Wednesday, May 23, 2012

Human being .Human rights advocacy is not an encroachment upon the national sovereignty , but is an ultimate aim of state craft


HUMAN RIGHT IN INDIAN DEMOCRATIC CONTEXT
The concept of Human rights relates in its immemorial antiquity from the time of inception of the Human being .Human rights advocacy is not an encroachment  upon the national sovereignty , but is an ultimate aim of state craft .The rights of men are assets to humanity and a liability of the State.  Man has created the concept of state to preserve his natural rights.
The concept of fundamental law and fundamental rights are the of spring of the natural rights . This stands above the positive Las  created by the political sovereign . The philosophical foundation of  Human right has got tremendous power and vigour . Human rights is legitimacy of democratic political order which is enshrined in most of the constitution of different countries. Rene cassin at Colloguim  has defined Human rights as “the science of human rights relates in the light of human dignity for the full advancement and development of personality of human being . Thus the human rights are such written instructions which starts from Magna-Charta -1215 , Petition of rights -1688. The French declaration of rights of citizens -1989 proclaim the natural and imperceptible rights of Man’s liberty ,property, security and resistance to oppression.
The American declaration of independence -1776 ; “ All men are created equal” ( in pursuit of the happiness as endowed by creator upon all men ).The preamble of universal declaration of human rights may be summarised at this juncture ; “ Whereas recognition of inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom , justice and peace in the world ; “whereas disregard and contempt for human rights have resulted in barbarous acts , which have outraged the conscience of the mankind , and the advent of a world in which human beings enjoy the freedom of speech and belief and freedom from fear and want has been proclaimed as the highest   aspiration of the common people ;whereas it its essential , if man is not 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; “whereas it is essential to promote the development of friendly relations between nations ;”whereas the people of the united nations have in the charter reaffirmed their faith in fundamental freedoms ;whereas member states have pledged themselves to achieve, in co-operation with the united nations , the promotion of universal respect for and observance of human rights and fundamental freedom; “whereas a common understanding  of these rights and freedom is of greatest importance for the full realisation of this pledge.
The preamble so incorporated has inspired the various constitution of the world to include certain basic human rights through court of law. The object of human rights jurisprudence is to human state agencies and to make state accountable to use of power only for human good . In A.I.R.1957 SC page 620 it has been laid down that human rights have always under pinned the common wealth. The evolution of empire into commonwealth was itself a testimony of most basic human rights -self determination .
The powerful repudiation due to  the diversification from the sense of family concept between people has  become one of the major threat to human rights and they have transcending the difference  of race religion , language and culture . In Canada under section 11 there  is right of the citizens against ex-post-facto law. In China 1982 under 42 there is the incorporation of the rights to work while in U.S.S.R 1977 under Article 75 -2 there is the right to protection by the courts against encroachment on the citizen owner and reputation along with other rights . In west Germany the citizens has right to development of personality under section  2 (1) of their constitutional -1949. These rights although being recognised on principle under the ambit of the expression life , but they are still not been recognised as that of fundamental rights under our constitution . These rights are required to be effectively protected to achieve the principles of  internationally recognised human rights as to achieve    the ultimate goal of rule of law under the society .No society can be considered truly democratic if its citizens are denied possibility of vindicating their legal rights as enshrined under section 2(d) of the Human Rights Act,1993. Human rights reiterated the need to explore the possibility of establishing the promotion  and protection of human rights . The attendant special  significance after the Vienna convention 1993 by which strong public opinion was created for safeguarding for human rights . Human rights are aspirations of the common people for peaceful coexistence. Iran has set-up   on International Islamic human rights commission .
