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Published : July 08, 2012 | Author : karishmacnlu
Category : Human Rights laws | Total Views : 5548 | Unrated

Karishma Kumari 5th year Chanakya National Law University, Patna.

Human Rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our Human Rights without discrimination. These rights are all interrelated, interdependent and indivisible.

The basic fact about Human Rights is that they are not the gift or bounty of any political sovereign through legislation or any edict, but are rights inherent in human existence. The purpose of any law dealing with these rights is merely to recognize them, to regulate their exercise and to provide for their enforcement. These are inherent rights of individuals and no human being can be deprived of these rights by acts of any state.

In India, the Upanishadic wisdom saw the solution of ultimate human unity, brotherhood and the equality in realisation of an individual that he exists in others, as others exist in him. For this the age old Indian philosophy of ‘Sarve Bhavantu Sukhina, Sarve Santu Niramaya’ is very much ideal.

Human Rights have a projection of universality but as a matter of ground reality they are not the same for all people and societies. For some, especially the well-advanced west, they are predominantly matters of civil and political liberty while for others, the developing and under-developed Asian, Africa and Latin America, predominantly they are also matters of survival. Human Rights are therefore about being citizen of the earth, being part of an earth family. Human Rights in my view are exercised to their fullness through participating in earth democracy-the democracy of all life. And as earthlings, our human duties to protect the earth and all her beings are the ground from which Human Rights emerge.

All humanity is one undivided and indivisible family, and each one of us is responsible for the misdeeds of all others. I cannot detach myself from the wickedest soul.” –Mahatma Gandhi.

League of Nations as the first attempt in the modern world, though unique but arising out of outward compulsion, was made after killings of thousands of people in wars and clashes among the people divided on the basis of religion, colour, or economic disparity. The League of Nations could not survive long because as Sri Aurobindo puts it- It was leaky and ill balanced ship launched on waters of tempest and chaos without a chart or compass or sailing instructions. The ship sank as it appeared to be obvious destiny, then came the Second World War which again brought in violence in its most heinous and barbaric form. This catastrophe again brought the nations together to find out a solution, this time, with some element of permanence.

The result was formation of the United Nations organisations in 1945. The first universal instrument of Human Rights was-- “Universal Declaration of Human Rights” (UDHR) adopted on December 10th, 1948. The uniqueness of the declaration lies in the fact that it represents a world-wide charter of rights, proclaimed “universal” and “fundamental” freedoms which, transcend, national, religious, cultural, and ideological factors. After adoption of UDHR, a number of charters and treaties have been made at the national as well as international level.

In spite of these developments, one wonders, whether the mechanisms and systems have been able to realise and actualise what is inherent in their very existence—rights which are non-derogable; the absence or infringement of which negates the very purpose of human existence. Let’s take a look:-

The nation exercises its sovereignty (its right) over a person at birth by asserting state ownership through ‘nationality’. This makes the individual simply an extension of the state’s own power relations. But Human Rights need to transcend the nation-state. Too many states have put their own self-interest over larger rights principles: like the military dictatorships in Argentina, Chile, and Burma/Myanmar. These Autocratic states’ behaviour overrides concerns with rights, which can lead to refugee problems and other forms of statelessness­­—say ‘unlawful combatants’ or the approximately ‘40 million children each year [who] are not registered at birth, depriving them of a nationality and a legal name’ as reported by the UN high commission on refugees (UNHCR)—these factors threaten the fiction of the state to define Human Rights in terms of its supposed sovereign relation to its citizens.

Human Rights must ensure removal of poverty and want everywhere. This is because; poverty anywhere on the earth is a threat to peace everywhere. If we ponder over it, we find that poverty and terror are married in other ways too. The case of the terrorist actions that took place in Rwanda, ranked in 2003 as 158 out of 175 countries for its human development, culminating in genocidal acts that killed between 800,000 and a million people in about 100 day, in 1994—is one of the many examples.

The tragedy of 9/11 produced dramatic shifts in how developed nations’ legal structures impact on Human Rights. The U.S. patriot act, that permits major roll-backs of accrued civil liberties and a widely imitated piece of legislation in democracies like Canada and India, is only one of the many new instruments that undermine rights under the guise of the so-called ‘war on terror’. It is impossible, post 9/11, to speak of rights without addressing the massive campaign currently being deployed to under-mine civil rights in the name of state self-interest and so-called ’security’.

