UNIT 1 HISTORICAL AND PHILOSOPHICAL PERSPECTIVE
Structure
1.1 Introduction
Aims and Objectives
1.2 Human Rights : Evolution of the Idea
1.3 Human Rights : Theoretical/Philosophical Foundation
1.4 Human Rights: Different Perspectives (Natural Rights, Positivist, Libertarian and Marxist)
1.5 Human Rights : The Indian Perspective
1.6 Summary
1.7 Terminal Questions
Suggested Readings
1.1 INTRODUCTION
The 50th anniversary of the Universal Declaration of Human Rights has marked the human rights discourse with a plethora of publications both of the western and non-western scholars. Many of these publications highlight the nature and extent of “progress” made in championing and protecting human rights throughout the world. It is important to note that such ‘a progress’ as claimed has not been uniform all over the world. There are cases where human rights have been either neglected or denied to the common man by the ruling power. In many cases, one may notice that such rights are denied because of the vested interests of the dominating groups. Naturally, it is necessary to understand the notion of human rights both from theoretical perspective and operational methods.
Aims and Objectives
After reading this Unit, you would be able to understand
The meaning and evolution of the concept of Human Rights;
The theoretical and philosophical foundations of Human Rights;
Different perspectives of Human Rights;
Human Rights from the Indian perspective.
1.2 HUMAN RIGHTS: EVOLUTION OF THE IDEA
It is true that human rights as an international phenomenon is of comparatively recent origin. Although a number of treaties or international agreements affecting humanitarian issues before the Second World War is noticeable, it is only with the coming into force of the United Nations Charter in 1945, the systematic human rights protection within the international system has been formalised. A look into the historical perspective would
16 Human Rights: Indian Perspective
suggest that even before the process of institutionalisation through international mechanism, attempts were made to provide democratic legitimacy to the notion of human rights at different levels.
Religious Antecedents
The philosophical foundation of the modern and secular understanding of human rights may be traced to the religions humanism, stoicism and the natural rights theorists. Most religious texts of the world incorporate moral and humanistic principles, often phrased in terms of duties. Essentially the core area of such religious teachings was a sense of brotherhood. It has been taught that all humankind should be viewed as a unity and all are integrally linked up with that Almighty or God.
It is clear that the concept of human rights may be traced to religious texts of different religions of the world. But this does not mean that the reference of rights of man was exclusively for ensuring the human life of human beings. Rather in many cases, these references were made to justify, legitimise and endure the particular order of social and religious nature.
1.3 HUMAN RIGHTS: THEORETICAL AND PHILOSOPHICAL FOUNDATION
Philosophically viewed, the concept of human rights has been enriched by the contribution of many thinkers. Zero, the founder of the Stoic School of thought, propounded the theory of Natural Law which begins with the assertion that all human beings have natural rights. From this concept, they developed the notion of “Universal brotherhood” which is considered to be the foundation of the idea of human rights.
Reference to Greek Political ideas would reveal that both Plato and Aristotle developed their philosophical construction around two issues: common good and justice. Absolute justice can be achieved when an individual can perform the duties assigned to him in harmony with common good. Like Plato, Aristotle also laid emphasis on the concepts of justice, virtue and rights.
Medieval thinkers like Augustine had also emphasised the concept of human rights by highlighting the notions of natural law and natural rights although the primary aim was to safeguard the supremacy of the church. The age of Enlightenment tried to attach secular nature to entire discourse on human rights. Hobbes explained the nature of the state in secular perspective. Similarly, Locke and Rousseau assigned to the state or the political authority the duty to protect individual’s right to property and equality before the law.
The notion of human rights was explained from a different perspective by Jeremy Bentham, the father of the Utilitarian School of thought. He rejected the idea of natural rights as singly non-sense and impractical. J.S. Mill also discarded the metaphysical concept of natural rights and school for fundamental freedom of man. The socialist view of human rights puts emphasis on some fundamental and core issues of human being as the right to health care and education, emancipation of women, the prohibition of child labour, universal voting rights and the like.
Contemporary philosophers like Robert Nozick, John Rawls, Michael Oakshott and others, while emphasizing the issue of human rights, have challenged both the liberal and the socialist visions of rights. Philosophically viewed, the notion of human rights, in a
Historical and Philosophical Perspectives 17 general way, revolves round a number of principles. The first and foremost of them is the
theory of natural law under which human beings were supposed to have natural rights.
Closely following this, comes the concept of common good and justice which actually formed the foundation of ancient Greek philosophy. The concepts of justice, virtue and rights of the individuals formed the backbone of the theory of human rights in the Greek political philosophy. It is found in Aristotle’s Politics how the concepts like justice, virtue and rights change in accordance with different kinds of constitutions and circumstances. Aristotle advocated that rather than focusing on business, war or enslavement, states and laws should aim at encouraging leisure, peace and common good.
During the age of Enlightenment, the human rights discourse developed a new method of understanding and realisation through the notion of natural rights. In fact, Thomas Hobbes, while attempting to provide his political ideas, laid emphasis on the role of the state in terms of secular concepts. The entire philosophical and theoretical formulation by Hobbes aimed at protecting individual rights to life and security. Similarly Locke and Rousseau constructed the entire theory for securing individuals’ natural rights to political representation, property and equality before the law. Others like Hugo Grotius, Abbe Charlesde, Saint- Pierre, Thomas Pains, and Immanuel Kant further developed the concept by giving an international dimension to it. It has been rightly observed by R.M. Ishay: “But despite Hobbes’ minimal standard of what constitutes basic rights, he, by basing sovereignty on natural rights, leading to what was later called the first generation of civil and political rights.”
On the other hand, to Locke, governments are legitimate only in so far as they preserve fundamental rights acquired in the state of Nature. These include the right to life, liberty and property. According to Michael Freedom, the modern conception of rights as moral constraints on governmental action which require institutional realisation thus owes much to Locke.
Rousseau went a step further by asserting that the right to control individual action belongs not to any individual or group of individuals but to the whole community. His idea of General Will symbolises the power of the people in general which has been created by the people themselves through their collective action.
1.4 HUMAN RIGHTS: DIFFERENT PERSPECTIVES
Commentators like Weissbrodt and Vasak have categorically stated that human rights have become ‘a universal ideology’. But this proposition is also subject to criticism. Though there is virtually no disagreement among the scholars on the desirability of entitlements and empowerments of human beings, there are wide disagreements among them on the nature, extent, typology and dimension of human rights. All these issues are normative in nature and consequently these have been viewed and explained by the scholars from different subjective standpoints. Naturally, the central points of human rights have been analysed from a good number of ideological and philosophical perspectives.
Natural Rights Perspective
The natural rights paradigm of human rights views human rights from a somewhat abstract and metaphysical perspective. A product of Greek philosophy, the theory flourished in the seventeenth and eighteenth centuries as an antidote to the Divine Right of Kings. The
18 Human Rights: Indian Perspective theory suggests that human beings are entitled to enjoy certain rights with which they are
born.
It implies that human beings possess these rights which are essential parts of them, dependent of and logically prior to, their status as members of the civil society or the state. Thus, the society or the state can neither create them nor modify them. They are universal and hence, valid for all. The authority of the state is justified as legitimate only because, and so long as, it protects the natural rights of man.
A close look at the natural rights theory reveals some essential elements of the theory that require further elaboration. In the first place, the theory holds that human beings are born with the natural rights and as such, they are part of their initial equipment in the same way as their bodies are. Hence, these natural rights are thought to be innate and inalienable. Secondly, natural rights are pre-social. They are not the product of any social or political system. Rather, the society and polity came into being to ensure the recognition and enforcement of those natural rights. Thirdly, natural rights are thought to be absolute and hence cannot be negotiated, compromised or diminished. Finally, natural rights theory assumes that natural rights are universal.
It has been pointed out that such a notion of natural rights suffers from a good number of flaws. If social recognition is a necessary condition for the existence of human rights and if recognition means acceptance by morally and intellectually conscious and knowledgeable people, then, it is bound to be imposed on recognition by the privileged and thus influential section of the society over the disadvantaged, passive rest. That the privileged influential brought the idea of civil and political human rights does not mean that the disadvantaged, passive majority did not recognise the need for the second generation human rights – the social and economic rights of man. Similarly, the point that arranged protection of human rights is also necessary with social recognition leaves one into another dilemma onto how human rights are to be protected. Few questions are asked in this connection:
a) Will it be possible to ensure universality in the process of protection?
b) Will not the protection of human rights amount to violation of human rights for the sake of protection?
c) Who is going to assume the responsibility for the protection?
Such questions are, however, very complex in nature and not a single answer can be given for these questions. Even the natural rights theorists like Hobbes, Locke and Rousseau could not offer specific answers to these questions.
Again, closely following this, the issue of inalienability of human rights also figures in the whole discourse on the subject. If the very existence of a right is questioned in the event of the absence of social recognition and protection and if recognition as well as protection is conditioned by a particular brand of socio-ideological order, a right cannot remain inalienable in the true sense.
The assumption on which the natural rights paradigm rests is not without limitation. By the very logic of human beings being social animals, pre-sociality of human rights is a misnomer. It is only in some form of society that rights acquire their true meaning. A right, in order to exist, requires recognition and protection and since the recognition and
Historical and Philosophical Perspectives 19 protection are to come from the society, a right may justifiably be said to be the product
of social interactions.
As regards the absoluteness of human rights in the natural rights paradigm, it again seems to be contradictory in nature. There may be clashes among different competing rights and the realisation of one may be attained at the expense of the other. So it is universally accepted that rights, for the sake of its enjoyment of all, should not and cannot be absolute. Even the notion of universality is not free from its limitation; not all the persons are equal in every respect – social, economic, political or even physical. So it is expected that some amount of flexibility should be there in the concept, idea and extent of rights so that people belonging to all segments of the society can enjoy human rights.
In the ultimate analysis, it is held that the natural rights paradigm suffers from some ideological preferences and seeks to defend and justify a socio-political order that is bound to exhibit contradictions both at the theoretical and operational levels.
Positivist Perspective
Under the influence of the “Enlightenment” of the eighteenth century, the positivist paradigm conceives of human rights as the ‘derivative’ of the laws of the state. The core of the argument of this paradigm is that the existence and content of human rights are derived from and hence, dependent on, the positive law of the state. The Benthamite ideas centre round the issue that human existence is dominated by pleasure and pain and that human conditions may be improved by increasing pleasure and diminishing pain. Bentham’s utilitarianism, therefore, takes a majoritarian approach to human rights.
A close look at the positivist paradigm suggests that its legal backing enables the individuals to point to concrete norms and principles that allow them to vindicate their rights. Thus, the positivist paradigm appears to be an improvement upon the abstract and moral natural rights paradigm.
Libertarian Perspective
Libertarian explanations of human rights strongly criticise the positivist-utilitarian paradigm and notable scholars in this group are Robert Nozick, R. Dworkin, John Rawls, Friedrick Hayck. In the opinion of Nozick, a group of men and women, in a state of nature, come together to form a minimal state. The minimal state is based on certain moral precepts and the role of the minimal state is limited to the enforcement of moral rights of the individuals. John Rawls argues that justice is a way of distributing rights, duties, benefits and burdens among individuals within a society. In his formulation, he starts with the familiar social contract theory in which all persons are in equal position of equality as regards the distribution of freedom and power. But he admits that each person is under the spell of a ‘veil of ignorance’ about his or her own personal qualities or attributes.
In Hayek’s theory, human freedom is regarded as pre-condition for order, virtue and progress of the society. To him, human freedom has been reduced by an activist state that has emerged under the ‘grab of deceptive popular constitutional government’. Hayek’s answer to the protection of the spheres of individual freedom is a ‘limited state’ based on spontaneous order in the society.
Marxist Perspective
The Marxist perspective looks at the issue of human rights from a different angle: the
20 Human Rights: Indian Perspective
foundations of class and class-conflict. Under this construction, rights are viewed simply to be bourgeon’s concepts and as such, a product of bourgeon’s capitalist society, designed to protect the interests of the bourgeon’s class.
In the Marxist paradigm, the essence of an individual is that of a social being using his abilities to satisfy his needs. The true potential of human rights can be realised only in a class-less situation. The Marxist paradigm, by adopting the materialistic interpretation of social development, seems to provide a scientific and logical explanation as to how rights could be enjoyed in a perfect socio-economic order.
1.5 HUMAN RIGHTS: THE INDIAN PERSPECTIVE
The Indian perspective of human rights calls for a greater and detailed discussion of the subject from the philosophical, historical and legal-constitutional framework. It will not be an exaggeration if one concludes that the basic ethos and spirit of the Indian freedom struggle movement had been directed towards the total emancipation of the nation which was under the subjugation of the foreign domination. In that way, the ultimate goal of our freedom struggle movement was to achieve independence of the country and through such attainment freedom of the people in general way.
A look into the religious aspect of the concept, one may notice that the country or for that matter, the attitude and value preferences of the people of this country, cutting across religious and other sentiments, always stood for equality of the individual in eyes of social recognition. One may point out that because of social stratification and strong regimentation, a section of the people did not have access to ‘social equality’ which is considered to be the founding-stone of the notion of human rights. It is equally true that such a differentiation was strongly objected to by the makers of modern India. Such social evils were sought to be removed through relentless struggle for social reconstruction by leaders like Mahatma Gandhi, Dr. B. R. Ambedkar, Jawaharlal Nehru, Maulana Abul Kalam Azad and many others.
Even going back, one recalls the contributions by Raja Rammohun Roy, Swami Vivekananda, Swami Dayananda and others. Such efforts establish the fact that the society in India had always been in a ‘search’ for a condition where ‘people’ would find a place of honour, dignity and value.
A land of Lord Buddha, Kabir and many other great souls, India always stood for equal position of men and women in the society because she believes that unless all persons are placed on an equal footing, society cannot make any progress, worth the name. The notions of progress and development in the Indian context have been all-inclusive and comprehensive in nature. Gandhi’s call for an egalitarian society, Dr. Ambedkar’s life-long struggle for the advancement of the down-trodden people, Nehru’s vision of a socialist society or Azad’s call for a secular face of the Indian society – all aimed at one particular objective: creation of society based on justice, equality and fraternity.
But mere theoretical and philosophical pronouncements will not be sufficient in a vast complex society as India is. That is why, it is felt and correctly so, that there should be proper institutionalisation and protection of such noble values relating to human dignity. That is why, the fundamental document of the country, i.e. the Constitution has been very carefully drafted so as to give these ideals a legal and constitutional sanction. In fact, the Constitution of India can be regarded as the finest piece of document which upholds the basic tenets of human rights, discussed so far.
Historical and Philosophical Perspectives 21
The Constitution of India provides the ethical foundations of human rights in the Preamble while the legal expressions of these are in Parts III and IV of the Constitution. The ideals that are sought to be achieved for the fullest development of citizens are found in the Preamble that states in precise and lucid terms that the Constitution of India aims to secure to all its citizens justice, social, economic and political, liberty of thought, expression, belief, faith and worship; equality of status and opportunity and to promote among all fraternity assuring the dignity of the individual.
In line with the ethical foundations and under the influence of the ideals of the French Revolution that found their formal recognition in the Universal Declaration of Human Rights, the Constitution of India, as the fundamental and supreme law of the land, guarantees human rights to all its citizens without discrimination on any ground and these have been detailed out in Part III, dealing with Fundamental Rights and Part IV, dealing with Directive Principles of State Policy. It is true that the Fundamental Rights are justiceable, while the Directive Principles are not; but these two sets of rights are to be viewed in an integrated manner as political rights need to be supported by economic and social rights. An analysis of many important judicial pronouncements in India will show that the judiciary, in many leading cases, has taken a very liberal position in interpreting these rights for the sake of the greater need of the society. Moreover, with the emergence of the notion of judicial activism, the Indian judiciary is also taking very important position in establishing individual rights in many instances. The Human Rights Commission, as a principal organisation to oversee this issue, is also playing a very important role in this regard.
1.5 SUMMARY
Thus viewed, the notion of human rights occupies a central position in the whole discourse on man-state relationship. Opinions differed on the nature, extent and quantum of rights to be enjoyed by persons living in a particular political order. Since all these perspectives’ underlying objective is to justify and legitimise a particular brand of socio-economic and political order, the entire human rights discourse has virtually been a dependent variable to the preferred order. The discussion on human rights has been all the more relevant in the context of globalisation with its thrust towards creating a new global order. It is held that globalisation is driven by the latest stage of capitalism wherein accumulation is taking place on global scale and that, in addition to accumulation of capital, there is the accumulation of power in other forms, e.g. knowledge, military-capability and regulatory capacity. So in the context of new emerging global order, the discussion and debate on human rights become much more relevant.
1.6 TERMINAL QUESTIONS
1. Make a critical review on the evolution of human rights.
2. What are the theoretical/philosophical bases of the concept of human rights?
3. Bring out the essential features of Natural Rights perspective of the notion of human rights.
4. On what ground does the libertarian should criticise the positivist – utilitarian concept of human rights?
22 Human Rights: Indian Perspective
5. Write short notes on the following:
Rousseau’s concept of General Will in relation to the concept of human rights.
Bentham’s Hedonism and individual rights.
Marxian idea of a class-less society.
SUGGESTED READINGS
Green, T.H., Lectures on the Principles of Political Obligation, Longmans, London, 1941.
Gupta, Vijay K., “Judicial Activism and State Accountability in Human Rights Violations” in Gupta, Vijay K., (ed.), Perspectives on Human Rights, Vikas Publishing House, New Delhi, 1996.
Gupta, Vijay K., Perspectives on Human Rights, Vikas Publishing House, New Delhi, 1996.
Lukes, Steven., “Five Fables About Human Rights” in Stephen Shute and Susan Hurley (eds.), On Human Rights, Basic Books, Oxford, 1993.
MacCormick, N., Legal Rights and Social Democracy, Oxford University Press, Oxford, 1982.
Macpherson, C.B., The Political Theory of Possessive Individualism, Hobbes to Locke, Oxford University Press, Oxford, 1964.
Macpherson, C.B., “Natural Rights in Hobbes and Locke” in D.D. Raphael (ed.), Political Theory and the Rights of Man, Macmillan, London, 1967.
McCloskey, H.J., “Respect for Human Moral Rights Versus Maximising Good”, in R.G. Frey (ed.), Utility and Rights, Blackwell, Oxford, 1985.
McDougal, Mires S., Lasswell, H.D. and Chen, L.C., Human Rights and World Public Order, Yale University Press, West Haven, 1980.
Mill, John Stuart., On Liberty, Oxford, London, 1963.
Nickel, J.W., Making Sense of Human Rights, University of California Press, Berkeley,
1987.
Nozick, Robert., Anarchy, State and Utopia, Basil Blackwell, Oxford, 1974. Oakeshott, Michael., Rationalism in Politics, Methuen, London, 1962.
Paine, Thomas., Rights of Man, Penguin, Harmondsworth, 1969.
Pollis, A, and P. Schwab., “Human Rights: A Western Construct with Limited Applicability” in A. Pollis and P. Schwab., (eds.), Human Rights: Cultural and Ideological Perspectives, Praeger, New York, 1979.
Rawls, John., A Theory of Justice, The Belknap Press of Harvard University Press, Cambridge, 1971.
Historical and Philosophical Perspectives 23 Richter, M., The Politics of Conscience: T.H. Green and his Age, Weidenfeld and
Nicolson, London, 1964.
Rorty, Richard., “Human Rights, Rationality and Sentimentality” in Stephen Shut and Susan Hurley (eds.), On Human Rights: Oxford Amnesty Lectures, Basic Books, Oxford, 1993.
Vasak, K., “Toward a Specific International Human Rights Law”, in K. Vasak, Vol.2.
Vincent, J.R., Human Rights and International Relations, Cambridge: Cambridge University Press, 1986. Also Stammers, Neil., A Critique of Social Approaches to Human Rights” in Human Rights Quarterly, 17.3.1995.
UNIT 2 THE INDIAN TRADITIONS
Structure
2.1 Introduction
Aims and Objectives
2.2 Western and Non-Western Traditions: A Comparison
2.3 Indian Traditions of Human Rights
2.3.1 Buddhist Traditions of Rights
2.3.2 Hindu Traditions: The Vedic Concept
2.3.3 Hindu Politico-Religious Traditions: Post-Vedic Notion 2.3.4 Contribution of Asoka and Akbar
2.3.5 Sufi-Bhakti Traditions 2.3.6 Traditions of Sikhism
2.4 Constitutional Framework of Protective Discrimination
2.5 Summary
2.6 Terminal Questions
Suggested Readings
2.1 INTRODUCTION
The modern concept of human rights is the product of post-17th century Western liberal thought. Its origin can be traced to such pronounced landmarks as the English Petition of Rights (1627), the Habeas Corpus Act (1679), the American Declaration of Independence (1776), the American Bill of Rights (1791), and the French Declaration of Rights of Man and Citizen (1789), all of which institutionalised a standard of human rights and liberties. This modern Western notion has been epitomised in the UN system of protection of human rights. Though the UN has adopted many human rights instruments, the Universal Declaration of Human Rights (UDHR), 1948 and the two Covenants on Human Rights (1966) are the most significant as they are together known as the ‘International Bill of Human Rights’. The catalogue of rights enshrined in the International Bill proclaims that it is universally applicable to all peoples and nations irrespective of their social, cultural, political, economic and ideological traditions. The Preamble of the UDHR states that these rights represent ‘a common standard of achievement for all peoples and all nations’. Though the notion of human rights provided in the Bill is predominantly based on Western socio-political philosophy and liberal traditions and is the product of the experiences of peoples of England, France and the United States from the 17th to the 20th centuries, majority of Western scholars and nations consider that it is valid for all nations and peoples.
Notwithstanding the internationalisation of human rights by the United Nations, many scholars and nations, especially from the Third World, contest the claim of universality of human rights. The idea of human rights is not a Western discovery as human rights values and traditions have been part of their cultures/civilisations and politico-legal systems for centuries – much before the West evolved them during the last three centuries. They
The Indian Traditions 25
argue that what should be universal is the idea or the concern for human rights in general and not a particular model of human rights. Human Rights are the product of historical, cultural and sociopolitical experiences of a given society. Different societies have formulated their conception of rights to suit their specific socio-cultural and political settings. Hence, cultural specificity has to be taken into cognizance while formulating and implementing human rights standards and norms. There cannot be a uniform standard of human rights or uniform meaning of a right. There can be different meanings attributed to a right even within a single tradition. This is a challenge posed by those who believe in cultural relativism as against universalism. Besides being culturally specific, the concept of rights, it is contended, also inheres dynamism that lends its meaning and interpretations to constant evolution and change.
India is a multi-cultural, multi-religious and pluralist society, where many faiths and belief systems regulate the lives of the people. Though the Hindus constitute the majority, religious traditions of minorities also have contributed to the Indian cultural values and human rights traditions. Each belief system, such as Buddhism, Sikhism, Bhakti cult, Sufi traditions as well as Islam and Christianity has moulded the thinking pattern and consciousness of Indians. The notion of rights and duties flowing from all these religious systems has enriched the Indian traditions and cultural values vis-a-vis human rights.
Aims and Objectives
This Unit will enable you to understand
The major strands of politico-religious thoughts on the human rights and values;
The Hindu-Buddhist traditions of human rights;
The contribution of Asoka and Akbar to secularise the notion of rights, by ensuring religious freedom.
The Constitutional framework of positive discrimination for weaker sections of society.
2.2 WESTERN AND NON-WESTERN TRADITIONS: A COMPARISON
The concept of human rights has evolved in the non-Western traditions like the Chinese, Indian, African and Islamic much before the Western notion of rights got crystallised. The non-Western perspectives provide a vantage point to critically look at the Western notion of human rights. Three common departures can be highlighted here. First, the Western model hinges upon ‘individual’ as the central point of reference in its human rights discourse, whereas ‘group’ as an entity for the realisation of both ‘individual’ and ‘collective rights’. Human beings have multiple and group identities as members of a family, tribe, community or society. Second, the Western doctrine lays increasing emphasis on ‘individualism’ and rights of the individual as against duties which are considered as important in non-Western traditions. One might ask a question: how can the State agree to assume obligations towards persons who, for their part, accept no obligation, no duty, in regard to the community and the State? It must be acknowledged that rights cannot be abstracted from duties; the two are correlated. In other words, human rights are not rights only. They are also duties and both are interdependent. In fact, every human right has a corresponding duty with regard to the rights of others. Moreover, emphasis on
26 Human Rights: Indian Perspective
unbridled individualism has led to most of the present day problems. Instead of talking of the rights of an individual (which is abstract) we should talk of the rights of persons, as according to R. Panikkar, a philosopher from Spain, ‘the individual is an isolated knot whereas a person is the entire fabric around the knot. …Certainly without the knots the net would collapse; but without the net, the knots would not even exist’ (Panikkar, 1982, p.90). A person lives in the family, society, group and community. His / her rights and duties vary at different stages of their lives. Any serious discourse on human rights / duties would keep in mind these cross-cultural perspectives. It is worth recalling here Mahatma Gandhi’s opinion (sought by Julian Huxley, the then Director General of UNESCO) on the Universal Declaration of Human Rights. The Mahatma had said that ‘all rights to be deserved and preserved came from duty well done’. In his view, ‘if each one of us did our duties, our rights will automatically be taken care of’ (The text of Gandhi’s letter dated 25 May 1947 is reproduced in Human Rights Teaching (Paris: UNESCO), Vol. IV, 1985, p. 4). Thus the duty-first (rather than rights-first) approach is the hallmark of Indian traditions. A dictum of the Gita which has taken deep roots in the Indian mind is karmanye vadhikaraste ma phalesu kadachan (i.e. one must go on performing one’s duties without being concerned about the fruits or results). Third, while universality of human rights was advocated in UN fora by the Western countries, some of these countries did not extend human rights to the people in their colonies for generations.
An understanding of the non-Western perspectives helps us to appreciate the limitations in the prevailing international human rights protection system and the difficulties experienced by the non-Western States in implementing human rights norms. Despite the evident cultural and regional diversities in the world we need to have a ‘common minimum standard of human rights’ agreeable to all. Therefore, knowledge of non-Western perspectives may help in enriching the content and concern of international human rights by incorporating these hitherto neglected aspects.
2.3 INDIAN TRADITIONS OF HUMAN RIGHTS
Indian civilisation’s contribution to the evolution of human rights norms is significant. Under the Indian traditions, we discuss in this Unit Hindu-Buddhist, Bhakti-Sufi, Sikh and Islamic traditions of human rights. This section essays all these traditions except the Islamic traditions of human rights, which are discussed in separate section.
2.3.1 Buddhist Traditions of Rights
India’s heritage with regard to human rights concern and education predates the Western history, philosophy and law. Its national values of tolerance, non-violence, friendship for all, equality, respect for the human persons, human dignity and rights confirms this. These values are legacy of Buddhism. Buddha’s messages of non-violence, non-hatred and friendliness to all were transformed into reality by Emperor Asoka. As a devout follower of Buddha, Asoka became a great champion of freedom and tolerance. He pleaded for universal tolerance. In Buddhism, he found useful guidelines for implementing justice throughout his kingdom. Believing that there was no ‘greater task than to strive for universal welfare’, he promoted toleration of religious ideas: ‘All sects receive honour from me, and I deem the essential point is fidelity to their doctrines and their practices’ (Cited in Ishay, 2003, p.30).
Buddha also believed in freedom of thought. He told his followers to think for themselves and to take responsibility for their own future: ‘Just as the experts test gold by burning
The Indian Traditions 27 it, cutting and applying it on a touchstone, my statements should be accepted only after
critical examination and not out of respect for me’ (Cited in Ishay, p.30).
One of the most significant contributions of Buddhism was the introduction and spread of secular education – education for all. Organised Universities came to be established under the direct influence of Buddhism. Under Hinduism, the Law Books gave right to education only to the three upper castes. In practice, it was only the Brahmins and the aristocracy who received formal education. Caste discrimination kept the untouchables (shudras), the lower caste, away. Here the Buddhist tradition was in striking contrast. Not only were Buddhist monasteries open to persons of any caste, but also the syllabi had a wider range and included disciplines of more practical interest.
Buddhism began as one of a number of heterodox sects whose common feature was their breaking away from brahminical orthodoxy. The Buddhists and the Jains found their earliest supporters in the republican tribes of northern India. Absence of both monarchical authoritarianism and close association with the idea of divinity in the political sphere led to a stress on the rights of the individual in society. In the Buddhist theory the emphasis is on the quasi-contractual nature of the beginnings of government and on the sovereignty of the people. The latter idea remained central to Buddhist political thinking but it was never taken a step further and developed into a theory of rights of the people as Buddhism was gradually declining in India. Nonetheless, the republican background nurtured an individualistic tradition in Buddhism with a strong support for the kind of social and moral attitudes implicit in human rights. Moreover, the Buddhist tradition showed greater liberality to women in encouraging them to become nuns (See Thaper, 1966, pp.34-44). It is gratifying to note that Sanghamitra, the daughter of Asoka, established a nunnery in Sri Lanka and is remembered even today.
The texts in the Buddhist Pali Canon commanded followers of Buddha not to steal; hence the right to property. In later Buddhist literature, the sage Nagarjuna’s advice to royalty depicted the functioning of a welfare state that limited the incomes of the rich people: ‘To dispel the suffering of children, the elderly, and the sick, please fix farm revenues for doctors and barbers throughout the land’ (Ishay, 2004, p.37). In certain circumstances, as the Buddhist scholar Robert Thurman has noted, Nagarjuna has urged the state ‘to intervene in the realm of private affairs to forestall bankruptcy’, (to guarantee universal health care, to set up ‘hostels, parks, canals, irrigation, ponds, rest houses, wells, beds, food, grass, and firewood’, to care for travelers, and to provide shelters for beggars, cripples, and wandering ascetics (Thurman, 1988, pp. 157-58).
2.3.2 Hindu Traditions: The Vedic Concept
In the Vedic period, equality of all human beings was reiterated with no one being superior or inferior. This can be better illustrated by citing the example of Valmiki and Vyasa, who belonged to the fourth and second Varna respectively. These two were the authors of the two great epics, the Ramayana and the Mahabharata, who are regarded as the greatest poets, writers and philosophers of the country and held in the highest esteem to this day by all.
Regarding the status of women in ancient India, it must be stated that they enjoyed equal status. Prof. P.V. Kane refers to specific hymns in Rigveda as composed by women, and cites Bhadarnayak Upanishad to show that women actively participated in philosophical discourses. Women were not discriminated in the field of education; they studied along with male students. Women sages and teachers were also not uncommon in ancient India.
28 Human Rights: Indian Perspective
During the sutra period (800 B.C. to 400 B.C.) women recited Vedic mantras routinely. But in later period their position became that of dependence on men. Women were not considered fit to study the Vedas and rituals for girls were performed without the recitation of Vedic mantras. However, family rituals required their equal participation with men (Nanda, p. 37).
During the early Vedic period women played an important role in religion and society. Both men and women were educated equally in religion and academia; women performed religious sacrifices alongside men, and women also received the sacred Hindu thread that is given today only to males. The Haritasmriti recounts the existence of a group of women called brahmavacinis (a Sanskrit term meaning speakers and revealers of Brahman) who remained unmarried and devoted their lives to Hindu religious study during this early Vedic period. A clear distinction in Vedic language is made between acarya (a female teacher) and acaryani (a teacher’s wife) and upadhyaya (a female preceptor) and upadhyayani (a preceptor’s wife) clearly showing that women in fact carried out religious education of others and were communicators as well as students of sacred Hindu scripture. In the Upanishads, women philosophers such as Vacaknavi challenged the ideas of Yajnavalka, her male counterpart. Women, such as Queen Bispala, engaged in warfare in the Rig Veda revealing that women also played a role in protecting and participating in state affairs (Polisi, 2003, p.2).
Hindu gods and goddesses personify manifestations of Hindu religious concepts and nature. Interestingly, Hindu goddesses, rather than gods, are most often used to represent abstract fundamental principles such as power, strength, education, and wealth as well as important natural phenomena such as the mountains, the dawn, the earth, and the rivers. For example, Hinduism personifies divine strength and power in the form of a female figure referred to as Shakti, Saraswati, the Goddess of Learning, Music and Fine Arts, is portrayed as a female in Hindu texts and paintings. Likewise, Lakshmi is the Goddess of Wealth, a female personification. Parvati, the mountain goddess, is the consort to Shiva, one of the most important Hindu gods. The Goddess of Dawn is Usha, the Goddess of Rivers is Ganga, and the Goddess of Earth is Prithvi – all female personifications of incredibly important aspects of nature on which humanity depends.
Vedic literature clearly exhibits the high respect given to women. Romesh C. Dutt wrote in The Civilization of India: ‘Women were held in higher respect in India than in other ancient countries, and the Epics and old literature of India assign a higher position to them than the epics and literature of ancient Greece. Hindu women enjoyed some rights of property from the Vedic Age, took share in social and religious rights, and were sometimes distinguished by their learning. The absolute seclusion of women in India was unknown in ancient times’ (Cited in Polisi, 2003, p. 3).
Following the growth and increasing rigidity of caste system in India, the earlier values of human dignity, equality of all men, and equal status of women, the ideal of universal brotherhood were allowed to press into oblivion. The introduction of the concept of untouchability gave a big blow to the concept of human rights. In the words of Barnett R. Rubin, “untouchability is probably the biggest obstacle to human rights…, which while outlawed, is still widely practiced and relegates a whole section of the community to ‘unclean’ status” (Rubin, 1987, p.137).
2.3.3 Hindu Politico-Religious Traditions: Post-Vedic Notion
Contrary to the Buddhist and Vedic traditions, the Hindu religious and law books hardly
The Indian Traditions 29
had any concept of rights, as its Varnadharma (i.e. the Caste system) had established unequal privileges or rights. The Dharma prescribed the duties of the four social orders, namely, duties of citizenship, the duties peculiar to one’s caste, the eternal family duties, and the duties of those persons who follow the scriptures other than the Vedas, (i.e. Pashandas). It also laid down the household duties, the duties of wives, the duties of kings, the duties of men and women.
The idea of rights is not directly visible in the Hindu culture. However, the holy books and political treatises provided many general and moral exhortations concerning rights and duties. One of the Chapters in the Gita is dedicated to Karmayoga, i.e., the Yoga of Works, which ‘expounds the necessity for the performance of work [duty: that which ought to be done] without any selfish attachment to results, with a view to securing the welfare of the world…’ If inter-individual and social relations are expressed in terms of a comprehensive web of duties, rights cease to be privileges to be specifically claimed, but a condition that would promote human, and hence social, welfare. Therefore, Kautilya prescribed not powers, but ‘duties of a king’. One of the duties of the king was: ‘When in court he shall never cause his petitioners to wait at the door.’ One of the ground rules for the king was: ‘In the happiness of his subjects lies his happiness; in their welfare, his welfare; whatever pleases himself he shall not consider as good, but whatever pleases his subjects he shall consider as good’ (Kautilya, 1901, pp.38-39). And, ‘Harmlessness, truthfulness, purity, freedom from spite, abstinence from cruelty, and forgiveness are duties common to all’ (Kautilya, p.7).
In Kautilya’s book, the idea of a welfare state is repeated with great force. He enjoins that the king must provide for the orphans, the aged, the helpless and the afflicted. Helpless women must be provided subsistence by the state when they are pregnant. The king is also required to construct dams, rivers, and road, to maintain forests, and provide help and superintendence to places of pilgrimage. He is also to supervise the reservoirs constructed by cooperative enterprises of the people and to ensure that those who do not work do not gain for them. The king must protect agriculturists from molestation and other kinds of oppression, forced labour and oppressive taxes (Kautilya, pp.51-52). During famines, the king is asked to help the people by providing seed and provision. He declares, ‘A wise king can make the poor and miserable elements of his society happy and prosperous, but a wicked king will surely destroy the most prosperous of loyal elements of his kingdom’ (Kautilya, pp. 309-11).
As an exponent of real politik, Kautilya accepts the importance of keeping people happy. He adds, ‘When people are impoverished, they become greedy, when they are greedy, they become disaffected, they voluntarily go to the side of the enemy and destroy their own master”. He further adds, hence no king should give room to such causes as would bring about impoverishment, greed or disaffection among his people’ (Kautilya, 1901).
Notwithstanding the duty-based approach to rights prevailing in Hinduism, and the Varnadharma (caste system), certain universal principles propounded in Bhagvad Gita and Upanishads represent human rights values. An important axiom of Hinduism states that God is omnipresent and immanent in all that exists in the universe (Bhagvad Gita, Ch VI, verse 31; Ch. VII, Verse 19; Ch. VIII, Verse 61; Ch. XI, Verse 38). Thus, according to Hinduism, this universal spirit or soul (Brahman) manifests itself in all human beings and indeed pervades all creation, as the very first verse of the Isa Upanishad declares: ‘God covers all that moves in the Universe’ (Cited in Nanda, 1997, p.32).
30 Human Rights: Indian Perspective
What follows from this fundamental belief in the omnipotent presence of God is pertinent for our discussion of international human rights. As a first corollary, Hinduism firmly believes in universal brotherhood. Since God permeates every being, there is unity and equality in diversity, which Bhagvad Gita describes in the following words:
A seer is he
Who sees the immutable
In the body of all mortals;
And, realising that the same Being Equally exists everywhere,
He attains salvation
And he does not slay others Bringing death to his own Self.
Similarly, Isa Upanishad describes it thus:
He moves and is yet Immovable. He is at once far off and near. He is within all and also
On the face of all that exist. Seeing this Supreme Being
As the beginning and end of
All beings and pervading all,
One can have hatred towards none. (Nanda, p.32).
The early Hindu teachings, before the introduction of stratified caste system, reiterate the human goal of the realisation of the Divine in everything, which means unity of all faiths. This means not only freedom from any hatred or malice to other human beings, but also an affirmative duty and obligation to serve God’s creation if one is to reach the highest level of spiritual attainment in being identified with the Divinity. The well-known Hindu saying, ‘Vasudhaiva Kutumbakam (All humanity is one family)’, aptly captures this sentiment (Nanda, pp. 32-33).
The Second corollary is in Hinduism’s belief in oneness of all religions and hence its advocacy of the rejoicing in difference. Bhagvad Gita states it eloquently:
Whoever approaches me
In whatever manner,
I accept him.
All paths men are struggling through head unto Me.
What better expression of human rights, human dignity and catholicity can be found in Hinduism than the following verse in the Bhagvad Gita:
Impartial and equal am I to all beings.