In Jagmohan Singh Vs State of U.P A.I.R 1975 S.C 1947 , the Supreme court has thoroughly discussed the constitution aspect of capital punishment . In Bachan Singh Vs State of Punjab A.I.R 1980 S.C 598 the sentence was expected to be imposed in rarest among rarest case. Since 1964 amnesty international reported that united state was one of the sixth country known to have executed juvenile offender with death sentence . On 14.2.1989 Ayotollaha Khomeni  pronounced’ A Fatwa a sentence of death for Salman Rushidi for his book ‘Satanic Verses’. In China five hundred people were executed in 1990 before the start of Asian games to clean up crime.
The nature of  the crime, the circumstances of the crime should be so revealing that  if the criminal is managed to escape , he may provide a great terror to  the society and in such circumstances the life imprisonment is not an adequate sentence. In such case , after due care and cautions if the sensitiveness of the crime is accepted by a judge , the death sentence may be awarded. Although , life once lost cannot be brought back up by the human efforts.
The fifth pillar edict of great Emperor of Lord Ashoka, postulated death penalty as a heinous crime. Hindu jurisprudence , according to Yagna Valkaya was in favour of capital punishment . Manu prescribed death penalty for offences of treason. Kautilaya has also prescribed the death penalty for rapist , thieves of treasury and also for the thieves of King’s elephant and horses even the individual performing funeral rites was prescribed death penalty.
Theft of jewellery was liable for simple murder (Kautilaya Arthashastra, chapter 85,magin 4, verse 2). Theft of government property from Store of government worth of ten pounds was liable for capital punishment . Theft of private property worth fifty cents and helping the accused to abscond from prison , murder by weapon and culpable homicide were liable to capital punishment . Killing of pregnant women ,sinking of a child into the water after two months of delivery and demolition of the dame shall be dealt with by killing the accused person by dipping  him into the water.
In 1991, UN security council decided to implement a general embargo  on all deliveries of weapons and military equipment to Somalia. The 46th session of Human Rights Commission of United Nations  met from 29.1.1990 to 9.3. 1990.The international commission on jurist intervention the situation of Human rights occupied by Israel in the situation of human rights in China , Iraq and Paris .The commission passed several resolutions condemning Israel. Human rights abuses in occupied territory. The sub-commission expressed its it’s concern about the report such as disappearance and extra judicial execution continue to occur.
In India  Human rights group must be created for  promotion , prosperity and global stability . The police beatings arrests and execution without trial and mass killing have been reported . This is the crime against  humanity , there should be conscious , awareness of  such rights amongst have naught and to achieve at the cost of the domestic legislation should be made in conformity with the international standard of such Human rights . The expensive nature of the procedural aspect of praying perform justice is a real stumbling block in achievement of justice.
In Francis versus administration  A.I.R 1981 SC 746,Subhash versus State of Bihar 1991 S.C.J  564 , Upendra versus State of Uttar Pradesh 1982 (2) SCC 308, versus Union of India 1987 SCC 156 and in Indra Singh Vs State of Punjab 1995 SCC Crl. 586  citizen for democracy versus State of Assam 1995 SCC Crl. 680 S.C.  legal aid committee representing  under trial prisoner has laid down that human rights are never safe in the country unless an activists judiciary with pragmatic humanism becomes the sentinel on quivive. In India, constitution  really enables the Indian courts to accord due recognition to human rights. Fostering respect for international law is an obligation of the state under the Article 51 of the constitution. Therefore , it has become the duty of the courts of the land to take notice wherever  there is a grave violation of the of human rights by the state , or  by any authority under the state or an individual . In fact, in the year 1984, the Attorney  General of India had appeared before the human rights committee and asserted that both the Supreme court and High Courts accorded priority to the cases of Human right violations  and took speedy action to pronounce on them. They were normally settled in matter of weeks rather than months and the committee need have no fear that the remedies against the violation of human rights in India were anything less than very effective.