Post-9/11, restrictions on rights were implemented ostensibly to create a more secure environment through the extraction of information from suspected terrorists (often using torture), the restriction of flows of human traffic across international borders, the increased surveillance of private citizens, the legal harassment of dissidents and critics, and so forth. In reality these restrictions do nothing of the sort. E.g.

Case of Maher Arar has further aggravated concerns that the desire for security is destroying basic rights. The Syrian-born Canadian citizen Arar was detained on 26 September 2002 by U.S. officials while in transit from Tunisia to Canada (with his wife and children returning from a vacation) in New York’s JFK airport. Twelve days later, he was chained, shackled, and flown (‘Rendered’) to Jordan aboard a private plane and from there transferred to a Syrian prison where he was imprisoned, interrogated, and tortured for 10 months.

Arar’s case violated Article 3 of the UN convention against torture, which addresses non-refoulement , the principle that under no circumstances should a person be transferred or returned to a country where he or she risks torture.

Worse, due to lack of transparency in the application of law, none of these measures can be understood to have produced meaningful anti-terrorist results. The little evidence that does exist suggests –as in the case of the Guantάnamo Bay detention and torture facility—that minimal useful information has come of these measures, in proportion to the damages done to Human Rights code and covenants. Everybody tortured or killed in this war for security exponentially increases the number of people affected negatively. While crude militarized responses to security threats e.g. in Afghanistan, Iraq, Taliban etc, leave long-lasting damage, they also sow the seeds of long-term insecurity, an ever-widening spiral of violence and counter-violence that undermines the dignity of all life and the very principles upon which the UDHR was founded.

Now not-so-secret detention centres at Guantάnamo, Cuba, and the notorious Abu Ghraib prison 20 miles west of Baghdad, with all the documented abuses and torture meted out in these places, and the rights scenario related to achieving human security becomes even more fraught. Human security, then, cannot be based on the myth of the effectiveness of militarized interventions where torture and collateral damage are permissible side effects. If we talk about UN-approved, American-led sanctions against Iraq alone, then some 500,000 children died as a result of preventable disease and hunger, a situation that Arundhati Roy has described as neo-genocide, where indirect actions lead to massive casualties and accountability is fudged in the name of imperial self-interest.

Rights cannot be thought of in isolation from each other. They are part of an integrated vision of what it means to participate in diverse human experiences. These run from the most basic interaction with the environment to the ways in which people live day-to-day to catastrophic events like war, genocide, or pandemics.

Suppose, a major chemical disaster involving a powerful multinational destroys a significant portion of the water supply in a large geographic area of a developing nation, poisoning the air, killing thousands of people, and leaving successive generations permanently at risk for chronic side effects that reduce life quality and expectancy. Here, clearly the crucial right (recognized in article 3 of the UDHR) has been violated --the right to life, a concept that has legal definitions at international level (in multiple treaties). Subsidiary rights (that gets destroyed when local environments are made toxic), and a host of other rights are also at play in this scenario, which occurred in Bhopal, India, in 1984. Here if impunity overrides meaningful accountability, human rights are absent in practice even if they are still on the books. And the tension between their practical absence and theoretical presence is often a cause of ongoing abuse.

There are some of the political barriers which are preventing the realisations of basic needs and Human Rights. For example: - The tax sector, corruption, infrastructural deficits and the identity of the state can be identified as the most important obstacles in the protection of Human Rights for any state. Safeguarding basic needs is a dependent variable of the amount of resources that governments have at their disposal. The resource base of the Indian state is not very promising. In general, south Asian countries including India only collect 10.4% of their GDP by tax revenues. This is even low compared to the average of the developing world that is 15 to 20%.

Safeguarding of Human Rights is a difficult undertaking that illustrates institutional deficit. In India there are 2.293 cases (per 100.00 people) that are pending in courts and there are 1.6 prisoners (per 100.00 people) that are awaiting trial. These figures underline an inefficient judiciary infrastructure that questions the protection of Human Rights.

Another point that affects basic needs as well as Human Rights is the endemic corruption. Corruption violates Human Rights as it discriminates against people. Corruption violates the principle of equality and fairness as decisions are taken in an arbitrary manner favouring bribe-givers, as opposed to people who are legitimately entitled. Corruption creates a vicious atmosphere of lack of respect for law and democratic institution. As a consequence, civil, political, economic, social, and cultural rights are violated. At least one positive sign is that there is an ongoing debate on these aspects in the public.