None do I despise not love more than any other. (Nanda, p. 33).
It is true that the caste system with different rights / duties to people of different castes and lower status to women and sudras was legalised by Manu; he had some positive laws for women, as he writes: ‘where women are honoured, there the very Gods are pleased, but where they are dishonoured no sacred rite even could yield rewards’.
These universal ethical principles of Hinduism are reiterated by Indian scholar in UNESCO
The Indian Traditions 31
Conference. In 1947, UNESCO organised an international conference on the eve of the adoption of the UDHR in which eminent scholars from different religions, cultures, socio- legal systems across continents were invited to participate. These scholars were given a questionnaire to prepare their papers. From India S.V. Puntambekar, a political scientist, was to speak on ‘Hindu Concept of Human Rights’. As he was aware of the universal principles of Hinduism and Buddhism, he wrote in his paper that Hinduism offered important ‘spiritual aims and values for mankind’. ‘Both Manu and Buddha’, he claimed, ‘propounded a code as it were of ten essential human freedoms and controls or virtues of good life’. They are not only basic, but also comprehensive in their scope than those mentioned by any other modern thinker. They emphasize five freedoms or social assurances and five individual possessions or virtues. The five social freedoms included: ‘freedom from violence (Ahimsa), freedom from want (Asteya), freedom from exploitation (Aparigraha), freedom from violation or dishonour (Avyabhichara), and freedom from early death and disease (Armritatva and Arogya)’. The five individual possessions or virtues are: ‘absence of intolerance (Akrodha), compassion (Bhutadaya, Adroha), knowledge (Jnana, Vidya), freedom of thought and conscience (Satya, Suntra), and freedom from fear, frustration and despair (Pravrtti, Abhaya, Dhrti)’ (Puntambekar, p. 20).
2.3.4 Contribution of Asoka and Akbar
It must be acknowledged that the two great emperors of India – Asoka and Akbar – laid the foundations of their empires on the principle of religious tolerance and non-discrimination. Asoka’s rock pillar introduced the finest human rights principles. Let us quote here Asoka’s Rock Edict XII which states:
The faiths of others all deserve to be honoured for one reason or another; by honouring them, one exalts one’s own faith and at the same time performs a service to the faith of others. By acting otherwise, one injured one’s faith and also does disservice to the faith of others. If a man extols his own faith and disparages another because of devotion to his own faith, because he wants to glorify it, he seriously injures his own faith (Cited in Krishna Iyer, 1999, p.30).
Eminent historian, H. G. Wells, writes of him
Amidst the tens of thousands of names of monarchs that crowd the columns of history, their majesties and graciousness and serenities and royal highnesses and the like, the name of Asoka shines, and shines almost alone, a star. From the Volga to Japan his name is still honoured. China, Tibet, and even India, though it has left his doctrine, preserve the tradition of his greatness. More living men cherish his memory today than have ever heard the names of Constantine or Charlemagne (Wells, 1961, p.402).
King Asoka’s regime sowed the seeds of a humanitarian society or the welfare State. The Law of Piety, which was the moving spirit of that time, had in fact all the elements of modern welfare law. Asoka’s legal regime proscribed war propaganda. His twenty-eight year rule, after initial wars, was mainly dedicated to instituting peace. His regime also made provisions for freedom from hunger, health care, educational facilities and certain other social amenities in Asoka’s empire which were initial efforts in the direction of the realisation of social, economic and cultural rights. As far as civil liberties were concerned, Asoka observed a policy of tolerance. In this connection the renowned historian Smith observed:
32
Human Rights: Indian Perspective
Should anyone do him (King Asoka) wrong, that too must be borne with by His Sacred Majesty, so far as it can possibly be borne with. Even upon the forest folk in his dominions His Sacred Majesty looks kindly and he seeks to make them think aright, for, if he did not, repentance would come upon His Sacred Majesty. They are bidden to turn from evil ways so that they be not chastised. For His Sacred Majesty desires that all animate beings should have security, self- control, peace of mind, and joyousness (Smith, 1976, p.119).
Asoka’s administration prohibited torture and inhuman treatment of prisoners. History records as follows:
He (Asoka) laments that some servants of the state, failing to realize his personal sentiments, had at times gone so far as to inflict unjust imprisonment or torture. He warns his officers that they must beware of yielding to the vices of ‘envy, lack of perseverance, harshness, impatience, want of application, laziness and indolence’, threatening them with his displeasure if they should fail in their duty (Smith, p.120).
It is quite clear that Hindu civilisation had a well-developed system which guaranteed both the civil and political as well as the economic, social and cultural rights of the human beings. These rights were considered as the basic minimum necessary for the dignity of the individual.
Akbar and other Muslim rulers of India too followed similar policies of religious tolerance. The onset of Muslim rule in India during the medieval period led to a greater degree of socio-cultural interactions between the Hindu majority and the ruling Muslim minority. Freedom of religion or belief of Hindus was ensured. The general policy and attitude of Muslim polity was one of the accommodation, religious tolerance and respect to the religions and cultures of the Hindus. Regarding the religious policy of the Mughals, S.R. Sharma, a noted historian, commented that ‘the position of Hindus in India was generally much better than that of many communities in Europe whose faith differed from that of their rulers’ during medieval times (Sharma, 1988, p.7). It is worth recalling here the various enactments issued by Akbar on the occasion of Muslim Hijr calendar reaching the year 1000 (which occurred in 1591-92 AD). Some of these enactments focused on religious tolerance, including the following:
No man should be interfered with on account of religion, and
anyone [is] to be allowed to go over to a religion he pleased.
If a Hindu, when a child or otherwise, had been made a Muslim against his will, he is to be allowed, if he pleased, to go back to the religion of his fathers. (Sen in Falk: 2008, pp. 395-96).
Also, there was no discrimination against Hindus for appointment to important imperial posts. Great Sufi prince, Dara Shikoh, translated the Upanishads and declared them to be the heavenly book referred to in the Quran. In fact, only Torah and Bible are explicitly mentioned in the Quran though it indicates that prophets and Holy books have been sent in every community and nation in the world.
Against this background it is worth noting here the objection of C.H. Alexandrowicz, who objects to the prevailing notion that the idea of ‘universal concept of human rights’ is Western. According to him it was the Asian civilisations that had a profound contribution on the development of International Law until they came under colonial domination. For
The Indian Traditions 33
instance, explaining the contribution of Asian States during the early and pre-colonisation period of the sixteenth, seventeenth, and eighteenth centuries, Alexandrowicz states: ‘[T]he European agencies in the East learned the lesson of co-existence of Hinduism, Islam, and Christianity in India (particularly on the west coast) and transplanted their experience to the West, which had been so long incapable of extricating itself from the obsession of religious wars’ (Alexandrowicz, 1965-66, p. 312).
2.3.5 Bhakti- Sufi Traditions
In medieval India, the Bhakti movement challenged the brahminical orthodoxy and opposed the unequal caste system and caste segregation. Bhakti, the path of devotion, implies a belief in the supreme person not in supreme abstraction. The propounders of Bhakti emphasized the devotion to a personal God as a means of attaining salvation (moksha) as opposed to the pathways of action (karma) or knowledge (gyana). The preachers of bhakti gave the utmost importance to human equality, communal harmony (especially Kabir) and universal tolerance.
The Sufis of medieval India also opposed caste hierarchies and social discrimination. Sufi- poets founded the doctrine of Wahdat al- wujud, oneness of being. This doctrine was developed primarily by Muhiyudin Ibn- Arabi, the great Sufi saint. This doctrine had many far reaching implications. It considered all human beings as manifestations of God. Ibn Arabi used to say: ‘My heart is a mosque, a church, a synagogue and a temple’.
The Sufi-saints practiced full equality between the sexes. Among the women saints, the universally revered Rabi’a al-Adawiyya was a Sufi par excellence. It is said that the Sufis value women as much as they do men because they believe in nothing less than the unity of God. ‘In this unity’, Fariduddin Attar asks: ‘What remains of the existence of “I” or “thou”? So how can “man” or “woman” continue to be?’ (Asghar Ali Engineer, Times of India, February 5, 1997).
2.3.6 Traditions of Sikhism
Sikhism was founded by Guru Nanak who was a brilliant product of the Bhakti movement in northern India. Kabir’s teachings had a deep impact on Nanak as also the Islamic and Sufi ideas. Like Kabir, Nanak found a common link between Hinduism and Islam. The term “Sikh” has been derived from the Sanskrit word “Sishya”, which means disciple. Sikhism is also a religion of the common person. It is known for its simplicity. Nanak conceived of God as formless Nirakara and rejected idol worship and superstitious beliefs. Nanak wanted to found a new religion which could combine the teachings of Hinduism and Islam.
From the perspective of human rights, what is important is the fact that Nanak spoke of, and believed in, the equality of all human beings and rejected discrimination or distinction on any ground – religion, social standing, colour or even sex. He was the harbinger of Hindu-Muslim unity. He initiated the tradition of community kitchen or Guru ka langar to highlight the egalitarian philosophy of Sikhism.
2.4 CONSTITUTIONAL FRAMEWORK OF PROTECTIVE DISCRIMINATION
By enacting the Indian Constitution with a “bill of rights” and many other secular laws to abolish discriminatory treatment of untouchables and Hindu women (whose rights were
34 Human Rights: Indian Perspective
extremely limited compared to their male counterparts) the Indian political system is striving to replace the traditional unjust and stratified social order (which granted privileges and rights to only higher castes) with an egalitarian and socialist system. Independent India has been following vigorously a system of preferential treatment, commonly known as protective discrimination, towards the people belonging to historically disadvantaged groups such as untouchables, tribals and other backward classes. This policy is unprecedented in scope and extent and has no parallels in any part of the world. Under this policy, 49.5 per cent of jobs and seats in educational institutions are reserved for these groups besides reserving 22.5 per cent of membership in the Parliament and Assemblies for dalits and tribals. Also in local and urban bodies, women have been given 50 per cent reservation of seats. Thus, the concepts of social justice and empowerment of women are at the centre-stage of contemporary socio-political life.
2.5 SUMMARY
The non-Western nations challenged the Western notion of human rights, as reflected in the UDHR and other international human rights documents. They contested the prevailing beliefs that human rights are a Western discovery and the Western model is universally valid for all nations and peoples. All cultures/civilisations have their own framework of human rights embedded in their culture, traditions, and socio-political and legal systems suiting their societies. India has a rich mosaic of human rights traditions. All the major religions (and their practices) and political and legal treatises contained many principles/ precepts of human rights and human dignity. Asoka and Akbar’s policies of religious tolerance were exceptionally much ahead of their times.
Hinduism emphasised equality of all human beings, equality of men and women in all fields, the idea of universal brotherhood and oneness (unity) of all religions. Buddhism opposed caste system, believed in universal brotherhood, ahimsa / non-violence, education for all people, rights of women. Similarly, during medieval period the preachers of Bhakti movement gave utmost importance to human equality, communal harmony and universal tolerance. The Bhakti-Sufi influences gave birth to Sikhism, which tried to combine the teachings of Hinduism and Islam. Sikhism also believed in the equality of all human beings and by initiating the tradition of Langar highlighted its egalitarian philosophy. In the post- independent India, the Constitution not only rechristened the secular traditions of human rights values and duties of yester years, but also pioneered the doctrine of positive discrimination to help the weaker sections of society.
2.6 TERMINAL QUESTIONS
1. Distinguish between the Western and non-Western concept of human rights.
2. Compare and contrast the Buddhist traditions of human rights with the Hindu traditions.
3. Examine the contribution of Asoka and Akbar in developing secular values and notions of human rights.
4. Explain the distinct contribution of Sikhism and Bhakti-Sufi movement to enrich Indian traditions of human rights.
The Indian Traditions 35
SUGGESTED READINGS
Alexandrowicz., “Kautilyan Principles and the Law of Nations”, British Yearbook of International Law, Vol. 41, 1965-66.
Swarupananda, Swami., Bhagvad Gita: Text and Commentary, Advaita Ashram, Calcutta, 1989
Ishay, Micheline R., The History of Human Rights – From Ancient Times to the Globalization Era, Orient Longman, New Delhi, 2008
Kane, P.V., 1930-1962. History of Dharmasastra, Vol. III, Bhandarkar Oriental Research Institute, Poona.
Kautilya. 1901. Arthsastra, edited by R. Shamasastri, Mysore: Mysore Government Oriental Series.
Krishna Iyer, V. R., The Dialectics and Dynamics of Human Rights in India (Yesterday, Today and Tomorrow), Eastern Law House, New Delhi/Calcutta, 1999.
Mitra, Kana., ‘Human Rights in Hinduism’, in Arlene Swindler (ed.), Hinduism in Religious Traditions, Pilgrim Press, New York, 1982, pp. 77-84.
Nanda, Ved P., ‘Hinduism and Human Rights’, in Daniel Warner (ed.), Human Rights and Humanitarian Law, Kluwer Law International, The Hague, 1997, pp. 29-41.
Panikkar, R., ‘Is the Notion of Human Rights a Western Concept’, Diogenes (Paris), 1982, No.2, pp. 75-102.
Polisi, Catherine E., 2003, ‘Universal Rights and Cultural Relativism: Hinduism and Islam Deconstructed’, BC Journal of International affairs. Available at URL: <http:// http://www.jhubc.it/bcjournal/articles/polisi.cmf> (accessed on 9 August 2010).
Puntambekar, S.V., 1947. ‘The Hindu Concept of Human Rights’, in UNESCO (ed.), Human Rights – Comments and Interpretations, A Symposium. London: Allan Wingate, 1949. Reprinted in Human Rights Teaching (Paris), Vol. IV, 1985, pp.19-20.
Rubin, Barnet R., ‘India’, in Jack Donnelly and Rhoda E. Howard (ed.), International Handbook of Human Rights, Greenwood Press, New York, 1987.
Sen, Amartya., ‘Human Rights and Asian Values’, The New Republic, July 14 & 21, 1997, pp.33-40.
Sharma, Arvind., Hinduism and Human Rights: A Conceptual Approach, Oxford University Press, New Delhi, 2003.
Sharma, S. R., The Religious Policy of Mughal Emperors, 3rd edition, Munshiram Manoharlal Publishers, New Delhi, 1988.
Smith, Vincent A., The Oxford History of India, Oxford University Press, Delhi, 1976. Thapar, Romila., ‘The Problem of Human Rights in the Hindu and Buddhist Traditions’,
International Social Science Journal (Paris), Vol. 18, No. 1, 1966, pp. 34-44.
Thurman, Robert., ‘Social and Cultural Rights in Buddhism’, in Leroy S. Rouner (ed.), Human Rights and World’s Religions, University of Notre Dame Press, Notre Dame, Ind.,1988.
Wells, H. G., The Outline of History – Being a Plain History of Life and Mankind from Primordial Life to Nineteen Sixty, 8th edition, Cassel, London, 1961.
UNIT 3 FREEDOM STRUGGLE AND HUMAN RIGHTS
Structure
3.1 Introduction
Aims and Objectives
3.2 Background
3.3 The Beginnings
3.4 National Movement and Human Rights
3.4.1 Programmatic Content
3.4.2 Making Demands from the Government
3.4.3 Struggling for Human Rights
3.4.4 Practising Human Rights
3.5 Struggles for Social Transformation
3.5.1 Struggle Against Caste Oppression
3.5.2 Rural Reorganisation
3.6 Spread
3.7 Implications
3.8 Summary
3.9 Terminal Questions
Suggested Readings
3.1 INTRODUCTION
In the previous Unit, you were made familiar with some of the essential and positive features of Indian tradition. The purpose of this Unit is to inform you about some of the basic characteristics of the India’s Freedom Struggle. In particular the focus of the Unit will be to demonstrate how Indian freedom struggle sought to build the foundations of a modern Indian society along democratic and civil libertarian lines, by incorporating some of the positive features of Indian tradition. We would look at some of the sources that provided inspiration and a framework to the leaders of the national movement in their quest for a just and humane social order. It will focus on the activities of the early nationalist leaders and on how they gradually acquired a human right perspective. We would also discuss the programmatic content of the national movement that evolved during the popular phase of the national movement vis-à-vis the question of human rights; concentrate on the different ways in which this perspective was operationalised by the leaders of the national movement during the course of the freedom struggle; and finally the implications of this civil libertarian perspective for politics and society in independent India.
The Indian National Movement has commonly been understood as mainly a struggle against British imperialism. This however is a limited view of the national movement. It is
Freedom Struggle and Human Rights 37
essential to see the freedom struggle as a grand project aimed at the transformation of Indian society from pre-modern to modern. The end of British imperialism was seen as an important part of this transformation. The entire movement should therefore not be reduced to its anti-imperialist content. Welding the diverse people of India into a nation was an important component as also the building of modern India without destroying or eradicating some of the positive features of Indian traditions. A modern polity was to be built on democratic and civil libertarian foundations. The British colonial rule was seen as a major obstacle in this transformation. It was in this manner and for this reason that the various components of the freedom struggle were integrally and organically linked to one another.
As the colonial state frequently trampled upon people’s human rights and civil liberties, the Indian National Movement constantly strove to defend and uphold these rights. Many anti-imperialist campaigns were also at the same time struggles for people’s human rights. A strong human right perspective was integrated to the freedom struggle almost from its beginning. This would become amply clear if we compare India’s record of civil liberties and human rights with other developing post-colonial societies. Evidently, the human rights that the people of India enjoy, in however limited a measure, is primarily a legacy of our national movement.
If you look at the records and documents of the national movement, speeches and writings of its leaders, you may not find the term human rights anywhere. You should not assume that this concern did not exist during the national movement. The term human rights is of a latter origin and came into vogue only in 1948. The experience of fascist politics and horrors of the world war gave birth to a renewed concern for a man’s right to live with freedom from want and fear and enjoy some basic economic and cultural rights along with the political ones. The common expression used before the Second World War was civil liberties. The concept of civil liberties was about 200 years old and could be dated back to the French Revolution of 1789. It was this understanding that was inherited by the leaders of the national movement and made an integral part of their struggle against the British imperialism. It is, therefore, important to look at the sources that inspired our national movement in its struggle for civil liberties and human rights.
Aims and Objectives
This Unit would help you understand
The course of our freedom struggle;
The insistence on civil liberties for a life of dignity; and
The quest for a just and humane social order.
3.2 BACKGROUND
The leaders of the freedom struggle derived their inspiration for a human right perspective from diverse sources. The Indian tradition was an important, though not the only, source of this inspiration. The Indian traditions were seen as an important resource by the nationalist leadership. At no point did they envisage a complete break from these traditions in the making of a modern democratic Indian society. Two important books written by nationalist leaders – Hind Swaraj by Mahatma Gandhi (1909) and The Discovery of India by Jawaharlal Nehru (written in 1944 in prison) – amply demonstrate
38 Human Rights: Indian Perspective
this point. Gandhi invoked ‘Indian civilisation’ as a solution for the problems created by modern industrial life. Jawaharlal Nehru in his Discovery explored Indian history in pre- modern times and found the prevalence of many relevant and useful practices that could serve as a guide in modern independent India. Nehru was impressed by the plurality and syncretism of traditional Indian culture. He extolled emperor Ashoka for his emphasis on non-violence and Akbar for the practice of social toleration and religious harmony.
But there is no doubt that a major source of inspiration came from the ideas and values of the Enlightenment. In particular, the American Declaration of Independence and the French Revolution constituted the important sources in the development of a human right perspective.
In the year 1776, delegates from English colonies from North America met and adopted a declaration of independence. In the declaration the colonies considered themselves independent from British control and, in so doing, provided a framework for all subsequent liberation struggle. The Congress asserted: “All men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are Life, Liberty and the Pursuit of Happiness.” This was perhaps the first political document that emphasised the basic equality of all men and their natural rights. Then in 1789, during the French Revolution, the National Assembly of France adopted the “Declaration of the Rights of Men and Citizen”. This declaration inspired revolutionary and democratic movements not only in Europe but also in Asia and Africa. The declaration said: “The principle of all sovereignty rests essentially in the nation. No body and no individuals may exercise authority which does not emanate from the nation expressly.”
In this context, it is necessary to point out that in their attitude towards enlightened modernity, the leaders of the national movement refrained from either a total endorsement or a total rejection. They made a crucial distinction between the universalistic ideas of the Enlightenment (rationalism, reason, universalism, secularism, egalitarianism) and the domination of the world by a few European countries. They accepted the ideas of Enlightenment but not imperialism and colonialism. In other words they made a distinction between the ‘baby and the bathwater’ of modernity. They fully accepted the ‘baby’ but threw away the ‘bathwater’ (European domination). Many political and intellectual movements of the 20th century have not been able to maintain this distinction. Either they have indulged in a carte blanche acceptance of modernity, or they have thrown the baby along with the bathwater, by rejecting it completely. Viewed in this context the practices evolved by the leaders of the national movement appear quite significant.
The values of the Enlightenment were not followed mechanically but creatively applied to the Indian situation and according to Indian realities. As a result, when these ideas were sought to be applied to the Indian society at the beginning of the 19th century, well before the start of the national movement, they acquired a uniquely Indian character. During the course of the social reforms various human rights came to be looked at as individual rights, rights of the community and those of the nation. All the three were expressed and upheld throughout the 19th century. The campaigns for the removal of Sati and the advocacy of widow remarriage were projected as important individual rights. Leaders like Rammohan Roy, Ishwarchandra Vidyasagar and others championed these issues as part of an individual’s basic rights. Similarly, low caste leaders like Jyotiba Phule fought for the rights of community as a whole. Leaders like Bankim Chandra and Vivekananda took the initiative in projecting rights of the nation. All the three concerns were incorporated in the 20th century during the course of the national movement in concrete
Freedom Struggle and Human Rights 39
struggle around these issues. Thus, the national movement derived its inspiration from the classical European doctrine of ‘rights’ and also its creative application during the social reform movements in the 19th century India.
3.3 THE BEGINNINGS
During the initial stages of the national movement, the masses of the people were not mobilised for political action. The mass phase of the national movement started only after the advent of Mahatma Gandhi. But the early leaders did bring to the fore the issue of the rights of the common people. Whenever they found the colonial state taking measures to deny people their rights, they protested against those measures. Upholding the freedom of the Press and fighting for it became the principal nationalist activity during the early phase of the national movement. The colonial government tried on many occasions to curtail this freedom.
From the beginning the early nationalists were powerfully attracted to modern civil liberties, namely, the freedom of the Press, speech, thought and association. They made civil liberties an integral part of the Indian national movement. There was a major reason why the nationalist leadership gave so much of importance to the freedom of the Press. The initial political activities of the nationalist leadership were conducted mainly through the Press. They did not have the support of the masses, nor did they have a mass of political workers to do political work for them in the cities, towns and villages. Therefore the nationalist ideology could be taken to the people only with the help of the Press. The Press was their chief instrument for waging ideological struggle against imperialism. It is therefore not a surprise that a large number of the initial leaders of Indian National Congress were journalists.
The early nationalists were committed to building a republican democratic, civil libertarian political order in India. They prepared the soil and climate in which the concepts of democracy and civil liberties could dig deep roots in India. They based their politics on the doctrine of the sovereignty of the people. Dadabhai Naoroji put it beautifully in his Presidential Address to the National Congress that the new lesson of modern times was “that Kings are made for the people not people for the Kings.”
Almost from the beginning of the 19th century, politically conscious Indians were attracted to modern civil rights, especially the freedom of the Press. As early as 1824 Raja Rammohan Roy had protested against a regulation restricting the freedom of the Press and asked instead for “the unrestricted liberty of publication.” Powerful newspapers emerged during these years under distinguished and fearless journalists.
Nearly all the major political controversies of the day were conducted through the Press. It also played the institutional role of opposition to the government. Almost every act and every policy of the Government was subjected to sharp criticism, in many cases with great care and vast learning to back it up. Regarding the role of the nationalist Press, Lord Dufferin, the Viceroy, wrote in 1886: “Day after day, hundreds of sharp-witted babus put forth their indignation against their English oppressors in very pungent and effective diatribe…. In this way there can be no doubt there is generated in the minds of those who read these papers… a sincere conviction that we are all of us the enemies of mankind in general and of India in particular.”
The Government made continuous attempts to curtail civil rights, especially after 1878. In
40 Human Rights: Indian Perspective
that year the Vernacular Press Act was passed which sought to gag Indian language newspapers. The Act provided for the confiscation of the printing press, paper and other materials of a newspaper if the Government believed that it was publishing seditious materials.
Already since 1870 there existed a Section 124 A of the Indian Penal Code, according to which “Whoever attempts to excite feelings of disaffection to the Government established by law in British India was to be punished with transportation for life or for any term or with imprisonment up to three years.” During the 1890s, the Government enacted new laws to curb the freedom of speech and the Press and to increase the powers of the police. In 1898, the Government amended section 124A and added a new Section 153A to the Penal Code making it a criminal offence for anyone to attempt “to bring into contempt” the Government of India or to create hatred among different classes, that is vis a vis Englishmen in India. After 1906 fresh laws for controlling the Press were enacted and the Press was almost completely suppressed.
From the beginning the national movement fought every inch of the way against these attacks by the colonial authorities on the freedom of speech and the Press and other civil liberties.
The first great political demonstration in India was organised in Calcutta against the Vernacular Press Act when a large public meeting was organised in the Town Hall. Various public bodies and the Press carried on a campaign against the Act till it was repealed by Lord Ripon in 1881.
Surendranath Banerjea was the first Indian to go to jail in performance of his duty as a journalist. Banerjea had written a strong editorial against Justice Norris of the Calcutta High Court for ordering the idol of Saligram to be produced in the Court. Banerjea made a fierce criticism of Norris and called him unworthy of his high office. He suggested that “some public steps should be taken to put quietus to the wild eccentricities of the young and raw Dispenser of Justice.” Consequently the Calcutta High Court charged him with contempt of court and sentenced him to two months in jail. There was a spontaneous hartal in Calcutta. Students demonstrated outside the court smashing windows and pelting the police with stones. Demonstrations were held in many cities of Bengal and also in Lahore, Amritsar, Agra, Fyzabad, Poona and other cities.
But it is Bal Gangadhar Tilak whose name is most frequently associated with the struggle for the freedom of the Press during the nationalist movement. Angry with Tilak’s strident criticism of the Government, it arrested him in July 1897 under Section 124A of the Indian Penal Code on the charge of sedition, that is spreading disaffection and hatred against the Government through his writings in the Press.
The Judge passed a barbarous sentence of rigorous imprisonment for 18 months and this when Tilak was a member of the Bombay Legislative Council. Simultaneously, several other editors of Bombay Presidency were tried and given similar harsh sentences. Overnight, Tilak became a popular all-India leader and the title of Lokamanya was popularly conferred on him. At this time, another democratic tradition was evoked by Indians: Defending freedom means defending freedom of even those with whom you disagree.
Tilak’s imprisonment led to wide spread protests all over the country against this attack on civil liberties. The movement was usually organised by the Moderate leaders who
Freedom Struggle and Human Rights 41
differed from Tilak’s extremist views. Addressing the Indian residents in London, Dadabhai Naoroji accused the Government of initiating Russian (Tsarist) methods of administration and said that gagging the Press was simply suicidal.
Similarly at the annual session of the Congress in December 1897, Surendranath Banerjea, the foremost Moderate leader of the time, made a touching reference to Tilak and said that ‘a whole nation is in tears’, the entire audience stood up and enthusiastically cheered. Leaders of the Congress were to continue this tradition of defending those who differed from them later when Motilal Nehru and others defended the Communists at the Meerut Conspiracy Trial in spite of their differences. The Congress leaders like Asaf Ali were in the forefront of those defending Bhagat Singh and his comrades in the Delhi and Lahore Conspiracy Cases.
The Swadeshi movement (1905) led to a fresh wave of repression in the country. Once again newspapers became a major target. Fresh laws for control of the Press were enacted, prosecution against a large number of newspapers and their editors were launched and the Press was almost completely suppressed. Once again the axe fell on Lokamanya Tilak, the mainstay of the Boycott movement and militant politics outside Bengal. Once again in June 1908, he was arrested and tried on the charge of sedition and awarded the sentence of six years’ transportation. He was sent to a prison in Mandalay in Burma, then a British colony. The public reaction was massive. All markets in Bombay remained closed for a week. The workers of all the textile mills and railway workshops went on strike for six days. The army was called out and at the end of the battle sixteen workers lay dead in the streets and nearly fifty others seriously injured.
It is important to recognise that democracy and civil liberty were not a gift of the British. In fact the British constantly suppressed them. These values were upheld by the leaders of the national movement. The British often maintained that democracy was unsuitable to India because of its history, culture and climate. The British statesmen, scholars and administrators openly declared that their rule was based on despotism albeit benevolent. It was the early nationalists, deeply influenced by British and European thinkers, such as Tom Paine, Rousseau and John Stuart Mill, who adopted democracy and civil liberties as their goals and fought every effort of the British administrators to deny these to them. Later in the 20th century during the popular phase of the national movement, it was the Gandhian grass-roots political workers who spread their message among the mass of illiterate Indian people. It was because of the faith of the nationalist leaders in the Indian people that they made democracy based on adult franchise and fundamental rights part of the Indian Constitution and a basic part of the framework of Indian polity.
3.4 NATIONAL MOVEMENT AND HUMAN RIGHTS
There was a variety of ways in which the Congress-led Indian National Movement introduced the issue of peoples’ human rights into the anti-imperialist struggle. It included:
giving these issues top priority in its programme,
constantly making demands from the government specially at the initial stage of the
movement,
educating the people regarding their rights and conducting struggles around these issues, and
42 Human Rights: Indian Perspective demonstrated through practice, whenever they could, their utmost concern for civil
liberties and human rights.
3.4.1 Programmatic Content
During the initial stages, the national movement did not go in for a direct confrontation with the colonial government. Instead, it confined itself to educating the people through speech and writings and acquiring a programme that would include the rights of all Indians and also specific groups. Vis-à-vis the minority groups, the early nationalist leaders displayed a special sensitivity. Immediately after its formation in 1885, the Indian National Congress passed many resolutions to ensure that justice was done to the voice of the minorities. In the years 1888 and 1889, the Congress resolved at its sessions that no proposal relating to minorities could be passed if the majority from that group was opposed to it. At its Karachi session in 1931, the Congress came out with its declaration of fundamental rights. The declaration guaranteed to “every citizen of India of every caste and creed the right of free expression of opinion, free association and combination, freedom of conscience and the right freely to profess and practice his religion subject to public order and morality.”
Merely passing of a resolution may seem simple but it was not always easy to stand by it. Often it became difficult for the organisation to carry together different ideals. For instance, from the early days, Congress had committed itself to the establishment of national unity or unity among different groups and communities. The Congress also resolved that it would not impose unity on any groups against its wishes. Thus when the Muslim League, under the leadership of M.A. Jinnah, began demanding a political separation between Hindu and Muslims after 1940, Congress leadership opposed it but conceded that any group, if it so desired, could opt for separatism. Gandhi put it beautifully: “We are at present a joint family. Any member can seek a separation.” It was thus that while pure nationalism was to be maintained and upheld as a desirable principle, it was not to be done by violating groups’ rights of self-determination. Throughout its life the national movement upheld the idea of national unity but refrained from imposing this idea coercively. The ideas of democracy, or the empowerment of the people, were put forward along with the ideas of nationalism.
Let us take another example. When in 1938, World War II broke out between forces of democracy (Britain, France and Poland) and those of fascism (Germany, Italy and Japan), it became imperative that the national movement would side with the forces of democracy. But whereas in the global context, Britain represented the forces of independence and democracy, in the Indian context, Britain was the imperial power denying independence and democracy to the people of India. There was clearly a contradiction between the global context and the national context. Should the national movement support Britain as a democratic force engaged in a war against fascism, or oppose it as an imperial power? Should the national movement focus only on the Indian reality (and fight the British) or express solidarity with the people of the world in their struggle against fascism? This was a serious dilemma. But the mainstream leadership of the Congress managed to resolve it. Jawaharlal Nehru wrote:
We want to combat fascism. But we will not permit ourselves to be exploited by imperialism, we will not have war imposed upon us by outside authority, we will not sacrifice to preserve the old injustices or to maintain an order that is based on them. We will not and cannot forget our own struggle for freedom for slogans which may sound pleasant to the ear but have little reality behind them….
Freedom Struggle and Human Rights 43
Nehru argued that the people of India were willing to participate in a global war in order to uphold independence and democracy for the people of the world, but they could not do it as long as they themselves were not free. Therefore, Nehru demanded independence for India as a pre-condition for their participation in the war. It was thus that the national movement was able to combine its national commitment with a global commitment and also emphasise independence and democracy as basic human rights for the people of the world.
3.4.2 Making Demands from the Government
It should be emphasised here that ideas of political modernity (democracy, representational government, people’s sovereignty, respect for human rights, and freedom of the press among others) were not a gift of the British, contrary to popular belief. These were constantly demanded by the leaders of the national movement and conceded only grudgingly, and partially, by the British government. For instance, from the beginning of the 20th century, Bal Gangadhar Tilak, followed by Gandhi and others, began demanding adult franchise (even though it did not exist in Britain till 1928), but it was not granted to Indians till independence. Till as late as 1935, only three per cent of Indians had the right to vote. But complete adult franchise was firmly put on the agenda. Indian leaders, from the 19th century onwards, constantly criticised the British government for its non- representative character and questioned its credentials in preparing a constitution for India. Motilal Nehru and Tej Bahadur Sapru went to the extent of preparing a national constitution in 1928. It recommended the declaration of fundamental rights, a parliamentary system of government, adult franchise and an independent judiciary among other things. Even though the Nehru Report, as it came to be known as, was rejected by the British government, it inspired the Indian people and re-affirmed their capacity for governing themselves. From 1930s onwards, leaders like Jawaharlal Nehru began demanding the creation of an elected Constituent Assembly, which would prepare a constitution for India.
In making issues of human rights central to the struggle for independence, the contribution of early leaders like Bal Gangadhar Tilak and Gopal Krishna Gokhale is very important. Gokhale, throughout his career, argued against heavy taxation levied by the British. But he was willing to support the existing taxes if primary education was made compulsory and if the colonial state took responsibility for it. Gokhale was probably the first Indian leader who saw education as a basic human right. Tilak was a great champion of the liberty of the press and freedom of speech. His famous statement – “freedom is my birth right” – is perhaps the earliest attempt by an Indian leader to define freedom as a human right. He practised his freedom of speech and wrote freely against the British policies in newspapers. He was arrested twice for it – in 1897 and again in 1908 for six long years.
3.4.3 Struggling for Human Rights
Apart from making demands on the British government to enlarge the space available for exercise of human rights, the national movement, from 1920 onwards, actually conducted popular struggle around this issue. The first all India mass movement against the British was organised on the question of violation, by British, of a crucial aspect of human rights. In 1919, the British government brought forth the notorious Rowlatt Bill (known after its author Sir Sidney A.T. Rowlatt) which would authorise the government to imprison any person without trial and any other legal procedure. This move by the British government was received with unprecedented and fierce opposition by Indian leaders of all shades of opinions. All the Indian members of the Legislative Council – from Srinivasa Shastri to
44 Human Rights: Indian Perspective
Mohammad Ali Jinnah – opposed the Bill (yet it was passed). The national press was indignant calling it “monstrous” (New India from Madras), “a gigantic blunder” (Amrita Bazar Patrika from Calcutta), “Repression in exelsus” (Bombay Chronicle from Bombay) and a matter of “shame, indignation and disgust” (The Hindu from Madras). An all-India Hartal was organised and the entire country rose in protest against what it considered a blatant violation of human rights. Throughout its life, Indian National Movement upheld human rights and was not ready to compromise on this issue.
3.4.4 Practising Human Rights
The Indian National Movement also contributed to the enlargement of space for human rights by actually practising it when the opportunity came. The Government of India Act of 1935 provided fully elected popular governments in the provinces. As a result, the Indian National Congress formed a government in seven provinces and successfully practised what it has preached for many years in the past. All the emergency powers exercised by the previous provincial government were repealed. Ban on illegal political organisations was lifted. All restrictions on the press were removed and securities taken from them were returned. Confiscated arms were returned and forfeited arms licenses were restored. But the most important achievement was the release of thousands of political prisoners who had been languishing in various prisons for many years. During its brief stay of twenty-eight months in office, the Congress was able to demonstrate its serious concern for the issue of civil liberties and human rights.
3.5 STRUGGLES FOR SOCIAL TRANSFORMATION
Apart from integrating the issue of human rights into the struggle for independence, the national movement also created space for various social struggles as important human rights issues. This took many forms but was quite evident in two fields:
i) the struggle against caste oppression and discrimination, and
ii) the endeavour for village reorganisation
3.5.1 Struggle Against Caste Oppression
The struggle against caste oppression was in some ways more complex than the fight against the British. The battle against the caste system was against attitudes and prejudices, which were thousands of years old and could take centuries to overcome. Moreover, it was not a battle against the alien rule but against oneself and one’s own people. It was therefore easier to throw out the British but very difficult to eradicate caste oppressions. Since it was not a straight problem it also did not have a straight solution. Different leaders therefore adopted different approaches to the problem. Gandhi and B.R. Ambedkar looked at the question very differently from each other. They also adopted different methods but in the end, their efforts rather complemented each other. Gandhi thought that the practice of untouchability was at the core of the caste oppression (and not caste system per se) and had to be eradicated from the caste system. Ambedkar, on the other hand, thought that problem of untouchability was inherent in the caste system and was integral to it. Therefore, according to Ambedkar, the struggle against untouchability was essentially a struggle against the caste system. Gandhi argued that social work and social reforms in the villages would help in imparting social respect to lower caste people and make living more honourable for them. He, therefore, undertook extensive campaigns for making village temples and wells accessible to the
Freedom Struggle and Human Rights 45 lower caste people. He even coined a new word for them – Harijan. Gandhi looked
at the issue as a social and not a political problem.
According to Ambedkar, on the other hand, a share in political power was the key to the problem of caste injustice. He worked hard for creating an entry for the lower caste groups into formal structures of political power. Once they got political power, Ambedkar believed, they would be able to improve their lot on their own. Then they will not have to plead to others for justice and fair play.
