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HUMAN RIGHTS LAW- GCT 1

MEANING AND CONCEPT OF HUMAN RIGHTS

SUBMITTED BY - SHIVAM GARG

SUBMITTED TO - PROF. SHAKEEL

QUESTION 1: Explain in detail the meaning and concept of human rights and also discuss
the western concept of human rights.

ANSWER:

MEANING AND CONCEPT OF HUMAN RIGHTS

Meaning of Human Rights

Human beings are born equal in dignity and rights. These are moral claims which are inalienable
and inherent in all individuals by virtue of their humanity alone, irrespective of caste, colour,
creed, and place of birth, sex, cultural difference or any other consideration. These claims are
articulated and formulated in what is today known as human rights. Human rights are sometimes
referred to as fundamental rights, basic rights, inherent rights, natural rights and birth rights.

Definition of Human Rights

Dr. Justice Durga Das Basu defines “Human rights are those minimal rights, which every
individual must have against the State, or other public authority, by virtue of his being a
‘member of human family’ irrespective of any consideration. Durga Das Basu’s definition brings
out the essence of human rights.

The Universal Declaration of Human Rights (UDHR), 1948, defines human rights as “rights
derived from the inherent dignity of the human person.” Human rights when they are guaranteed
by a written constitution are known as “Fundamental Rights” because a written constitution is
the fundamental law of the state.

Characteristics and Nature of Human Rights

Following are the characteristics of human rights:

1. Human Rights are Inalienable - Human rights are conferred on an individual due to the very
nature of his existence. They are inherent in all individuals irrespective of their caste, creed,
religion, sex and nationality. Human rights are conferred to an individual even after his death.
The different rituals in different religions bear testimony to this fact.

2. Human Rights are Essential and Necessary - In the absence of human rights, the moral,
physical, social and spiritual welfare of an individual is impossible. Human rights are also
essential as they provide suitable conditions for material and moral upliftment of the people.

3. Human Rights are in connection with human dignity - To treat another individual with
dignity irrespective of the fact that the person is a male or female, rich or poor etc. is concerned
with human dignity. For eg. In 1993, India has enacted a law that forbids the practice of carrying
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human excreta. This law is called Employment of Manual Scavengers and Dry Latrines
(Prohibition) Act.

4. Human Rights are Irrevocable: Human rights are irrevocable. They cannot be taken away
by any power or authority because these rights originate with the social nature of man in the
society of human beings and they belong to a person simply because he is a human being. As
such human rights have similarities to moral rights.

5. Human Rights are Necessary for the fulfillment of purpose of life: Human life has a
purpose. The term “human right” is applied to those conditions which are essential for the
fulfillment of this purpose. No government has the power to curtail or take away the rights which
are sacrosanct, inviolable and immutable.

6. Human Rights are Universal – Human rights are not a monopoly of any privileged class of
people. Human rights are universal in nature, without consideration and without exception. The
values such as divinity, dignity and equality which form the basis of these rights are inherent in
human nature.

7. Human Rights are never absolute – Man is a social animal and he lives in a civic society,
which always put certain restrictions on the enjoyment of his rights and freedoms. Human rights
as such are those limited powers or claims, which are contributory to the common good and
which are recognized and guaranteed by the State, through its laws to the individuals. As such
each right has certain limitations.

8. Human Rights are Dynamic - Human rights are not static, they are dynamic. Human rights
go on expanding with socio-eco-cultural and political developments within the State. Judges
have to interpret laws in such ways as are in tune with the changed social values. For eg. The
right to be cared for in sickness has now been extended to include free medical treatment in
public hospitals under the Public Health Scheme, free medical examinations in schools, and the
provisions for especially equipped schools for the physically handicapped.

9. Rights as limits to state power - Human rights imply that every individual has legitimate
claims upon his or her society for certain freedom and benefits. So human rights limit the state’s
power. These may be in the form of negative restrictions, on the powers of the State, from
violating the inalienable freedoms of the individuals, or in the nature of demands on the State,
i.e. positive obligations of the State. For eg. Six freedoms that are enumerated under the right to
liberty forbid the State from interfering with the individual.

WESTERN CONCEPT OF HUMAN RIGHTS

Since the beginning of Human Rights until recent Human Rights issues, the interpretation and
concept of Human Rights have been diversified significantly. Western construct have played a
big role in the creation of Human Rights and in questioning the meaning of ‘universal’ rights.
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“The rights one has because one is human” is a clear and concise meaning of human rights,
which is an appurtenance to an individual, where certain parts are not included, such as benefits.
The western ideology of Human Rights have greatly inputted in Human Rights through various
concepts that have been introduced to non western societies. These various concepts of western
construct have influenced Universal Human Rights, where western politics have greatly altered
the concept of Human Rights, also through colonization which is particularly affected
Indigenous communities, and by western cultures and societies. The western construct of Human
Rights is eminently viewed in Human Rights, which are present in both western and non western
societies.

Human Rights have gradually been altered and changed to insert western values and political
thoughts into non-western states and societies. The western political emphasis for “the right to
development and to freedom from hunger” is predominating in Africa as a right yet, some of
these rights do not correlate within societies in Africa.

The western concept was also brought through colonization and it too affected the Human Rights
significantly. It is how the western ideology was introduced in non western societies.
Colonialism creates the basis and idea of Human Rights throughout history. The colonization of
certain states that have Indigenous People has influenced the Human Rights that are present in
their societies. Indigenous People were greatly affected through colonization all due to insertion
of western construct of Human Rights, which resulted in many casualties questioning whether
basic Human Rights have been breached just for introducing the western construct of Human
Rights.

