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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