Man
has the right to live. He has the right to bodily integrate and to the means
necessary for proper development of life, particularly food, clothing,
shelter, medical care, rest and finally necessary social services. Hence human
rights are undeniable and inherent rights of every individual.
The
minimum standards of human rights norms in a state of exception formulated by
the Human Rights Committee of International Law recognise 11 non-suspendable
rights in any kind of emergency:
1.
Right to life.
2.
Prohibition of torture.
3.
Prohibition of slavery or servitude.
4.
Prohibition of retroactive criminal laws.
5.
Rights to recognition of legal personality.
6.
Freedom of conscience and religion.
7.
Prohibition of imprisonment for breach of contractual obligation.
8.
Rights of the family.
9.
Rights of the child.
10.
Rights to nationality.
11.
Rights to participate in Government.
The
concept of human rights has its origin in humanism which recognizes the value
and dignity of man and makes him the measure of all things or somehow takes
human nature, its limits, or its interests as its theme.
Human
rights are often called fundamental and universal. Human freedom refers
primarily to a condition characterized by the absence of coercion or constraint
imposed by another person. It refers to an aspect of conduct within which each
man chooses his own course and is protected from compulsion or restraint. The
necessary condition, for the existence of freedom would be:
(a)
The absence of human coercion or restraint preventing one from choosing
alternatives he would wish to choose;
(b)
The absence of natural conditions preventing one from achieving a chosen
objective;
(c)
The possession of the means or the power to achieve the objective one chooses
of one's own volition.
The
San Francisco Charter of 1945 through which the People of United Nations
reaffirmed their faith in "encouraging respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language or
religion."
In
1948 the U.N. General Assembly proclaimed in a resolution, the Universal
Declaration of Human Rights. In 1955-56 the United Nations started the periodic
reporting by states on development, studies on specific rights or group of
rights and advisory services in the field of human rights. In 1964, it adopted
the International Covenants on Economic, Social and Cultural Rights and the
International Covenants on Civil and Political Rights.
2. Evolution of Human Rights in India
India
is a signatory to the Universal Declaration of Human Rights of 1948. In 1979
India ratified 2 covenants: International Covenant of Economic, Social and
Cultural Rights; and the International Covenant on Civil and Political Rights.
The Constitution of India guarantees Human Rights in the Chapter on Fundamental
Rights.
The
Directive Principles of State Policy supply the necessary guidelines for their
effective implementation. Fostering respect for International Law is an
obligation of the State under Article 51 of the Constitution.
The
human rights relevant to the administration of criminal justice derive
sustenance from the Constitution and gain strength from the creative
interpretations of the Supreme Court. In the country's human rights jurisprudence,
Article 21 became the springboard for judicial activism. The Supreme Court
mainly interpreted Article 5 of the Universal Declaration of Human Rights and
Article 10 of the International Covenant on Civil and Political Rights which
provided respectively—
"No
one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment."
"All
persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person."
Article
19 guarantees to all citizens of freedom i.e.
(i)
Freedom of speech and expression (which includes freedom of press);
(ii)
To assemble peaceably and without arms;
(iii)
To form associations or unions;
(iv)
To move freely throughout the territory of India;
(v)
To reside and settle in any part of the territory of India;
(vi)
To acquire, hold and dispose of property; and
(vii)
To practise any profession or to carry on any occupation, trade or business.
Article
20 protects every individual against ex-post facto (retrospective) criminal
law, double jeopardy and testimonial compulsion. It declares that no person
shall be deprived of life or personal liberty except according to the procedure
established by law.
The
dimensions and amplitudes of these freedoms have been explained by the •
Supreme Court in two recent decisions namely 'Maneka Gandhi vs. Union of India'
and 'Sunil Batra vs State'.
In
the Maneka Gandhi case, the individual's right to foreign travel was upheld. In
the 'Sunil Batra case' the Supreme Court declared that even the prisoners
cannot be denied the fundamental rights guaranteed by the Constitution.
Article
15 and 16 amplify specific aspects of equality before law by declaring that no
citizen is discriminated on the ground of religion, race, caste, sex,
birth-place, or be subject to any disability or restricted with regard to
access to public place or equal opportunity to public office. Article 17 is
directed towards abolition of untouchability, and Article 18 towards the
abolition of titles.
Articles
23 and 24 are rights against exploitation. They prohibit traffic in human
beings and forced labour as well as employment of children in factories or
hazardous work.
Articles
25 to 28 are about right to freedom of religion. Article 31 guarantees right to
property and permits deprivation only for public purpose and that too on
payment of compensation.
Under
Article 22(1) the right to consult an advocate of his choice shall not be
denied to one who is arrested. Article 20(1) (3) may be telescoped by making it
prudent- for the police to permit the advocate of the accused to be present at
the time he is examined. If the accused expresses his desire to have his lawyer
by his side at the time of examination, the facility- shall not be denied.
In
keeping with the spirit of human rights movement all over the world, the
National Human Rights Commission came in India in 1993 through an ordinance
promulgated on 28 September 1993 by the President of India. Soon the ordinance
was replaced by a statute called the Protection of Human Rights.
Human
Rights Act, 1993 came into force in 1994. The Act provides for setting up the
National Human Rights Commission at the Centre as well as State Level Human
Rights Commission.
The
National Human Rights Commission consists of a Chairman and 4 members, all of
them being full-time members. The Chairperson may be no less than a former
Chief Justice of the Supreme Court.
Of
the 5 members, including the Chairman, three are to possess high-level judicial
background and the remaining two must have knowledge of or practical experience
in matters relating to human rights. The serious areas of human rights
violations in India are custodial deaths, custodial rapes, and misuse of
Terrorist and Disruptive Activities (Prevention) Act.
In
order to further human rights, the Commission can intervene in any legal
proceedings involving an allegation of violation of human rights. It can visit
with prior approval of the state government any jail to study the living
conditions of the inmates and make recommendations. It can review the
Constitution or any law for the protection of human rights and recommend
measures for their effective implementation.
The
Commission reviews the factor, including Acts of Terrorism, that inhibit the
enjoyment of human rights and recommends measures. It also undertakes and
promotes research in the field of human rights. It encourages NGOs working in
the field of human rights.