While pointing out the difference between the two approaches, it is important to remember that the two approaches were not contradictory in nature but rather like two different routes to arrive at the same destination. In the long run, both the leaders, through their efforts, succeeded in initiating a process in which the low caste people have been able to fight for social justice as well as a share in the political power. Gandhi and Ambedkar, and many others too, helped in shaping the dalit question as a powerful human right issue. The problem however is far from over and social discriminations still continue. The struggle for the making of a socially egalitarian society has to be a long haul. But the leaders of the freedom struggle provided perspectives that continue to be relevant even today.
3.5.2 Rural Reorganisation
In the 19th and 20th centuries, 85% of India’s population lived in about 700,000 villages. A majority of them were steeped in utter poverty, exploited not only by the British government but also the rural and urban elite. Industrialisation of the country had rendered them unemployed; the colonial economic system did not create alternative sources of employment. In the late 19th and the early 20th centuries many people from towns and villages came to live in the cities, thereby accentuating the already heavy pressures on them. No scheme or system existed for the amelioration of their condition. The Indian villages were centres of poverty, disease and ignorance. Gandhi took the initiative in this regard and drew the attention of the country to this violation of some basic human rights of 85% of Indians. Immediately after his entry into Indian politics in 1915, he formed the All India Spinners Association with a purpose to create employment for the villagers by insisting on the city dwelling population to use hand spun cloth only. The spinners association soon reached 5300 villages and provided employment to 220, 000 spinners, 20, 000 weavers and 230,000 carders. Within ten years of it formation, it succeeded in disbursing over two crore rupees in those villages. In 1934, after his temporary retirement from politics, Gandhi settled in Segaon, a village in then Bombay presidency. He formed an Ashram there and helped in the formation of an All India Village Industries Association, the purpose of which was to support and develop industries in villages with little capital and without any help from outside. The Association also set up a school to train village workers in various crafts.
The focus of Gandhian initiative was to make the village self-sufficient and self-supportive. This, thought Gandhi, was the best way of restoring prestige and dignity to villages and villagers. A good example of this was given in Harijan, a weekly journal started by Gandhi: Chandranath, a man without any higher education but with all commitment to constructive work, enlisted the voluntary labour of about 15,000 villagers and completed a canal, three miles long and a roadway of the same length. The official estimate for this work was Rs. 50,000. Largely at Gandhi’s initiatives, the annual sessions of the Congress began to be held in villages. The canvass of the human rights was thus enlarged to include the pressing problems that had ripped rural India.
46 Human Rights: Indian Perspective 3.6 SPREAD
Many of the basic themes pertaining to human rights (democracy, self-government, freedom of the press, adult franchise, right to form associations etc.) had been articulated by the early nationalist leaders by the end of the 19th century. But, because the national movement itself was confined to very few people at that stage, these ideas also did not reach the majority of the Indian people. But once the national movement started reaching out to new groups and people in the 20th century, it carried the ideas of civil liberties and human rights to them. This, on one hand, strengthened the national movement and, on the other, motivated these groups and people to take up the questions of their rights on their own. This was especially true of low caste people, peasants, women and young people. Peasants formed their own Kisan Sabhas to fight for their rights. The All India Students Federation (AISF) was formed in 1936. A number of such organisations came to be formed in the 1920s and 1930s. These were confined to specific groups and articulated their demands and rights.
A major landmark in the growth of civil liberties and human rights was the formation of Indian Civil Liberties Union in 1936 at the initiative of Jawaharlal Nehru. The Civil Liberties Union was to be formed along non-party lines and could be joined by any Indian opposed to the violation of Indian peoples’ civil liberties by the British Government. The circular, prepared by Nehru, said: “It is proposed to start an Indian Civil Liberties Union, the sole function of which will be the protection of civil liberties in all departments of national activities. It should be open to all individuals who believe in this fundamental proposition and it should avoid any entanglement of any other political or economic issue. The first object of this union would be to collect data and give publicity to it. Other activities such as the organization of public opinion to resist all encroachments on civil liberties would follow.”
The constitution of the Indian Civil Liberties Union (ICLU) was drafted along the lines of the Civil Liberties Union of America and the National Civil Liberties Union of Great Britain. Rabindranath Tagore was its honorary president and Sarojini Naidu was its chairperson. The task of the Union was to gather information about the suppression of civil liberties in the provinces, collect facts, publish them, mobilise public opinion, keep in touch with other foreign Unions and reach out to world opinion through them.
These political and social initiatives helped in sensitising people and also resulted in the creation of a certain kind of literature and cinema that were sensitive to the question of people’s individual rights. Achhut Kanya, a film made in 1936, dealt with a socially explosive theme of marriage between an upper caste boy and an untouchable girl. Another film made in the same year by V. Shantaram, Duniya Na Mane, projected the plight of a young girl in a male dominated society that forced her to marry an old man against her wishes. The film portrayed the girl’s rebellion and assertion of her rights. Many other films of 1930s took up social and even mythological themes that highlighted people’s desire for justice and freedom in a cruel world.
3.7 IMPLICATIONS
The gradual integration of human rights issues into the struggle for independence had important implications not only for the national movement but also for politics and society after the attainment of independence in 1947. For one, it imparted many new dimensions to the national movement and turned it into a very dynamic phenomenon. The early 20th
Freedom Struggle and Human Rights 47
century notion of political independence gave way to a new and a vibrant notion of economic independence in which people would determine their own destiny. At the same time, it created a space for a range of other struggles by specific groups for their rights. A healthy respect shown by the national movement for democracy and other social struggles resulted in the creation of a political climate after independence that was conducive for the growth of democracy.
Over the years, the canvass of democracy has enlarged itself considerably to include new groups and classes. This extension of democracy to marginal groups and sections has ensured that the issues of human rights remain firm on the agenda. It has also enabled people to conduct their struggle for their rights and justice within a democratic framework.
3.8 SUMMARY
This Unit has focused on the perspective and the activities undertaken during the course of India’s freedom struggle on the issues related to human rights. The inspiration for the human right perspective developed during the national movement, came from diverse sources that included some of the positive elements of Indian traditions as well as the ideas of the Enlightenment. In particular, the ideals of the French Revolution and the classical European doctrine of ‘rights’ of both the individual and the nation, provided the framework for the human right perspective. The 19th century social reform movement transformed this understanding into ‘rights’ for the individual, community and the nation. This triple concern for human rights fed into the major concerns of national movement from its very inception. The organised national movement gradually took up issue of democracy, universal franchise, freedom of the press, compulsory education etc., and took these issues to the people and educated them regarding their political and economic rights. It increasingly incorporated these issues into its central agenda, made constant demands from the British government for their implementation, conducted struggles around some of these issues and actually practised the principles of human rights whenever the opportunity came. It also created space for other social struggles which took up the issues of peoples’ human rights. This transformed the national movement from a mere fight against the British government into a vibrant multi-dimensional phenomenon with respect for democracy, civil liberties and people’s urge for self –determination.
Gandhi, in 1922, wrote in Young India: We must first make good the right of free speech and free association. We must defend these elementary rights with our lives.” His definition of these rights was: “Liberty of speech means that it is unassailed even when the speech hurts; liberty of the Press can be said to be truly respected when the Press can comment in the severest terms upon and even misrepresent matters. Freedom of association is truly respected when assemblies of people can discuss even revolutionary projects.” In 1939 he wrote: “Civil liberty consistent with the observance of non-violence is the first step towards Swaraj. It is the breath of social and political life. It is the foundation of freedom. There is no room there for dilution or compromise. It is the water of life. I have never heard of water being diluted” (emphasis added).
3.9 TERMINAL QUESTIONS
1. What were the major sources of inspiration for the human rights perspective developed during the course of the national movement?
2. In what ways did the early nationalist leadership fight for the civil liberties of the people?
48 3.
4.
Human Rights: Indian Perspective
How did the national movement take up the question of civil liberties during its mass phase?
How was the concern for civil liberties extended to non-political areas of peoples’ social life?
SUGGESTED READINGS
Chandra, Bipan., Essays on Indian Nationalism, New Delhi, 1993.
Chandra, Bipan., Pre-Gandhian Roots of Gandhain Politics (Annual Sardar Patel
Lecture, 2007).
Dev, Arjun., (ed.), Handbook of Human Rights
Gopal, Sarvepalli., Jawaharlal Nehru: A Political Biography, New Delhi, 1976. Nanda, B.R., Mahatma Gandhi: A Political Biography, New Delhi, 1958.
UNIT 4 CONSTITUTIONAL PROVISIONS ON HUMAN RIGHTS AND DUTIES
Structure
4.1 Introduction
Aims and Objectives
4.2 Human Rights in India
4.2.1 The Constituent Assembly
4.3 Fundamental Rights
4.3.1 Right to Equality
4.3.2 Right to Freedom
4.3.3 Right Against Exploitation
4.3.4 Right to Freedom of Religion
4.3.5 Cultural and Educational Rights
4.3.6 Right to Constitutional Remedies
4.4 Directive Principles of State Policy
4.4.1 Socio-Economic Rights
4.4.2 Gandhian Principles
4.4.3 Directives for General Welfare and Governance
4.5 Fundamental Duties
4.6 Summary
4.7 Terminal Questions
Suggested Readings
4.1 INTRODUCTION
You have already studied about the meaning and importance of Human Rights and the struggle for achieving these rights in India during the Colonial period. As the concern for rights and civil liberties had become a part of the national movement, the framers of the Constitution were committed to provide these in the Constitution that guaranteed Liberty, Equality and Justice. They provided in the Constitution two types of rights- one Justifiable and other non-justifiable: the first in Chapter III on Fundamental Rights and the second in Chapter IV as Directive Principles of State Policy. These are more or less similar to Civil and Political Rights and Economic, Social and Cultural Rights provided in the Universal Declaration of Human Rights which you have already read. In this Unit, you will study in detail the types, nature and importance of these rights. You will also read about the types and nature of Human Rights as provided by the Indian Constitution and learn about the methods for enforcement of these rights.
Aims and Objectives
After going through this Unit, you will be able to understand
the rights provided to citizens and other persons in India by the Constitution of India;
50
Human Rights: Indian Perspective
4.2
the nature of rights and limitations attached to these rights;
the importance of Directive Principles of States Policy;
the Fundamental duties contained in the Constitution; and
the mechanisms provided by the Constitution for effective implementation of rights.
HUMAN RIGHTS IN INDIA
India’s struggle for freedom basically was a struggle for self-determination, for freedom of equality, liberty and justice. These are the core values of the vision of Human Rights. In fact even earlier social reformers have emphasised the values of civil liberties. Western liberal education, growing repressive character of the colonial power and consciousness in various social groups further added to the evolution of demand for rights. The Indian National Congress which spearheaded the National movement throughout emphasised the idea of rights. The struggle against the Rowlatt Act in 1919 was a landmark in the history of civil liberties movement in India.
In 1930 at the time of civil disobedience movement there also emerged the idea of an organised civil rights movement. This took the shape of “Indian Civil Liberties Union” (ICLU) formed in August 1936. Rabindranath Tagore and Sarojni Naidu became the Honorary President and president respectively on the request of Jawaharlal Nehru, who had mooted the idea of ‘ICLU’. During freedom struggle, the defence of civil liberties was not narrowly conceived in terms of one political group or party. It was extended to the defence of all groups without concern about ideological or strategic differences.
4.2.1 The Constituent Assembly
The idea that every individual possessed certain inherent rights was one of the prominent moving spirits of freedom struggle and therefore, the inclusion of rights was considered as an essential part of the Constitution to be framed by the Constituent Assembly of India. This was made amply clear in the objectives resolution moved by Jawaharlal Nehru on 13 December 1946. The resolution promised to all citizens of India:
Justice: Social, economic and political,:
Equality: of status, of opportunity and before the law; and
Freedom: of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality.
The objectives Contained in the above resolution were later adopted as part of the Preamble of the Constitution.
You will appreciate that in a society full of divisions of caste, religions, tribes, languages etc, as also having a large population of poor, such promises were revolutionary. At the same time mere political legal equality was not sufficient for the deprived sections of society. Therefore, apart from granting freedoms and equality, provisions for providing protective safeguards were also necessary. The Constituent Assembly therefore made provisions for both negative and positive rights as also special provisions for vulnerable sections of the society within rights.
Negative rights refer to freedoms and equality that the State must not encroach upon.
Constitutional Provisions on Human Rights and Duties 51
That is State is prohibited from exercising power. Positive rights require State to take active steps towards their realisation. The Constituent Assembly divided the rights into two parts. In chapter III of the Constitution- under Fundamental rights- were guaranteed primarily negative rights and in chapter IV under Directive Principles of State Policy were provided positive rights. The Preamble, Fundamental Rights and Directive Principles combined the values of freedom, equality and economic and social justice.
4.3 FUNDAMENTAL RIGHTS
The fundamental rights have been provided in part III of the Constitution. These are primarily in the nature of civil and political rights. There are two kinds of rights, some available to all persons living in India and some available only to citizens of India. These rights are justiciable, which means in case of violation of these rights, the citizens can go to courts for enforcement of these rights. The rights as such are Constitutional guarantees. These can be infringed only to the extent provided by the Constitution itself or under conditions of emergency. Originally, the Fundamental rights were provided under seven categories. In 1978, through 44th amendment of the Constitution, one right that is right to property, was deleted from the chapter on rights. As such there are now six categories of Fundamental Rights. These are discussed as below:
4.3.1 Right to Equality
Through Articles 14 to 18, the Constitution provides equality before law, of opportunity, dignity and status.
Article 14 provides that the state shall not deny to any person equality before law or the equal protection of the law within the territory of India. Article 15 prohibits the state to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Prohibition of discrimination is placed also on society as no citizen on any of the above mentioned grounds can be denied access to shops, restaurants, hotels, places of public entertainment, and use of wells, tanks, bathing ghats, roads and places of use of the general public.
The State, however, can make special provisions for women and children. For example men can be denied access to places of bath for women, or adults from entry to parks for children. Article 15 also allows state to make special provisions for the advancement of backward classes of citizens and for Scheduled castes and tribes.
Article 16 provides equality of opportunity for all citizens in respect of public employment. They cannot be deprived of this on grounds only of religion, race, caste, sex, descent, place of birth, residence etc. The State can, however, make special provisions for reservations of jobs for the Scheduled Castes and Tribes as also promotions in jobs. It means denial of opportunity to others in jobs reserved for Scheduled Castes and Tribes. This is known as affirmative action for the welfare of deprived sections.
Article 17 abolishes practice of untouchability in any form. It declares practice of untouchability as a crime punishable in accordance with law. Thus equality of dignity is assured. To provide equality of status Article 18 provides that the state shall not confer any title other than military or academic. No citizen of India shall accept any title from any foreign state. No person other than a citizen, while holding an office of profit, under the state shall, without the consent of the president, accept title from a foreign state.
52 Human Rights: Indian Perspective
It thus becomes clear that in India all citizens are equal in all respects. State can discriminate only for welfare of Scheduled castes, Scheduled Tribes and Backward Classes of citizens to provide them justice that was denied to them for centuries.
4.3.2 Right to Freedom
Articles 19 to 22 of the Constitution grant various types of freedoms to persons.
Basic Freedoms
Article 19 guarantees six basic freedoms. These are (i) freedom of speech and expression, (ii) Freedom to assemble peacefully without arms, (iii) Freedom to form associations and unions, (iv) Freedom of movement, (v) Freedom to reside and settle in any part of India, and (vi) Freedom to practice any profession or carry on any occupation, trade or business.
These freedoms, however, are not absolute; clauses 2 to 6 of the Article 19 provide for conditions under which the state can put reasonable restrictions on these freedoms under certain conditions. These are: security of the state, public order, foreign relations, defamation, contempt of court, sovereignty and integrity of India, public morality or incitement to commit an offence.
Protection in respect of Conviction of offences
Article 20 gives to citizens, protection against conviction for offences except for the violation of the law in force, against punishment for the same offence more than once and against forcing a person to be a witness against one self.
Right to Life and Personal Liberty
Article 21 guarantees all persons right to life. According to this, no person shall be deprived of his life or personal liberty except according to procedure established by law. Right to life has been expended by the Supreme Court declaring that right to life means a dignified life. The Government of India has also agreed with it and through an amendment of the Constitution, it added Article 21 A guaranteeing the right to education to all children between the age of six and fourteen years. Issues of pollution have also been taken up as affecting the right to life.
Protection in cases of Arrest and Detention
Article 22 provides for right to be informed of the grounds of arrest, right to consult and be defended by a lawyer, right to be presented before a magistrate within 24 hours etc. These rights are, however, withheld from enemy, aliens and persons who are arrested or detained under any law providing for preventive detention.
4.3.3 Right against Exploitation
Articles 23 and 24 provide Right against Exploitation. This right assures guarantee against ‘traffic in human beings’, forced labour, begging etc. Article 24 protects children below the age of 14 from employment in factories, mines, and other hazardous jobs.
4.3.4 Right to Freedom of Religion
Articles 25 and 26 guarantee freedom of Conscience and free profession; practice and propagation of religion, establishment and maintenance of institutions for religious and charitable purposes. These freedoms, however, are subject to public order, morality and
Constitutional Provisions on Human Rights and Duties 53 health. It means all individuals and religious groups are free to practice their faith without
endangering public order and health.
Article 27 provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denominations. Article 28 forbids the imparting of religious instructions in educational institutions funded by state. In institutions aided by state, students cannot be forced to attend religious instructions.
The above provisions of Article 25 to 28 make it clear that while all individuals are free to adopt and practice any religion, and all religions are free to flourish according to their established traditions, the state will not promote or favour any particular religion nor will it discriminate against any. It is these provisions that make India a secular country.
4.3.5 Cultural and Educational Rights
Articles 29 and 30 protect the interest of minorities in terms of their traditions and languages. Any section of the citizens, residing in the territory of India having a distinct language, script or culture, has the right to conserve the same. No citizen can be denied admission to a State owned or State-aided educational institution on grounds of religion, race, caste or language. Article 30 gives minorities the right to establish and administer educational institutions. This Article also provides that the State cannot discriminate against any educational institution on the ground that it is under the management of a minority.
4.3.6 Right to Constitutional Remedies
As you have read in the beginning, the Fundamental Rights are justiciable. For this Article 32 gives right to persons to appeal to courts- both Supreme Court and High Court- in cases of violation of any right. The Courts have been given powers to enforce Rights by appropriate remedies. They can issue writs of habeas corpus (asking the detaining authority to bring a detained person to the court for trial); mandamus (ordering a government to do its duty); prohibition (stopping an authority from violating someone’s right); quo warrant (asking an official body of the authority under which power has been exercised), and certiorari (taking over of a case from a lower court by a higher court).
From the above discussion, you might have understood that Fundamental Rights basically protect individuals against violation of their freedom, liberty and equality by state. These are called negative because the state has been asked not to violate these rights. The Articles 15 and 16 empower the state to initiate positive action also for the welfare of Scheduled Castes, Scheduled Tribes and Backward Classes. In general, Chapter III primarily provides Civil and Political Rights. Chapter IV of the Constitution provides the rights that are positive in nature as State has to provide these through its policies and actions.
4.4 DIRECTIVE PRINCIPLES OF STATE POLICY
As already mentioned, the framers of the Constitution were eager to provide both Civil and Political Rights and Economic, Social and Cultural Rights. The second category of rights is provided in chapter IV of the Constitution through Articles 36 to 51. The Directive Principles are special feature of the Indian Constitution. They are essentially aimed at social welfare, especially of the weaker sections of the society. They are different from Fundamental Rights in the sense that they are not enforceable by any court. In fact these are not granted to citizens as rights but are directives to the state, as Article
54 Human Rights: Indian Perspective
37 says ‘fundamental in the governance’ and the state is expected to apply these principles in making laws. Inspite of non-enforceability by courts, the state is responsible and accountable for implementation of these principles. Even courts have taken notice of these and at times asked the state for enforcement of these principles as rights.
In terms of rights or policy frameworks, the Directive Principles can be divided into three categories:
(i) Socio-Economic Rights
(ii) The Gandhian principles
(iii) Directives for General Welfare and Governance
4.4.1 Socio-Economic Rights
These principles for Socio-Economic rights and welfare have been provided in Articles 38, 39, 39A, 41 and 42.
Article 38 provides that “The state shall strive to promote the welfare of the people by protecting, as effectively as it may, a social order in which justice, social-economic and political shall inform all the institutions of the national life. It also directs the state to eliminate inequalities in income, status, and opportunity not only among individuals but also among groups of people”.
Article 39 provides that the state shall, in particular, direct its policies for securing the citizens both men and women:
i) Equal right to an adequate means of livelihood;
ii) Equal pay for equal work;
iii) Fair distribution and control of resources so as to serve the common good;
iv) To check that operation of the economic system is in a way that it does not result in the concentration of wealth and means of production to the common detriment.
v) Prevention of health and strength of workers, men and women, and the tender age of children against abuse; and
vi) Opportunities and facilities for children and youth to develop in healthy manner and not to be exploited.
Article 39A provides that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, so that justice is not denied to any citizen by reason of economic or other disabilities.
Article 41 states that within the limits of its resources the state will make provision for the right to work, to education, and to public assistance to the unemployed, sick, old and disabled; secure just and humane conditions of work and maternity relief; and decent living, wage; raise level of education, standard of living and public health, early childhood care and education of children below the age of six.
Article 43 directs the State to ensure to all workers agricultural, industrial or otherwise, Right to work, right to a living wage and right to such conditions of work as would
Constitutional Provisions on Human Rights and Duties 55
ensure a decent standard of life and full enjoyment of social and cultural opportunities. A new Article 43A introduced in 1976, directs the state to ensure the participation of workers in the management of industry and other undertakings.
4.4.2 The Gandhian Principles
Mahatma Gandhi, as a thinker, had a perspective of state, nation and rule. He had vision about the government of state from common man, particularly, villagers’ needs. In the Constitutional Assembly, there were members who considered these views quite relevant for society in India. Some of these were included in the state for implementation. These are as follows:
Article 40 directs the state to organise village Panchayats and to vest them with such powers and authority as may be necessary to enable them to function as units of self- government. This means establishment of Gandhi’s idea of Panchayati Raj. You may be aware that through 73rd Amendment of the Constitution, the Panchayati Raj system has been implemented as a Constitutional provision.
Article 46 provides for the state to promote the educational and economic interests of the Scheduled Castes, Tribes and other weaker sections of the society. It also directs the State to protect these sections from social injustice and from all forms of exploitation.
Article 47 states that the state shall raise the level of nutrition and standard of living of people. It also directs the state to bring about prohibition of intoxicating drinks and drugs, which are injurious to health.
Article 48 is concerned with the preservation and improvement of cattle and prohibition of cow-slaughter. State is also asked to endeavour to organise agriculture and animal husbandry on modern and scientific lines. A new Article 48A introduced in 1976 directs the state to protect and improve the environment and to safeguard the forests and wildlife of the country.
4.4.3 Directives for General Welfare and Governance
The Directive Principles also direct the State to adopt and implement policies for basic education, uniform civil code, independence of judiciary, protection of heritage and promotion of international peace.
Article 44 prescribes for a uniform civil code and directs the State to endeavour to secure to all citizens a uniform code throughout the territory of India.
Article 45 provides that the state shall endeavour to provide, within a period of ten years from the commencement of the Constitution, free and compulsory education for all children until they complete the age of fourteen years. You have already read that with the introduction of Article 21A in Chapter III on Fundamental Rights, this provision of Directive Principles now has been made a Fundamental Right.
Article 49 directs the state to protect, preserve and maintain monuments, places or objects of artistic or historic interest or of national importance. The State is to ensure that these monuments and objects are not spoiled, disfigured, destroyed, removed or exported.
Article 50 directs the state to take steps to separate judiciary from the executive in public service or the state. This has been a colonial legacy for District Magistrates to exercise both executive and judicial powers. This concentration of powers goes against the theory
56 Human Rights: Indian Perspective of checks. Therefore the framers of the Constitution desired the separation of the two.
This has been now achieved to an extent.
Article 51 directs the state to formulate its foreign policy keeping in view the principle of world peace and harmonious coexistences of nations. The Article directs the State to shape its foreign policy as to attain the following objectives:
I) Promote international peace and security;
II) Maintain just and honourable relations between nations;
III) Respect for international law and treaty obligations in the dealings of organised people with one another; and
IV) Encourage settlement of international disputes by arbitration.
In the above description of Directive Principles of State Policy, you might have observed that makers of the Constitution wanted to direct the future governments to work for improvement of conditions of masses, provide equality and social justice by formulating and implementing positive actions. You might have also seen that a number of principles are quite similar to Economic, Social and Cultural Rights contained in the Universal Declaration of Human Rights. The Assembly members were conscious of the limitations of the resources available with the government in the early years of independence. Therefore, they did not make Directive Principles as justiceable rights. However, these provisions serve as to inform citizens that they are entitled to these rights. They can, therefore, assess the performance of the governments on the basis of sincerity towards these rights. In recent years even Judiciary has taken a view that in some ways the Directive Principles are as fundamental as Fundamental Rights and therefore need serious attention of the government. The governments have also taken significant measures for effective implementation of these principles. It can be said that Fundamental Rights and Directive Principles are complimentary and supplementary to each other.
4.5 FUNDAMENTAL DUTIES
You have read that rights and duties are closely related. These in fact are considered two sides of the same coin. Gandhi, in particular, on the basis of his belief that every human being was dependent on other human beings, argued that rights flow from duty towards others. He went to the extent of observing that the right to perform one’s duties is the only right that is worth living for and dying for it. It covers all legitimate rights. The framers of the Constitution perhaps thought that the duties of citizens were implied in their being citizens and to some extent, in the restrictions contained on rights in the chapter on Fundamental Rights. In 1975 a committee, under the chairmanship of Swaran Singh to suggest comprehensive changes in the Constitution for better governance of State and welfare of the masses, recommended the inclusion of Fundamental Duties in the Constitution. On the basis of these recommendations through 42nd Amendment, Section 51A of the Constitution in 1976, a new Section Part IV A on Fundamental Duties, has been added in the Constitution.
This Article prescribes the following duties for every citizen of India:
(a) To abide by the Constitution and respect the National Flag and National Anthem;
(b) To cherish and follow the noble ideas, which inspired our national freedom struggle;
Constitutional Provisions on Human Rights and Duties 57
(c) To protect sovereignty, unity and integrity of India;
(d) To defend the country;
(e) To promote the spirit of common brotherhood amongst the people of India transcending religious, linguistic, regional, or sectional diversities and laws to renounce practices derogatory to women;
(f) To preserve the rich heritage of our composite culture;
(g) To protect and improve the natural environment;
(h) To develop the scientific temper and spirit of enquiry;
(i) To safeguard public property;
(j) To strive towards excellence in all spheres of individual and collective activity; and
(k) As a parent or guardian to provide opportunities for education to child or ward between the age of six and fourteen years. (This duty was included in Article 51A in 2002 through 86th Amendment of the Constitution as a provision for right to education).
The above-mentioned duties, just like Directive Principles of State Policy, are not justiceable, that is, not enforceable by courts. The Fundamental Duties are in the nature of instructions to citizens. As in the case of Directive Principles, these duties, being part of the Constitution, cannot be ignored. Therefore, while interpreting laws or delivering judgements on concerned issues, the judiciary is expected to keep these duties in view. As far as citizens are concerned, the inclusion of duties in the Constitution reaffirms the principle that a citizen is expected to fulfill certain obligations while enjoying rights. You might have read that Article 29(1) of the Universal Declaration of Human Rights also provides that “Every one has duties to the community in which alone the free and full development of his personality is possible.” As such it is important to keep in mind that the duties and rights go together.
4.6 SUMMARY
In this unit you have read that Indians facing repression under colonial rule were much concerned about human rights as a part of freedom struggle. Therefore the makers of the Constitution committed themselves to provide rights for citizens as guarantees for freedom, equality and liberty. In the Constitution of India two types of rights are provided in chapters III and IV. Chapter III contains Fundamental Rights and chapter IV Directive Principles of State Policy. While Fundamental Rights are justiceable and therefore can be enforced by courts, the Directive Principles are not justiceable. Some of the rights are available to all persons living in India, while some are available only to the citizens of India. Both the chapters on Fundamental Rights and Directive Principles reflect the rights contained in the Universal Declaration of Human Rights. In 1976, through the 42nd Amendment of the Constitution, the provision for Fundamental Duties has also been included in the Constitution to emphasise the idea that citizens have to fulfill certain obligations to claim rights. The provisions for Fundamental Rights and Directive Principles suggest the vision of the Constitution of India for respect for human dignity, equality and justice.
58 Human Rights: Indian Perspective 4.7 TERMINAL QUESTIONS
1. How has right to equality been provided in the Constitution of India?
2. Describe the freedoms provided in the chapter on Fundamental Rights.
3. What is the importance of Freedom of Religion? How has this been guaranteed by the Constitution?
4. How can a citizen get his / her Fundamental Rights enforced in case of violation by state?
5. How do the Directive Principles of State Policy reflect the provisions of Economic, Social and Cultural Rights?
6. What is the importance of including Gandhian principles as directives in chapter III of the Constitution?
7. Describe in brief the relationship between Fundamental Rights and Directive Principles.
8. Describe the relevance of inclusion of provision for Fundamental Duties in the Constitution.
SUGGESTED READINGS
1. Adawal, Shankar, (2009) “Human Rights” The Reality and Challenges (Delhi: Academic Excellence India).
2. Austin, Granville, (1999) The Indian Constitution: Corner Stone of Nation, Delhi Oxford University Press.
3. Basu, D.C. Introduction to the Constitution of India. New Delhi: Prentice-Hall.
4. Chaube, Kinkar, Shibani (2009), “The Making and Working of the Indian
Constitution”, New Delhi: National Book Trust, India.
5. Chiranjivi, (1999), Nirmal J., “Human Rights in India, Historical, Social and
Political Perspectives”, published by Oxford University Press, New Delhi.
6. Iyer, V.R. Krishna (1990) Human Rights and Human Wrongs, Delhi: B.R. Publishing
Group.
7. Nirmal, C.J., ed., (1999) Human Rights of India: Historical, Social and Political
Perspectives (New Delhi: Oxford University Press.
8. Shankar, A, (2009), Human Rights the Reality and Challenges, published by
Academic Excellence, New Delhi-110031 India.
9. Vijapur, A Abdulrahim P. and Kumar Suresh (1999) Perspectives on Human Rights, New Delhi: Manak Publisher.
UNIT 5 UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR) AND THE UN
COVENANTS
Structure
5.1 Introduction
Aims and Objectives
5.2 The Universal Declaration of Human Rights 5.2.1 Provisions of the Universal Declaration 5.2.2 Significance of the Universal Declaration
5.3 The International Covenant on Civil and Political Rights (ICCPR) 5.3.1 Provisions of the ICCPR
5.3.2 Implementation of the ICCPR
5.4 The International Covenant on Economic, Social and Cultural Rights (ICESCR) 5.4.1 Provisions of the ICESCR5.4.2 Implementation of the ICESCR
5.5 The Interdependence Between ICCPR and ICESCR
5.6 The Significance of the International Bill of Human Rights
5.7 Summary
5.8 Terminal Questions
Suggested Readings
5.1 INTRODUCTION
Human rights has been one of the main areas of work to which the United Nations has consistently devoted its time and efforts. When the Second World War came to an end, fundamental human rights were perceived as a prerequisite for international peace and friendly relations among nations. The United Nations has been concerned with the universal respect for, and observance of, human rights since its inception in 1945. Its beginnings were pronounced in the UN Charter where the phrase ‘human rights and fundamental freedoms’ were repeatedly mentioned. The Charter also provided for the establishment of a subsidiary body under the Economic and Social Council for the promotion and protection of human rights. That subsidiary body came to be known as the Commission on Human Rights (now replaced by Human Rights Council). It is the Commission that took up the task of drafting a human rights document for the possible adoption by the General Assembly. Soon after, the Universal Declaration of Human Rights (UDHR) was adopted in 1948, which was intended to prevent the kind of atrocities that Nazis had committed during the Second World War. The UDHR championed almost all the fundamental rights of the individual; it was hailed as ‘the Magna Carta of Mankind’ by its chief architect, Eleanor Roosevelt.
The Universal Declaration of Human Rights did not create any binding obligations for the member states of the United Nations. Hence, the UN Commission on Human Rights
60 Human Rights: Indian Perspective
immediately took up the task of drafting a binding international treaty of Human Rights. However, that proposed treaty was divided into two separate Covenants – International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). Two Optional Protocols to ICCPR, one on individuals’ right to petition and the other on the abolition of death penalty, were adopted in 1966 and 1991 respectively. The drafting of the Covenants and the First Optional Protocol (to the ICCPR) took 18 years. They are the most comprehensive and basic human rights treaties ever prepared by the international community. They contain almost all the basic rights of the individual – civil, political, economic, social and cultural rights – and provide measures for their implementation. These five human rights instruments are known as the “International Bill of Human Rights”. This unit will also discuss the two bodies (Committees) that have been created as part of the monitoring framework of the two Covenants.
Aims and Objectives
This Unit will help you to understand
the importance of United Nations’ contribution in the field of human rights;
the provisions and significance of the Universal Declaration;
the features, provisions and implementation of the two Covenants; and
the similarities, differences and interdependence between the two Covenants;
5.2 THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
The Universal Declaration of Human Rights (the UDHR), as the name suggests, was adopted as a resolution of the General Assembly on 10 December 1948 after nearly two years of deliberations and efforts of countless individuals went into preparing that vision. Small countries and non-Western perspectives found voice during its drafting and owing to their participation; fierce, vigorous discussions took place on philosophical and cultural aspects of human rights. In view of the religious, philosophical and ideological divisions prevailing at that time, the Commission on Human Rights steered itself clear of endorsing a particular philosophical or religious stand on the issue (Freeman, p.35). Instead, the Declaration evolved from a complex and such diverse moral, philosophical, political and cultural inputs to establish a ‘common standard for all peoples and all nations’ (Eleanor Roosevelt cited in Lauren, p.226). This was no mean an achievement in a world that was sharply divided on ideological and other grounds. The Universal Declaration of Human Rights subsumes an entire range of human rights, both the civil-political rights and the socio-economic-cultural rights, and the individual and the collective rights. Universal Declaration acts as a reference point for any effort to understand the nature and substance of rights.
5.2.1 Provisions of the Universal Declaration
Two principles come across as the most important pillars of human rights norm-setting effort in the post-Second World War period. Those are the principles of equality and non-discrimination. The principles appear in the initial articles (Articles 1, 2 and 7) of the Declaration and the two Covenants as well. Article 1 says that all are ‘born free and equal in dignity and rights’ and Article 2 sets forth the principle of non-discrimination in
Universal Declaration of Human Rights (UDHR) and the UN Covenants 61
the broadest sense including most of the categories on the basis of which discrimination can and does occur. It grants entitlement to rights to everyone ‘without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or status’. However, one must remember that inclusive and broad nature of provision on non-discrimination does not preclude special treatment meted out to certain categories of persons in order to ensure greater equality and rights. For example, although discrimination on the basis of sex is not allowed, states can have laws for differential treatment of women to improve their status in society. Equality, non- discrimination and rights of the individual are the flavour of the Declaration.
The other provisions in the Declaration are relating to the civil-political rights (Articles 3- 21) and socio-economic-cultural rights (Articles 22-29). The civil-political rights include the all too familiar right to life, liberty and security of the person (Article 3), the prohibition provisions (slavery in Article 4, torture and other degrading ill treatment in Article 5 and prohibition against arbitrary arrest in Article 9), the right to a fair trial, presumption of innocence until proven guilty and non-interference in personal and family life (Articles 10, 11 and 12 respectively), freedom of movement, freedom of opinion, freedom of assembly, right to asylum and right to a nationality (Articles 13, 19, 20, 14 and 15), and right to marriage, right to own property, right to freedom of thought, conscience and religion and right to take part in one’s government (Article 16, 17, 18, 21). Some provisions in the Declaration have been controversial and have received criticism from non-western ideological quarters. For example, Article 17 on right to own property and that no one shall be arbitrarily deprived of one’s property is seen as promoting the private capitalist system that precludes any systemic change in the society. Likewise, the provision in Article 21 on direct or indirect participation in one’s government arguably places a premium on direct and representative democracy in comparison to other political systems.
Economic, social and cultural rights (Articles 22-29) include the right to social security (Article 22), the right to work, free choice of employment with equal pay for equal work and just and favourable conditions of work (Article 23), the right to rest and leisure (Article 24), the right to an adequate standard of living (Article 25) and the right to education (Article 26). The lone provision on cultural rights is included in Article 27 that seeks to guarantee the right to participate in the cultural life of the community. This provision is also seen as a collective right as against the individual rights preceding it. Article 29 is the only provision that imposes duties on every individual towards the community and the permissible lawful limitations on the exercise of the rights in the interest of ‘the just requirements of morality, public order and the general welfare’.
5.2.2 Significance of the Universal Declaration
The origins of the Declaration undoubtedly flow from the principles of liberal democracy and the contribution of such luminaries as Rene Cassin, Eleanor Roosevelt and John Humphrey. Therefore, the Declaration bears a strong accent on individual rights and the institutions of liberal democracy. However, the Declaration has received wide endorsement from countries belonging to every shade of ideology, from non-governmental organizations, and from people world over that makes it a truly universal document (Hurst Hannum, p.353).
It is often suggested that it is only a Declaration, it is not a binding treaty, and that it does not create any obligations on the member states (consequently, it is not a very effective instrument). Having said that, it is pertinent to note here that the Declaration is
62 Human Rights: Indian Perspective
one of the most important documents that were designed to proclaim a vision by the United Nations, and as a set of goals that states aspired to pursue and accomplish; it has cast tremendous legal, political, moral and normative impact. In order to emphasise that the Declaration belonged to and was morally binding on everyone, the word “universal” was inserted in the title instead of the more commonly used term “international”. In addition to it, the Declaration proclaimed rights in the name of “all peoples and all nations” (in the preamble), the ‘inherent dignity’ and worth of the person, that everyone was born free and equal – obliquely taking recourse to the theory of natural rights and rejecting in the same breath that it was the prerogative of the governments to grant rights (Lauren, p. 227). The Preamble of the Declaration points out that the individual, not the State or the government, is “the foundation of freedom, justice and peace in the world”. In one stroke, the Declaration brought individual to the centre of human rights debate and made him/her the object as well as subject of international human rights law.