One of the most striking examples for the contempt of Human Rights is the increase of communal violence against religious minorities. The conflicts involved like the riots in Gujarat in spring 2002 will damage India’s democratic reputation. The law and order situation is also not very promising on the state level. Surveys have shown that the confidence of the people in the police is very low. Government reports have shown the increasing connection between crime and politics. Another related aspect that underlines this kind of structural violence is the still existing threat of Naxalite groups in various states.

Only a very few countries do not commit significant human rights violations, according to Amnesty International. In their 2004 human rights report, the Netherlands, Norway, Denmark, Iceland and Costa Rica are the only countries that did not (in their opinion) violate at least some human rights significantly.

A positive sign i.e. PIL has become a byword for judicial involvement for the protection of Human Rights in India. Those people who because of ignorance, poverty, lack of resources, or economic disability could not on their own approach the court had to suffer violations of their Human Rights. Realizing this deficiency in our legal procedure some judges, particularly justices V.R. Krishna Iyer and P.N. Bhagwati openly started to disregard the impediments of Anglo-Saxon procedure to provide access to justice to the poor and disadvantaged sections of the society. This they did by relating the rule of locus standi.

S.P. Gupta v. Union of India and Sheela Barse v. Union of India, constitutes a major doctrinal asset on the concept, nature and scope of PIL in India. Hussainara Khatoon v. State of Bihar was the first reported case of PIL seeking relief to the under trial prisoners languishing in jails. The PIL proceedings in this case resulted in the release of nearly 40,000 under trial prisoners languishing in Bihar jails. Anil Yadav v. State of Bihar depicted the police brutalities. About 33 suspected criminals were blinded by the police in Bhagalpur jail in Bihar through putting acid into their eyes and then eyes were burnt. The Human Rights of prisoners subjected to torture, victims of police excesses, inmates of protective homes and mental asylums, bonded and child labour, victims of sexual harassment and earthquake victims and many others have been protected by the courts.

Our Constitution was around the same time when UDHR was being debated and adopted. The Part III (fundamental rights) and Part IV (directive principles of state policy) of the constitution of India are best perceived within the ethos and spirit of United Nations Declaration. The part III of the constitution is said to be the heart of the Human Rights. If we look at the article 21 of the constitution alone, it has become Cambodian of Human Rights. This article acts as shield against the deprivation of life and personal liberty of the individual.

In Maneka Gandhi v. Union of India, the court said-“it is obvious that Art. 21, though couched in negative language, confers the fundamental right to life and personal liberty.” According to Indian Supreme Court-- "All Human Rights are derived from the dignity of the person and his inherent worth."

If we ponder over the situations in our neighbouring countries, then in Thailand, more than 1,000 deaths were the result of armed resistance to routine police investigations in a year and that only a dozen or so unlawful extrajudicial killings by the police had been established. The current situation in Nepal is tragic. Police actions against the Maoist opponents to the Government are simply shot without any apparent attempt to apprehend and charge them through the established court system.

The Peoples Republic of China is different again. There, perhaps because of the size of its population and the fact that the legal infrastructure is still being established, confessions obtained under duress (about which the courts hear nothing) often constitute the only evidence on which convictions are based. And if suspects do not confess, the police are likely to subject the suspect to 're-education through labour,' which equates to administrative detention in harsh gaol conditions for up to 3 years with no trial or inquiry at all, and with no right of review.

When a government closes a geographical region to journalists, it raises suspicions of human rights violations. Seven regions are currently closed to foreign journalists: Chechnya (Russia), Myanmar (Burma), North Korea, Papua (Indonesia), Peshawar (Pakistan), Tibet (People's Republic of China), Jaffna Peninsula (Srilanka).

If any nation wants sustainable development, then Human Rights must be protected. Human Rights and sustainable human development are interdependent and mutually reinforcing. Development is unsustainable where the rule of law and equity do not exist; where ethnic, religious or sexual discrimination are rampant; where large numbers of people live in degrading poverty. Similarly, Human Rights are enhanced when gender equity or poverty reduction programs empower people.

Education about human rights must become part of general public education. Members of the police and security forces have to be trained to ensure the observation of human rights standards for law enforcement. Research institutes and universities should be strengthened to train lawyers and judges. Dialogue groups that assemble people from various ethnicities should be organized to overcome mistrust, fear and grief in society. International witnesses, observers and reporters can exert modest pressure to bring violations of human rights to public notice and discourage further violence.