The post colonization period, many Indigenous people have been ridiculed and degraded in
society. Many rights, which are of western construct, are evident in the Indigenous society,
where it lacked some rights or in some cases the rights did not fit in. Group rights, which are
rights intended for a group of people, created problems in the Indigenous community. Group
rights were mainly to do with economy and social class, rather than individual problems such as
racism and ethnicity. Western culture has been a big influence in the non-western cultures and
societies, it change the rights significantly in the non western society and adapted the western
idea and thought but in the same time the western construct of rights was viewed differently in
the non western cultures.

The western society has also greatly impacted on the non western society, with the influence of
western life and living which altered the Human Rights, and thus impacting it on the non western
society. Human Rights, to a certain extent, accepts the idea that they are “rights of the human in
society”. In 1789 the French recognized and stated the fundamentals of Human Rights which are
evident in society, suggests that society too is in power to deliberate those rights, stating that
western society can change and dismantle any specific right in any society. Edmund Bourke
creates one of the most protruding “historical criticism” of the notion that Universal Human
Rights derives from western construct and western societies that are implemented into non
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western societies. He argues that the French revolution changed the rights of many individuals
and groups in society into a western form of rights.

Western Development of Human Rights

1. The Magna Carta, 1215.

The Magna Carta, also known as the Great Charter, of 1215 is the most significant constitutional
document of all human history. The main theme of it was protection against the arbitrary acts by
the king. The 63 clauses of the Charter guaranteed basic civic and legal rights to citizens, and
protected the barons from unjust taxes. The English Church too gained freedom from royal
interferences. King John of England granted the Magna Carta to the English barons on 15th June
1215. The king was compelled to grant the Charter, because the barons refused to pay heavy
taxes unless the king signed the Charter.

2. The English Bill of Rights, 1689.

The next source and avenue of the development of the philosophy of human rights is the English
Bill of Rights, enacted on December 16, 1689, by the British Parliament. The British Parliament
declared its supremacy over the Crown in clear terms. The English Bill of Rights declared that
the king has no overriding authority. The Bill of Rights codified the customary laws, and
clarified the rights and liberties of the citizens.

3. American Declaration of Independence, 1776.

The first colonies to revolt against England were the thirteen States of America. These states
declared their independence from their mother country on 4th July 1776. The declaration charges
the king with tyranny and affirms the independence of the American colonies. The declaration of
independence has great significance in the history of mankind as it justified the right to revolt
against a government that no longer guaranteed the man’s natural and inalienable rights.

4. The U.S. Bill of Rights, 1791.

The U.S. Constitution was enacted on 17th September 1787. The most conspicuous defect of the
original constitution was the omission of a Bill of Rights concerning private rights and personal
liberties. Madison, therefore proposed as many as twelve amendments in the form of Bill of
Rights. Ten of these were ratified by the State legislatures. These ten constitutional amendments
came to be known as the Bill of Rights. The overall theme of the Bill of Rights is that the citizen
be protected against the abuse of power by the officials of the States.

5. The French Declaration of the Rights of Man and of the Citizen, 1789

The fall of Bastille and the abolition of feudalism, serfdom and class privileges by the National
Assembly ushered France into a new era. On 4th August 1789, the National Assembly
proclaimed the Rights of Man and of the Citizens. The Rights were formulated in 17 Articles.
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The Declaration of the Rights of Man and of the Citizen has far reaching importance not only in
the history of France but also in the history of Europe and mankind. The declaration served as
the death warrant for the old regime and introduced a new social and political order, founded on
the noble and glittering principles. Further the declaration served as the basis for many
Constitutions, framed in different countries, where the framers gave top priority to human rights.

6. Declaration of International Rights of Man, 1929.

After World War I, questions about human rights and fundamental freedoms began to be raised.
In 1929, the Institute of International Law adopted the Declaration of International rights of Man.
The Declaration declared that fundamental rights of citizen, recognized and guaranteed by
several domestic constitutions, especially those of the French and the U.S.A constitutions, were
in reality meant not only for citizens of the states but for all men all over the world, without any
consideration.

7. The UN Charter, 1945.

The United Nations Charter was drafted, approved and unanimously adopted by all the delegates
of the 51 states, who attended the United Nations Conference at San Francisco. The UN Charter
contains provisions for the promotion and protection of human rights. The importance of the
Charter lies in the fact that it is the first official document in which the use of ‘human rights’ is,
for the first time traceable and which also recognized the respect for fundamental freedom.

8. The Universal Declaration of Human Rights, 1948.

The Universal Declaration of Human Rights was adopted by the General Assembly of the United
Nations on 10th December, 1948. The Declaration consists of thirty Articles and covers civil,
political, economic, social and cultural rights for all men, women and children. The declaration
however is not a legally binding document. It is an ideal for all mankind.

9. International Covenants on Human Rights

The Universal Declaration of Human Rights, 1948 was not a legally binding document. It lacked
enforcements. This deficiency was sought to be removed by the U.N. General Assembly by
adopting in December, 1966, the two Covenants, viz,

1. International Covenant on Civil and Political Rights and

2. International Covenant on Economic, Social and Cultural Rights.

The two International Covenants, together with the Universal Declaration and the Optional
Protocols, comprise the International Bill of Human Rights. The International Bill of Human
Rights represents a milestone in the history of human rights. It is a modern Magna Carta of
human rights.