Secondly, it has spawned the adoption of several human rights instruments across the world. To say that it is only a Declaration is to understate the incredible influence it wields and the remarkable acceleration it has lent to the development of human rights legal instruments at the global and regional level. Many of those documents acknowledge the Universal Declaration as their source of authority (Freeman, p. 36). Thirdly, many countries that gained independence in the decade of 1950s and 1960s after years of colonial subjugation incorporated the rights and principles (such as equality and non- discrimination) found in the UDHR in their national constitutions, statutory laws, policies and programmes designed to protect fundamental rights and freedoms. Fourthly, it has become something like a moral force, a ground for justification and legitimacy, for all those struggling to ensure respect for human rights. The adoption of human rights instruments, the creation of customary international human rights law, every demand for human rights practices within the states, the moral justification for the activities of several NGOs – all these dramatically get nestled, either entirely or in part, in the principles and norms enunciated by the Declaration. The global reach and influence of the Declaration has been constantly widening without having to rely on binding obligations on the member states. It provides moorings for every conceivable discourse on human rights in the post- 1948 period as also act as a basic reference point for international human rights – it is considered to be an authoritative elucidation of the phrase ‘human rights and fundamental freedoms’ mentioned in the UN Charter.
The Declaration is the best-known and most cited human rights document in the world. In UN organs, the Declaration has an authority surpassed only by the Charter. It is invoked constantly in the General Assembly, the Security Council and other organs. The International Court of Justice also has invoked the Declaration in the Iranian Hostages Case. Kofi Annan, then Secretary-General of the United Nations, has rightly remarked on the occasion of the 50th anniversary of the UDHR that it has served “as the foundation for all subsequent human rights work and become ever more deeply integrated into the fabric of national and international life, both ethically and juridically. … [t]he Declaration has lost none of its relevance as a blue print for human dignity and well being” (UN Briefing Papers, p.5)
In sum, the moral, political and legal significance of this historic Declaration can be illustrated better by citing the opinion of Mary Robinson, former UN High Commissioner for Human Rights and the President of Ireland, who wrote, “A famous British historian … (Lord Acton) said of the two pages of the 1789 French Declaration of the Rights of
Universal Declaration of Human Rights (UDHR) and the UN Covenants 63 Man that they weighed more than whole libraries and more than all of Napoleon’s armies.
The remark is also fitting for the Universal Declaration” (Robinson, p. 120).
5.3 THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)
Following the adoption of the Declaration, the UN members turned towards the drafting of the International Bill of Rights, i.e., a treaty of human rights. However, the Covenants and the First Optional Protocol (to the ICCPR) took inordinately long time, eighteen years to come to fruition. This delay is attributed to many reasons. First, the Covenants were the most comprehensive human rights treaties; they contained not only almost all the basic rights of the individual – civil, political, economic, social and cultural rights – but also provided measures for their implementation. Second, since the UN membership saw a considerable increase while these Covenants were being drafted, discussion on individual articles became unwieldy and it also became difficult for UN bodies to accommodate and harmonise the interests of all the nations. When the Covenants were being drafted, the Commission on Human Rights decided to divide the rights enumerated in the Universal Declaration into two legal instruments: (i) the International Covenant on Civil and Political Rights embracing the traditional civil and political rights recognised in Western societies and cultures, and (ii) the International Covenant on Economic, Social and Cultural Rights to satisfy the aspirations of the socialist and third world societies. Also, an (First) Optional Protocol was appended to the ICCPR that granted individual’s right to petition to the monitoring body of the Covenant (Human Rights Committee, see below). Another (second) Optional Protocol has also been added to the ICCPR on the abolition of death penalty.
5.3.1 Provisions of the ICCPR
The states parties are under an obligation to respect and ensure to all individuals within their territories the civil and political rights set out in the ICCPR. Like Universal Declaration explained above, the Covenant too opens with a proclamation of the principles of non-discrimination (Article 2) and equality (Article 3) in addition to the right of self-determination of all peoples (Article 1). There are two sets of rights that one has to consider while understanding the rest of the provisions of ICCPR – derogable and non-derogable rights. The Covenant allows member states to take measures to derogate from the obligations contained in the Covenant to meet situations of emergency that threatens the life of a nation or its existence. The member states can suspend or limit certain rights during war, internal conflict or other such situations. These are known as derogable rights. Simply put, derogable rights allow a state to suspend them during the time of external or internal emergency, to impose reasonable restrictions in the interest of public order, morality and the realisation of rights by others, or to enter reservations and declarations with respect to those rights. However, the principle of non-discrimination has to be respected even while derogating from the obligations. The other set of rights are the non-derogable rights which cannot be derogated from, limited or suspended under any circumstances. Also, a state cannot derogate from these rights in the sense that no reservations or declarations can be made by a state with regard to these rights while ratifying the Covenant. Article 4 of the Covenant enumerates seven non-derogable rights. These are right to life, freedom from torture or cruel, inhuman or degrading treatment (Article 6, 7), freedom from slavery (Article 8), right not to be imprisoned for failing to fulfill contractual obligation (Article 11), no punishment on account of retroactive application
64 Human Rights: Indian Perspective of law and the right to be recognized as a person before the law (Article 15, Article 16),
and finally, right to freedom of thought, conscience and religion (Article 18).
Some of the other important rights are, the right to liberty and security (Article 9), the right of detained persons to be treated with humanity (Article 10), freedom of movement and choice of residence (Article 12), freedom of aliens from expulsion (Article 13), the right to a fair trial (Article 14), freedom of opinion and of expression (Article 19), freedom of association (Article 22), the right to marry and found a family (Article 23), political rights, such as right to vote, right to contest elections, right to participate in the governance and to have access to public services (Article 25), equality before the law (Article 26), and the rights of minorities (Article 27). This is an extensive, if not an exhaustive, list. The rights of ethnic, religious or linguistic minorities to enjoy their own culture, to profess and practice their own religion, or to use their own language is guaranteed in Article 27. In fact, ICCPR is the only international treaty that contains enforceable provision for comprehensive minority rights under Article 27.
5.3.2 Implementation of the ICCPR
Part IV of the Covenant (Articles 28-45) provides for the establishment of an 18-member Human Rights Committee to monitor the implementation of the Covenant. It is also known as a treaty body. The Human Rights Committee was established in 1976 as a monitoring body of the ICCPR. Like any other committee (treaty body) in the United Nations system, it also performs two basic functions of (a) monitoring the implementation of ICCPR through various mechanisms and (b) issuing of general comments on the provisions of the ICCPR. The Human Rights Committee (HRC) has 18 independent experts as members who are elected for a period of four years. As the most prestigious and successful committee, the HRC meets thrice a year for sessions of three weeks.
It has issued several general comments that have created a body of jurisprudence on issues related to human rights besides helping in the implementation of the Covenant better. Within the UN human rights treaty regime, the Human Rights Committee is widely seen as an important body that has developed and redefined the human rights standards through its general comments on the provisions of the ICCPR and through its suggestions and recommendations on applications received under the individual communications procedure. The Committee thus contributes to the maintenance of an elaborate human rights regime which, in many ways, has become the defining feature of the United Nations system.
HRC has become very systematic in its pre-sessional work by establishing Country Report Task Forces that prepare list of issues and questions related to a state report. After the consideration of a state report, the Committee issues concluding observations specific to that state. The concluding observations are comprehensive in that they include comments on the state report, positive developments, areas of concern, and difficulties in implementation, suggestions and recommendations. These observations serve as an evaluation or ‘value judgment’ of the general human rights situation in that country. HRC also monitors the progress made on its concluding observations by the member states through a Special Rapporteur on Follow Up, whose job it is to request the state party to give information on the implementation of concluding observations and report the same to the Committee. This system evolved by HRC shows that the Committee believes in the continuous assessment and monitoring of a state party’s compliance.
The General Assembly has also adopted two Optional Protocols (OPs) to the ICCPR. The First OP allows individual communications procedure whereby any person who feels
Universal Declaration of Human Rights (UDHR) and the UN Covenants 65
that his rights (guaranteed under the Covenant) have been violated, may bring his grievance before the Human Rights Committee after exhausting all the available domestic remedies. However, this procedure is available only to the citizens of those member states that have ratified the OP. India has not yet ratified this OP. HRC has been the most successful body in dealing with the consideration of individual communications brought before it. The proceedings are held in private and the decisions are quasi-judicial in nature. Although the Committee’s decisions in individual cases cannot be enforced, the member states have, by and large, adhered to those decisions and implemented them. The system therefore relies heavily on the willingness of state parties to implement the decisions. Some countries have denounced or adversely reacted to this procedure whenever the Committee has criticised their country. On the other hand, some countries like Canada have largely complied with the Committee’s recommendations and have even made the necessary changes in their domestic laws to give effect to HRC’s decisions. It has been generally observed that those countries that have good domestic human rights regimes accept this procedure more willingly, abide by the Committee’s decisions diligently, and thereby help in making the system a success.
Some areas of concern do remain in the implementation procedure. The Covenant text is such that it accords a very limited participation to the specialised agencies. There is not much cooperation and interaction with other treaty bodies either. Occasionally, there have been members of HRC who are also members on other committees but that apart, a formal mechanism to involve members of other committees in the work of HRC is missing. If other committees are to learn from the enriching experience of HRC, some avenues of coordination and participation will have to be etched out. In addition to it, the Committee has not been able to consider the reports or individual communications on time. The Committee, as the most successful body to receive overwhelming number of communications, suffers from time constraints.
5.4 THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR)
It is now clear that the ICCPR evolved from the initial provisions in the Universal Declaration. While the Western countries tirelessly championed for the protection and promotion of the civil-political rights, pressure was building from the Soviet bloc for the endorsement of socio-economic rights on the same lines as the civil-political rights. The other part of the Universal Declaration (Articles 22-29) on the socio-economic-cultural rights was expanded to form the International Covenant on Economic, Social and Cultural Rights (ICESCR). The two Covenants were originally destined to be part of the same binding treaty but they were eventually bifurcated into two separate documents owing to differences in the nature of the two sets of rights, ideological positions, and the implementation mechanism envisaged for them. Like ICCPR, the General Assembly has adopted an Optional Protocol to the ICESCR in 2008 that makes individual communications procedure available for the non-fulfillment of socio-economic and cultural rights. However, this optional procedure has not entered into force yet. With the adoption of the OP on individual communications, the distinction between ICCPR and ICESCR in terms of their primacy and implementation has become less relevant.
5.4.1 Provisions of the ICESCR
Part I of the ICESCR is similar to the corresponding part in the ICCPR in that it provides for right to self-determination and non-discrimination. Then there are obligations
66 Human Rights: Indian Perspective
of the member states defined in Part II. Part III is devoted to the substantive rights enumerated in the Covenant. Some important economic, social and cultural rights protected by the ICESCR are, right to work (Article 6), right to just and favourable conditions of work including fair wages, equal pay for equal work and holiday with pay (Article 7), right to form and join trade unions, including the right to strike (Article 8), right to social security (Article 9), protection of the family, including special assistance for mothers and children (Article 10), right to an adequate standard of living, including adequate food, clothing and housing and the continuous improvement of living conditions (Article 11), right to the highest attainable standard of physical and mental health (Article 12), right to education, primary education being compulsory and free for all, and secondary and higher education generally accessible to all (Article 13 and 14), and the right to participate in cultural life and enjoy the benefits of scientific progress (Article 15). Compared to the ICCPR, the number of articles devoted to the substantive provisions in this Covenant is fewer. Moreover, there is no separate list of non-derogable rights in this Covenant. Also, it appears that the area of cultural rights has been paid relatively less attention than the economic and social rights, for there is only one article devoted to the cultural rights as against multiple provisions found on other aspects. In fact, the Committee was also lagging behind in issuing a general comment on Article 15. One remarkable fact, however, is that there is greater elucidation of each of the provisions through general comments issued by the Committee on Economic, Social and Cultural Rights. In fact, in some cases, there has been more than one general comment on different aspects of a provision, e.g., there are Article four general comments on Article 11(two on the right to housing, one on the right to food and one on the right to water). We will discuss the Committee’s structure, position and functioning in the next section.
5.4.2 Implementation of the ICESCR
The Committee on Economic, Social and Cultural Rights (CESCR) is the only one that has not been established by the treaty whose provisions it seeks to promote and monitor. The ICESCR did not provide for a monitoring body in its text because of the nature of rights contained therein. It was felt that the economic and social rights were essentially group rights to be implemented progressively and gradually over a period of time and that they did not require a monitoring mechanism of the kind that was found essential for the individual rights contained in the other Covenant, i.e., the ICCPR. Eventually, the Economic and Social Council (ECOSOC) adopted a resolution in 1985, to establish the Committee consisting of 18 independent experts elected directly by the ECOSOC for a term of four years.
The functions of this Committee are to monitor the implementation of the rights protected in the Convention through the consideration of periodic reports submitted by the states parties and issuing general comments to elaborate the various provisions of the Conventions for the benefit of the states parties. The Convention has recently introduced the individual communications procedure that is yet to come into force. The Committee holds two annual sessions of three weeks’ duration. The Committee held extra-ordinary sessions in 2000 and 2001 to clear the backlog of reports.
One striking feature of CESCR’s work is that it was the first committee to initiate formal, close cooperation with UN organisations and specialised agencies. CESCR is an important player in the international dialogue on such economic and social issues as poverty alleviation and structural adjustment programmes with agencies like the International Monetary Fund, the World Bank and the United Nations Development Programme (UNDP). This Committee is also known for encouraging interaction with and participation
Universal Declaration of Human Rights (UDHR) and the UN Covenants 67
of NGOs working in the field of human rights and development. Hence, it is seen as the most NGO-friendly of all the committees. Many NGOs enjoy consultative status with this Committee that has enabled it a more realistic appreciation of the realisation of economic, social and cultural rights. Notwithstanding the interaction between the Committee and the NGOs, it needs to be noted here that, ironically enough, there are far greater number of NGOs working in the field of civil-political rights than in the field of socio-economic rights. With regard to the Committee’s other function of issuing the general comments, it has done a commendable job by issuing 15 general comments. Most of them are based on substantive articles of the Covenant with the exception of two general comments which relate to rights of two particular groups, disabled and older persons. In some cases, as mentioned earlier, it has published more than one general comment.
5.5 THE INTERDEPENDENCE BETWEEN ICCPR AND ICESCR
Any understanding of the interdependence between these two sets of rights must begin with the different nature, origin and trajectory of development witnessed by the two Covenants. The distinctions mainly concern three aspects: terminology, the obligations of the States Parties, and the implementation mechanism and the system of monitoring those rights. The socio-economic rights were predominantly understood as positive rights that required active involvement of the state in their implementation. The state not only needed to recognise these rights but was also to be an important interlocutor in their implementation. Since socio-economic rights require allocation of resources by the state and policy planning for their implementation, they are dependent on state support. The difference in the nature of the two sets of rights is reflected in the language (terminology) in which the provisions are couched in the Covenants. The civil-political rights often begin with an assertion on behalf of the individual as ‘everyone has the right to…’ while the socio-economic rights benefit the individual indirectly or derivatively as ‘states parties recognize the right of everyone’ to these rights. Ideologically, the intellectual impetus for the civil-political rights came from the liberal countries who stressed on their primacy over socio-economic rights. The communist countries led by the former USSR emphasized socio-economic rights. Most (not all) of the civil-political rights prohibited certain action on the part of the state (such as ‘no one shall be…deprived of his life’, ‘no one shall be subjected to torture’) and hence could be implemented immediately; socio-economic rights required availability of resources for their implementation and were therefore to be realised progressively over a period of time. For example, the right to a fair trial could be enacted into law immediately, whereas right to health would require programmes of action over a period of time such as appointment of doctors, construction of hospitals, enrolment of people in health schemes, etc.
However, the distinctions enumerated above have to be seen in the context of similarities between these two Covenants. Many provisions such as the ones related to formation of trade unions and associations, the cultural rights and the minority rights (Article 15 and 27 of the ICESCR and ICCPR respectively), the right to self-determination of peoples and non-discrimination provision are similar in both the documents. Both the Covenants have implementation mechanism by way of committees. The members of these committees are independent experts in the subject field who work in their individual capacity. These Committees receive periodic reports from the member states regarding the progress in the implementation of the obligations contained in the Covenants. There is an Optional Protocol that provides for individual communications procedure. Lastly, the Committees
68 Human Rights: Indian Perspective
have issued from time to time “General Comments” elaborating the provisions of the Covenants for the benefit of state parties. These general comments are an important contribution to the development of human rights norms and standards.
The distinctions have further been arguably blurred by the acceptance on various occasions by the international community that the two sets of rights are interdependent in nature and that the fulfillment of one set of rights is contingent upon effective realisation of other set of rights as well. Moreover, not all the provisions of the ICCPR can be implemented immediately. Many analysts argue that an innocuous-looking legal right such as right to a fair trial can neither be implemented immediately nor is it possible to do so without planning or the allocation of resources by the state. Right to a fair trial requires setting up of various courts, recruitment of judges, creating public awareness about accessing judicial remedies etc. which require long-term planning and implementation besides being as arduous as the implementation of the ICESCR provisions. On the other hand, the provision on non-discrimination in the ICESCR is understood to be implemented immediately. The 1993 Vienna Declaration of World Conference on Human Rights and the third general comment by the Committee have reaffirmed the similarities and interdependence between these rights. The third General Comment states that “[w]hile great emphasis has sometimes been placed on the difference between the formulations used in this provision [Article 2(1) of the ICESCR on state obligations] and that contained in the equivalent article 2 of the International Covenant on Civil and Political Rights, it is not always recognized that there are also significant similarities. There are some obligations of Member States, which have to be met almost immediately”, contrary to the assertions of those who argue that the ICESCR requires gradual implementation.
5.6 THE SIGNIFICANCE OF INTERNATIONAL BILL OF HUMAN RIGHTS
The late Secretary-General of the United Nations, U. Thant, stressed the importance of the adoption of the International Covenants, on 16 December 1966, by the following inspired words:
Today’s decisions are the culmination and the outcome of sustained and complex preparatory work to which the United Nations has devoted itself since 1947. It was then decided that human rights and fundamental freedoms which had been referred to in general terms in the Charter and which were soon to be proclaimed “standards of achievement” in the Universal Declaration of Human Rights must be made the subject matter of legally binding obligations in international treaties… in the philosophy of the United Nations, respect for human rights is one of the main foundations of freedom, justice and peace in the world…. (Vijapur and Savitri, p. 139)
With the adoption of these Covenants in 1966 and other relevant instruments, it can be said that a solid legal foundation of human rights law has now been laid down for application at all levels of society: local, national and international. The International Covenants and the two Optional Protocols constitute a positive, effective and realistic step towards the international protection of the individual. Both the Covenants entered into force in early 1976 – almost a decade after their adoption. It was only these two Covenants that took so long to get the minimum ratifications required to become operational; this could be due to the nature of the obligations contained in them which were broad and intended to restrict the sanctity of state sovereignty. It is encouraging to note that more and more states are ratifying these Covenants in recent years. Until May
Universal Declaration of Human Rights (UDHR) and the UN Covenants 69
2010, the ICCPR has been ratified by 165 States and the ICESCR by 160 States, whereas the First and Second Optional Protocols have been ratified by 113 and 72 States respectively. India has ratified both the Covenants on 10 April 1979, but it has not ratified either of the Optional Protocols.
5.7 SUMMARY
In this Unit we have seen how the Universal Declaration of Human Rights became the starting point for UN action and treaty-making in the field of human rights. Since the Universal Declaration was not a binding treaty, many Covenants and Conventions were later adopted by the United Nations to give effect to the promotion and protection of human rights. The Universal Declaration also acts as an elucidation of and commitment towards the human rights provisions seen in the UN Charter. The Declaration has grown in stature and importance over a period of time and has been a philosophical cornerstone and anchor of the universal, regional and national action in the field of human rights.
As a logical step thereafter, the two Covenants have subsumed the essential provisions of the Universal Declaration and have set the ball of UN human rights treaties rolling. Both the Covenants have implementation procedures in the form of committees as we have seen above. The distinction in language and implementation of the two Covenants is no longer held to be tenable by the principle that both are interdependent and in some sense reinforcing in their essence. The Universal Declaration, the two Covenants together with their Optional Protocols is known as the International Bill of Human Rights.
5.8 TERMINAL QUESTIONS
1. Discuss the provisions and significance of the Universal Declaration of Human Rights.
2. Bring out the fundamental differences between the UDHR and the Covenants.
3. Critically examine the implementation mechanisms of the UN Covenants on Human Rights.
4. Explain the interdependence between the ICCPR and ICESCR.
5. What is the importance of the International Bill of Human Rights?
SUGGESTED READINGS
Hannum, Hurst., ‘The Universal Declaration of Human Rights’ in Rhona Smith and Christien van der Anker, ed., Human Rights, (Hodder Arnold, 2004), pp. 351-353.
Freeman, Michael., Human Rights – An Interdisciplinary Approach, Polity: London, 2002
Lauren, Paul Gordon., The Evolution of International Human Rights: Visions Seen, second edition,University of Pennsylvania Press, Philadelphia, PA, 2003
Robinson, Mary., “The Universal Declaration of Human Rights: A Living Document”, Australian Journal of International Affairs, vol. 52, no. 2, 1998.
UN Briefing Papers – Human Rights Today, United Nations, New York, 1998
Vijapur, Abdulrahim P, and K. Savitri., ‘The International Bill of Human Rights’, in Shashi Motilal and Bijayalaxmi Nanda, (eds.), Understanding Social Inequality – Concerns of Human Rights, Gender and Environment, Macmillan Publishers India Ltd., New Delhi, 2010, pp. 131-149.
UNIT 7 HUMAN RIGHTS VIOLATIONS
Structure
7.1 Introduction
Aims and Objectives
7.2 Major Types of Human Rights Violations
7.2.1 Slavery
7.2.2 Torture
7.2.3 Genocide
7.2.4 Problem of Child Soldiers
7.2.5 Disappearances
7.2.6 MNCs and Human Rights
7.2.7 Human Rights Violation and Terrorism
7.2.8 Violations of Women’s Rights and Violence against them
7.2.9 Other Gross Violations: A Global Snapshot
7.3 Mechanisms to deal with Human Rights Violations
7.4 Summary
7.5 Terminal Questions
Suggested Readings
7.1 INTRODUCTION
Since the adoption of the Universal Declaration of Human Rights in 1948, the United Nations has adopted nearly 100 human rights instruments. These instruments, among others, deal with the rights of children, women, minorities or indigenous people, prohibition of torture, slavery, genocide, racial or religious discrimination, etc. Regional organisations like the Council of Europe, African Union, Organization of American States, and the Arab League have adopted scores of treaties and declaration on human rights. It is estimated that there are now approximately 200 international instruments. Besides these international documents on human rights, most of the states have incorporated bills of rights in their constitutions and have ratified many international treaties on human rights. Notwithstanding the existence of many human rights laws and the commitments of states to comply with the international obligations to protect, ensure and guarantee human rights of their citizens and individuals within their boundaries, a large number of states are guilty of indulging in massive and gross violations of human rights. Both the state and non-state actors have been engaged in committing these violations. Millions of people have lost their lives in political persecution by dictatorial regimes. Millions were killed in Nazi extermination camps and during Stalin’s rule in the former Soviet Union. Gross violation of human rights were seen in China, Cambodia, Chile, Iraq, Argentina, Guatemala and Haiti, Bosnia- Herzegovina and the apartheid regime of South Africa, although on a smaller scale.
Human Rights Violations 85
Whether human rights have become universal phenomenon or not, their violation has certainly become a global phenomenon. This Unit attempts to map some of the violations of human rights.
Aims and Objectives
After reading this Unit, you would be able to understand
Various kinds of violations of human rights;
The mechanisms available to address these violations under different human rights treaties; and,
The various ways to promote human rights.
7.2 MAJOR TYPES OF HUMAN RIGHTS VIOLATIONS
There are many types of violations of human rights. We discuss below some of the common and gross violations that abound all over the world.
7.2.1 Slavery
Internationally, slavery was prohibited by the League of Nations in the Slavery Convention in 1926. In 1953, through a protocol the League’s task was transferred to the United Nations and in 1956 a supplementary convention was adopted. The Convention forbids slave trade and aims at ending all forms of slavery. It is striking that only 93 states are parties to this Convention. It is curious to note that Saudi Arabia has ratified the Convention, although it is commonly known that slavery is still being practised in that country. Similarly, India has also ratified it, though according to one study, nearly 2.6 million bonded labour existed in 1978. However, the Bonded Liberation Front, a NGO working for the emancipation of these labourers estimate that there are more than 5 million bonded labourers (Vijapur, 1991, p.127).
According to the UN’s Working Group on Contemporary Forms of Slavery, there are many forms of slavery, such as, traffic in persons, the sale of children, child prostitution, child pornography, the exploitation of child labour, the sexual mutilation of female children, the use of children in armed conflicts, debt bondage, traffic in the sale of human organ, the exploitation of prostitution, exploitation of migrant worker, and sex tourism. The Working Group makes recommendations to the states on the ways to end these forms of slavery. Other modern forms of slavery are the repression of women in general and traffic women in particular. This is prohibited in the Convention for the Suppression of the Traffic in Persons and of the Exploitation of Others of 1948; this Convention entered into force in 1951, has been ratified by states (February 2012).
7.2.2 Torture
Torture is prohibited everywhere. In 1984, the UN adopted the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This Convention entered into force in 1987. It has an Optional Protocol, adopted in 2002, allowing for individual petition system to be considered by Committee against Torture. The Convention defines the concept of torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act
86 Human Rights: Indian Perspective
he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
It is true that torture has been practised by police and armed forces in every country. The greatest victims of this are detainees and Prisoners of War. Although the Geneva Convention III (on POW) obligations are binding on ratifying States, these are observed more in breaches. A recent example of breaches is provided by the ill-treatment of Iraqi detainees by the US Coalition Forces, in particular in Abu Ghraib prison in Baghdad. Subsequent to complaints from Iraqi citizens, from various international human rights organisations and from ICRC on 19 January 2004 Lt. General Richardo Sanches, the Senior US Commander in Iraq, requested US Central Command to investigate the matter. Major General Antonio M. Taguba, who was appointed to conduct the investigation, completed his report on 26 February 2004. The Taguba Report found evidence of systematic and illegal “sadistic, blatant, and wanton criminal abuses … inflicted on detainees” in Abu Ghraib prison. Those abuses consisted, inter alia, of physical abuses, videotaping and photographing naked male and female detainees, posing detainees in various sexually explicit positions for photographing, forcing detainees to remove their clothing and remain naked for several hours at a time, a male MP guard having sex with a female detainee, intimidating and frightening detainees using military working dogs, etc. The Report was not made public until graphic pictures depicting US soldiers abusing Iraqi prisoners were aired by CBS on “60 Minutes II” on 28 April 2004 (Toguba Report, 2004).
7.2.3 Genocide
On 9 December 1948, the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. Article 11 of the Convention describes genocide as any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Persons charged with genocide are to be tried by a competent tribunal of the state in the territory of which the act was committed, or by such tribunal (like International Criminal Court) as may have jurisdiction. This article has remained a dead letter, so far. States parties to the Convention can submit disputes relating to the interpretation, application or fulfillment of the Convention to the International Court of Justice. This has happened only once so far, when Bosnia-Herzegovina submitted a complaint against the Federal Republic of Yugoslavia (Serbia and Montenegro).With regard to the mass killings by the Khmer Rouge in Cambodia (1975-79), which resulted in the deaths of between one and two million people, NGOs have urged governments to file a state complaint against Cambodia
Human Rights Violations 87
because of its violation of the Genocide Convention. The (non-governmental) Cambodia Documentation Commission in New York had collected extensive documentation material about genocide in Cambodia, on the basis of which it urged states to arrive at an international condemnation of the crimes committed by the Khmer Rouge. However, no government was willing to undertake such initiative.
History has witnessed many incidents of genocides, especially in the 20th century, such as, in Australia, the aboriginal population was shot for sport in the early years of colonisation; in Europe nearly 60 years ago, 6 million Jewish and Romany populations were the victims of a mass extermination policy by the Nazi Germany, besides 5 million non-jews who became victims of Nazi policy (as Hitler followed the policy of Aryan supremacy over other races); in 1970 West Pakistani military killed nearly a million East Pakistanis (Bangladeshis), and, more recently, “ethnic cleansing” along religious divides in the former Yugoslavia. We saw that the Rwandan Genocide was the slaughter of an estimated 800,000 to 1 million Tutsis and some moderate Hutus, during a period of 100 days from 7th April to 16th July 1994 (The population of Rwanda is 9 million.) Statistics suggest that during this period of terrible slaughter, more than 6 men, women and children were murdered every minute of every hour of every day. This brutally efficient killing was maintained for more than 3 months. The genocide had been carefully planned. For months, a death list of prominent Tutsis’, members of the political opposition and moderate Hutus who refused to back extremist Hutu power ideology was circulating freely in the capital, Kigali. These people were among the first killed. But in the south of Rwanda, there were no large-scale massacres for the first two weeks, because the provincial governor was a Tutsi. Many frightened Tutsis’ fled to the town hall for protection, but when the mayor was replaced by a Hutu, killings began immediately. Once the prepared lists were exhausted, the killers’ rage turned against the Tutsi population in general. Not all victims were Tutsis, but all Tutsis’ were victims and were hunted down by the execution squads.
It is gratifying to note that the newly established ICC (it is functioning since 2002) can exercise its jurisdiction if national courts are unwilling or unable to investigate or prosecute genocide.
7.2.4 Problem of Child Soldiers
Armed conflicts in recent decades have increasingly involved children, with an estimated 300,000 children currently participating in military activities in over fifty countries from Sri Lanka to Sudan, Congo, Ivory Coast, Liberia, Nepal, and Guatemala. In Colombia, children as young as eight years old have fought for paramilitary forces. In Sierra Leone, ten thousand children fought in that country’s civil war, while Myanmar has over 50,000 young soldiers, the largest in the world. Child soldiers carry guns, serve as human mine detectors, participate in suicide missions, carry supplies, act as spies and messengers, and provide sexual services. Dissent groups, ethnic separatist groups, paramilitary forces, and guerrilla fighters, as well as states, find them to be excellent soldiers. Life in uniform offers children protection from problems of daily struggle for shelter, food, and a security and structure often absent from civilian life (Karns and Mingst, 2005, p.413).
To deal with the issue of child soldiers, the UN General Assembly adopted in 2000 the Optional Protocol to the Convention on the Rights of the Child on the Involvement of the Children in Armed Conflict. This Protocol is ratified (by March 2012) by 144 states and it prohibits governments and nongovernmental armed groups from using children under 18
88 Human Rights: Indian Perspective
years of age in combat. The NGOs have criticised the Protocol as it permits voluntary enlistment / recruitment at 16 years, although proof of age and consent are required. The United States initially opposed the 18 year minimum age for combat, having previously sent 17 year old combatants into Gulf War, Somalia, and Bosnia, but it ratified the Protocol in 2002. The ILO Convention No. 182 (adopted in 1999) makes child soldiering one of the worst forms of child labour and bans recruitment of children under eighteen.
7.2.5 Disappearances
In the 1960s and 1980s some Latin American countries were engaged in a new form of gross and systematic violations of human rights which is infamously known as “disappearances”. Dissidents who were opposing the military regime in countries such as Guatemala, Argentina, Chile and Uruguay suddenly disappeared. When the relatives of the disappeared persons enquired from the authorities, they were told that nothing was known about the case. Officials would suggest that the missing persons might have gone to visit their girlfriends or maybe they were in financial debt etc. Since the disappeared persons were political opponents of the regimes, the relatives did not accept such false explanations. Soon it was realised that those persons were put to death.
The erstwhile UN Commission on Human Rights (now Human Rights Council) established a Working Group (WG) on Enforced or Involuntary Disappearance. During the first year of its existence in 1981, the WG received information about between 11000 and 13000 cases of disappearances. When the WG issued its report in December 1996, there were 43890 unresolved cases of disappearances. In fact, the WG had concluded by that year that the problems of disappearances in the Western Hemisphere have ended. The WG expressed its serious concern about hundreds of cases of disappearances occurring in many countries for more than ten years and urged states in 1996 to invite it for a visiting mission. Countries like Bolivia, Colombia, Cyprus, Guatemala, Mexico, Peru, the Philippines and Sri Lanka accepted the call of the WG, but countries like India reacted negatively (though in Punjab between 1991and 1993, nearly 2000 persons had disappeared and were killed in police encounters and cremated secretly). Not only Latin America but also some European states, like Yugoslavia have experienced the problem of disappearances. For example, according to Amnesty International data, in the former Yugoslavia, between 1991 and 1995, an estimated 20,000 persons disappeared or were missing (Baehr, 1999, p.30).
To deal with the problem of disappearances, the UN adopted in 1992 a Declaration and in 2006 International Convention on the Protection of All Persons from Enforced Disappearance. The Convention has been ratified by 31 countries (as on 1 March 2012) only. It has entered into force in December 2010. The Convention defines in Article 2 “Enforced disappearance” as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.
Article of the Convention further states that No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.
Human Rights Violations 89 The widespread or systematic use of enforced disappearance is further defined as a crime
against humanity in Article 6.
The Convention is monitored by a Committee on Enforced Disappearances elected by its parties, who are obliged to report to it on the steps they have undertaken to implement the Convention obligations within two years of their ratification. The Convention includes an optional complaints system whereby citizens of parties may appeal to the Committee for assistance in locating a disappeared person. Parties may join this system at any time, but may only opt out of it upon signature.
7.2.6 MNCs and Violations of Human Rights
Many TNCs have been violating human rights. If states are guilty of violating human rights, the United Nations can hold them accountable and sensor them. But if non-state actors like TNCs are violating human rights, nothing can be done as there does not exist any treaty or binding norms to deal with the situation. Corporate Human Rights violations include, among others, assassination, torture, kidnapping, environmental degradation, abusing public funds, violently repressing worker rights, releasing toxins into pristine environments, destroying homes, and causing widespread health problems. Corporations carry out some of the most horrific human rights abuses of modern times. For instance, for years, the Caterpillar Company has provided Israel with the bulldozers which are used to destroy Palestinian homes. Despite worldwide condemnation, Caterpillar has refused to cut off their sales to the Israeli military. Look at another example. From 1964 to 1992, a toxic “Rainforest Chernobyl” was unleashed in Ecuador when Texaco (now owned by Chevron) left more than 600 unlined oil pits in pristine northern Amazon rainforest and dumped 18 billion gallons of toxic production water into rivers used for bathing water. The toxic crude oil and formation water seeped into the subsoil, contaminating surrounding freshwater and farmland. As a result, local communities have suffered severe health effects, including cancer, skin lesions, birth defects, and spontaneous abortions.
Between 1989 and 2002, eight union leaders from Coca-Cola bottling plants in Colombia were killed after protesting the company’s labour practices. Hundreds of other Coca-Cola workers have been kidnapped, tortured, and detained by paramilitaries who intimidate workers to prevent them from unionising. In India, Coca-Cola extracted 1.5 million liters of deep well water, which they bottled and sold under the names Dasani and BonAqua. The groundwater was severely depleted, affecting thousands of communities with water shortages and destroying agricultural activity. The remaining water became contaminated with high chloride and bacteria levels, leading to scabs, eye problems, and stomach aches in the local population.
Dow Chemical has been destroying lives and poisoning the planet for decades. The company is best known for the ravages and health disaster for millions of Vietnamese and U.S. veterans caused by its lethal Vietnam War defoliant, Agent Orange. In 2001, Dow inherited the toxic legacy of the worst peacetime chemical disaster in history when it acquired Union Carbide Corporation and its outstanding liabilities in Bhopal, India. Dow refuses to address its liabilities in Bhopal or even admit their existence.
The US addiction to oil is linked with a host of human rights and environmental problems, including human rights abuses in countries such as Nigeria, Ecuador, Sudan, South Africa and Indonesia. It has prompted the US government to cozy up to human rights violating governments such as that of Saudi Arabia; pushed indigenous people off their land;
90 Human Rights: Indian Perspective
destroyed hundreds of thousands of acres of rainforests; fueled wars for oil, such as the war in Iraq; and polluted cities, endangering the health of millions of people. Automobiles are the single largest consumer of oil in the US, and among US automakers, Ford is the worst. Ford has the worst overall fuel economy and highest greenhouse gas emissions.
Nestlé buys cocoa beans for its chocolate from farms that use illegal and forced child labour. The company is the third largest buyer of cocoa from the Ivory Coast, has processing, storage and export facilities there, and is well aware that even the US State Department estimates that some 109,000 children are working on cocoa farms in the Ivory Coast under the worst and most hazardous form of child labour. This summer, the International Labour Rights Fund and a Birmingham law firm filed a class-action lawsuit against Nestlé and several of its suppliers on behalf of former child slaves.
Nearly five million lives per year are claimed by the tobacco industry, whose product results in premature death for half the people who use them. Among tobacco companies, Philip Morris is notorious. It is the world’s largest and most profitable cigarette corporation and is also a leader in pushing smoking with young people around the world. Although the company says it does not want kids to smoke, it spends millions of dollars every day marketing and promoting cigarettes to youth. Overseas, it has even hired underage Marlboro girls to distribute free cigarettes to other children and sponsored concerts where cigarettes were handed out to minors. Pfizer is the largest pharmaceutical company in the world, and is also one of the worst abusers of the human right to universal access to HIV/AIDS medicine. Pfizer produces the anti-retroviral drug fluconazole under the name Diflucan, and sells it at prices that poor people with AIDS cannot afford. The company refuses to grant generic licenses of fluconazole to governments in countries like Brazil, South Africa, or Dominican Republic, where patients are forced to pay $20 per weekly pill, though the average national wage is only $120 per month.
7.2.7 Human Rights Violation and Terrorism
Terrorist attacks by non-state actors and counter-terrorism measures by the states also cause human rights violations. For instance, according to the 2010 US Department of State report on Human Rights, in Pakistan alone terrorist and extremist attacks and operations to combat terrorism and extremism resulted in 7,400 deaths, of which nearly 1,800 were civilians, over 450 were security forces, and over 5,100 were terrorists or insurgents. There were numerous reports of politically motivated killings in Karachi and Balochistan. According to a report by Dawn, 1,981 persons were killed in political violence in Karachi, of which 748 were targeted killings. According to Human Rights Watch, the targeted killing and disappearance of Baloch leaders, activists, and civilians increased in 2010. Another study reports that between 1988 and 2001 in the state of Jammu and Kashmir alone 30,750 people have been killed, including 11,377 civilians in violence and terrorist attack. According to another study, it is estimated that state- sponsored terrorism is more monstrous as it has caused over 70 million casualties during the 20th century whereas some 100,000 people died in non-state terrorism for the same period of time. Also, terrorism has been causing great economic losses. For instance, 9/ 11 terrorist attack on World Trade Centre in New York caused losses to the tune of $80 billion (Vijapur, 2011, pp.ix-xi).