However, all kinds of courts -even the Supreme Court -sometimes rejecting petition on gross violation of human rights , directly the persons concerned to file individual complaints for alleged offences in the ordinary forums situated in different jurisdictions. One can easily find in almost all the states in the Indian union and in the union itself are of excessive force and preventative steps resulting in death and destruction  of ordinary people . Protects and struggle for bringing about social changes which are only natural in an iniquitous system are invariably met by the authorities voluntarily, resulting in violation of the dignity and rights of individuals. It is not therefore surprising that the Director general of Police is trying to justify cover upto the burning down of hamlets of the tribal on the ground of such people giving shelter and good to naxalites.
Human rights dies in harness , but the outcome of the death becomes  glory to fortified the concept of Human conscience. The individual stressing for the survival of such rights should be like Arjun to lord Krishna , But unlike  Arjun he should never failed to encourage nor even stood in the needs of others another guidance. Like Socrates, he should depend on pure reasons , but unlike Socrates, he should be loved and respected by his country man . The quest of success be parallel to the courage of Napoleon , who on the battle after  the battle, but he should never had an adverse water loo. He should have an endeavour for entering into the battle  of independence as commander of the Army consisting of his family member with the spirit of brotherhood then only human rights may survive in the society. One should plunge himself into this freedom of struggle , otherwise the human rights can never survive.
In the present context of  the political set-up of the country having certain global phenomenon regarding involvement of the politician at large in the nefarious activities by gaining undue prominence without any moral obligation towards the citizens to protect their human rights , there should be the persistent efforts of the people for participating into political sphere as the article of perpetuating corruption by mediocrity and thereby earning enormous money and power to be restricted   for which the person willing to sacrifice their future for the betterment of the human rights of the public may come forward . The choice of the people in political  arena for launching any political party into the power is  just like of patting the snake or Cobra . Destiny is the result of   consequences reflecting through individuals action. An urge may lead to big surge . Hell and heaven both exists in a society only the truth remains without any virtue , not with any voice. It is said that where the science ends , religion begins ; where the religion ends spiritualism starts ; where the spiritualism ends , a reality survives. These are the realities of the life in the process of evolution . the creative acts of the genius are always remain the subject matter of criticism as they are usually confronted with optionally stupidity of  other fellow citizens. There is a delicate balance between public duty and personal honour . The numerical majority leads to the destruction of benevolent leadership . The human progress do not originate in the composite brains , but it is by the wisdom of the individual personality . Thus in the search of the better human rights provided to its citizens , there is necessarily some impediments in process of evolution and advancement of society because the protection is at large in favour of those citizens who are involved through their activities towards their towards destructive approach for  advancement of the society , which is detrimental to the interest of the superior in command . Still there may not  be any compromise with the human rights conferred upon an individual.
Society is becoming more complicated. The  democracy brings with it evils of its own system . It is difficult to search a really devotes person amongst the majority. Psychological reconciliation amongst  fellow citizens to utilise every potential energy and to maintain co-ordination between fellow citizens. Civilisation begins in order , grows with liberty and ultimately perish in chaos , civil liberty  are better and save as long as  its enforcement do not bother others existence . Administrative system and judicial institutions are considered for vacillation of the purposes. There is always a conflict between opinion and rivalry of the interest. Time has come to expose the falsehood and fallacies through discussions in order to avert its global devolution. The remedy is speech, not enforced silence. The ship of progress is equipped with moral strength. We cannot remain silent spectator by observing the gradual disintegration of every institution in a democratic society. However , our potential will prove  the power to save them and to resist against evil disasters . There is no steady advance towards higher condition of progress. The opinion persists to subordinate personal interest to social interest as the vested interest are always motivated to usurp power through any means even at the cost of its own interest. Sincerity is now slave of destructive activities  and human rights are passing through the state of psychological retardation. Attitude of the public is mainly consist of denouncing the receptive norms. Moral damage is more terrible. The individual human rights enforcement is inadequately persists and thus the existing remedies are required to fresh appraisal. The entire fabric of the society is scattered and shattered , which is existing with galloping corruption. The proper assessment of legal and social condition is essential. Reason obeys itself while ignorance submits to whatever is dictated to it . Freedom does not mean abuse nor liberty is a license . The survival of the human rights and individual freedom requires obedience, endeavour, honesty , truthfulness, sacrifice , discipline and character . Implementation of the strong idea requires steadfast wisdom. Such idea should burst every chain , which tends to paralyse its efforts to push forward. Most of the people tends to see nothing nor inclined to observe. They do not take the notice of evil consequences as the simplest and the cheapest attitude is apathy. The ensuring success is mostly understood at the beginning due to strong contrast   of public opinion.
