%2022%20Issue6/Version-9/A2206090106.pdf

[10] The History and Development of Human Rights in India: A Comparative Study between India and USA’s Human Rights Laws, Available at: http://www.legalserviceindia.com/legal/article-4430-the-history-and-development-of-human-rights-in-india-comparative-study-between-india-and-usa-s-human-rights-laws.html

[11] Supra note at 9

[12] Id

[13] Supra note at 8

[14] Supra note at 1

[15] Development of Human Rights in the Indian Context, Available at: https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1141&context=ijli

[16] Supra note at 1

[17] Supra note at 5

[18] Id

[19] Supra note at 2

[20] Supra note at 5

[21] Id

[22] Id

[23] Tukaram v State of Maharashtra 1979 AIR 185, 1979 SCR (1) 810

[24] World Report 2020, Available at: https://www.hrw.org/world-report/2020/country-chapters/india#

[25] Id

[26] World Report 2021, Available at: https://www.hrw.org/world-report/2021/country-chapters/india

[27] id

Author: Muneera Shabbeer, O.P. Jindal Global Law School

Editor: Kanishka VaishSenior Editor, LexLife India.

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