7.2.8 Violation of Women’s Rights and Violence against them
Discrimination against women is a global phenomenon. Even societies like the UK and
Human Rights Violations 91
USA, where universal education is achieved and are supposed to be modern, industrialised and egalitarian, show that gender inequalities persist in them. Men are still considered heads of households, though large number of female-headed households exists. Over 50% of women in these societies experience physical violence at the hands of their husbands, and there is a high incidence of rape and physical violence. Within the US, the Equal Remuneration Act has still to be passed, and abortion is a criminal offence in many societies.
US Census Bureau data reveals that women earn 75% of the salary offered to men with same qualifications.
In the industrialised world discrimination persists. In UK of all managers of large establishments in 1966, 87% were men and 13% women. Women made up 3% of all barristers in the USA, 4% in UK and 7% in Sweden. A mere 0.06% of all engineers are female in UK, 0.07% in US and 3.7% in France (Bhasin, 2000, p.25). The 1995 UNDP Human Development Report reveals that globally women hold only 14% senior management positions; the ratio between women’s salaries in the US continues to be 3:5 and this has not changed in the last 100 years. 70% of the world’s poorest and illiterate people are women. Human Development Report 1995 was on gender. Its main gist was “Human development, if not engendered, is endangered”. That is the simple but far-reaching message of this report. Women’s productive and reproductive work is generally not assigned much economic value. The invisible and unpaid work contributed by women, annually, is worth US $ 11 trillion. Among the developing world’s 900 million illiterate people, women outnumber men two to one. And girls constitute 60 per cent of the 130 million children without access to primary school. Since population has grown faster than women’s education has expanded in some developing regions, the number of women who are illiterate has increased (UNDP 1995). The following data from UNDP’s Human Development Report 2000 further provides a global scenario of gender gap.
Gender Gap in Governance
Parliament 7 %
Cabinet 9%
Local Government 20% Civil services 9% Judiciary 6%
In India also we find many violations of women’s rights. Domestic violence is very common. Let us just give here two examples of gross violations. (1) On 8th October 1983, The Minister of State for Home Affairs informed the Lok Sabha that 1979 cases of bride/women burning were registered in Delhi alone during March 1980 to November 1983 (and this happened when a woman was still Prime Minister). More recently, the Parliament was informed that the incidence of dowry deaths in, various states and Union Territories during 1990-1993 totaled 20,537. The number of deaths increased to 5,582 in 1993 from 4,962 in the previous year, 5,157 in 1992 and 4,836 in 1990. (2)Human Rights NGOs estimate that at least 10,000 cases of female infanticide occur each year throughout the country despite the governments of Maharashtra and Haryana have banned such tests by enacting legislation. The Central Government also enacted legislation in 1994
92 Human Rights: Indian Perspective in this regard.
7.2.9 Other Gross Violations: A Global Snapshot
There is no country in the world where human rights are not violated as a matter of routine. Gross violations of human rights are found not only in the developing countries, but also in the developed world. Following are some examples:
1. Rights of dalits (Scheduled Castes) are violated throughout India despite strong laws created to protect them. The official statistics for the decade 1990-2000 indicate that a total of 285,871 cases of various crimes against dalits were registered countrywide, of which 14,030 were registered under the Protection of Civil Rights Act and 81,796 under the Prevention of Atrocities Act. This means that an average of 28,587 cases of practice of untouchability and atrocities against SCs were registered every year during the 1990s. These include 553 cases of murder, 2,990 cases of grievous hurt, 919 rapes, 184 kidnappings/abductions, 47 dacoities, 127 robberies, 456 cases of arson, 1,403 cases of caste discrimination and 8,179 cases of atrocities. In other words, every hour more than three cases of atrocities against SCs are registered, and every day three cases of rape and at least one murder are reported.
2. Custodial violence and deaths is another area that has caught the serious attention of NHRC. It may be noted that the huge increase of the number of cases/complaints considered by it from 276 in 1994-95 to 11,153 in 1995-96 showed the awareness among the people of the human rights situation in the country and the willingness of the victims to approach the NHRC for relief. Around 444 custodial deaths were examined by the NHRC during 1995-96, excluding 39 cases of disappearance of persons arrested by the police. Quite a few fatalities, 308 were of persons in judicial custody. Other police ‘excesses’ probed by the NHRC included torture of the suspects during investigation to extract confessions.
3. The Apartheid government of South Africa, controlled by white minority, was guilty of violating human rights of black majority people. Throughout its existence, till 1994, South African government violated human rights. Sometimes it used to innovative novel methods of terrorising people. For instance, on 21 March 1960, when several thousand Africans had assembled at Sharpeville to demonstrate against the racial discrimination laws and to get arrested, they were frightened by South African authorities not only by low flying jets but also by ordering police to open fire. This resulted in the killing of 69 Africans and wounding more than 200. Similarly, the authorities resorted to use of force on 19 June 1976 against black school children who were demonstrating against apartheid laws and demanding education in English medium in Soweto town. This resulted in the killing of around 100 people, mostly children, and more than 800 injured. After this incident, there was a proposal in the Security Council to expel South Africa from UN for violating systematically human rights of its people, which could not be adopted due to veto exercised by USA, UK, and France (as these states had their large investments in South Africa). However, the General Assembly did not accept the credentials of South African delegation to participate in its sessions and as a resulted South Africa did not attend its sessions between 1976 and 1994 (Vijapur, 1991).
4. The State of the World Children 2012, released recently by UNICEF, gives
Human Rights Violations 93
shocking information on the plight of children especially in urban areas. Hundreds of millions of them live in urban slums, many without access to basic services. The report reveals that about 215 million girls and boys aged 5-17 were engaged in child labour in 2008, 115million of them in hazardous work. As of 2008, 67 million primary-school-aged children were still out of school, 53 per cent of them girls. It further reveals that nearly 2.5 million people are in forced labour as a result of trafficking an estimated 22 to 50 per cent of them children. Even in the absence of trafficking, many children are forced to work to survive. About 215 million girls and boys aged 5–17 were engaged in child labour in 2008, 115 million of them in hazardous work. More than 350,000 women died in pregnancy and childbirth in 2008, and every year many more sustain injuries that can turn into lifelong, ostracising disabilities. Many such deaths and injuries can be averted if expectant mothers receive care from skilled professionals with adequate equipment and supplies, and if they have access to emergency obstetric care.
5. By 1980, the official statistics about refugees had risen to 6 million and 2 million internally displaced persons in the world. By 1995, the number of refugees had doubled to some 13.5 million, while the number of internally displaced persons had reached the staggering total of some 30 million and this is only the official figure. By the end of the century, the refugee crisis had worsened, due in no small part to the terrible atrocities that took place in Rwanda and the former Yugoslavia. Between 1990 and 1999, over one million refugees from the former Yugoslavia took up asylum in Western Europe, making it easily the largest population. Similarly, following the 1994 genocide and civil war in Rwanda, over two million refugees had fled to neighbouring countries (O’Byrne, 2003, pp.346-47). There is no guarantee that the rights of refugees are respected and protected in the countries where they find themselves.
6. In the UK, till 1970s, there were no laws to provide equal pay for equal work for both men and women. Earlier the British society had restricted the access of women to higher paying job opportunities in law, engineering, and other professions. Women were often employed in low paying jobs. They formed 97 per cent of canteen assistants, 88 per cent of hairdressers, 92 per cent of nurses, and 82 per cent of shop assistants. In contrast only 4 per cent were architects and 6 per cent were solicitors (Hargopal, 1997, p.69). In US, racial discrimination of blacks continued till recently. In the 1960s and 70s the blacks were in poor conditions than their white counterparts. Whites held 80 per cent of white-collar jobs but majority of blacks held blue-collar positions and a disproportionate number of black white-collar employed is in sales and clerical positions rather than in management or technical professions. About 75 per cent of ghetto population is black and most of them live in constant fear of crime and are always hopelessly in debt. There were nearly 6, 00,000 homeless people in USA. Their number has been increasing. 1,00,000 children go to sleep homeless every night. Between 9 and 12 million children younger than 18 have no health insurance (Hargopal, 1997, pp.72-77).
7. Poverty is another cause for human rights violations. “Poverty anywhere is a threat to prosperity everywhere”, declared the constitution of ILO in 1919. It is estimated that one-third of all human deaths, some 50,000 daily, are due to poverty-related causes, to malnutrition and to diseases that can be prevented or cured cheaply by providing better nutrition, safe drinking water, mosquito nets, re-hydration packs,
94
Human Rights: Indian Perspective
vaccines, and other medicines. This adds up to 270 million deaths in just 15 years (up to 2004) from the end of the Cold War – more deaths than were caused by all the wars, civil wars and government repression of the entire twentieth century. Yet our politicians, academics, and mass media show little concern for how such poverty might be reduced or addressed. They are more interested in possible military interventions to stop human rights violations in developing countries, even though such interventions –at best– produce smaller benefits at greater cost. This Western priority may be rooted in self-interest. But it engenders, and is sustained by, a deeply flawed moral presentation of global economic cooperation. The Western-supported new global economic order aggravates global inequality and reproduces severe poverty on a massive scale. Thomas Pogge considers that on any plausible understanding of our moral values, the prevention of such poverty should be our foremost responsibility (See Pogge, 2001, pp.6-24).
7.3 MECHANISMS TO DEAL WITH HUMAN RIGHTS VIOLATIONS
The violation of human rights is a global phenomenon. Although many human rights have been adopted and are now in force, violations continue to occur. Under major human rights treaties and conventions, monitoring mechanisms are available to review the state compliance of international human rights norms and obligations. These are, Human Rights Committee (under International Covenant on Civil and Political Rights), Committee on Economic, Social and Cultural Rights (under International Covenant on Economic, Social and Cultural Rights), Committee on Torture (under Torture Convention), CEDAW Committee (under Convention on Elimination of All Forms of Discrimination against Women), Committee on Rights of the Child (under CRC), Committees on the rights of Migrant Workers, Enforced Disappearance, and Disabled Persons (under respective Conventions). All the State parties are required to submit periodic report on implementation of human rights obligations. These Committees review, criticise, and publicise the violations of human rights. National and international NGOs also participate in these international forums to put pressure on state parties to improve their human rights record.
7.4 SUMMARY
Since 1948, hundreds of human rights treaties / documents have been adopted at the international and regional levels. Human rights now have become truly international. Notwithstanding the proliferation of these documents, human rights observance has not become universal. What has become universal is their violations. In this Unit we have seen that there are many forms of gross violations of human rights, such as, genocide, slavery, violence against women, children, minorities, etc. Violations of human rights are also perpetrated by the state agencies, like police and paramilitary and military forces. Terrorism and counterterrorism are also responsible for violations of human rights. Under different human rights treaties mechanisms to protect human rights and to achieve state compliance of international human rights obligations are available. There are treaty- monitoring bodies to review the domestic implementation of human rights. The members of these committees offer constructive criticisms on state reports. Their adverse remarks are publicised by NGOs, which may compel states to improve their human rights record. There is also the ICC to try the perpetrators of genocide. Moreover, individual complaints and inter-state complaint procedures are available in most human rights treaties.
Human Rights Violations 95
All these measures are adequate to address human rights violations.
7.5 TERMINAL QUESTIONS
1. Define the term “genocide” and various incidents of genocide that have taken place in the 20th century.
2. Examine the problem of child soldiers and explain the measures that the international community has undertaken to regulate and combat it.
3. Discuss the problem of disappearances.
4. Survey major violations of human rights around the world.
5. Explain the gender discrimination that prevails in many parts of the world.
6. Do MNCs violate human rights? Illustrate your answer with examples of violations perpetrated by them.
SUGGESTED READINGS
Baehr, Peter R., Human Rights Universality in Practice, Macmillan Press., Basingstoke, UK, 1999
Bhasin, Kamla., Understanding Gender, Kali for Women, New Delhi, 2000. Hargopal, G., Political Economy of Human Rights: Emerging Dimensions, Himalaya
Publishing House, Mumbai, 1997.
Karns, Margret P, and Mingst, Karen A., International Organizations The Politics
and Process, Viva Books, New Delhi, 2005.
O’Byrne, Darren J.,Human Rights An Introduction, Pearson Education, New Delhi,
2003.
Pogge, Thomas., “Priorities of Global Justice”, Metaphilosophy, Vol. 32, Nos.1/2, 2001, pp. 6-24.
Togabu Report (www.npr.org/iraq/2004/prison_abuse_pdf)
UNDP., Human Development Report 1995, Oxford University Press, Oxford, 1995.
UNDP., Human Development Report 2000 (Human Rights and Human Development), Oxford University Press, Oxford, 2000.
UNICEF., The State of the World Children 2012: Children in Urban World, 2012. (www.unicef.org/sowc/files/SOWC_2012_Main_Report_EN_21Dec211.pdf)
Vijapur, Abdulrahim P., Ed., Essays on International Human Rights, New Delhi: South Asian Publishers, New Delhi, 1991.
————. “Foreword” in M. Mohibul Haque, International Terrorism and Violence: A Human Rights Perspective, Manak, New Delhi, 2011.
UNIT 8 CONTEMPORARY DEBATES ON HUMAN RIGHTS
Structure
8.1 Introduction
Aims and Objectives
8.2 The Primacy of a Set of Rights
8.2.1 Interdependence between ICCPR and ICESCR
8.3 Universalism and Cultural Relativism
8.4 Minority Rights: Problem of Definition
8.5 Rights of Indigenous Groups
8.6 Disabled or Differently-abled?
8.7 Euthanasia: The Right to Die with Dignity
8.8 Summary
8.9 Terminal Questions
Suggested Readings
8.1 INTRODUCTION
There are many debates in human rights from the time the concept has come into existence. These debates have, over a period of time, helped in clarifying the concept of rights, in crystallising its understanding, in lending dynamism to its development, and in paving the way for demand and recognition of newer kinds of rights. Every prevailing understanding of rights has been challenged by an alternative view of rights and has generally enriched the debate about concept of human rights. In this sense, it is important to bear in mind that there is no single, immutable conception of human rights that can be held to be true for all times and all climes. However, a general consensus has emerged at the international level as to what constitutes a set of universal, core human rights that are taken as inviolable. It also reflects the understanding that human rights are interrelated, indivisible and are not bound by territoriality. All other set of rights, including the understanding of the concept of rights itself, has generated debate and disagreement. While there are many debates in the human rights discourse regarding the nature, primacy, approach, implementation, recognition and justification of rights, in this Unit we consider some of the main currents and contents of this debate.
Contemporary debates in human rights does not merely symbolise the divergent views regarding the various rights; it also symbolises the constant efforts by various groups to bring forth the need for acknowledging the newer forms of violations and an effective legal mechanism to contain those violations. Debate about human rights provide a viable mechanism to justify, universalise the need for protection as also render a sense of immediacy and responsibility to acknowledge their codification, recognition and, eventually, their implementation. In fact, the boundaries of debate about ‘contemporary’ human rights has widened because it symbolises ‘the logics of inclusion’ as opposed to ‘the logics of exclusion’ of ‘modern’ human rights (Baxi, 2010, p.118). However, all rights do not exist
Contemporary Debates on Human Rights 97
by virtue of state recognition and international codification; human rights can and do exist even in the face of fierce opposition by state. Human rights are guaranteed by the state and their codification strengthens the commitment that is required of both the international community and the state.
There are many debates in human rights that have occupied the centre-stage in the post- Second World War era. However, in this Unit we will look at some of the major debates surrounding the primacy of a set of rights, the notion of human rights, the various areas where debates arose and how these debates have been resolved, accommodated or circumvented by the various stake holders such as human rights groups, member states and the international community. The focus in this Unit is on those debates that have hindered agreement on such fundamental aspects as definition or rights to be accorded to a group. It has often led to difficulty in the process of standard-setting or codification of rights. We will also look at the struggle for, and resistance to, recognition by some newer rights and their claimants. People organise themselves into groups and communities to articulate their demands and constantly engage in finding newer means to do so. This entire process of organisation of groups, bringing to the fore newer demands, and, finally, determining means to achieve the goals, has lent dynamism, ingenuity and creative element to the evolution of human rights.
Aims and Objectives
This Unit would enable you to understand
The importance of understanding contemporary debates in human rights;
How the debates influenced the concept, formulation, codification and implementation of certain category of rights;
Major areas of debates in human rights discourse; and
The differing viewpoints that have been accommodated or circumvented.
8.2 THE PRIMACY OF A SET OF RIGHTS
One of the earliest debates to unfold in the human rights discourse was regarding the primacy of one set of rights over others. Soon after the end of the Second World War and the establishment of the United Nations, earnest efforts to promote and protect human rights resulted in the adoption of the Universal Declaration of Human Rights in 1948 and the two Covenants, namely, the ICCPR and the ICESCR. During this period, the countries of the western hemisphere- led by the United States- argued that the civil and political rights were of significance to individual freedom and to his/her protection against the possible violations by others including the state. It was believed that the widespread violations of human rights and fundamental freedoms during the Second World War was a result of absence of recognition of civil-political rights of the individual as reflected in their evolution in the western liberal-capitalist political thought. This set of rights eventually came to be known as the first generation rights since they had chronologically originated earlier than the other set of rights. In the initial years of the establishment of the United Nations in 1945, the Western and Latin American countries laid greater emphasis on and paid attention to the codification and protection of the civil- political rights.
98 Human Rights: Indian Perspective
The economic and social dimension to the concept of human rights was added by the socialist countries led by the former USSR and the eastern European states. The socialist/ communist ideology emphasised the need for the protection and promotion of the social and economic rights such as the right to work, social security, health, education, housing, adequate standard of living among others. The socio-economic rights were predominantly understood as positive rights that required active involvement of the state in their implementation. The state not only needed to recognise these rights but was also to be an important interlocutor in their implementation. Since socio-economic rights require allocation of resources by the state and policy planning for their implementation, they are dependent on state support. These came to be known as the second generation rights since they evolved and attained salience after the civil-political rights. Hence, the intellectual impetus for the civil-political rights came from the liberal countries who stressed on their primacy over socio-economic rights. The Communist countries led by the former USSR emphasised socio-economic rights. Although the use of the term first and second generation rights respectively was only symptomatic of their chronological development, it unfortunately formed the core of debate surrounding the primacy of civil-political rights over the social-economic rights. Besides the chronological origin, the nature, the trajectory of development and the mechanism of implementation only added to the complexity of the primacy debate.
The problem of determining the primacy of rights was further complicated by the emergence of concerns that were of significance to the developing countries, most of which had suffered colonial rule and exploitation. The developing countries stressed on such rights as self-determination, right to peace, and right to development which were seen as both collective rights and third generation rights. In the tussle between the first and second generation rights for attaining primacy, the third generation rights were relegated to a background.
8.2.1 The Interdependence between ICCPR and ICESCR
The debate has been finally put to rest and the distinctions between the two sets of rights have been arguably blurred by the international community by pointing to the fact that the two sets of rights are interdependent in nature and that fulfilment of one set of rights is contingent upon effective realisation of other set of rights as well. The 1993 Vienna Declaration of World Conference on Human Rights and the third general comment by the Human Rights Committee have reaffirmed the similarities and interdependence between these rights. The third General Comment states that “[w]hile great emphasis has sometimes been placed on the difference between the formulations used in this provision [Article 2(1) of the ICESCR on state obligations] and that contained in the equivalent article 2 of the International Covenant on Civil and Political Rights, it is not always recognized that there are also significant similarities” (Vijapur and Savitri, 2010, p. 142). There are some obligations of Member States, which have to be met almost immediately, contrary to the assertions of those who argue that the ICESCR requires gradual implementation.
This entire debate reflected the complexity of disagreements over the nature of rights, the content of rights and the diversity of groups of nations whose interests were involved as indicated in the introduction in the preceding pages. This debate affected the priority attached to the implementation of these rights at the domestic level within the countries.
8.3 UNIVERSALISM AND CULTURAL RELATIVISM
The second major debate in human rights discourse has been regarding the approach to
Contemporary Debates on Human Rights 99
understanding human rights. The question that arises here is whether there can be a particular understanding of human rights that can be considered as universal in its nature, in appeal and independent of its socio-cultural milieu. Since the earliest struggles for and proclamations of rights as we understand today was witnessed in the countries of Western Europe, chiefly France and the Great Britain, and the United States of America, it came to be generally held that the notion of human rights as understood in the western hemisphere presented a valid template for the entire world. In other words, various human rights as embodied in the international instruments were of equal and indisputable relevance to one and all. Paul Sieghart and Jack Donnelly are two of the leading exponents of this view. They contend that universal human rights transcend geographical boundaries and are typically designed to be culturally and ideologically neutral. Universal human rights for all became the slogan and anthem for all countries and people irrespective of their unique history, culture and tradition.
In contradistinction to this universal notion of human rights, the Oriental and African societies argued that while the general notion and understanding of human rights can be universal in nature, relevance of particular rights and their implementation is rooted in the culture, tradition, religion and social practices. In other words, human rights are culturally and ideologically specific and not neutral. Abdullah Ahmed An-Na’im (1991), Joanne R. Bauer and Daniel A. Bell (1999) point to the challenge posed by the cultural relativists to the universalists. The notion and content of human rights are contingent upon ideological moorings (liberal or socialist), regional diversity (Western or Eastern), historical experiences (Northern, developed or Southern, developing), and religious beliefs (Christian, Hindu, Buddhist or Islamic). This analogy can be further extended to prove that the very conception of rights and the trajectory of their evolution have been different in traditional non-western societies where there has been a greater emphasis on the collective notion of rights rather than the individualistic orientation of human rights. The relativist notion of rights shifts the very locus of the subject of rights from individual to the collective. While the UDHR and the two UN Covenants made the individual as the subject of international human rights law and invested rights in the individual, the collectivist notion often makes the society/group as both the repository of rights and the site of decision-making. Violations of rights in one culture may be seen as part of cultural practices and religious traditions in others. The differing notion of rights as violations or socially sanctioned cultural practice has rendered debate on rights on the same plane very difficult. Cultural relativists who contend that rights are culturally specific contest the claim of universality. For them, the universal element in human rights discourse ‘is the idea or the concern for human rights and not a particular model of human rights’ (Vijapur, 2010, p.56). Hence, cultural specificity has to be accorded recognition while formulating and implementing human rights standards. This debate on universalism and relativism has impacted the implementation of a myriad of human rights as also the struggle for recognition of newer rights.
8.4 MINORITY RIGHTS: PROBLEM OF DEFINITION
Any discussion on minority rights is imbued with many intricate and complex issues. It has been riddled with difficulties in arriving at a universally accepted definition (who is a minority?), nature of protection to be accorded to the minority groups within the state, the issue of self-determination, and the nature of rights to be granted – equality versus special rights and individual versus collective rights – to the minority groups. Both internationally and within the state, there has been little agreement on the above mentioned aspects. In
100 Human Rights: Indian Perspective
the academic realm, efforts have been made, by Will Kymlicka for instance, to reconcile the apparent divergent position of equal rights and non-discrimination on the one hand and a distinct framework of minority protection or collective rights on the other (why minority protection is needed?). The need for debate on minority is imperative because of the increasing instances of ethnic and other crises in many parts of the world. One of the critical reasons for these is due to the fact that there is little scope for minority groups to participate in decision-making and power sharing within their country. Moreover, any scheme for accommodating diverse groups or a formal arrangement for power-sharing largely depends on the kind of relationship the majority and minority groups share, and vision and aspirations of the people as expressed in such a formal document. Let us now consider the issues of debate on minority rights.
The first problem encountered by the United Nations in drafting a treaty for minority protection was the lack of a universally accepted definition of what constitutes a minority. The Permanent Court of International Justice (PCIJ) defined a minority community in Graeco-Bulgarian Communities case in 1930 as “a group of persons living in a given country or locality, having a race, religion, language and traditions of their own and united… in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, ensuring the instruction and upbringing of their children in accordance with the spirit and traditions of their race and rendering mutual assistance.” But this definition was not acceptable to many members and therefore, the UN Sub- Commission appointed Francesco Capotorti as the Special Rapporteur to work on a definition of minorities. He defined minority as a group that is numerically inferior to the rest of the population in the state, in a non-dominant position, possessing distinct ethnic, religious or linguistic characteristics and show, if only implicitly, a sense of solidarity, towards preserving their culture, traditions, religion or language. While Capotorti’s definition is academically most widely accepted, none of the above-mentioned two definitions were acceptable to the members of the UN Sub-Commission. Hence, the 1992 UN Declaration on Minorities (Declaration on the Rights of Persons Belonging to Ethnic, Religious, or Linguistic Minorities) was adopted without attempting to define the term minority. The Framework Convention for the protection of National Minorities (1995) adopted at the regional level in Europe also failed to define the concept of ‘minority’ (Cited from Vijapur, 2006, p.371).
Provisions regarding protection of minority groups and their rights are scattered in various international treaties and documents but there is no single comprehensive treaty that cogently enunciates the rights and protection of minorities. The 1992 UN Declaration on Minorities is only a declaration and hence is not a binding document. The member states are not obligated to implement the provisions contained in it. The 1948 UN Convention on the Prevention and Punishment of Genocide provides for right to physical existence and protection from genocide but it does not include linguistic minorities. Although this is a treaty and therefore binding on the member states, it protects only one right of the minority groups, i.e., the right to exist. The International Convention on the elimination of All Forms of Racial Discrimination (CERD) protects only racial groups and provides for ‘special measures’ to be granted to racial minorities. Article 27 of the International Covenant on Civil and Political Rights pertains to minority groups. Thus, it is the only legally binding provision on minority rights in an international treaty. This article says that in those ‘States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or
Contemporary Debates on Human Rights 101
to use their own language’ (Article 27 of the ICCPR, emphasis added). Hence it is apparent that there is no comprehensive treaty for minority protection; what is available is a splintering of provisions across various treaties and declarations.
The Member States are generally reluctant to accord distinctive group status to minorities because they fear that this would encourage them to acquire a distinct juridical personality and stoke their aspiration for self-determination. Many Member States argue that a collective notion of minorities as a group and its recognition has the potential of leading to disintegration of the states and hinders the process of nation-building. Hence, the States have preferred to protect minority rights on an individual basis, as seen in Article 27 of the ICCPR. In order to allay the fears of the states, the Human Rights Committee, in its General Comment on Article 27, has sought to separate the ‘rights of persons belonging to minorities on the one hand and the right to self-determination and the right to equality and non-discrimination on the other’ (Vijapur, 2006, p.377). Regarding the nature of rights to be granted to minorities, Kymlicka opines that in addition to general right to equality and non-discrimination that are available to everyone, minorities must be granted protective measures such as group-specific rights and participatory rights to accommodate enduring cultural differences. Since this has mostly been an exercise in the academic realm, there is no uniform application of these suggestions in the world. Different levels and types of minority protection abound and the debate continues to engage us.
8.5 RIGHTS OF THE INDIGENOUS GROUPS
There are many similarities between the debates and delays surrounding the minority rights and the rights of the indigenous groups. The member states shared anxieties on such issues as the definition of the concept of ‘indigenous peoples’, their right to self- determination, and lastly, the provision regarding the control over natural resources. Definition, the nature of collective cultural rights and right to self-determination were contentious issues witnessed in the debate on minority rights as well. It took inordinately long time for a declaration on the rights of the indigenous groups to come to fruition owing to disagreements mentioned above.
The earliest effort at recognising the rights of the indigenous peoples by way of a declaration came in 1982 when following the study conducted by Jose Martinez Cobo, the Economic and Social Council established a Working Group on Indigenous Populations (WGIP) in order to: (a) review developments pertaining to human rights of indigenous populations and (b) elaborate international standards to protect those rights. WGIP took its second mandate seriously and formulated a draft declaration in 1993 for possible adoption by the United Nations. However, as a result of a deadlock on some issues, little headway was made on this front. The Declaration on the Rights of Indigenous Peoples was finally adopted by the General Assembly on 13 September 2007.
Similar to the Declaration on Minorities, this Declaration too nowhere defines the term indigenous peoples. There are difficulties in arriving at a common, strict definition that can subsume the diversity and difference prevailing among the indigenous communities and be applicable on a universal basis (Errico, 2007, p.746). Hence, the Declaration leaves the matter open-ended; the indigenous groups can determine their identity based on their customs and traditions. It can be deduced from the Preamble and other provisions that indigenous groups are understood as those with a historical continuity relating to land and societies evolved on that territory. In addition to it, they display distinct features with regard to their organisation, political and economic institutions, culture, customs and
102 Human Rights: Indian Perspective
language, in addition to sharing a common experience of marginalisation and discrimination deeply rooted in their historical experiences. Although they may or may not be a numerical minority, they most often form a non-dominant section of society which makes their issues akin to those of the minorities and equally exposes them to vulnerability and discrimination.
In order to address the anxieties of the member states regarding the right to self- determination, the Preambular paragraph says that it should be ‘exercised in accordance with international law, the UN Charter and that this right should not be seen as encouraging any action which would dismember or impair totally or in part, the territorial integrity or political unity of sovereign and independent States’ (provision in the Declaration, cited in Errico, 2007, pp.757-758). The indigenous groups have identified rights similar to the minority groups such as cultural distinctiveness, the religious, linguistic, collective rights and the possession or control over natural resources. The cultural rights that are collective in nature, and relevant to both indigenous groups and minorities, are considered to be important to stem the tide of ethnic violence The declaration aims to provide those ‘minimum standards’ necessary for the survival, dignity and well-being of the indigenous populations.
8.6 DISABLED OR DIFFERENTLY-ABLED?
This group has been the most neglected group in the human rights discourse. Owing to a lack of definition and differing levels of protection and empowerment accorded to them in various countries across the globe, this was one area where agreement or even a common level of understanding was difficult to achieve. A binding treaty devoted to the rights of the disabled persons was long overdue since it was felt that disability was the missing link in the human rights framework with no mention of it in any of the core treaties, except the CRC.
The debate surrounding the rights of the disabled persons has been multi-layered in that it concerned firstly, the approach towards understanding disability (medical model or social model), secondly, the terminology to be used for persons with such needs (impaired, handicapped, challenged, disabled, or differently-abled) and, lastly, the kind of rights and level of protection to be accorded to them. In the last instance, the debate over rights of the disabled persons got enmeshed in the development discourse. The international community had to initiate a process of reconciling these divergent aspects of disability rights before drafting a binding treaty on the subject. There are two models of understanding of disability. Traditionally, persons with disability are seen as ‘objects of pity’, charity, ‘as a burden on their societies and families’, and as persons requiring treatment to cure and restore ‘normalcy’. Disability is perceived as a ‘personal tragedy’ and disabled persons ‘either passively come to terms with a condition’ or bravely overcome their ‘limitations by great mental or physical effort’ (Kayess and French, 2008, p.5). This model of understanding disability is known as the medical model that was the prevailing notion until a different approach was proposed in the late-twentieth century. The medical model believes that the problems of, and solutions to, disability are largely situated within the body of individuals – as internal conditions – without any external causes or contribution by the society.
As opposed to the medical model, the social model of disability situated the experience of disability in the external social conditions – as a systemic disadvantage and social oppression. Disabled persons are often excluded and segregated by the society since their
Contemporary Debates on Human Rights 103
impairment is seen as a deviation from the norm rather than as a diversity of human existence. This model makes a distinction between impairment and disability. While impairment is internal and physical in nature, disability is socially induced due to environmental barriers and social structures of discrimination. Discrimination based on impairment creates physical and social barriers, structures, and practices that impede full participation of disabled persons in society. The need for rights of the persons with disability stems from the fact that formal equality, available in human rights treaties, is difference-blind in that it requires that everyone be treated same and thus strengthens the existing patterns of social disadvantage.
The Convention on the Rights of Persons with Disabilities (CRPD) was finally adopted by the General Assembly on 13 December 2006 after a long deliberation and it entered into force in 2008. The Convention avoided any definition of disability owing to opposition from member states and the other actors in negotiations. In fact, the Preamble to the Convention states that disability is an evolving concept and results from attitudinal and environmental barriers. However, Article 1 includes long-term impairment, as against short- term or episodic impairment, as the criteria to determine persons with disability. This convention is firmly based on the social model and eschews any reference to prevention or treatment of impairment. It represents a ‘paradigm shift’ away from a social welfare approach to a rights-based approach to disability. The latter approach views persons with disability as direct bearers of rights, ‘able to claim those rights as active members of society’ (Kayess and French, 2008, p.3), rather than as passive recipients of welfare. Hence the first source of debate has been conclusively resolved. Regarding the second source of contention on terminology, the Convention is open-ended. Although the term disability appears in the title of the treaty, the member states are allowed to adopt and use phrases that they prefer.
Insofar as the kind of rights and their protection in the Convention is concerned, the demand for the rights of the disabled was couched in terms of social development and linked to the Millennium Development Goals (2000). It was argued that since disabled persons constituted a disproportionately large part of the world’s poorest of the poor, any effort at the eradication of poverty and global development had to address their concerns and needs. It does not create any new rights or entitlements; rather it phrases the existing human rights provisions in a manner that addresses the needs of the disabled persons.
8.7 EUTHANASIA: THE RIGHT TO DIE WITH DIGNITY
This has been one of the most debated issues across the world in recent times, particularly in the last one decade. The debate extends to both ends of the spectrum as to whether euthanasia can be legalised. Those who argue in favour or against this right have deployed strong arguments on the subject centred on medical and ethical questions, legal positions and religious considerations. The adoption of legislation permitting euthanasia in the Netherlands and Belgium in the early years of the new millennium (2002) raised renewed interest in the subject. While some have attempted to analyse the implications of legalising euthanasia in the light of individual choices, others have indicated towards the inherent dangers of slippery slope.
Laws prohibiting active euthanasia are usually justified in terms of right to life because it amounts to taking of life by a private person and the state is obligated to protect its citizens from such intentional killing. However, euthanasia occasioned by an act of omission usually escapes criminal liability. The problem has been compounded by the fact
104 Human Rights: Indian Perspective
that there is no single way of effecting euthanasia. It can be achieved by various measures each of which has a subtle difference in the extent to which the patient is assisted by others in mercy killing. In medical terminology subtle differences are recognised on two bases: the ways in which euthanasia is carried out and the circumstances in which it is effected taking into consideration the nature of the consent of the patient or lack of it. Since there can be myriad forms of effecting death and the circumstances that occasion such decisions, uncertainties of definitions abound. However, it is widely agreed that euthanasia involves at the very minimum, two things: a quiet, painless death and an intentional act to occasion that death by artificial means. It is the means and circumstances that are open to debate and disagreement. Any useful “discussion of euthanasia must accept the… fact that it involves some form of killing” or hastening death (Mason and Smith, 1999, p.414).
Medical and ethical support for euthanasia usually emanates from such arguments as ‘individual autonomy’, ‘death with dignity’ and, more emphatically, ‘best interest of the patient’. It is argued that sometimes one has to act against strictly moral or ethical injunctions, which may be justified in medical terms and in the ‘best interest of the patient’. They are based on the belief that a patient has a right to autonomy and self- determination. This right can be extended to matters of choice of time, circumstances and the way in which death must occur. Ronald Dworkin, while advocating relaxation in law says, “[m]aking someone die in a way that others approve, but [patient] believes a horrifying contradiction of his life, is a devastating, odious form of tyranny” (Cited in Keown, 2002 pp.52-53). However, opponents of autonomy argument contend that it is difficult to ascertain if a given decision is truly autonomous. Several extraneous conditions determine the exercise of autonomy like loneliness and depression. Moreover, autonomy must be exercised in accordance with sound moral principles. Just as freedom comes with responsibility, autonomy must entail moral restraint. The law provides “scant support for an absolutist understanding of autonomy” (Keown, 2002, p.61).
Peter Singer says the opposition to euthanasia comes from two sources: traditional Christians in view of their religious beliefs, and secular opposition which argues that clinical depression and intense pain can be alleviated with psychiatric help and palliative care. According to Singer, treatment of clinical depression and the use of palliative care can be part of the procedural safeguards to be included in any law on euthanasia but they cannot form a basis of banning it. For him, a middle path would be to allow euthanasia with stricter guidelines so as to restore dignity in death (Singer, 2002, p.16).
It is essential to highlight here the dangers of legalising euthanasia. A law permitting voluntary and physician assisted euthanasia is opposed basically on three grounds. Firstly, it may at times lead to paternalistic decision that amplifies risks of abuse. Secondly, that such a law cannot be checked from misuse to increasingly include possible circumstances to initiate death. Assuming that the moral basis of law can be sustained, it will still present serious practical difficulties in controlling its slide. Finally, it is argued that if one legal exception is made, it may embolden the other aspirants of assisted suicide to seek legal option and open the ‘floodgates’ of litigation.
One may add here that most advocates of euthanasia, on their part, are cautious while supporting its legalisation. The Supreme Court of India, in Aruna Shanbaug judgment, has allowed High Courts to henceforth pass orders on plea filed by near relatives for passive euthanasia of terminally-ill patients after seeking expert opinion of medical panel. It has also recommended decriminalisation of attempt to suicide (section 309 of IPC). However,
Contemporary Debates on Human Rights 105
most importantly, Aruna Shanbaug continues to live (passive euthanasia was not allowed in her case) because of the strident stand taken by the KEM Hospital staff who have been caring for her since 1973. Each case will have to be brought before the High Court. Most countries are reluctant to make euthanasia legal and it remains a widely debated issue.
8.8 SUMMARY
In the preceding pages we have looked at some of the important debates that have had a bearing on the human rights discourse. The debates highlighted here are neither exhaustive nor conclusive. They merely represent some of the current tidings. It is pertinent to note that the efforts of the international community to resolve contending positions and tread a common ground have been successful in some cases and attempts to seek solutions have proved to be evasive in others. In all, there are three levels of recognition of rights and resolution of contending issues that are evident in this discussion. Firstly, the international community has been successful in smoothening out the differences and codifying the norms and standards; this is clearly reflected in the established principle that rights are interconnected and that no set of rights can claim primacy over others. Secondly, some rights have been standardised and codified without clearly resolving the contentious issues. In a sense, the international community has attempted to circumvent the disagreements focussing instead on standardisation of norms and rights in treaties or declarations. Issues related to minorities, indigenous groups and disabled groups fall under this category where there is no definition to be found in the documents pertaining to these groups nor is there any final consensus on the nature of rights or their implementation. These two questions have been left open-ended. Thirdly, debate and disagreements have proved to be inconclusive as in the case of universalist versus relativist approach to human rights and the right to die with dignity. No common ground exists on these two issues yet.