The principle of reasonableness , legally and philosophically enshrined under Article 19,has been covered in its widest amplitude with the expansion and expression of personal liberty under article 21, which is   essential non arbitrariness .Article 14 has a pervasive potency and versatile quality; equilitarian in its soul and allergic to discriminatory dictates. Equality is antithesis to arbitrariness. Thus Article 14 like a brooding omnipresence , protects against the fanciful and oppressive attitude of the public authority (A.I.R. 1978 S.C Page 597). The right to live with human dignity is also derived from Article 39(e)(f), Article 41 and Article 42 , which provides the extension of the limits by providing protection of health and  physical strength to the workers , men and woman and children against abuses  . The opportunity and  facility for the children to develop in healthy manner and to provide them educational  facility  and other human conditions of work and maternity relief are the safeguard provided on the concept of human rights in Bandhwa Mukti Morcha (1984) 3 S.C.C Page 161 and (1991) 4 S.C.C Page 117 . In the injury cases from accidents , the medical aid by the state government including the  aid from private doctors is must and negligence by not providing such medical assistance may be required to be compensated by the state government (1989)4 S.C.C Page 286 and in S.C legal aid committee Vs State of Bihar (1991) 3  S.C.C  482.   Delay in execution of death sentence (1989) 1 S.C.C 678 is embodied as violated of article 21 and as such right to pre-legal aid to incapable litigant for engaging lawyer is flow from right to life Khatri  II Vs state of Bihar (1981) 1 S.C.C 627 ;(1986) 2 S.C.C 401. The comprehend right to shelter (1990) 1S.C.C 520 ; against handcuffing and parading under trial prisoners has been regarded as violative of Article 21 in Sate of Maharastra Vs Ravikant S .Patil (1991 ) 2 S.C.C 373; Right to education to  the children  upto 14 years subject to limitation of economic capacity Unni Krishnan Vs Union of India (1993)1 S.C.C 645 and the detains right to confer with the legal advisor and meet family members Francis Coralie Mullian Vs Administrator (1981) 1 S.C.C 608 , speedy trial as provided under section 309 Cr. P.C Hussainara Khatoon (IV) Vs Home secretary , State of Bihar (1980 )1 S.C.C 98 ; (1986 )4 SCC 481 and right to speedy trial Kadra Pahadiya Vs State of Bihar (1983)2  SCC 104 were already considered to be the fundamental rights within the ambit  and scope of Article 21 by the apex court . Non citizens are covered  and state is oblige to protect their rights of life and liberty N.H.R.C Vs State of Arunanchal Pradesh (1996)1 S.C.C 742, Public trust doctrine for extending to natural resources such as rivers , forests , sea sources , air etc. for ecological balance under ecosystem. M.C Mehta Vs Klamal Nath (1997)1 S.C.C 388 shall preservation of once necessary commitment Surjeet Singh Vs State of Punjab (1996) 2S.C.C 336 ; and right to shelter food , water decent environment education medical care Chameli Singh Vs Sate of U.P (1996) 2 S.C.C 549 against custodian violence D.K. Basu Vs State of west Bengal (1997) 1 S.C.C 416, victim of rape be compensated with award against private party as right to live with humanity Boddhi Sattava Gautam Vs Shubra (1997) 1 S.C.C 490 , Right ot privacy against telephone taping (1997) 1 S.C.C 301 are further being included by the Hon’ble Supreme Court under Article 21.