All these deaths and sufferings has to be stopped by the rule of law. Even if a parent is lost in the developing world due to atrocities meted out to him, it means no school for kids, no more food on the table and a future in which the only certainty is poverty. In any society and state, there are marginalised and more vulnerable groups who are in need of special protection. Unless their weaker position is recognised and their special rights are protected, they will be totally deprived of the most basic of their Human Rights, i.e. The right to be human. Let us join our efforts with a view to making Human Rights a reality for everyone, everywhere and every day. “Injustice anywhere is a threat to justice everywhere.”- Martin Luther King.

# Daniel Fischlin & Martha Nandorfy, The Concise Guide to Global Human Rights, (Oxford University Press, 2007)
# M. P. Singh, Human Rights and Basic Needs, (Universal law publishing Co. Pvt. Ltd., New Delhi, 2008)
# C. Rajkumar & R. Chockalingam, Human Rights, Justice, and Constitutional Empowerment, (Oxford University Press, 2007)
# Vijay N. Ghormade (ed.), Justice A. D. Mane’s Lectures on Human Rights, (Hind Law House, 2007)
# Manoj K. Sinha, Implementation of Basic Human Rights, (1999)
# David P. Forsythe et.al. (eds.), Encyclopedia of Human Rights, Vol. I & II, (Oxford University Press, 2009)
# N. K. Jayakumar, International Law and Human Rights, (Lexis Nexus Butterworths, 2005)
# Dr. S. K. Kapoor, International Law and Human Rights, (Central law agency, 18th edition, 2011)
# Upendra Baxi, Human Rights in a Posthuman World, (Oxford University Press 2007)
# Thomas Pogge (ed.), Freedom from Poverty as a Human Right, (United Nations Educational, Scientific and Cultural Organisation (UNESCO) and Oxford University Press, 2007)
# Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide, (Hart Publishing, 2008)
# Sandy Ghandhi (ed.), Blackstone’s International Human Rights Documents, (Oxford University Press 2010)
# Micheline R. Ishay, The History of Human Rights: From Ancient Times to the Globalisation Era, (Orient Longman Pvt. Ltd., 7th edition, 2008)
# Ian Brownlie & Guy S. Goodwin-Gill (eds.), Basic Documents on Human Rights, (Oxford University Press, 5th edition, 2006)
# Mark Goodale & Sally Engle Merry (eds.), The Practice of Human Rights: Tracking Law Between the Global and the Local, (Cambridge University Press 2007)
# K. C. Joshi, International Law & Human Rights, (Eastern Book Company, 2006)
# Human Rights in International Law, (Council of Europe Publishing & Universal Law Publishing Co. Pvt. Ltd., 3rd edition, 2009)
# Manoj Kumar Sinha, Basic Documents on International Human Rights and Refugee Laws, (Mayank Publications Pvt. Ltd., 2000)
# M.K. Balachandran & Rose Varghese (eds.), Introduction to International Humanitarian Law, (International Committee of the Red Cross Regional Delegation, New Delhi, 1999)
# Human Rights and the Rule of Law: The Judicial Function, available at: http://www.hreoc.gov.au/index.htm, (visited on June 19, 2011)
# Human Rights, available at: http://en.wikipedia.org/wiki/Human_rights, (visited on June 19, 2011)
# United Nations Human Rights, available at: http://www.ohchr.org/EN/Pages/WelcomePage.aspx, (visited on June 20, 2011)
# (1981), Supp SSC 210
# (1988) 4 SSC 226
# AIR 1979 SC 1360
# (1981) 1 SCC 622
# Khatri v. state of Bihar,(1981) 1 SCC 627,635
# Nilabati Behera v. state of Orissa, AIR 1993 SC 1961
# Upendra baxi v. state of UP, 1981(3) SCALE 1136
# R. C. Narain v. state of Bihar, (1986) Supp SCC 576
# M.C. Mehta v. union of India, (1986) Supp SCC 553
# Vishaka v. state of Rajasthan, (1997) 6 SCC 241
# In Bipinchandra v. state of Gujarat, AIR 2002, The High Court of Gujarat held that under the constitution the state has an obligation to help people in distress. Article 21 was the repository of all Human Rights. The court gave directions for the relief and rehabilitation of earthquake victims.
# (1978) 1 SCC 248
# Samatha v. State of A.P., AIR 1997 SC 3297

The  author can be reached at: karishma@legalserviceindia.com

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