8.9 TERMINAL QUESTIONS
1. Discuss the debate on the primacy of a set of rights and how it has been resolved at the international level.
2. What are the difficulties experienced in reconciling the claims of universalism and cultural relativism in human rights discourse?
3. In what way do you think the problems and debates of the minorities and indigenous groups are similar? Elucidate.
4. Highlight the paradigm shift that has occurred in understanding disability.
5. After considering the various arguments in favour or against euthanasia, do you think that it can be recognised as a human right? Give reasons.
SUGGESTED READINGS
Baxi, Upendra., “Two Notions of Human Rights: ‘Modern’ and ‘Contemporary’” in Shashi Motilal and Bijayalaxmi Nanda, ed., Understanding Social Inequality: Concerns of Human Rights, Gender and Environment, Macmillan, New Delhi, 2010, pp. 116- 130.
106 Human Rights: Indian Perspective
Errico, Stefania., ‘The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview’, Human Rights Law Review, Vol. 7, no. 4, October-December, 2007, pp. 741-755.
Kayess, Rosemary, and French, Phillip., ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’, Human Rights Law Review, Vol. 8, no. 1, 2008, pp. 1-34.
Keown, J., Euthanasia, Ethics and Public Policy: An Argument Against Legislation, Cambridge University Press, 2002.
Kymlicka, Will., Multicultural Citizenship: A Liberal Theory of Minority Rights, Oxford University Press, 1995.
Mason, J.K, and Smith, R A McCall., Law and Medical Ethics, Butterworths, 1999. Singer, Peter., ‘Freedom and the Right to Die’, Free Inquiry, vol. 22, 2002.
Vijapur, A P., “International Protection of Minority Rights”, International Studies, vol. 43, no. 4, 2006, pp. 367-394.
Vijapur, A P., Human Rights in International Relations, Manak, New Delhi, 2010.
Vijapur, A P, and Savitri, K., (2010), “The International Bill of Human Rights” in Shashi Motilal and Bijayalaxmi Nanda, ed., Understanding Social Inequality: Concerns of Human Rights, Gender and Environment, Macmillan, New Delhi, 2010, pp. 130-149.
UNIT 9 RIGHTS OF WOMEN
Structure
9.1 Introduction
Aims and Objectives
9.2 Origins of Woman’s Question
9.3 Three Waves of Feminism
9.3.1 Liberal Feminism
9.3.2 Socialist/Marxist Feminism
9.3.3 Radical Feminism
9.3.4 Post-Modern Feminism
9.3.5 Eco-Feminism
9.4 Conclusion
9.5 Summary
9.6 Terminal Questions
Suggested Readings
9.1 INTRODUCTION
The two revolutions –the American and the French- in the eighteenth century that introduced democracy and freedom, though are based on the notion of natural rights of the individual in the modern period, excluded women altogether. The ideals of liberty, justice, equality and fraternity that ushered in the modern era referred to men alone. Embedded in the natural rights theory is a duality. It accepts the principles of reason, equality and freedom but restricts it to men—all rational and dismissing women as the ‘other’—all emotion denied legal and public existence. Women were conventionally considered to be emotional, sentimental and lacking in reason and the same logic was extended to the charter of rights.
Feminism arose as a middle class movement during the eighteenth century, demanding a re-examination of the theories of natural rights and citizenship. It arose as a result of the silence on the part of the natural rights theorists on the status, role and position of women, similar to the failure of early liberalism to fulfill its own promise which gave rise to Marxism. This neglect prompted Olympe de Gouges in France, to proclaim a manifesto of her own Proclamation of the Rights of Woman and Female Citizens and Mary Wollstonecraft in England brought out her A Vindication of the Rights of the Woman (1792). The latter dedicated her book to the French Minister Talleyrand in the hope that he would include women’s rights under the new French constitution. She forcefully argued for the women’s equal right to education and liberty in the hope that proper training would establish self-respect and dignity of women.
The rise of modern feminism is intrinsically linked with the ideological evolution of liberalism and socialism in the early stages of democratic consolidation. Once democracy became an acceptable and preferred form of government, the issues like women’s rights, extension of franchise to women, the working class and the non-propertied came to
108 Human Rights: Indian Perspective
occupy the centre-stage of political debate in the eighteenth and nineteenth centuries. New occupations as a result of the Industrial Revolution also brought women into the work force. The emergence of service economy increased the numbers of women in the labour market. Improved health and hygiene, the birth control pill and smaller families allowed women to combine home with careers. Inevitably, these new issues were incorporated differently by differing political perspectives. This continues even today with contemporary feminism within the larger framework of political theorising.
Aims and Objectives
This Unit would enable you to understand
The origins of rising of women’s issues;
Different waves of feminism;
The significance of voicing the concerns of women and their legitimate rights.
9.2 ORIGINS OF THE ‘WOMAN’S QUESTION’
It was in the later part of the twentieth century that feminism or women’s perspective has gained wide currency not only within academic circles but also in political debates. The ‘Woman’s Question’ or ‘Quarrel’, as it is often called however goes beyond the Enlightenment (Proctor, 1990, p.20). Since the advent of political theory in ancient Greece, philosophers have written about women, their nature and their role in society but the first or the pioneering text written from a woman’s point of view and coincidentally by a woman were in the late eighteenth century. It was the French Revolution, which in popular minds had evoked the image of a free and equal society based on individual rights, that stimulated what came to be referred as the ‘Woman’s Question’. The pertinent issue which could no longer be overlooked or ignored was if all human beings were created equal, then on what reasonable grounds could certain sections of society be denied equal rights of citizenship and enfranchisement. The specific issue of suffrage became the focal point to re-think the general theory of woman’s emancipation. Broadly three traditions in intellectual feminism have been identified. The first was evangelical Christianity in Britain and United States which concerned itself with slavery and other social reforms giving women an opportunity to step into public life. The second was that of Enlightenment which defended the idea of equal rights to women. The third was socialist feminism finding its roots not in Marxism but in communitarian socialism and in particular Saint-Simonianism (Banks, 1986, pp.7-8).
The question of women’s position and role originated with the Protestant revolution. Though the latter remained by and large male-oriented, the various sects that emerged out of it came to espouse ideas that undermined the patriarchal family system. The Puritans justified the patriarchal family on the need for marital love. By defending the institution of the family, they raised the status of women protesting against wife beating and double standards with regard to sexual morality. They dismissed the attitude of the Church towards women as being shameful and unclean. The Protestant emphasis on the family and domesticity provided an essential component of the subsequent Victorian anti-feminism which believes that the home is the rightful place for the woman but nevertheless in the late eighteenth and nineteenth centuries, the “evangelical movement in the United States, and to a lesser extent in Britain, was to be a significant factor in the development of feminist consciousness” (Banks, Ibid, p.14).
Rights of Women 109
The decisive break came with the English Civil War of 1641. All the separatists – the Brownists, Independents, Baptists, Millenarians, Quakers, Seekers and Ranters emphasised the idea of spiritual equality of sexes though none of them question the dominance of the male within the family until the subject became prominent in the eighteenth century. The Ranters were the most consistent libertarians to have emerged in the seventeenth century. They sought total emancipation from all laws and rules and advocated free love. They attacked private property and wanted its abolition. They rejected all forms of government, ecclesiastical and civil. Their ideal was a society without private property, class distinction or state authority.
9.3 THREE WAVES OF FEMINISM
Feminism has developed in three distinctive waves: the first being liberal and Marxist/ socialist feminism (eighteenth century to the 1920s); second, Radical feminism (1960-80); and the third wave of postmodernist feminism (1980s onwards). Liberal feminism and Marxist/socialist feminism, a derivative from their parent philosophies, applies the assumptions of their respective parent doctrines to the woman’s question.
9.3.1 Liberal Feminism
It traces women’s oppression to unjust laws. It focuses on the subjugation of women in the private domain, which is insulated from the ideals of freedom, equality and justice that dominate the public sphere. The aim of liberal feminists’ emphasis on equal rights is to gain access to the public sphere on the same terms as men. The liberal feminists sought to reform the traditional family and accord women dignity, self-respect and independence by demanding rights of marriage, property, inheritance and custody of children. The early liberals are the first to accept the notion of sexual equality and prepare the grounds for latter liberals to plead for equal educational opportunities, employment and rights of political participation for women. For the first time, women are at least theoretically considered as human beings with a mind of their own and are regarded as being free, rational and equal to men. The fact that they ought to be treated as equals with men is also becoming increasingly acceptable, making it difficult to perpetuate and justify traditional inequities and injustices. The early liberals concede the equal claim and authority that mothers had over their children. The liberals retain the Aristotelian dichotomy between the private and public sphere but prepare the grounds for women’s emancipation, equal rights and opportunities and eventually their public role.
The liberal democratic ideology through its language of equal individual rights opposes both political tyranny and arbitrary rule, and seeks to redress inequality. Viewing political society as a product of a contract consented to by adult individuals, the liberals argue a case for constitutionally defined law governed authority that exists in the nature of a trust, ultimately accountable and responsible. No longer is authority seen as divinely created or naturally ordained but something that is voluntarily and deliberately created by human individuals with specific tasks and goals. In this matrix of things even a hereditary monarchy could fit in provided he does not claim his right to rule as being divine and would function within a set of rights and obligations that has been mutually agreed. It rejects both authoritarianism and paternalism. The liberals defend the rights of property owners who, through the invisible operations of the market, would bring about general social well being. One could claim one’s property as long as one has worked for it without wasting or depriving the earth and its resources. The plight of the labouring poor would be alleviated by constant economic growth and by specific measures discharged by
110 Human Rights: Indian Perspective the state. The idea of trust not only underlies the political but also the economic basis of
society.
A unique aspect of the liberal idiom of equal individual rights is the perception of individuals as free and equal persons with a common capacity for reasoning on moral issues. It generally upheld that human nature is shaped by nurture and environment. Birth no longer is the determining factor in a social hierarchy which is neither given by God or Nature, but instead constructed by human beings as both necessary and inevitable. Individuals are equal but they fit into the social hierarchy based on their abilities and needs, the underlying idea behind the liberal principle of equality of opportunity. It means that individuals are equal to pursue what they will to do or choose to do. The liberal feminist tradition includes Wollstonecraft and her contemporaries, both in England and France culminating in the works of J. S. Mill and Harriet Taylor. Wollstonecraft pleads for equal rights for women, dismissing the divine rights of husbands as irrelevant as the divine rights of kings making a link between domestic tyranny and political absolutism. Wollstonecraft and Mill extend the Lockean ideas and apply liberal principles to both political life and marriage. They argue convincingly and persuasively that the health of a society is better off, if the relationship between the sexes is based on equality and friendship rather than domination and subjugation. Liberal feminism of Wollstonecraft and J.S. Mill traced women’s oppression to unjust laws. It focuses on the subjugation of women in the private domain, which is insulated from the ideals of freedom, equality and justice that dominate the public sphere. The aim of liberal feminists’ emphasis on equal rights is to gain access to the public sphere on the same terms as men. The liberal feminists seek to reform the traditional family and accord women dignity, self-respect and independence by demanding rights of marriage, property, inheritance and custody of children. Pateman (1988) accuses liberal feminism of harbouring a masculine bias and not being gender-neutral in their conception of individuality.
9.3.2 Socialist/Marxist Feminism
Thinkers such as Owen, Fourier, the Saint Simonians (Bazard, Enfantin and Leroux), Marx, Engels, Bebel, Zetkin, Braun and Kollantai accepted the arguments of liberal feminists but of all these aforesaid thinkers, it was Bebel’s (1840-1913) Woman and Socialism (1879) subsequently re-published with a changed title, a change made by the author himself, as Woman, Past, Present and Future (1883) that could rightfully claim to be the pioneering work within the socialist tradition. Though he argued that women’s emancipation would have to wait until the proletarian revolution succeeds, as their struggle was subordinate to that of the working class struggle yet he was hopeful that the socialist revolution would end both class and gender oppression. He felt that it was important that men and women expressed their sexual desires naturally. Bebel, like Wollstonecraft and J .S. Mill, was a passionate exponent and defender of the principle of human and gender equality. He was optimistic that sexual inequality and the misery of domestic chores which women had to undertake would be solved with improvement in technology. The emancipation of women was not only desirable but also possible because of the liberating role of technology. In this, he exuded the optimism and confidence of his times and his views compared favourably with those of Saint Simon and Marx. It is fascinating to note that he could conceive of many of the gadgets that became part of the households by the mid and late twentieth century to alleviate the misery and inequality of domestic chores.
Clara Zetkin (1857-1933), Lily Braun (1867-1936) and Aleksandra Kollontai (1872- 1952) used Bebel’s framework and examined the prospect of women’s liberation
Rights of Women 111
alongside the socialist revolution. As with the overall socialist movement, even with regard to the gender question, by the end of the nineteenth century, there was a radical and a reformist approach. Zetkin and Kollontai symbolised the radical approach while Braun espoused a reformist plank.
The liberals and the socialists differed on the question of the role of the family and marriage. For the liberals, the family was important as a school of civic values and moral virtues but it needed to be reformed with none being superior and domineering. Once women had the right to marriage, divorce, property, inheritance and custody of children, they would be legally equal with the men. The socialists desired the abolition of nuclear private families for they were wasteful, oppressive, inefficient and oppressive. Accepting anything collective to be elevating and cooperative, they proposed communal households with common kitchens, dining, and child rearing and sharing of domestic chores. They were convinced that drudgery and monotony of household work would be obviated by technological innovations. In general, the socialists did not question the sexual division of labour, and continued to support separate but equal spheres of work. Although they confronted the social function of motherhood and demanded social support and compensation for women’s biological contributions, none of them, except for Zetkin, confronted the question of men’s responsibilities with regard to domestic work and rearing of children. Motherhood continued to be encouraged as the most fulfilling and important of women’s social functions. Even the liberals glorified motherhood, looking to child- rearing as a woman’s primary duty. However, they differed from the socialists in not denigrating household work, and thereby respected the work that majority of women did. Women rejected the socialist communes and common household as being intrusive and demanding. Many of them shied away from them for the fear of hostile reactions from their husbands.
Regarding marriage, the socialists- like the liberals- criticised Victorian marriages as loveless but unlike liberals, they spoke of free love which meant free choice. Women misunderstood it as permissiveness since the socialists attacked monogamous relationships. The socialists’ emphasis on sexual fulfillment along with a social minimum was libertarian in intention, but, in practice, turned out be one of control and regimentation. Replacing individualised personal experiences with communal one was tantamount to disrespecting the moral worth and self-esteem of a person. In contrast, the liberals strongly defended the private space seeing the home as an expression of personal freedom and self- expression and never attempted to monitor or regulate the intimate lives of people. The socialists’ acceptance of patriarchy and gendered political culture, which was essentially non-participatory like the dictatorship of the proletariat, belonged to lower civilisation. If socialism was to represent a higher culture, then gender equality and empowerment must be an integral part of it. This would mean going beyond the middle class and proletarian women and elevating and empowering the wretched of the earth.
The socialist vision promised women a more equitable society free of oppression, injustice and domination but that remained a promise. As in case of the general theory of socialism, even socialist feminism remains, at best, as a corrective rather than an alternative to liberal feminism. In comparison, liberal feminism- like its parent doctrine- liberal democracy- provided a more coherent, enduring and viable framework for the overall improvement and progress of women.
112 Human Rights: Indian Perspective 9.3.3 Radical Feminism
It differs from both liberal and Marxist/Socialist feminism with the hope of modifying it to include exclusively women’s interests and perceptions. It dismisses liberal initiatives of changing existing laws as cosmetic that conceal and sometimes perpetuate the injustice that exists within the structure of the family itself, about which liberalism and liberal-feminism are silent. Similarly, the socialist and Marxist stress on the economic basis of women’s oppression and ignore the non-economic aspects, especially the sexual forms (Benhabib and Cornell 1987, p.3, p.5, pp.16-30). It criticises traditional political philosophy as it legitimises male power. It notes that even where laws are gender-neutral, women remain at a disadvantage. In most western liberal democracies, though there are no more laws that prohibit women from being politically active yet there are very few women than men, in positions of political power and influence. This suggests that attaining full, as distinct from formal, political equality requires something more than legal change. Not only is law to be gender-neutral but also the feminists are concerned to defend a concept of equality that goes beyond the formal equality of gender-neutral laws. They stress the notion of difference, meaning that an argument for equality implies uniformity of treatment, while interests in society are infact plural. Therefore, instead of considering public decision- making on the ground of one person, one vote, the notion of difference allows some groups to be given a special say in the matters of public policy. For example, women ought to have veto over changes pertaining to the law on abortion. They confront the dilemma as to whether women and men are equal because they are same, or are they equal but different?
Radical feminism coins the phrase ‘personal is political’ to cogently and dramatically demand the extension of political analysis and controversy to ‘personal’ spheres such as marital relationships, domestic violence and childcare. It challenges the public-private divide from both ends: the devaluation of the public space because of its exclusion of women and private concerns from its purview, and the bankruptcy of the private because of the exclusion of men from domestic responsibilities including child care. It considers the public sphere as the structure expression of male gender values- non-nurturing ones- the basis of male-constructed politics. It denies the existence of a separate political realm and insists that the concept of political is itself ‘male’. The public sphere is the product of male imagination reflecting its competitive and non-egalitarian values. This is with regard to its regulation of the private sphere (through laws and customs and the personal power men exert in their families) and in the hierarchical structuring of the political, social and economic status among men. Sexism and the assumptions of male superiority permeate the dominant culture and patriarchal power which the political arena embodies (Pateman 1988, Okin 1989).
The first wave feminists define patriarchy as a situation of inequality which excludes women from citizenship. However, the second wave feminists understand patriarchy to denote male power and politics, because it establishes the complete link between the domination of women by men and the domination of men by other men (Randall, 1987). Since the 1980s, feminism coalesces with postmodernism and rejects the modernism of the Enlightenment philosophy, namely the rational pursuit of truth, certainty and objectivity and drew attention to the ‘maleness’ of its central concept. In the first wave, the focus is on the omission of women in the political theory tradition in the west and the need to incorporate the woman’s perspective. In the second wave, the focus is to criticise, reject and start again, to bring to light the bankruptcy of the whole of Western thought in light of the contemporary concerns. In the third wave, deconstruct and transform the attempt
Rights of Women 113 is to ‘understand the sexual politics of our cultural and intellectual heritage’ with a view
to ‘comment and transform it’ (Beasley, 1994, pp.4-5).
9.3.4 Post-Modern Feminism
It criticises standpoint feminism by arguing that there is no concrete ‘women’s experience’ from which to construct knowledge. Women’s lives are so diverse that it is not possible to generalise about their experiences. It attacks feminist theory as a meta-narrative; critiquing it as ‘essentialist’ and ‘monocausal’. There is a general realisation that meta- theories (patriarchy) group identities (‘all women’ versus ‘all men’) and visions (women’s liberation) or grand narratives (feminism) are no longer feasible and sustainable. This is as much true of feminism as of Marxism as they claim to be universally applicable without being specific to any particular situation.
This tendency to fragment is due to two divisive influences that the new waves of feminism exerted on the women’s movement. One is guilt, to identify the most valued as the most oppressed with the help of a ‘hierarchy of oppression’. The second influence is that of relativism and ‘difference’ (Chapman, 1993, p.103). Most feminists readily admit and concede the uniqueness of every group that needs to be expressed in view of ‘deconstructionism’, the central concern of Women’s Studies in the 1980s. The only way to liberation is to deconstruct a discourse and ‘privileging’ one’s own oppressed identity. For a feminist, deconstruction of the dominant masculine discourse means not only to expose its hidden misogynist agenda but also to liberate all the women’s voices and the experiences it denies.
This problem with relativism, if pushed to the extreme, is fragmentation. This is the same with deconstruction: no identity is free from deconstruction. The consequence for feminism is a movement of diverse and overlapping oppressed groups for whom feminism is the only common factor but not the primary one. Furthermore, the removal of patriarchy requires that women think as women and, for women to think that they need a language and that are man-made. Therefore, the question as to whether there is any such thing as ‘thinking as a woman’ or just different subjectivities and no unified category of woman has arisen. If there was no certainty, then what is the status of women’s oppression? By denying objectivity, postmodernism robs feminism of its central axiom- its claim that women, as a group, suffer systematic political disadvantage.
For purposes of theory, postmodernism not only poses the problem of a new and adequate version of fractured reality but also how that reality is to be represented. Rather than looking at unitary notions of women and feminine gender identity, it would have to speak of plural, complex, constructed social identities taking into cognizance race, class, age and the like. As a result, “postmodernism offers no way to choose among theories: all are equally “essentialist” and “monocausal” and therefore, equally suspect. As a political theory, therefore it offers only relativist pluralism. Second, it blocks the possibility of generic political identity. Since political assertion depends upon the cohesion of a group identity, such as women, an upon the articulation of an agenda of needs by that group, this aspect of postmodernism seems most problematic from a feminist point of view because it negates the possibility of political action” (Donovan 1992, p.207). The third wave feminism questions the core of the second wave feminism, namely the sex-gender differences. The experiences associated with the female body- reproduction, motherhood and sexual violence could be the universal basis for a unified feminist politics (Butler, 1990, 1992; Nicholson, 1995).
114 Human Rights: Indian Perspective 9.3.5 Eco-Feminism
It is a term coined by the French feminist Francoise d’ Eaubonne in 1974 and synthesises feminism with ecology. It is an outgrowth of radical feminism and cultural feminism with a direct thrust on ecology. It stresses on how patriarchy treats women and the natural world. The core of eco-feminism is the integral nature of domination of women and domination of nature. There is also a stress on the inter-relatedness and inter-connectedness of women in various movements- ecology, peace, feminist and especially health, all of which is described as the spiritual dimension of life (Mies and Shiva 1997, p.500).
9.4 CONCLUSION
In the 1960s there was a paradigm shift within feminism from seeing women and men as complimentary, as was the case with the first wave feminism, to one of adversaries. For many ordinary women contemporary feminism has very little relevance or meaning as it has renounced the vision of the early feminists. Even today, majority of women marry and stress on homemaking and child-rearing as their primary responsibilities without losing out on equal opportunities to self-determination. Radical feminism, in its stress on women’s personhood, lost sight of the family. Its attack on patriarchy and the traditional family structures that suited women as well as men needs reassessment. Since most women yearn for long-term bonding that ensures care and support for themselves and their offspring, patriarchal structures provided that by binding men with long-term obligations. The losses of patriarchy have also led to heightened violence and anti-social behaviour among men since women alone have to shoulder the burden of responsibility for authority and discipline within the family. Radical feminists also ignore the fact that women also inflict harm just as men within the family and therefore what needs to be protested against is not male or female authority but abuses of power by both men and women. Instead of a crusade against abuses of power, the radical feminists wage a self-defeating sex war in which both men and women continue to abuse power while the idea of authority has nose-dived with disastrous consequences. Children need both parents for their emotional and practical needs and that is how interdependence between men and women started within the families.
Though women have made impressive strides in most walks of life most of them continue to emphasise the importance of homemaking and child-rearing as their primary role. Women can continue to do both by getting men involved in domestic work just as they play a larger role in the public sphere. The gender question cannot be meaningful if it does not address the needs of the whole families by seeing women and men as complimentary and not as two halves. This will ensure equilibrium resulting in independence and affinity that characterise a settled and cohesive family. The family needs to regain its once privileged position and ought to be the framework within which women can secure equality, justice and dignity. Furthermore the advancements in science and medicine and the birth control pill have created a more even playing field for women by the second half of the twentieth century.
After a long and protracted struggle of more than a century, the achievement of gender equality has been one of the most enduring achievements of the second half of the 20th century. The dead-end, that the contemporary feminist theory and movement has reached without popular backing, is mainly because of its renunciation of its liberal roots. A meaningful feminist discourse within the complexities of our increasingly technological and
Rights of Women 115 democratic society calls for a re-introduction of the liberal premise of a public-private
divide as an essential pre-requisite of feminism as well.
There is also a growing realisation against the false universalisation of the gender question. The crux of the matter is that though gender is the most important social division, it is not the basis of mass political identities that structure political debate and establishes political parties. Besides gender, a person has multiple identities that include social class, ethnicity, religion and region. These multiple roles prevent the perpetuation of any single identity as decisive. Within this multiplicity of identities the gender question is to be discussed and accommodated. This applies not only to gender but all other mega categories of religion, ethnicity and class. Like feminism, these too question the public- private divide of the liberal state. However, the intermingling of the public and private leads to unmitigated disaster as has been seen with the collapse of communism and increasing fundamentalism.
The working of a complex and diverse global economy based on sophisticated technology has also fractured the single agency of women into multiplicity of diverse groups, individuals and split subjects. Women are increasingly occupying elite economic, political, administrative and scientific positions rendering obsolete the male centricism in these areas of human endeavour. The survival of feminism, like Marxism, in this period of universalisation of democracy depends on its capacity to offer something positive to all categories of women while taking into consideration specific requirements like class, level of development and societal expectation.
For the past two decades, with the end of the Cold War, the political agenda in most of the well-established democracies has been dominated by social issues replacing security concerns. Issues like women’s rights and empowerment, rights for ethnic minorities, disabled and environmental protection is vigorously debated. The women’s movement has to adjust with multiple identities and be meaningfully integrated with other concerns like environmental protection, human rights, safety nets and basic economic rights within a larger democratic structure. In the context of the developing world, it is to identify itself with the realisation of social and economic rights for the disadvantaged, which would automatically include poor women.
Gender does not exist in a vacuum. It survives and develops within a larger social and economic context and the larger questions ultimately determine the status, expectation or retardation or fulfillment of the particular segment. This calls for a delicate balancing between the different segments of life and activity. Any meaningful feminist discourse within the complexities of our increasingly technological and democratic society has to take into consideration the idea of multiple identities that includes besides gender, social class, ethnicity, religion and region. Multiple identities prevent the perpetuation of any single identity as decisive. Both Radical and postmodern feminism stress the point of difference and differences has rendered the question of gender to be meaningless and vacuous.
What the feminists can seek to do is to plead for the acceptance of special rights for women like maternity leave, child care, taking into consideration that women require these not as privileges but to give effect to the realisation of their basic human rights. These rights will be akin to fulfilling other societal obligations like consideration of the poor, elderly, children and the handicapped which will mean integration with the larger societal objectives. Evolving ways and means of this integration and not continuing with separateness with inevitable marginalisation is the challenge that the women’s movement faces today.
116 Human Rights: Indian Perspective 9.5 SUMMARY
Feminism arose as a middle class movement during the eighteenth century, demanding a re-examination of the theories of natural rights and citizenship. It arose as a result of the silence on the part of the natural rights theorists on the status, role and position of women, similar to the failure of early liberalism to fulfill its own promise which gave rise to Marxism. The rise of modern feminism is intrinsically linked with the ideological evolution of liberalism and socialism in the early stages of democratic consolidation. Once democracy became an acceptable and preferred form of government, the issues like women’s rights, extension of franchise to women, the working class and the non- propertied came to occupy the centre-stage of political debate in the eighteenth and nineteenth centuries. New occupations as a result of the Industrial Revolution also brought women into the work force. Inevitably, these new issues were incorporated differently by differing political perspectives. Feminism has seen three distinctive waves: liberal, Marxist/ socialist; radical feminism; and postmodernist feminism. Any meaningful feminist discourse should include social class, ethnicity, religion and region issues too.
9.6 TERMINAL QUESTIONS
1. Explain the Origins of Feminism.
2. What is the Woman’s Question? Explain the various sources of its origin.
3. Write an essay on Liberal Feminism.
4. What is the difference between Socialist and Marxist Feminism?
5. Critically assess Radical Feminism.
SUGGESTED READINGS
Banks, O., Faces of Feminism: A Study of Feminism as a Social Movement, Blackwell, Oxford, 1986.
Beasley, C., What is Feminism: An Introduction to Feminist Theory, Sage, London, 1999.
Benhabib, S, and Cornell, D.,Feminism as a Critique, Polity Press, Cambridge, 1987.
Brennan, T, and Pateman, C., “Mere Auxiliaries to the Commonwealth: Women and the Origins of Liberalism”, Political Studies, Vol. XXVII, No.2, 1977.
Butler, J., Gender Trouble: Feminism and the Subversion of Identity, Routledge, New York, 1990.
Butler, M. A., “Early Liberal Roots of Feminism: John Locke and the Attack on Patriarchy”, American Political Science Review, 72, 1978.
Chapman, J., Politics, Feminism and the Reformation of Gender, Routledge, London, 1993.
Donovan, J., Feminist Theory: The Intellectual Tradition of American Feminism, New York, 1992.
Mies, M, and Shiva, V., “Ecofeminism”, Feminisms, eds., Kemp, S and Squires, J,
Rights of Women 117
Oxford, Oxford University Press, 1997.
Mitchell, J, and Oakley, A., What is Feminism? Blackwell, Oxford, 1986.
Nicholson, L J., “Interpreting Gender’, Social Postmodernism: Beyond Identity Politics, eds., Nicholson, L, and Seidman, S, Cambridge University Press, Cambridge, 1995.
Okin, S. M., Women in Western Political Thought, Princeton University Press, Princeton, 1979.
———————— Justice, Gender, and the Family, Basic Books, New York, 1989. Pateman, C., The Sexual Contract, Polity Press, Cambridge, 1988.
Proctor, C.E., Women, Equality and the French Revolution, New York, 1990 Randall, V., Women and Politics, Macmillan, London, 1987.
UNIT 10 RIGHTS OF CHILDREN
Structure
10.1 Introduction
Aims and Objectives
10.2 Childhood: Various Aspects
10.2.1 Childhood in Ancient India 10.2.2 Modern Concept of Childhood
10.3 Rights of the Child – An Overview 10.3.1 Legal Definition of a Child
10.3.2 Constitution of India and the Child 10.3.3 Present Legal Framework
10.3.4 UN and the Child
10.3.5 The UN Convention on the Rights of the Child (CRC) 10.3.6 International Instruments and India
10.3.7 India’s Courts and the Child
10.3.8 Juvenile Justice in India
10.4 Policies and Implementation
10.5 Situation of Children in India 10.5.1 Child Population
10.5.2 Adverse Sex Ratio
10.5.3 Children’s Health
10.5.4 Child Education
10.5.5 Child Labour
10.5.6 Children with Disabilities
10.5.7 Children in Especially Difficult Circumstances
10.6 Progress in Children’s Rights
10.7 Looking Ahead
10.8 Summary
10.9 Terminal Questions
Suggested Readings
10.1 INTRODUCION
Societies tend to divide their members’ life into two broad age stages: childhood and adulthood. The childhood has often been mythologised as a ‘golden age’ in which children, untroubled by adult concerns of work and economic life, are free to enjoy themselves. Adult platitudes seek constantly to persuade children that childhood years are the ’best years of their lives’. The modern concept of childhood dates back from the sixteenth century. It was believed that a child’s psyche is alive, absorbent, active, from the moment it draws its first breath. The concept of life stages existed in classical Indian tradition. The adoption of the United Nations Convention on the Rights of the Child
Rights of Children 119
(CRC) in 1989 has marked a watershed in the recognition of children’s rights, formally identifying children as the bearers of rights- rights, which are distinct from those of others. Children constitute nearly 40 per cent of India’s population. It is an important factor in shaping our future. The Constitution provides legal framework for the protection and development of children. There have been several new policy documents, laws, and some significant court judgements. New challenges are emerging. India is gearing towards providing better future to children.
Aims and Objectives
This Unit will help you understand
The Concept of childhood and an overview of children’s rights;
Changing legal framework, international instruments and constitutional provisions and Juvenile Justice Act.
Policy prescription and initiatives by the Government of India, role of NGOs and civil society.
10.2 CHILDHOOD: VARIOUS ASPECTS
‘Child’ and ‘childhood’ are social typifications. They refer to a set of people, children, and an age, childhood, as having something identifiable characteristic and significant in common, regardless of their parents and their gender.
10.2.1 Childhood in Ancient India
The mythology, legends and classical literature of India deal more with gods and kings than with the common people. As such, very few specific references to the roles of children from the lower strata, or even average groups in society, are available. Significant inference can be drawn, however, from general descriptions and particular episodes features in this literature. The notion of the division of the normal human life span into stages or phases according to age is a part of the Indian tradition. The four stages of life- the celibate, the householders, the anchorite and the ascetic – are well known.
Nowhere does one find any mention of the desirability of, or insistence on, restricting childhood only to play and education, separating it from work. Among agriculturists, who then as now formed the largest part of the country’s population, the children had specific tasks. For the children of artisans and craftsmen, skill training started at an early age. As the children’s’ activities were enmeshed with the activities of adults, the constraints, limitations and deprivations of a particular group characterised the life of its children also. References to slavery, domestic service, and master-servant relationship in literature, particularly Buddhist literature, unmistakably point towards the presence of children toiling as slaves and servants at the mercy of their masters. The Indian tradition subscribed to an ideology that downgraded the role of the environment and nurture in the development of a child, and instead emphasised upon deterministic conception of mystical heredity and caste. The gravest drawback of the Indian tradition was the inferior status accorded to girl child. In the medieval period also, there were references to use of children as personal servants, often working as helpers and apprentices to the adults.
10.2.2 Modern Concept of ‘Child’ and ‘Childhood’
The consolidation of the first wave of nation-states- towards the end of the 19th century-
120 Human Rights: Indian Perspective
established the modern concept of ‘child’ and’ childhood’. The French historian, Philippe Aries, in his landmark book,’ Centuries of Childhood’, also claimed that ‘the idea of childhood did not exist at all in earlier times’, as once the child moved from the biological dependence of ‘infancy’ it ‘belonged to adult society’. The idea was developed during the Reformation, with its emphasis on discipline and knowledge of theology, humanities and sciences. It was consolidated during the period of European Enlightenment with the ascendancy of ’rationality’. Initially restricted to the domain of upper class childhood, eventually diffused across society and childhood became institutionalised. Lloyd de Mause in ‘The History of Childhood’ argues that childhood was not discovered in the way the Aries suggested. Today historians broadly agree about children and their childhood full of harshness and ill treatment till the Middle Ages.
By 1800, The French Revolution and the American Declaration of Independence had profound impact on European mind. Slavery came under mounting attack by philosophers and religious thinkers as well as by slave rebels and Anti-slavery societies sprang up in many western countries. Meanwhile, industrial revolution was playing havoc with children resulting in child labour. David Copperfield a novel by Charles Dickens, gives graphic account of children’s exploitation. A generation of Englishmen morally braced by the abolition of slavery helped to create awareness of this problem.
Children had, for centuries, been working and providing services. Through industrialisation, their exploitation was regularised; the consequences were not only often terrible for the victims, but also revolutionary in that the relation of child to society and the structure of the family were blighted. In 1760s, Jean-Jacques Rousseau argued that children had a right to childhood and a right to enjoy it. Rousseau’s ideas were, by the 1830s, being applied by reformers to all children. Many writers echoed Elizabeth Barrett Browning‘s famous poem “the cry of the children’ and demanded better treatment to children. By 1848 it was widely accepted in Europe that a wise and humane state protects all children, “those who cannot protect themselves”. The constitution of childhood established a set of basic rules, but did not give rise to any institutional policy of childhood. Save the Children Fund, founded in London just after World War I and is perhaps one of the best examples of philanthropy intervention into public policy making on children. Eglantine Jebb and Save the Children managed to get the League of Nations to issue, in 1924 a declaration of children’s rights which is known as the Geneva Declaration. In 1909, a White House Conference on Dependent Children was organised which led to a series of decadal summit conference on children, till the last one in 1970.
In the late 19th and early 20th century paediatricians focusing on hygiene, medical enlightenment , disease prevention , and corporeal care added to the discourse on ‘childhood’. After philanthropy, medicine, law and lawyers have played a special pat in the history of child concern. In fact this led to the expansion of welfare state after World War II. The modern nation state accorded children special protected legal status.
10.3 RIGHTS OF THE CHILD- AN OVERVIEW 10.3.1 Legal Definition of a Child
By virtue of Child Rights Convention (CRC) Article 1, ‘a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier’. The article thus grants the discretion to individual countries to determine by law whether childhood should cease at 12, 14, 16 or whatever age they find
Rights of Children 121
appropriate. In India, the Census defines person below the age of fourteen as children. While making use of standard demographic data, social scientists include females in the age group of fifteen to nineteen years under the category of the girl child. Most of the government programmes on children are targeted to the age group below fourteen years. In India, the age at which a person ceases to be a child varies in different laws. Some of the provisions relating to age are as follows:
The India Majority Act 1875 was enacted in order to bring uniformity in the applicability of laws to persons of different religions. Unless a particular personal law specifies otherwise, every person domiciled in India is deemed to have attained majority upon completion of eighteen years of age. However, in case of a minor for whose person or property or both a guardian has been appointed or declared by any court of justice before the age of 18 years, the age of majority will be twenty one years and not eighteen (The Indian Majority Act 1875, Section 3).The Hindu Minority and Guardianship Act 1956, Section 4(a) defines a ‘minor’ as a person who has not completed the age of eighteen years. The age of majority according to the Mohammedan law is also completion of eighteen years; Christians and Parsis also reach majority at eighteen. The age of marriage is twenty one years for males and eighteen years for females.
For the purpose of criminal responsibility, age limit is seven and twelve under the Indian Penal Code 1860(IPC) for boys and girls respectively. For the purpose of protection against kidnapping, abduction and related offences, age is fixed at sixteen in case of boys and eighteen in case of girls. Under the Child Labour (Prohibition and Regulation) Act 1986, child means a person who has not completed his fourteen years of age. For the purpose of special treatment under the Juvenile Justice Act 1986, the age prescribed was sixteen years for boys and eighteen years for girls. Now under amended Juvenile Justice (Care and Protection of Children) Act 2000, the age is eighteen for both boys and girls. The word ‘child’ has been used in various legislations as a term denoting relationship, capacity, and special protection. Underlying these alternative specifications are very different concepts about the child.
10.3.2 Constitution of India and the Child
The Constitution of India, which came into force in January 1950, contains comprehensive and far reaching reforms of child care and development. These are included both in Part III and Part IV of the Constitution pertaining to ‘Fundamental Rights’ and Directive Principles of State Policy. Some of the major constitutional provisions are given below:
Article 15: … Nothing in this article shall prevent the State from making special provision for women and children.