The field of human rights is now expanding after being defined under the protection of Human rights Act . There are other cases on the subject reported in A.I.R  1983  S.C 465 , (1980 )  3 S.C.C 526 , (1992) 1 S.C.C , A.I.R 1986 SC991,(1997) 4 SCC 463 , (1987 ) 2 SCC 165 , AIR 1995 SC 31, 264 and 923 which are mainly concerned with human rights and democratisation of remedy of justice. Thus the human rights and fundamental rights are intractably  related with each other . Fundamental rights are inviolable , inalienable and indestructible.
The very purpose of such rights is to protect the society . Justice Shastri in Gopalan Vs State of Madras  has laid down that the insertion of declaration of fundamental rights in a four front of the constitution coupled with an express prohibition against legislative interference and the constitutional sanction by means of judicial review is a clear and emphatic indication that these rights are to be paramount to ordinary state made laws. Everyone shall have the right to recognition every where as  a person before the law . Under Indian constitution the non justifiable rights are incorporated which are not self executor and runs as fundamental  in character in governance of Country. In Minark Mills case Hon’ble Supreme Court has categorically laid down that fundamental rights and directive principle of the state policy are to be constitute harmoniously against each other so that there should not be any conflict between them. In daily labours versus Union of India AIR 1987 S.C 2342 the government was asked to immediately pay all causal and permanent workers the same minimum wages as are applicable to permanent employees  in order to implement  the directive principles under Article 38 (2) . The fundamental rights are so classified as to impose limitation on state action under Article 14, 15(1), 16 , 18(1), 19, 20, 22, & 31. There are other provisions which are limitation on freedom of action of private individuals for  example Article 15(2), 17, 18(2),21(1) and 24. There are some anomalies which are depreciated as under :-
i)If the fundamental rights guaranteed against state action are violated by a private individual , there is no constitutional remedy  . The remedy in such situations by giving punishment to the offender is inadequate and disproportionate to the losses suffered by the ordinary citizens.
ii)Article 15(2), 17, 23(1) and 24 referred to above are the social abuses and the prohibition are not directed  exclusively against the state.
The Judiciary has duty of implementing the constitutional safeguard that protects the individual rights and the ideal of judgement cannot be shirked. Our legislature have undoubtedly plenary powers , these powered have are controlled by the basic concept of written constitution .
If we consider human being from the global perspective then the state is required to develop the personality of the citizen on all spare of life as the concept of human rights and fundamental rights are one in spirit and soul which are intractably related with each other .
The journey of human rights jurisprudence could be traced starting from individual liberty and reaching towards the concept of  human entitlement. The path of human rights does not run smooth and straight every day we stumble against the irrationality . Reason is rushed to one side and rights are trodden under foot . The idea of universal human rights in under assort from strong cultural political , religious and ethnic pressures , this is because  of monstrous fiction which by inspiring false idea and vain expectation into man destined to travel in the obscure walk of laborious life serves only to exaggerate and embitter that real inequity can never be removed .
Freedom survive to a point , when its start destroying in itself . Inequality is the common feature amongst the human being . The rights of equality is based on legal and social concepts in the society . A hierarchical society based on the idea of economic inequalities was founded on the distinction and the sex , whether based on  a rituals or on our customs . In the ancient cosmological explanation in Vedas time, the punishment of the crime varied according to the caste. The murder of a Brahmin was considered as a mortal sin while slaughtering of a Shudra woman  comes under the category of the minor offence which shows that the life of the Shudra was not worth living.
The British colonial administrator introduced three important legislation , namely ; abolition of slavery in 1843 ; abolition of Sati system in 1829 and prevention of female infanticide in 1870 . There after the recognition of the free status by protecting the life o0f the woman , her internal tender female babies , recognising them with equality in birth of the human life was introduced through  the administration of the justice . The lad control system prevalent in pre-colonial India was regarded as most important form of the wealth and the source of livelihood .This land was brought to the market and it could be sold . The new purchasers work overwhelmingly non -resistant and belonging to the occupation of the money landing , service and the law. Thus the Raitware system introduced which ultimately resulted into Zamindari process of cultivation. The poor became much poorer while the money lender became Zamindar and started ruling upon the  pre-colonial residents as their slaves. After the freedom from the colonial rule , the constitution of India gave rise to the concept of equality as to resolve the people , the basic rights relating to equality  to sponsor  a further goal to minimise inequalities of income and  to endeavour   to eliminate  inequalities of status , facilities and opportunities . Article 14 sets out an attitude of mind , a way of life rather than a rule of law . According to right of equal equality it postulate that no citizens are above the law and as such   the legislation shall not violate the right to equality of a citizen . However , the doctrine of equal protection of law  was based on rational classification which forbids class legislation. There were a test of permissible classification and if it is founded on intelligible differential in relation to the subject sought to achieve then that classification was considered to be rational classification .
By the introduction of Article 38(2) after 44th amendment of our constitution the state shall strive to minimise the inequalities in status , facilities on opportunity not only amongst individuals , but also amongst group of people engaged in different occasions. The revolutionary constitutional assumption into mere appeasement  of status quo from where the power to the political and economical uplift in derived are known as ‘compensatory discrimination ‘, protective discrimination and in more generic terms reverse discrimination  which means favouritism to a despaired group of recipient of extra favourable  treatment . The constitution of India does not exclude government servant class but on account of Article 33 , such persons having selected under the armed forces might be deprived of their fundamental right under the garb of discipline forces . The civilian employees of the defence establishment such as cooks , chaukidars , barbers also comes within descriptions of armed forces and consequently the legislative becomes competent by notification to make rules containing or restricting their fundamental rights . This is a very peculiar situation especially on account of continued neglect of military affair and attempt to politics the members of armed forces like that of dismissal of the Chief of noble staff. The gradual decline of rights of the personal in the defence services much be stops through introspection as corrective measures , if we want to protect our country from the external aggression . The social recognition and healthy working involvement are within their respective zones under the frame works of equality class relating to the matter concerning human rights.
There is no appeal against the verdict of court martial and there is no provision of bail to the convict of court martial , even it is available to all hardened criminals. The Supreme Court in Hussainara Khatoon case (1980) 1 SCC 81 has laid down that the unfortunate specimen of humanity awaiting trial for criminal offences are in jail being deprived of their freedom , but the Hon’ble Supreme Court has not taken into account the Hardships suffered by a soldier who is deployed for protecting the nation , to whom such right is not amenable under our constitution , whether it is not equally important to maintain a social discipline amongst the citizen by having a rational classification based upon  intelligentsia , differential by framing a classification between bonafide citizens and under trial prisoner in  the context of which discipline under the armed forces is required to observed. In Moti Ram case (1978) 4 SCC 47 the Supreme court has taken into consideration that against the sureties if under trial prisoner is not able to satisfy his solvency then they have to incur morose depths for securing their release . Thus  poor kin dour legal judicial system oppressive and heavily weighted against them  and a feeling of frustration and despair occurs as they6 do not find a solution for their release and watch helplessly in a position of inequality with the non poor . The Hon’ble Supreme Court has not yet considered the hardships faced by members of the armed forces who  are still governed by respective Army or Armed Force Act , which are enacted by British to suit their interests. In absence of social recognition in healthy working environment which still prevail that of days of British period , can be members of armed forces may feel pride to join the forces . There is a wound being chaffed again and again to the members of the armed forces before it can heel when the start comparing themselves from the rights available to a under trial hardened criminal who still after his conviction remained released on bail during the long span upto a period  varying from 20 to 30 years when his appeal is heard on merit by the Hon’ble Court.

Written By
H.I.G 203, Preetam Nagar,                    Yogesh Kumar Saxena
Sulem Sarai Housing Scheme               Advocate High Court
Mobile 9792131584, 7800888892        Chamber no 139 High Court

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