Article 24: … No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
Article 39 : … (e)… the tender age of children are not abused… and not forced by economic necessity to enter avocations unsuited to their age or strength; (f) that children are given opportunity and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood… protected against exploitation and against moral and material abandonment.
Article 45 of the Constitution provides that the state shall strive to provide for free education of children below the age of 14 within ten years for the commencement of the Constitution.
122 Human Rights: Indian Perspective
The 86th Constitutional Amendment was passed in 2002 making the Right to Education for children between the ages of six to fourteen a fundamental right. However, it does not provide for children in the 0-6 years age group. In August 2009 Right to Education Bill was passed by the parliament.
The Constitution of India recognised how crucial children’s well-being was to the functioning of India’s democracy when it stated “that the state shall direct its policy towards ensuring that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment”.
10.3.3 Present Legal Framework
In democracy legislations is one of the main weapons to protect weak and vulnerable. Even though appropriate legislation may not necessarily mean that the objectives of the legislation will be achieved, its very existence creates enabling provisions whereby the state can be compelled to take action. It is estimated that there are more than 250 federal and state statues under which the child is covered in India .Some of the important, special legislation that deal with children are the following:
The Guardian and Wards Act 1890 deals with the qualifications, appointment, and removal of guardians of children by the courts and is applicable to all children irrespective of their religion .The Child Marriage Restraints Act, 1929 as amended in 1979 restrains the solemnisation of child marriages by laying down the minimum age of marriage for boys and girls. This law is applicable to all communities irrespective of their religion.
Young Persons Harmful Publications Act 1956, The Child Labour (Prohibition and Regulation) Act 1986, The Pre- Natal Diagnostic Technique (Regulation and Prevention of Misuse) Act 1994 and The Juvenile Justice (Care and Protection of Children) Act 2000 and The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Protection, Supply and Substitution) Act 1992 are some of the other important legislations in India. In the area of family law, the personal laws are religion-based.
10.3.4 UN and the Child
The international efforts to promote the concept of children’s rights have gone through different phases. An understanding of both the current significance of the Convention and of the prospects for its future development requires a look into its historical evolution.
Phase 1: (1901-1947): In the course of the preceding century, a range of movements to protect children in the home, at work, in the care of the state, and in times of warfare, contributed to a rapidly expanding movement to focus specifically on the plight of children as individuals in their own right rather than as the property of one or other of their parents, or of a legal guardian. But these movements garnered little international momentum and rarely formulated their agenda in terms of children’s rights. The international community began to make effective use of legal instruments to reinforce their broader efforts to eliminate abuses and to encourage the adoption of specific remedial measures by states. Many of the international labour standards adopted by the ILO in the first few years after its creation in 1919 focused directly on children and helped to develop the notion that, in the labour field, they possessed certain rights. In 1924 the League of Nations “brought fifty countries to accept the Geneva Declaration on the Rights of the Child”. Its adoption was by far the most significant action taken by the League of Nations in relation to children.
Rights of Children 123
Phase II: (1948-1977): This phase saw little activity relating specifically to children’s rights. This period emphasised the building and consolidation of the human rights regime as a whole, combined with the non-differentiation of children’s rights from other human rights. The resistance to distinguishing children from adults in the human rights context was forcefully demonstrated in the text of each of the three major human rights instruments adopted in the post-war phase. The Universal Declaration of Human Rights of 1948, mentions children in two places. But the main significance of the 1948 Declaration was its expanded focus and its revival of an interest in children’s rights. In March, 1959 General Assembly by adopting the Declaration on the Rights of the Child on November 20, the same date which, precisely thirty years later, was to see the adoption of the CRC. The 1959 Declaration on the Rights of the Child was ground- breaking in several respects. Its major significance lay in the fact that it gave a broad imprimatur to the concept of children’s rights per se. UNICEF being a catalyst for the 1959 Declaration, the idea travelled globally.
Phase III: (1978-1989): This period saw the emergence of a strong children’s rights consciousness at the international level. Preparations for the International Year of the Child in 1979, prompted the Government of Poland to propose the drafting of a Convention on the Rights of the Child. Despite the very limited aspirations of the draft first presented by Poland to the Commission on Human Rights in 1978, this initial step was to prove more significant than might first have been expected. This brought a rights-based approach to at least some aspects of the welfare and well-being of children. In particular, it began a gradual process of building an element of rights-consciousness within the principal international agency dealing with children, UNICEF. The ‘vision’ of children’s rights was finally realised in 1989 with UN General Assembly adopting the Convention on the Rights of the Child (CRC).
10.3.5 The UN Convention on the Rights of the Child (CRC)
On 20th November, 1989, the General Assembly of the United Nations unanimously adopted the “Convention on the Rights of the Child”. The Convention entered into force on 2nd of September 1990 having been ratified by 20 countries. As of December 2008, 193 countries have ratified it, including every member of the United Nations except the United States and Somalia. The Government of India ratified the CRC on 12 November 1992. To make the CRC more effective two optional protocols were adopted in 2000. The first restricts the involvement of children in military conflicts, and the second prohibits the sale of children, child prostitution and child pornography. Both protocols have been ratified by more than 120 states.
The Convention on the Rights of the Child is the first legally binding international instrument to incorporate the full range of human rights—civil, cultural, economic, political and social rights. In 1989, world leaders decided that children needed a special convention just for them because people under 18 years age often need special care and protection that adults do not. The Convention sets out these rights in 54 articles and two Optional Protocols. It spells out the basic human rights of children like the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life.
The four core principles of the Convention are non-discrimination; devotion to the best interests of the child; the right to life, survival and development; and respect for the views of the child. The Convention protects children’s rights by setting standards in health care;
124 Human Rights: Indian Perspective
education; and legal, civil and social services. By agreeing to undertake the obligations of the Convention (by ratifying or acceding to it), national governments have committed themselves to protecting and ensuring children’s rights and they have agreed to hold themselves accountable for this commitment before the international community. States parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child. The application of the CRC is limited so far because of lack of knowledge of principles of child rights. The CRC is likely to play an important part in shaping the 21st century.
10.3.6 Juvenile Justice in India
The position of children within the criminal justice system of India is complicated. The Apprentices Act of 1850 was the first law in modern India that has special provision relating children found to have committed offence. Since then many other laws have been enacted making special provision for children. All these laws have recognised that children committing offence are different and need differential adjudication and treatment programme. The general principle recognised since 1920 law has been that ordinarily children committing offences should not be kept in prison; however, some delinquent children committing serious offences in special circumstances were permitted to be kept in prison under the Children Act enacted by the states prior to 1960. Between 1960 and 1987 it became illegal to send children to prison in many parts of the country. From 2nd October 1987 the Juvenile Justice Act (JJA) prohibited sentencing to prison any child found to have committed offence under any circumstances. The Juvenile Justice (Care and Protection) Act 2000 replaced the Juvenile Justice Act 1986 as on 1st April 2001.
In the year 1990 a separate department of Juvenile Welfare and Correctional Services was established to address the welfare of street children to which correctional services were added and the department has been renamed as ‘Juvenile Welfare, Correctional Services & Welfare of Street Children Department’. JJA 2000 is applicable to the whole of India, except the state of Jammu and Kashmir, and lays down a non-penal protective juvenile justice system for them. JJA 2000 applies to all children who have not completed the age of 18 years who may have committed an offence or may be in need of care and protection. This legislation was passed to bring the law in conformity with international legal provisions contained in the CRC.
This Act has been amended as The Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 (No, 33 of 2006) and covers all the matters relating to the juveniles who are in conflict with law and includes their detention, prosecution, penalty or the imprisonment of juveniles. Different sections of the Juvenile Justice (Care and Protection of Children) Act, 2000 have been amended. A new Section 7A has been inserted. It deals with the determination of the age of the juvenile, where the court will make an enquiry and record the finding whether the person is juvenile or not and the claim will be recognised at any stage, even after the disposal of the case. A new section in place of Section 21 has been included which prohibits any method by which the juvenile may be identified which includes disclosing their name, address, photograph unless the authority concerned consents such a disclosure in the interest of the child. Section 57 has a new section where the State Government can direct the transfer of any child or juvenile to any children’s home or special home or an institution of a like nature either within the state or outside the state after consultation with the authorities concerned.
In the case of ‘children in conflict with the law’, the Act mandates that after being apprehended the child must be brought before the Juvenile Justice Board (JJB) within 24
Rights of Children 125
hours, or a metropolitan court that may be holding charge of the JJB. The Juvenile Justice Board has three members, the judge and two people outside the judiciary system who are nevertheless engaged in work related to child rights. The board meets twice a week.
After appearing before the JJB, the child is usually sent to an observation home for safe custody. The Juvenile Justice Board (JJB) makes an assessment of the situation and either releases the child on bail or recommends that she/he be lodged in an observation home until the board arrives at a decision on the matter. Until such time, the child is entitled to adequate care by way of accommodation, education, skills training and counselling so that she/he is able to lead as normal a life as possible. Children who are detained in observation homes are from typically poor families; they have had few opportunities to attend regular school, interact with children of their age or have access to books and play material. They have already experienced a great deal of marginalisation, abuse and exploitation; neglected by their parents causing them to leave their families and resort to crime. Therefore when these children are brought to the observation home they are in immediate need of care and guidance.
Despite the Act, however, observation homes have not achieved the objectives for which they have been set up. They still lack adequate facilities for children in conflict with the law. A report released by the NCPCR throws light on the pitiful condition of juvenile delinquents languishing in reform homes in India. Apart from delayed justice, these children are victims of improper care by reform homes. Over 50 percent of the juvenile homes do not provide any counselling services to juvenile delinquents, besides more than 80 percent of caretakers at these homes are not trained. The Juvenile Justice Act 2000 lays down a non-penal protective juvenile justice system for children alleged to have committed an offence. The absence of adequate resources and supportive administrative services severely restrict the personal liberty and sensitivity to the plight of a child.
10.3.7 Indian Courts and the Child
Developments in the Supreme Court of India indicate how the judicial review of administrative action can make an important contribution to realising chid rights. The courts in India have responded to the need of children especially in the areas of their improvement in institutions, prison, illegal confinement, sexual abuse, child labour, adoption, prohibition of corporal punishment in schools, etc. Several of the issue were raised by NGOs, social activists or media, or taken suo moto by the courts. Some of the landmark judgements are:
– Laxmikant Pandey vs. Union of India on adoption of children.
-Sheela Barse vs. the Children’s Aid Society: In this case the Supreme Court directed that in no case should a child be kept in jail and a central law must be enacted to bring uniformity in juvenile justice system.
-Unnikrishnan J.P. vs. State of Andhra Pradesh: The court held that the right to education is implicit in the right to life.
-Vishal Jeet vs. Union of India: Several directions were issued to end sexual exploitation of children
-MC Mehta vs. State of Tamil Nadu on the problem of child labour.
The list is only indicative and not exhaustive. By liberalising the locus standi, the court has enabled social activists, media persons, lawyers, academics and NGOs to approach
126 Human Rights: Indian Perspective
the highest court for redress of injustice to children. The courts in India have ensured the implementation of progressive laws and the interpretation of restrictive laws in the best interest of the child.
10.3.8 A Short History of Child Rights in India
The idea that children have separate rights has largely been rejected by Indian public authorities until recently. From mid 19th to mid 20th century during the independence struggle leaders expressed concern about better future for children. In early 1959 the Government of India voted in favour of the UN Declaration concerning children. Prior to this in 1948, the UN adopted the UDHR which reflects in the Indian Constitution. However, until recently numerous programmes launched for children in the areas of health, nutrition and education under Five Year Plans were of largely welfare and service approach. In 1974, the Government of India adopted a National Policy for Children,
Some element of ‘rights’ approach first appeared in the government’s policy in 1985 with the creation of the Department of Women and Child Development in the Ministry of Human Resource Development. Meanwhile the Supreme Court of India vide its judgements started a new thinking among the policy makers in India. But the real push came through the adoption of CRC by the UN General Assembly in 1989 followed by the World Summit on Children in 1990. The summit adopted a set of basic development goals with regard to children, of health, nutrition, education etc. A National Plan of Action for Children in 1992 was formulated. The Government of India ratified the Convention on the Rights of the Child on 12 November 1992. By ratifying the Convention on the Rights of the Child, the Government is obligated to review National and State legislation and bring it in line with provisions of the Convention. The Ministry of Women and Child Development has the nodal responsibility of coordinating the implementation of the Convention. Since subjects covered under the Articles of the Convention fall within the purview of various departments/ ministries of the Government, the Inter-Ministerial Committee set up in the Ministry with representatives from the concerned sections monitor the implementation of the Convention.
10.4 POLICIES AND IMPLEMENTATION
In 1974 India adopted first policy for the children. The policy declares nation’s children as an important asset and emphasised that child development programmes should find a prominent place in national plans for development of human resources. The above policy is now redundant as it does not conform to the standards laid down in the United Nations Convention on the Rights of the Child which India has ratified and in conformity of which it is obliged to make laws. Education is seen as a key to social change. National Policy on Education came into existence in 1986 and was modified in 1992. As a result, Education for All programmes was launched in 1993 and the district Primary Education Programme in 1994. The current emphasis is on universal primary education.
National policy on child labour was formulated in 1987 with the basic objective of rehabilitating the children withdrawn from the hazardous employment. The policy consists of three main ingredients the legal action plan, focusing the central government programme and project-based plan of action.
The National Nutrition Policy (1993) reflects the understanding that malnutrition is not simply a matter of not enough food, but is most frequently caused by a combination of
Rights of Children 127 factors, including lack of time and attention to child care in the first year of life. A
National Plan of Action on Nutrition was formulated in 1995.
Beside this, National Health Policy (2001), National Plan of Action for Children (1992) also impact life of children in India. The principles of India’s child policies are simple: necessary services should be available to all needy children. The cost should largely be met by public funding.
10.5 CHILDREN IN INDIA 10.5.1 Child Population
India is one of the youngest countries in the world, with approximately half its population less than 25 years old. The 2001 Census gives total population for the country as 1,028 million persons of whom children in the age group of 0-6 years are reported to be 150 million. According to population projections by the Census by 2016 India may have 368 million children below the age of 15 years with following break-up: below 12 year 24 million; 1-2 years 49 million, 3-5 years 72 million, 6-10 years 115 million, 11-13 years 66 million and 14-15 years 42 millions.
This massive increase in numbers will offset the gains of economic development and require massive input for social services, civic amenities and infrastructure development. Focal social services concern would vary according to the age group. For instance in 2001 about 22 million infants required immunisation; the number is expected to be 25 million. Pre-school services had to be provided for 66 million children in 2001 and 72 million in 2016. Primary schools were required for 118 million children in 2001 and 116 million in 2016.
The demographic diversity further complicates the problem. Uttar Pradesh, the biggest state has retained its position with a population of 166 million in 2001 even after a separate State (Uttaranchal) was carved out of it in 2000. Eighteen states had a population of more than 10 million in 2001. The states with high Total Fertility Rate (TFR) are the northern states that collectively make up over 40 per cent of the country’s population and also have the lowest literacy levels in the country. India’s population is predominately rural. Even in 2016 the urban population is projected to be only 34 per cent. The percentage of rural population varies in different states. There are some states with nearly 80 per cent of rural population; prominent among them are Uttar Pradesh, Bihar, Orissa, and Andhra Pradesh. Uttar Pradesh Bihar, Rajasthan and Madhya Pradesh have higher birth rates than national average. No doubt India has reduced its average family size from six to three children over the last 40 years. But the national average of total fertility rate (TFR) is still 2.8, which is a cause of concern. India’s population conundrum is mired in centuries-old traditions, caste structures, cultural and religious beliefs. Traditionally, large families have been the norm, with children seen as old-age security, especially among the poor. But the scene is slowly changing now.
10.5.2 Changing Sex Ratio
Overall sex ratio (OSR) in India has declined over the century from 972 in 1901 to 933 in 2001. In contrast, the child sex ratio (CRS) for the age group of 0-6 years in 2001 is 927 girls per thousand boys against 945 recorded in 1991 Census. The child sex ratio is calculated as number of girls per 1,000 boys in the age 0-6 years age group. The sex ratio in India, 933 female per 1,000 males in 2001 which is adverse in females. Some
128 Human Rights: Indian Perspective
of the reasons include son preference, neglect of the girl child resulting in higher mortality at younger age, female feticide and higher maternal mortality. Easy availability of the sex determination test and abortion services may also be facilitating the process which may be further stimulated by pre-conception sex selection facilities. The Government has taken a number of initiatives to implement the Pre-Conception and Pre-Natal Diagnostic Technique Act (PC&PNDT) and to spread awareness on the issue through information, communication and education. They include amendment of PC&PNDT Act in 2003 making it more comprehensive, more frequent visits of National Inspection and Monitoring Committee (NIMC), setting up of National Support and Monitoring Cell (NSMC), sensitisation through members of parliament, publication of handbook on the Act, Annual Report on the Act, involvement of District Magistrate, launching of Save the Girl Child campaign etc.
During the final decade of the last millennium, the Child Sex Ratio (CSR, the number of girls in the age group of 0 to 6 years per thousand boys of the same age group) recorded its highest fall, dropping 18 points from 945 1991 to 927 in 2001. During the same decade, the Overall Sex Ratio (OSR looks at the ratio of all females to males, and not just those in the 0-6 age group) recorded its highest gain, rising 6 points from 927 to 933. It is not yet clear what caused this. The four states – Bihar, Uttar Pradesh, Madhya Pradesh, and Rajasthan – are the infamous states, grouped for their lowest per capita income, literacy rates and negligible health care. Given how badly girls and women are treated within them, it would be major challenge in correcting adverse child sex ratio in the coming years.
10.5.3 Children’s Health
Children in India continue to lose their life to vaccine-preventable diseases such as measles, which remains the biggest killer. Tetanus in newborns remains a problem in at least five states: Uttar Pradesh, Madhya Pradesh, Rajasthan, West Bengal, and Assam. More than two million children die every year from preventable infections. Infant mortality in India is as high as 63 deaths per 1,000 live births. Most infant deaths occur in the first month of life; up to 47 per cent in the first week itself. While the Infant Mortality Rate (IMR) showed a rapid decline during the 1980s, the decrease has slowed during the past decade. More than half of Indian children under the age of five do not get the health care they need, according to a report by Save the Children. Although India has cut its child mortality rate by 34% since 1990, Indian girls are 61% more likely than boys to die between the ages of one and five. Inequity of health care among male and female children is responsible for this situation. The UN estimates that 2.1 million Indian children die before reaching the age of five every year—four every minute—mostly from preventable illnesses such as diarrhoea, typhoid, malaria, measles and pneumonia.
The number of polio cases in India is on decline thanks to the UNICEF-led Social Mobilization Network. Today, the Indian Polio Eradication programme is one of the largest and most successful public health initiatives in history. The Polio Partnership, which consists of Rotary International, WHO, UNICEF, and the U.S. Center for Disease Control, has been partnering with the Government of India since the inception of the programme. India is well on its way to interrupting transmission and eradicating the disease. However, the proportion of children who receive vaccination against measles has dropped considerably, from 72 per cent in 1995 to a low of 50 per cent in 1999. It now stands at 61 per cent. Underlining the dismal state of health and nutrition in Indian children, a UNICEF report says that the country has a whopping 61 million stunted children, the largest in any country. In other words, 3 out of 10 stunted children are from
Rights of Children 129
India. The Government of India Action on Health includes strengthening existing health systems by increasing the number of health workers, prevent newborn deaths through home-based medical visits and increase children’s access to immunisation.
10.5.4 Child Education
The United Nations Convention on the Rights of the Child stressed the rights of children to free education. It also requested that the education provided should respect the values of the young persons. The UNESCO has done wonderful work in spreading education. In India, although many hidden costs do exist, the right to a free education to the age of 14 is guaranteed by the Constitution by providing that “the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine”.
The National Policy of Education 1986, as revised in 1992, had indicated three thrust areas in elementary education:
(i) Universal access enrolment;
(ii) Universal retention of children upto 14 years of age; and
(iii) A substantial improvement in the quality of education to enable all children to achieve essential levels of learning.
These objectives were addressed during the Tenth Plan period mainly through the Sarva Shiksha Abhiyan which is the flagship programme of Government of India. The Mid-Day Meal and Teacher Education Schemes have also contributed to it. The 86th Constitutional Amendment Act 2002 made education a Fundamental Right for children in the age group of 6-14 years. In August 2009, the Right to Education Bill was finally passed, after a long campaign within Parliament and outside. It brought to fruition a dream spelled out in the Constitution almost 60 years ago.
This scheme has seen mixed results. Girls and the underprivileged are not getting their fair share of the benefits. The Sarva Shiksha Abhiyan (SSA) programme may be achieving its mandate with 96.5% of the children in the target group- nationwide attending school- according to a survey conducted by the Human Resource Development Ministry.
Enrolment under SSA increased from 131 million in 2001-02 to 182 million in 2004-05. Out-of-school children plummeted from 32 million in 2001-02 to 7.1 million in 2005-06, a 78 percent downward spiral. But the programme has not benefitted the sections it intended to, according to data from 10 states and one union territory. Elementary school education is free and compulsory. That is, children of the poor will by law attend government schools or aided schools. Private schools too will have to reserve 25% of their seats for the economically weaker sections. To end any kind of discrimination whatsoever, the Bill has banned schools from holding admission tests or seeking “donations” from guardians. Also, a school cannot deny a student admission because he/she does not have a birth and/or transfer certificate.
The Bill commits the government to implementing a “neighbourhood schooling system” in three years, ie, it is obliged to provide schooling within the block in which the student lives, and these will be managed by school management committees made up of school representatives, parents of students, and local political leaders. The 1990s was a decade that marked a new phase of development in education in general and primary education
130 Human Rights: Indian Perspective
in particular. The spread of primary education has been a spatial spread, an increase in infrastructure facilities, and wide coverage of children and increase availability of primary schools. Nevertheless, the goal of primary education for all children continues to be elusive. Three factors have been commonly acknowledged to be important obstacles: problem of poverty because of which children go to work; the quality of education and school infrastructure; and lastly, problem of motivation among parents and children, due to tradition of illiteracy in the family, malnutrition, etc.
10.5.5 Child Labour
The expression of social abhorrence of child labour is rare. Recent years have witnessed a significant change in social perception of the problem and wide acceptance of the undesirability of child labour. A recent ILO report on child labour used the term ‘child labour’ to cover all economic activities carried out by persons less than fifteen years of age , regardless of their occupational status but not household work performed by them in their parent home, except where such work can be assimilated to an economic activity. According to Census report 2001 some 12 million children are working in India. NGOs estimate that around 2 million children are employed in domestic work and roadside eateries.
The Government of India had issued a ban in 1986 on employing children below the age of 14 years in some hazardous sectors like chemical factories, cracker units etc. In 2006, the government modified the Act by banning child labour in the domestic sector, hotels, dhabas, eateries etc. Now child labour is banned in 13 industrial sectors and 52 types of work. But NGOs allege that despite the under-14 ban, thousands of children are still employed in hazardous industries listed in the Act due to poor implementation of the existing legislation. Children under fourteen constitute around 3.6% of the total labour force in India. Nine out of every ten work in their own rural family settings. Nearly 85% are engaged in traditional agricultural activities. Less than 9% work in manufacturing, services and repairs and only about 0.8% works in factories. The largest and most structured intervention in the area of child labour prevention in India is the National Child Labour Projects (NCLP), which includes special schools to provide children with the skills to be mainstreamed into the formal system. The adoption of the 1989 CRC and particularly the 1999 ILO Convention (No 182) concerning the ’prohibition and immediate elimination of the worst forms of child labour’ has taken hold and begun to spread.
10.5.6 Children with Disabilities
Disability prevalence estimates often differ across and within countries. Disabled Children are marginalised and vulnerable. According to the Census 2001, there are 21.9 million people with disabilities in India, including persons with visual, hearing, speech, locomotors and mental disabilities. A WHO estimate informs that nearly ten per cent of the underage in India are physically or mentally disabled. 75% of persons with disabilities live in rural areas, 49% of these is literate and only 34 per cent are employed. The earlier emphasis on medical rehabilitation has now been replaced by an emphasis on social rehabilitation.
For some impairments (e.g. speech and hearing), illness and disease remain major causes, while for others such as visual disability age is a major driver. For several disabilities, in particular mental illness, the causes of disability are often unknown, indicating the major knowledge gaps in current disability research. Physical and mental impairments are compounded by poor education outcomes, and children with disabilities (CWD) have very high out of school rates compared to other children. Illiteracy is high across all categories
Rights of Children 131
of disability, and extremely so for children with visual, multiple and mental disabilities (and for severely disabled children of all categories). Equally, the share of disabled children who are out of school is alarming. In even the best performing major states, a significant share of out of school children are those with disabilities: (in Kerala, 27%; in TN over 33%).
The attitude to ‘disability’ in India evolves from the belief that disability is due to the “sins” of disabled people or their parents and hence deserved in large measure. There are negative opinions on the capacity of disabled children to participate in regular school and for disabled adults to be effective members of the workforce. The families of disabled people and people with disabilities themselves often share the low opinions of their communities of the capacities of disabled people to be independent and productive members of society. This negative attitude reinforces social marginalisation. Changing societal attitudes – in families, service providers, and disabled individuals, and the community at large – will be critical if disabled people are to realise their full social and economic potential. In India the Persons of Disabilities Act, 1995 is a cornerstone of disability policy, while in many respects ground-breaking, has some weaknesses in design.
The Act represents a major step forward in policy towards disabled people in India. Despite being ground-breaking in recognising the multi-faceted nature of disability beyond mere medical intervention, there are some weaknesses in its design: the Act covers only designated types of disability, not inclusive of several significant categories of disability (e.g. autism); entitlements are often legally framed in a general manner which does not facilitate enforcement, and/or not linked to any sanctions for non-compliance, further compounded by a rather weak enforcement mechanism, with no direct enforcement authority granted to the Act’s watchdog – the central and state Commissioners for Persons with Disabilities, which has quasi-judicial powers; the approach of the Act has rather limited roles for actors outside the administrative framework, including NGOs, civil society and private initiatives. Finally, commitments on health are particularly weak.
While recent initiatives such as inclusion of education of disabled person in the Education for All (EFA) and the new employment incentive indicate an increased willingness on the part of Govt of India to increase resources to the disability sector, the outreach is dissatisfactory. The number of disabled is increasing amongst children living in poverty and only two out of hundred children with disabilities receive public assistance. The present scenario demands for action and this is why non-governmental agencies have become key-players in providing services for poor children with disabilities. Special education, health care, protection and support are vital for physically and mentally disabled children to improve their potential.
10.5.7 Children in Especially Difficult Circumstances (CEDC)
Protection of children in especially difficult circumstances is to a large extent a very new issue. Executive Board of the United Nations Children’s Fund (UNICEF), at its 1986 annual meeting, for the first time endorsed programmes for children in “difficult circumstances’. Since then the term CEDC has come into greater use. Children are in especially difficult circumstances when their basic needs for food, shelter, education, medical care, or protection and security are not met.
Disruptive social change is the principal cause of the growing numbers of children in difficult circumstances. Rapid urbanisation associated with socio-economic, cultural and
132 Human Rights: Indian Perspective
political transformation has resulted in numerous negative changes, disrupting the family and its traditional support system and weakening community organisations. The problem of CEDC is not confined to cities. In rural areas children are victims of abject poverty, frequent drought and famine. These children are usually referred to as “children in especially difficult circumstances” (CEDC), “children in need of special protection” (CNSP), “children in distress”, “children in crisis”, “children in exceptionally difficult conditions”, and so on.
In this unit, CEDC is used since it is the most widely-used term internationally. These children are for shorter or longer periods in their lives, exposed to intense, multiple risks to their physical and mental health. A common characteristic of CEDC is that they lack proper adult care and protection, and that they lead their lives outside society. Children in conflict with law, street children and children in trafficking are some of the categories of children in difficult circumstances. Child trafficking is one of the most violent forms of child abuse. Children victims are most vulnerable, removed from their families’ surroundings and forcibly brought in totally alien and often hazardous situation. Recent studies by the NHRC and some NGOs suggest the existence of child trafficking in –or through- the country. Trafficking is modern-day slavery, and India is one of the worst affected countries.
Every year, at least 11,000 women and 5,000 children in India go ‘missing’. Human trafficking generates billions of dollars and is considered to be the third largest source of profit for organised crime after arms and drugs trafficking, says a new report ‘Action Research on Trafficking in Women and Children in India 2002-2003’ released by the NHRC on August 24, 2004. The two forms of sexual abuse widely prevalent in India are child rape, and incest, defined as any sexual behaviour imposed on a child by a member of either the immediate or extended family. Psychologists and counsellors who deal with child sexual abuse confirm this as cases of incest are filed by several girls against their fathers. According to the India Centre for Human Rights and Law Network (ICHRLN), incest charges are extremely difficult to defend in court without family support for the victim. Sometimes, mothers are abettors and cite livelihood dependency for their silence.
In India, there is no separate law dealing with child sexual abuse and cases are lodged under Sections 354, 376, 377 of the Indian Penal Code, which also covers issues like sexual harassment (eve teasing)! Lawyers and activists have been lobbying for the formulation of legislation either along the lines of the Goa Children’s Act or the Offences Against Children Bill. There is an urgent need for stringent laws and higher awareness among children.
Commercial sexual exploitation of children is defined by the UN as the use of a child for sexual purposes in exchange for cash or in-kind favours between the customer, intermediary or agent and others who profit from the trade in children for these purposes (parent, family member, procurer, teacher, etc). There are three forms of commercial sexual exploitation of children: child prostitution, trafficking and sale of children across borders and within countries for sexual purposes and pornography. Child prostitution is the act of engaging or offering the services of a child to a person to perform sexual acts for money or other consideration with that person or any other person. The available information indicates that the problem exists and is growing in magnitude. The term ‘street children’ was introduced in the 1980s to refer to children who live or spend significant amount of time on the streets of urban areas to fend for themselves and/or their families through ‘various occupations’.
Rights of Children 133
UNICEF makes a distinction between children on the streets and children of the streets. Children of the streets consist of boys and girls who see the street as their home. They may still have some family ties but seek shelter, food and a sense of family among their companions on the streets or they may have completely broken ties with their families and literally live on the streets. They have been abandoned by their parents, are orphans or runaways from neglectful or abusive families. Children on the streets, includes those who still have family connections. They live at home, often in more than shacks, but are sent to the streets by parents or go of their own accord to supplement the family income. In India there are no exact figures available but the NGOs estimate it at 400,000 street children in four metropolitan cities. As per NACO estimates, India has nearly 64,000 children below 14 years of age who are infected with HIV. The number of children who have either one or both HIV positive parents or who have lost both their parents to HIV/ AIDS is steadily increasing. The awareness about HIV/AIDS remains dismally low. People continue to harbour misconceptions which have resulted in huge amounts of stigma and discrimination being associated with it. Thus the number of children in especially difficult circumstances continues to increase at an alarming rate.
10.6 PROGRESS IN CHILDREN’S RIGHTS IN INDIA
The Government of India ratified the Convention on the Rights of the Child on 2nd December, 1992. It is taking action to review the national and state legislation and bring it in line with the provisions of the Convention. It has developed monitoring procedures to assess progress in implementing the Convention, involved all relevant government/ ministries/departments, international agencies, non-governmental organisations, and the legal profession in the implementation and reporting process, publicised the Convention, and sought public inputs for frank and transparent reporting. The Government of India has adopted rights-based approach for 11th Five Year Plan (2008-2013) and the Planning Commission of India has initiated formulations of the schemes accordingly.
While there has been some positive development such as national study on child abuse by India in 2007, banning child domestic labour 2006, imposition of Education Cess 2005, extending coverage of Integrated Child Development Scheme 2006, introduction of rural health mission in 2005 and greater reference to the CRC in justice system, there remains many issues which have sill not received proper attention like the impact of new economic polices, the problems of rural children in India, emerging discrimination of HIV/ AIDS affected children, children in insurgency areas and dismal scenario of education. Issues that plague the minds of India civil society are: declining sex ratio (girl child), child domestic workers and children affected by HIV/AIDS, disabled children, sexual abuse of children and child trafficking and discrimination. According to the National Family Health Survey, India accounts for one–third of the world’s children with malnutrition: 45.9% are under weight, 39% are stunted, 20% severely malnourished. The situation has improved but experts say direct nutrition programmes are required instead of trickling down of wealth. Every village has an ICDS centre where mothers can have their sons and daughters monitored, but only 15 percent of under-5s attend.
New legal measures were announced in 2006. While one welcomes the legal steps taken to contain problem of child labour, many gaps remain in the legal provisions against child labour. We need to address causes like lack of a coherent education policy, insufficient schools, poverty, marginalisation, migration etc. In 2009 the Right to Education Bill was passed by the parliament. Earlier to make education for all a reality the government had
134 Human Rights: Indian Perspective
levied a 2% education cess since 2004. The focus has been on generating additional funds and less on how the money already available with the government is utilised. Primary education has still to become a top priority. The focus should be on quality of facilities and teaching where teacher absenteeism is as high as 50 per cent in some states. Status of girl child is another area of concern. The girl child suffers even before her birth; prenatal sex determination tests and quick abortion eliminates thousands of female foetuses. It is important to educate and provide her with skills to make her self-reliant.
Close links exist between child and poverty, corruption, exploitation, discrimination, ignorance, injustice, oppression, disease and violence which suggest that this social problem involves addressing the human rights not only of children but also of entire society. In addition, children are discriminated against because of their caste or religion. The situation of Dalit and Adivasi children calls for special attention in all child rights programme. Social discrimination against disabled children is still haunting us. Some new challenges are: HIV/AIDS, child sex tourism, Child pornography through electronic media, violence among children. India needs to gear itself to deal with such situations in 21st century. Concerted efforts must continue to ensure that children are placed on all political agenda and the provisions to translate the CRC in practice in daily life.
10.7 LOOKING AHEAD
In 1989, the Convention on the Rights of the Child became the first legally binding international convention to affirm human rights for all children. India ratified the Convention in 1992.While great progress has been made on child rights in the past 20 years, much work remains to be done. India’s present position on the CRC is characterised by the conflict between globalisation, liberalisation that cut government expenditure and the very real needs of people, especially the marginalised. Government policy reflects this conflict; while it continues to pursue multicultural and anti-poverty policies, it receives criticism for non-implementation of policies. The idea that children are the holders of rights is far from social acceptance in India. The CRC has provided us with essential guidelines to play our part in changing what needs to be changed. This 20th anniversary of the CRC reminds us, most of all, of what we have to do. The Convention demands a revolution that places children at the heart of human development.
10.8 SUMMARY
In India children have always been considered supreme asset. The Indian Constitution has a framework within which ample provisions exist for the protection, development and welfare of children. Numerous programmes have been launched by the Government to provide services to children in the areas of health, nutrition and education. In 1989, the world adopted the Convention on the Rights of the Child which lays out the rights of every child. Governments, communities, families, and young people are all responsible for ensuring that those rights are upheld. India ratified the CRC in 1992. Problems like poverty, violence, conflict, and HIV/AIDS are threatening the lives of children. In India, the manifestations of these violations are various, ranging from child labour, child trafficking, to commercial sexual exploitation and many other forms of violence and abuse. While systematic data and information on child protection issues are still not always available, evidence suggests that children in need of special protection belong to communities suffering disadvantage and social exclusion such as scheduled casts and tribes, and the poor. The lack of available services, as well as the gaps persisting in law enforcement and
Rights of Children 135
in rehabilitation schemes also constitute a major cause of concern. The current challenge facing India is to find ways to interpreting and implementing children’s rights in a way that is culturally relevant and practicable through policies. The real challenge is conceptualising rights in daily living.
10.9 TERMINAL QUESTIONS
1. Trace the brief history of modern ‘childhood’.
2. Who is a ‘child’ in India? What are the Constitutional provisions regarding children?
3. In which year was the CRC adopted by the UN General Assembly? Elucidate the underlying principles of the CRC.
4. What steps has India taken to implement the CRC? What are the priority areas that need utmost attention?
5. What do you understand by the term ‘children in especially difficult circumstance’?
6. What are the emerging challenges in children’s rights in India?
7. What do you understand by juvenile justice?
SUGGESTED READINGS
Aries, Philippe., Centuries of Childhood, Jonathan Cape, London, 1962.
Bose, A.B., State of Children in India, Manohar Publishers, New Delhi, 2003.
Goonesekere ,Savitri., Children, Law and Justice, UNICEF, New Delhi, 1998.
Bhakhry, Savita., Children in India and their Rights, National Human Rights Commission of India.
Gathia, Joseph., Child Prostitution in India, Concept Publishers, New Delhi.
Gathia, Joseph ., Children’s Rights in India : A Review, CCFCL, New Delhi, 2007. Gathia., Jospeh., Child Labour in India, CCFCL, New Delhi, 2003.
UNDP Human Development Reports, 2004-2008.
UNICEF, State of the Children Reports, 2003-2008.
136
Human Rights: Indian Perspective
GLOSSARY
CRC UDHR JJA
JJB OSR CSR IMR CEDC NCPCR
United Nations Convention the Rights of the Child Universal Declaration on Human Rights
Juvenile Justice Act
Juvenile Justice Board
Overall Sex Ratio
Child Sex Ratio
Infant Mortality Rate
Children in Especially Difficult Circumstances
National Commission for Protection of Children’s Rights
UNIT 11 RIGHTS OF MINORITIES AND THE MARGINALISED
Structure
11.1 Introduction
Aims and Objectives
11.2 Rights of Minorities
11.3 Constitutional Provisions 11.3.1 Freedom of Religion
11.3.2 Rights for Protection of Cultures and Languages 11.3.3 Other Provisions
11.4 Right of Scheduled Castes and Tribes 11.4.1 Constitutional Provisions
11.4.2 National Commissions for SCs and STs
11.5 Other Backward Classes
11.6 Summary
11.7 Terminal Questions
Suggested Readings
11.1 INTRODUCTION
You have already read that during freedom struggle and at the time of independence there had emerged consciousness for rights in a very significant manner. This consciousness was not limited to demand for civil and political rights but it contained vision for justice. In any society there are groups of people who had remained unequal or discriminated against because of their birth in particular caste, community, colour or any other such reason. Such persons are disadvantaged only because they belong to a particular group not because of merits or demerits as individuals. In India Scheduled Castes, Scheduled Tribes, Backward classes, are such groups. Another category which is discriminated against is because of numerical status, the groups having a faith, belief, religion, language or culture different from those who constitute majority of population. These are called minorities. These may be- religious, linguistic or cultural. Yet another category of marginalised section consists of persons on the basis of biological, physical or age reasons. These are women, children, elderly and physically challenged.
The philosophy of Human Rights believes that all human beings are endowed with some rights by nature, irrespective of caste, creed, religion, race, place of birth, age, sex, nationality etc. In practice these rights cannot be exercised or enjoyed equally by all due to reasons of vulnerability, physical inequities or abilities as mentioned above. The modern concept of welfare state accepts that all such sections need to be provided special rights, along with general Human Rights available to all, so that they would be able to enjoy rights equally, are not exploited due to their vulnerability or discriminated against because of their identity or numerical strength. The Constitution of India also makes special
138 Human Rights: Indian Perspective
provisions for these groups and directs the State to adopt specific measures for the protection and welfare of these groups. In this Unit, you will learn about such rights of Minorities, Scheduled Castes, Scheduled Tribes and Backward classes.
Aims and Objectives
After going through this Unit, you will be able to
Know who are Minorities and Marginalised sections in India;
Explain the meaning of minority rights and Constitutional provisions for these;
Understand the problems of marginalised sections; and
Explain special rights provided for marginalised sections by the Constitution and other wise.
11.2 RIGHTS OF MINORITIES
You might be aware that India is a very complex society. In terms of diversity India perhaps is the most authentic plural society. Almost all religions in the world find place in India. While about 80 percent of India’s population is that of Hindus, there are Muslims, about 13 percent, Christians 2.30 percent, Sikhs about 2 percent, Buddhists about 0.70 percent, Jains, 0.48 percent and 0.42 percent are of other faiths or religions. In terms of languages, linguistic survey of India identified 179 languages and 554 dialects. There has been a long tradition of various religious and linguistic groups living together and respecting each other. India has presented to the world a unique example of unity in diversity. However, there have been occasions of tensions between some communities. During British colonial rule particularly, and policy of divide and rule, apprehensions existed among minority groups that in independent democratic country, majority community on the basis of their strength may discriminate against them or may not give them adequate partnership in the governance and benefits of development
To remove all such fears and apprehensions the leaders of the national movement, led by Gandhi, Nehru, Maulana Azad and others maintained that it was their primary duty as well as National Congress’s policy to protect the religious, linguistic, cultural and other rights of minorities so as to assure their participation in the fullest measure in the political, economic and cultural life of nation. The Constituent Assembly, therefore, had with issues of protection of interests of minority groups. For that, the makers of the Constitution on the one hand assured of equality of all citizens irrespective of caste, creed, religion, language, sex, etc. through Fundamental Rights for all; and on the other hand, made specific provisions for protection of language, culture and traditions of minorities.
11.3 CONSTITUTIONAL PROVISIONS
The Constitution of India guarantees equality and protection for Minorities in two ways. First it provides for non-discrimination and equal treatment in terms of claims and exercise of all rights which are available to citizens in general. Fundamental Rights provided by Article 14, 15(1) and 29(2) guarantee this equality and non-discrimination. You have already read that Article 14 provides that ‘the State shall not deny to any person equality before the law or equal protection of the law within the territory of India’.
Rights of Minorities and the Marginalised 139
Article 15(1) provides that, “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. And Article 29(1) further mentions “No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them”.
It is, thus made clear that as far as state and its agencies are concerned, every individual is an equal citizen of India. State recognises individual without the prejudice of his/her socio-cultural status, location or religious affiliation. As mentioned in the beginning in spite of individuals being equal citizens, the groups- because of their numerical weakness- feel that they are unable to practice their religious practices, preservation of their culture and language and protection of their identity in a wider social framework. To allay these fears, the Chapter on Fundamental Rights provides not only guarantees for freedom of religion but also for preservation and promotion of cultures and languages of minorities.
11.3.1 Freedom of Religion
Freedom of Religion and Conscience are ensured in Articles 25 to 28 (b). Article 25 provides that all persons are equally entitled to freedom of conscience and right freely to profess, practice and propagate any religion subject to public order, morality and health and to other provisions of the Fundamental Rights set out in Part III, Article 26 recognises the right of every religious denomination to manage its own affairs and to own and acquire and to administer properties for religious or charitable purposes. Article 27 provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. Article 28 prohibits religious instructions in educational institutions maintained by the state, or recognised or aided by the state. An educational institution which is administered by the state but has been established under any endowment or trust which requires that religious instruction shall be imparted to in such institution, may impart such instruction. No person attending any educational institution recognised by the state or receiving aid out of state funds can be required to take part in any religious instruction imparted in such institution or to attend any religious worship that may be conducted in such institution. The above mentioned rights make it clear that the state will not give preference to any religion and treat no religion unequally except in accordance with the demands of welfare and equalising. State will also not interfere in the religious affairs of any community with the exception of public order, morality and health.
11.3.2 Rights for Protection of Culture and Language
The minorities, apart from equal treatment, also need protection to preserve their traditions. For this, the Constitution provides educational and cultural rights under Articles 29 and 30.
Article 29 provides i) Any section of the citizens residing in the territory of India or any part thereof having distinct language, script or culture of its own shall have the right to conserve the same.
ii) No citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them.
Article 30 provides (1) all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice and
140 Human Rights: Indian Perspective
ii) The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
The above two articles make it clear that minorities are not only free to establish and maintain institutions through which they can teach their culture and language but also can not be discriminated against for grants by the government. As a whole, the Constitution of India makes ample provisions both for equality of treatment of minorities as well as for preservation, protection and dissemination of their specific cultures and languages.
11.3.3 Other Provisions
In addition to rights and guarantees provided to minorities through Chapter III on Fundamental Rights, some other provisions have also been made for their welfare. Important of these are given in the following paragraphs:
National Commission for Minorities
The National Commission of Minorities was set up as a statutory body in 1993. In 2004 it was granted Constitutional Status through One hundred and Third Amendment of the Constitution. The National Commission is responsible to safeguard the interests of minorities, which broadly relates to atrocities by the police, service matters, minority educational institutions and disputes relating to religious places. The Commission has recognised five religious communities viz Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis). These five communities constitute about 18.5 percent of the country’s population.
Special Officer for Linguistic Minorities
In 1957 was created the office of the Special Officer for Linguistic minorities. It is commonly known as The Commissioner for Linguistic Minorities. The Commissioner takes up all the matters pertaining to the grievances arising out of the non-implementation of the Constitutional and Nationally Agreed Schemes of Safeguards provided to linguistic minorities that come to its notice or are brought to its knowledge by the linguistic minority individuals, groups, associations or organisations at the highest political and administrative levels of the State Governments and Union Territory Administrations and recommends remedial actions to be taken.
11.4 RIGHTS OF SCHEDULED CASTES AND SCHEDULED TRIBES
Scheduled Castes (SCs) are the people who were earlier considered outcastes and categorised as untouchables. This was a part of the rigid caste system dividing the Indian society into high and low on the basis of birth without any logic or rationale. The people of these lower Castes were assigned menial jobs and occupations. They were oppressed and exploited by those who belonged to the higher castes. Economically and socially they remained extremely poor and marginalised.
During the British period, with the arrival of western liberal values and rise of socio- religious reform movements, the question of caste discrimination came to the forefront. Within lower caste, people themselves took initiative to bring about a consciousness and awareness about their plight and demand for change. Mahatma Gandhi and Dr. B.R.
Rights of Minorities and the Marginalised 141
Ambedkar, in particular, though in different ways, brought up the issue of caste discrimination in a significant way. The national movement made the issue of upliftment of these castes part of its agenda. The Constitution in Article 341 makes provision for identification of these castes and calls them Scheduled Castes. These are listed in a Schedule of the Constitution.
Scheduled Tribes
Like Scheduled Castes, Scheduled Tribes (STs) are people belonging to tribes or tribal communities specified in the list of such tribes as per Article 342 of the Constitution. Scheduled Tribes are weaker sections not in terms of caste. They are the people who have been living in remote forest areas and hill tracks as tribes without any access to modern socio-economic inputs. As a result they have remained illiterate, economically backward and socially deprived.
Like Scheduled Castes, it was during British colonial rule that there emerged a tribal consciousness. It was during this period that with the extension of administration all over and laying of railways, roads etc, that tribal areas came under direct administrative control. Along with administrators, the other sections including traders, money lenders and entrepreneurs also reached tribal areas. The Tribals were deprived of their land and autonomy. In many cases, there started tribal revolts. There also emerged among national movement leaders and British administration a concern for protection and welfare of these people.
11.4.1 Constitutional Provisions
From the above you might have understood that the Scheduled Castes and Scheduled Tribes have been the most disadvantaged and neglected section of the Indian society. Need for their protection and welfare was an important concern for the framers of the Constitution. They provided measures for these through provisions of Fundamental Rights, Directive Principles of State Policy and other Articles.
The Constitution prescribes protection and safeguards for Scheduled Castes and Scheduled Tribes as also of other weaker sections either specially or by way of insisting on their general rights as citizens with the objective of promoting their educational and economic interests and removing social disabilities.
Article 17 of the Constitution abolishes untouchability and forbids its practice in any form. The untouchability (offences) Act was passed in 1955. Its scope was enlarged and its panel provisions were made more stringent by amending it in 1976. It was renamed as Protection of Civil Rights Act. In 1989, another Act called Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was passed.
While Article 17 of Fundamental Rights abolishes untouchability, Article 14, 15 and 16 establish principles of equality and social Justice. Article 14 proclaims equality before law and equal protection of law for all. Article 15(1) prohibits discrimination on grounds of race, caste, sex, religion or place of birth. Article 16(1) further provides equality of opportunity to all. These two articles, apart from proclaiming every one equal, also gives power to the State for making special provisions for SCs and STs.
In the second set of rights, the Constitution imposes positive duty on the State to adopt special measures to provide Scheduled Castes and Scheduled Tribes equality. In fact, Article 16 has also made a very special provision which permits Parliament to make any
142 Human Rights: Indian Perspective
provision for reservation of appointments for SCs and STs. Under clause 4(a) of this Article, reservation in matters of promotion has been extended to SCs and tribals. Article 335 provides that the reservation provision shall be made taking into consideration efficiency of administration. Article 15(4) empowers the State to make provision for advancement of any socially and economically backward classes and for SCs / STs. This provision has enabled the States to reserve seats for SCs / STs in educational institutions including technical, engineering and medical colleges.
To give effect to Article 16 and 15 (4), seats are reserved for SCs in the Lok Sabha and State Assemblies respectively. Initially, these political reservations were for 10 years, but they have been periodically extended through Constitutional Amendments. Under Article 243 (D), reservation of seats in village Panchayats and Zilla Parishads has been made for SCs / STs in proportion to their population at respective levels in direct elections. It has also been provided that the reserved seats for SCs / STs shall be allotted by rotation to different constituencies in Panchayats at each level. Under Article 343-T, reservation of seats for SCs/ STs in proportion to their population has been made in municipal bodies at each level. Out of these reserved seats at least 1/3rd has been reserved for SC/ST women. It must be noted that the political reservation under these two Articles are not time-bound.
Articles 330 and 332 provide for reservation of seats for STs in the Lok Sabha and in the State Legislative Assemblies. Originally this political reservation was for a period of ten years which has been extended by amending the Constitution from time to time.
The tribal people are associated with a territory and have strong and living tradition of self-governance. Accordingly, special provisions have been incorporated in the Constitution relating to the administration of the tribal areas. The relevant areas in the States of Assam, Meghalaya, Tripura and Mizoram have been formally designated as “Tribal Areas” while those in other States as “Schedules Areas”. The provisions of the Fifth and the Sixth Schedules apply to the administration and control of the “Scheduled Areas” and “Tribal Areas” respectively.
11.4.2 National Commissions for SCs and STs
Under Article 338 of the Constitution, the President is empowered to appoint a Commissioner for SCs and STs with a broad mandate to investigate the working of all the schemes of preferential policies. The original conception of this office was to serve as an independent critic of the government. In the first two decades of its existence, the National Commissioner for SCs and STs (NCSCST) produced excellent analysis of the working of these policies.
In 1990, the office of the Commissioner was made a five-member Commission. However, by amending the Constitution, the NCSCST was bifurcated in 2004, and now there are two Commissions – National Commission for SCs (NCSC) and National Commission for STs (NCST). The functions of both are similar. The NCSC is mandated to investigate and monitor all matters relating to the safeguards provided in the Constitution and under any other laws for the SCs and to evaluate the working of these safeguards. It has power to inquire into specific complaints with respect to the deprivation of rights of SCs. It presents annual reports to the President which are subsequently tabled in the Parliament.
Under Article 338A, the NCST is functioning since 2004. It is mandated to investigate and monitor all matters relating to the safeguards provided in the Constitution and under
Rights of Minorities and the Marginalised 143 any other laws for the STs and to evaluate the working of these safeguards. It has power
to inquire into specific complaints with respect to the deprivation of rights of STs.
11.5 OTHER BACKWARD CLASSES (OBCs)
In India, apart from Scheduled Castes and Scheduled Tribes, there are other weaker sections, which are economically, socially and educationally backward. They are known as Other Backward Classes. Article 340 of the Constitution empowers the government to appoint a Commission to investigate into the conditions of Other Backward Classes and make recommendations.
It is necessary to make it clear that the Constitution uses words “Backward Class”. It means not just any backward person, but a group of people having general characteristics of backwardness. The Constitution, however, does not specify which groups constitute backward classes. The Government had appointed two Backward Classes Commissions. These commissions have given the criteria to identify backward classes on the basis of communities or castes.
The first Backward Classes Commission was appointed in 1953 under Chairmanship of Kaka Saheb Kalelkar. This Commission used four criteria for identifying the Backward classes: (i) low social position in the traditional caste hierarchy of Hindu society; (ii) lack of general educational advancement among the majority of a caste/community; (iii) inadequate or lack of representation in government services; and (iv) inadequate representation in trade, commerce and industry.
The second Backward Classes Commission was appointed in 1978 under the Chairmanship of B.P. Mandal and this was known as Mandal commission. This commission formulated 11 indicators: four on caste-based social backwardness, three on educational backwardness and four on economic backwardness. In the Commission’s opinion backwardness was related to Caste. Accordingly, it identified 3,743 castes as backward on the basis of above-mentioned indicators.
The Commission recommended reservation of 27 per cent of jobs for OBCs in central services, public sector undertakings, nationalised banks, universities and affiliated colleges and government aided firms in the private sector. In August 1990, the Government of India announced the acceptance of Mandal Commission’s recommendation. Since then 27 per cent reservation has been made in jobs by Central governments and in various percentages by the State governments. In addition, other schemes have also been formulated and launched for the welfare of the Backward Classes.
11.6 SUMMARY
In this Unit, you have learnt about the rights of minorities, Scheduled Castes, Scheduled Tribes and Backward classes. These groups are considered vulnerable because of their being lesser in number, socio-economic deprivation or social prejudices. In India there are religious, linguistic and ethnic minorities. In view of smaller in number they apprehend to be discriminated by the majority or State being controlled by majority. The Constitution of India removes these fears by providing them three types of assurances through Fundamental Rights. Firstly, the Right to Equality which makes it clear that every citizen is equal before law and entitled to equal protection of law irrespective of religion, language, caste, place of birth, sex, age etc. He or she cannot be discriminated in any
144 Human Rights: Indian Perspective
sphere of life only on any of these reasons. Secondly, the Constitution guarantees freedom to adopt, practice or live according to any religion. All religions are free to establish and manage institutions for conduct of their affairs. Only restrictions are public order, health or morality. Thirdly, through Cultural and Educational Rights, the Constitution allows religious or linguistic minorities to establish institutions for preservation and development of their culture or language. It has also been provided that the State shall not discriminate against any religious or linguistic minority while providing grants. The Scheduled Castes and Scheduled Tribes are people who have remained marginalised because of the Caste system or their location in inaccessible areas and ethnic differentiation. These sections have been exploited to the extent that lower caste people were considered untouchables and allowed to do only menial jobs. The Constitution of India committed to the cause of social-justice has made special provisions to bring these people out of inhumane conditions and make them equal citizens. As in the case of minorities, they have been provided equality both legal and social. Any discrimination against them on the basis of their caste or identity is prohibited. Article 17 particularly abolishes untouchability and makes the practice punishable. State has also been empowered to make special provisions for them and reserve places for them in educational institutions and jobs. They have also been provided reservations in Parliament, State legislatures and institutions of local self- government like Panchayats.
In addition to Scheduled Castes and Scheduled Tribes there also have been other groups, who though not lowest in caste hierarchy and have not faced conditions of untouchability, but have remained socially and economically backward because of their professions or castes. The Constitution empowers and directs the state for welfare of these backward classes also. A number of castes has been identified as backward and now these are known as other backward castes. For these castes, reservations have been made in jobs and educational institutions. Other measures have also been adopted for their upliftment and welfare.
The Constitution of India, as such, makes adequate provisions for treatment of all equally, prohibits practice of discrimination and empowers and directs the states for protection and promotion of the rights of vulnerable and marginalised groups in the true spirit of a democratic secular and welfare state.
11.7 TERMINAL QUESTIONS
1. Who are considered as vulnerable sections of Society? Why do they need special protection?
2. What provisions have been made in the Constitution to prohibit discrimination against minorities?
3. What provisions have been made in the Constitution for preservation and development of traditions and languages of minorities?
4. Who are known as Scheduled Casts and Scheduled Tribes? What provisions have been made in the Constitution for eliminating caste-based discrimination?
5. Describe the special provisions of the Constitution providing welfare for Scheduled Tribes.
6. What is the role of Scheduled Castes and Scheduled Tribes Commissions?
Rights of Minorities and the Marginalised 145 7. Who are considered Backward? Why do they need protection? What are the
Constitutional safeguards for them?
SUGGESTED READINGS
1. Ansari, Iqbal, A (1998) Human Rights in India Some Isues, Published by Institute of Objective Studies, New Deli, First Published.
2. Austin, Granville, (1999) The Indian Constitution: Corner Stone of Nation, Delhi Oxford University Press.
3. Chiranhivi, (1999), Nirmal J., “Human Rights in India, Historical Social and Political Perspectives, Published by Oxford University Press, New Delhi.
4. Khan, Z.M. and Yadav, S.N. (2001), “We the Minorities of India, New Delhi: Institute of Objective Studies.
5. Mahmood, Tahir, (1991), “Minorities and State and the Indian Law, “New Delhi Institute of Objective Studies.
6. Majeed, Akhtar, (2002), Nation and Minorities India’s plural society its Constitutions, Delhi: Kanishka Publishers, Distributors, New Delhi-110002.
7. Massey, James, (2003), “Minorities and Religious Freedom in a Democracy. Delhi: Manohar Publishers and Distributors.
8. Nalini Rajan, (2002), “Democracy and the Limits of Minority Rights (New Delhi: Sage Publication).
9. Vampeny, Sebestian, (2003), Minorities in Contemporary India, New Delhi, Kanishka Publishers, New Delhi
UNIT 12 INSTITUTIONAL MECHANISMS TO PROTECT HUMAN RIGHTS
Structure
12.1 Introduction
Aims and Objectives
12.2 National Human Rights Commission
12.3 State Human Rights Commissions
12.4 National Commission for Women
12.5 National Commission for Minorities
12.6 National Commissions for SCs, STs and Backward Classes
12.7 Civil Society, Media and Non-governmental Organisations
12.8 Summary
12.9 Terminal Questions Suggested Readings
12.1 INTRODUCTION
The previous Units of this course apprised you of the significance of the human rights of all including women and children that are guaranteed under the Constitution of India. It is also necessary that these rights are ensured through certain institutional mechanisms through which grievances could be addressed and justice rendered. Some of these institutions are listed in this Unit for the information of the learner. These institutions act as checks on the violations of human rights. In case of violations, the citizens and communities concerned could approach these institutions and present their case so that their rights are restored. These institutions are statutory bodies that help the citizens to live a life of dignity and respect. These also ensure accountability on the part of various bodies and help in discharging the statutory obligation of promoting human rights. Various efforts have been made at the international level to protect human rights. In India too, efforts are on to ensure these rights and resultantly, various commissions have been set up to address these issues. Some of these commissions include National Commission for Women, National Commission for Minorities, National Commission for Backward Classes, National Commission for Scheduled Castes and Scheduled Tribes and so on. This Unit deals with these commissions in detail.
Aims and Objectives
This Unit would enable you to understand
The significance of ensuring human rights;
Various commissions to ensure human rights; and
The necessity of these institutions.
Institutional Mechanisms to Protect Human Rights 147
12.2 NATIONAL HUMAN RIGHTS COMMISSION
The Government of India, to ensure a free and fair Redressal of human rights violation, enacted the Human Rights Protection Act, 1993. It thus made efforts to fulfil its Constitutional obligation to protect each and every citizen and in consonance with the said Act, the National Human Rights Commission, henceforth addressed as NHRC, came into existence. The Commission has a Chairman (usually a retired Chief Justice of Supreme Court) and seven other members belonging to the judiciary branch. The members are appointed by the President of India and could be removed only on grounds that are serious in nature like convicted or adjudged as insolvent. The Commission is assisted by a Secretary General, Police, Administrative, Technical and Scientific staff.
The Commission’s functions include the following:
1. To inquire into the violation of human rights or abetment thereof either on its own or on a petition submitted by an affected party or on his behalf by any person, or negligence shown by a public servant in the prevention of such a violation.
2. To intervene in any of the proceedings pending before a court with the permission of such court on any complaint of violation of human rights.
3. To visit any jail, or any institution where persons are detained or lodged for purposes of treatment, reformation or protection under the control of a state government with an advance notice to study the living conditions of the inmates and to make recommendations.
4. To review the safeguards for the protection of human rights provided by the Constitution or any of the existing law and to suggest measures to Central and State Governments for their effective implementation.
5. To review all the aspects that inhibit the enjoyment of human rights including acts of terrorism and recommend the remedial measures to the Government.
6. To study the treaties and other international instruments on human rights and make recommendations to the central government for their effective implementation.
7. To undertake and promote research in the field of human rights.
8. To propagate the concept of human rights and to promote the awareness for their protection among various sections of the society, it can undertake publication of books or pamphlets or conduct seminars, or use the media or any other means available to it.
9. To promote and support the non-governmental organizations and institutions working in the field of human rights.
Powers of the Commission
1. The Commission exercises the same powers of a civil court under the Civil Procedure Code, can give summons, enforce or request any public record examination of witnesses, etc.,
2. It can direct any person to submit such information as required by it; the person(s) is bound legally to furnish the same.
148 Human Rights: Indian Perspective
3. It can seize any document or enter any building concerning any matter of inquiry
subject to the provisions of Criminal Procedure Code.
4. In case of accused persons, the Commission is empowered to record facts, as specified under the Criminal Procedure Court and can also transmit the case to a Magistrate for conducting the trial.
5. The Commission may adopt different procedures such as calling for information or report either from central or state government concerned within a time frame or if it deems needs immediate action, it need not even consult relevant government or authority.
6. The Commission may authorise Central Government to submit any required report; the government is bound to inform the Commission about the action taken; and the Commission has to publish related report giving its recommendations.
7. The Commission also exercises investigative powers, utilise services of any officer or investigative agency and examine their statements.
8. The Commission may enquire into the conduct of any person but with certain limitations; it cannot do so if the inquiry affects the reputation of any person.
The existence of NHRC clearly expresses the government’s commitment to ensure human rights, international accountability and treaty obligations to the UDHR. The NHRC has different roles to fulfil, which are given as follows:
as an inquiry agency- where it can inquire into the incidence of human rights violations like custodial deaths, encounter killings, police atrocities, reports of starvation, and so on.
As an agency of reform- it can also study the issue of overcrowding of prisons, recommend the introduction of vocational courses, provide medical care, and ensure humane and just conditions.
As an agency of reviewing existing laws and international obligations- the Commission asked the Law Commission to review the Terrorist Disruptive Activities (Prevention) Act (TADA). It can also contribute significantly to issues relating to child labour and child prostitution.
As an agency to promote Human Rights Education- the Commission plays a key role in promoting human rights education and increase awareness among large sections of people about such rights. This would include groups like ministers, civil servants, Human Resource Development Ministry, NCERT, police, military, academicians, NGOs etc.
12.3 STATE HUMAN RIGHTS COMMISSIONS
The Protection of Human Rights Act, 1993, provides for the establishment of State Human Rights Commissions (SHRC). The composition of the SHRC is same as that of the NHRC. It is appointed by the Governor of the state concerned and the members’ term could be terminated only by proven misbehaviour or incapacity. The responsibilities of the Chief Ministers are crucial if the SHRCs have to function effectively.
Institutional Mechanisms to Protect Human Rights 149
In the Protection of Human Rights Act, 1993, Sec.21, the Constitution of State Human Rights Commission is clearly enumerated. “A State Government may constitute a body to be known as the…(name of the State) Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to, a State Commission under this chapter”. As mentioned earlier, the composition of the Commission is same as that of the NHRC, except that the SHRC functions at the state level. There are certain limitations to its functions as it may not inquire into the said matter if it is already being inquired into by the Commission or any other Commission duly constituted under any law for the time being in force. The Chairperson and other members of the State Commission are appointed by the Governor by warrant under his hand and seal; provided that every appointment under the sub-section shall be made after obtaining the recommendation of a Committee consisting of (a) The Chief Minister (Chairperson); (b) Speaker of the Legislative Assembly (Member); (c) Minister in-charge of the department of Home in the State (Member); (d) Leader of the Opposition in the Legislative Assembly (Member). No appointment of a Chairperson or a Member of the State Commission shall be invalid merely by reason of any vacancy in the Committee. The grounds for removal include proved misbehaviour, incapacity, and insolvent, unfit to continue in office or is convicted or sentenced.
Sec. 28 deals with the Annual and special reports of State Commission. The State Commission shall submit an annual report to the State Government and may at any time submit special reports on any matter which, in its opinion, is of such urgency or importance that it should not be deferred till submission of the annual report. The State Government shall cause the annual and special reports of the State Commission to be laid before each House of State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House along with a memorandum of action taken or proposed to be taken on the recommendations of the State Commission and the reasons for non-acceptance of the recommendations, if any. The Commission also provides for Special Public Prosecutor. For every Human Rights Court, the State Government shall, by notification, specify a Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in that Court (Sec. 31).
At present, 14 states had set-up State Human Rights Commissions. These states are Assam, Himachal Pradesh, Jammu &Kashmir, Kerala, Madhya Pradesh, Maharashtra, Manipur, Orissa, Punjab, Rajasthan, Tamil Nadu, Uttar Pradesh, West Bengal and Chhattisgarh. Andhra Pradesh and Karnataka too have notified their establishment. The State Human Rights Commissions too have taken up issues relating to people who are deprived of facilities like public health, sanitation, nutritional security, drinking water quality, prevention of child marriages; the commissions also address issues of rights violation faced by persons with disability. Though there are many serious allegations against the armed forces regarding violation of human rights, they have been kept out of the purview of the NHRC and SHRCs.
12.4 THE NATIONAL COMMISSION FOR WOMEN
The National Commission for Women Bill, 1990 was passed by both the Houses of Parliament and received assent of the President on 30th August, 1990. It came into force on 31st January, 1992 as The National Commission for Women Act, 1990. For long, it has been felt that women need to be rendered justice as they have never been treated
150 Human Rights: Indian Perspective
well either at home or at work place. Several incidents of crime against women has necessitated the setting-up of a statutory body to look into the welfare issues of women. The inequality suffered by women on all fronts has called for the redress of women related issues. Various women’s groups and activists have been making persistent demands to address these issues and as a result, the National Commission for Women Bill, 1990 was introduced in the Lok Sabha on 22nd May, 1990.
The main function of the Commission shall be ‘to study and monitor all matters relating to the constitutional and legal safeguards provided for women, to review the existing legislations and suggest amendments, wherever necessary. It will also look into the complaints and take suo moto notice of the cases involving deprivation of the rights of women in order to provide support, legal or otherwise, to helpless women. The Commission shall monitor the proper implementation of all the legislations made to protect the rights of women so as to enable them to achieve equality in all spheres of life and equal participation in the development of the nation’ (The National Commission Acts).
Some of the prime functions of the Commission include the following:
Investigate and examine measures relating to the safeguards provided for women.
Present reports upon the working of those safeguards and to make recommendations for the effective implementation thereof.
Review, from time to time, the existing provisions of the Constitution and of other laws affecting women.
Take up the cases of violation of the provisions of the Constitution and of other laws relating to women with the appropriate authorities.
Look into complaints and take notice of matters relating to the deprivation of women’s rights, non-implementation of laws, non-compliance of policy decisions and take up the issues with appropriate authorities.
Investigate into specific problems or situations arising out of discrimination and atrocities against women.
Suggest ways of ensuring due representation of women in all spheres by undertaking promotional and educational research.
Advise on the planning process of socio-economic development of women.
Evaluate the progress of the development of women under the Union Government
and any State Government.
Inspect any jail, remand home, women’s institution or other place of custody where women are kept as prisoners or otherwise and take up with the concerned authorities for remedial action.
Fund litigation involving issues affecting a large body of women.
Make reports on any matter pertaining to women and their difficulties thereof.
The Commission’s Chairperson is appointed by the Central Government and five members are recommended by the Central Government who have expertise in different fields. The Chairperson usually holds office for a period of three years. Its expenses are taken care
Institutional Mechanisms to Protect Human Rights 151
of by the government. The Commission shall maintain proper accounts and records related to its work; it comes under the purview of Comptroller and Auditor General of India for its auditing; it shall prepare annual reports regarding its activities and submit it to the Central Government.
12.5 NATIONAL COMMISSION FOR MINORITIES
India is a nation marked by diversity and multiculturalism. Due to its varied past, it has assimilated people of other cultures and traditions over the centuries. These people now constitute the population of India. Some of them fall under the category of minority groups based on ethnic, religious and linguistic factors. Soon after the independence, the members of the Constituent Assembly felt the need to bring one and all under one entity. Therefore, the Constitution was framed in a manner so as to guarantee the rights of all the citizens. Over the years, due to some vested interests, fissures were felt on different issues; at the same time, the awareness of rights has also necessitated that the Constitutional guarantee of rights be fulfilled. As more and more people began voicing their concerns, the demand for an appropriate body to address these issues also gained momentum and resultantly, The National Commission for Minorities Act came into existence in 1992.
In 1978, a Minorities Commission was set up to instill confidence among the minorities for ensuring implementation of the safeguards and the law. Later, to give a statutory status to the Commission was decided and thus the National Commission for Minorities Bill, 1992 was introduced in the Lok Sabha on 4th May, 1992. This status would not only infuse confidence among the minorities about the working and effectiveness of the Commission but also would carry enough weightage with the Central/ State governments and also Union Territory Administrations. It has a Chairperson, Vice-Chairperson and five members nominated by the central government from amongst the persons of eminence and integrity and the members should be necessarily from the minority communities. They assume office for a period of three years and could be removed only on grounds of incapability, unsound mind, holding another post simultaneously or convicted or sentenced.
The functions of the Commission include:
1. Evaluating the progress of the development of minorities issues in India;
2. Monitoring constitutional and legal safeguards for minorities, as enacted by the Parliament and State Assemblies;
3. Recommending effective implementation of safeguards for the protection of minority interests by the Central Government or the State Governments;
4. Focusing on specific complaints regarding the deprivation of rights and safeguards of minorities;
5. Suggesting appropriate measures to be undertaken by the Central Government or the State Governments;
6. Make periodical or special reports to the Central Government on any matter pertaining to minorities and in particular difficulties confronted by them;
7. The commission is empowered to summon or enforce attendance of any person from any part of India and examine him on oath;
152
Human Rights: Indian Perspective
8.
9.
Requisition of any public record or copy thereof from any court or office; Issue commissions for the examination of witnesses and documents;
10. Cause studies to be undertaken into problems arising out of any discrimination against
minorities and recommend measures for their removal.
12.6 NATIONAL COMMISSIONS FOR SCs, STs and BACKWARD CLASSES
The National Commission for Scheduled Castes and Scheduled Tribes was originally formed in 1978, as the Commission for Scheduled Castes and Scheduled Tribes.
The main functions of the Commission include:
1. Monitoring issues involving constitutional safeguards provided for SC/STs
2. Enquiring into specific complaints with respect to the deprivation of rights and safeguards of SC/STs.
3. Reporting to the President of India regarding the functioning of these safeguards
4. Recommending measures that should be taken by the Union or any state for the effective implementation of these safeguards and other measures for the protection, welfare, and socio-economic development of SC/STs.
The NCSCST was bifurcated into two separate commissions NCSC and NCST in 2004 and operate as independent entities.
12.6.1 Functions and Duties of the Scheduled Castes Commission
The functions, duties and power of the Commission have been laid down in clauses (5), (8) and (9) of the Article 338 of the Constitution. Clause (5): It shall be the duty of the Commission: to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes; (c) to participate and advise on the planning process of socio-economic development of the Scheduled Castes and to evaluate the progress of their development under the Functions of Union and any State; (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes; and (f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by rule specify.
The Commission shall have all the powers of a civil court trying a suit; it can summon, enforce the attendance of any person from any part of India and examining him on oath; the discovery and production of any documents; Receive evidence on affidavits; Requisition any public record or copy thereof from any court or office; Issue commissions for the examination of witnesses and documents; (f) Any other matter which the President may
Institutional Mechanisms to Protect Human Rights 153 by rule, determine; Clause (9) The Union and every State Government shall consult the
Commission on all major policy matters affecting Scheduled Castes.
12.6.2 Functions and Duties of the Scheduled Tribes Commission
Under Clause (5) of Article 338A, the Commission performs the duties as follows: to investigate & Monitor matters relating to Safeguards provided for STs under the Constitution or under other laws or under Govt. Order, to evaluate the working of such Safeguards; to inquire into specific complaints relating to Rights & Safeguards of STs; to participate and Advise in the Planning Process relating to Socio-economic development of STs, and to evaluate the progress of their development under the Union and any State; to submit report to the President annually and at such other times as the Commission may deem fit, upon/ working of Safeguards, Measures required for effective implementation of Programmers/ Schemes relating to Welfare and Socio-economic development of STs; to discharge such other functions in relation to STs as the President may, subject to the provisions of any law made by Parliament, by rule specify; the Commission would also discharge the following functions with regard to the protection, welfare, development and advancement of the Scheduled Tribes. It takes measures: over conferring ownership rights in respect of minor forest produce to the Scheduled Tribes living in forest areas; to safeguard rights to the Tribal Communities over mineral resources, water resources etc. as per law; for the development of tribals and to work for more viable livelihood strategies; to improve the efficacy of relief and rehabilitation measures for tribal groups displaced by development projects; to prevent alienation of tribal people from land and to effectively rehabilitate such people in whose case alienation has already taken place; to elicit maximum cooperation and involvement of Tribal Communities for protecting forests and undertaking social afforestation; to ensure full implementation of the Provisions of Panchayats (Extension to the Scheduled Areas) Act, 1996 (40 of 1996); to reduce and ultimately eliminate the practice of shifting cultivation by Tribals that lead to their continuous disempowerment and degradation of land and the environment.
12.6.3 National Commission for the Backward Classes
The Supreme Court of India, in its judgement regarding reservation of appointments to backward classes, on 16th November 1992, directed the Government of India to constitute a permanent body by 15th March 1993 for entertaining and examining and for recommending upon requests made for it, for, inclusion and complaints of over-inclusion and under-inclusion in the lists of backward classes of citizens. With Parliament not in session, the President promulgated the National Commission for Backward Classes Ordinance, 1993 on the 1st of February, 1993. To replace the Ordinance with act, the NCBC Bill, 1993 was introduced in the Rajya Sabha. It received the assent of the President on 2nd April, 1993 after being passed by both Houses of Parliament and came into effect retrospectively from 1st February, 1993. The term Backward Classes implies such backward classes of citizens other than the SCs and STs as specified by the Central Government. It consists of a Chairperson (Judge of the Supreme Court or High Court), a social scientist, two persons who have expertise in backward classes issues and Member-Secretary (officer equal to the rank of Secretary to the Government of India). They hold office for a term of three years and the grounds on which they could be removed is same as that of the conditions contained in other Commissions.
Functions and Powers of the Commission
The Commission shall examine requests for inclusion of any class of citizens as a
154 Human Rights: Indian Perspective
backward class in such lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate.
The Advice of the Commission shall usually be binding upon the Central Government.
The Commission can summon or enforce the attendance of any person from any part
of India and examine him on oath;
Receive evidence on affidavits, require the discovery and production of any document;
Requisition any public record or copy thereof;
Issue commissions for the examination of witnesses and documents.
The Central Government can undertake at any time, upon the expiration of ten years from coming into force, revision of the lists with a view to exclude such lists who have ceased to be backward classes or include a list of new backward classes. It would so by consulting the Commission.
12.7 CIVIL SOCIETY, MEDIA AND NON- GOVERNMENTAL ORGANISATIONS
In the last fifty years in India, in the political arena, the Emergency period was said to have been characterised by the curtailment of human rights of the citizens. The promulgation of Ordinances legitimized the government’s actions, such as arresting people on the pretext of ‘preventive detention’ as well as establishment of new intelligence outfits which assisted the government with its agenda’ (Kaushlendra Mishra, 2008, p.23). Though this phase ended soon, the importance of civil liberties was realised and soon, many organisations came up to champion the human rights issues. Today, the society has various groups speaking for human rights such as Civil Society, NGOs and Media that time and again voice their concerns. The role of these institutions is elaborated in the following paragraphs.
Civil Society and Human Rights
Civil society is considered as a basic pillar of democracy. Its role is being viewed more positively and as requiring for a vibrant democracy. It facilitates and sustains participation by the citizens and its role goes beyond acting as a facilitating institution. The very basic idea behind civil society is to share interests, purposes and values, it is but natural that it is viewed as an important component in society and viewed with much respect. It consists of those organisations and groups that commonly work for the good of the society and is formally and legally independent from state but acts in consonance with state and its agencies. Civil society and its actors have gained an important role not only in the debate over political transition but also in the practice of development cooperation, at least from the mid-1980s. This shift is seen in voluntary agencies’ and NGOs’ increased involvement in development cooperation (Debiel and Sticht, 2005, p.9. Cited in Thania Paffenholz, 2010, p.15). The momentum gained by the civil society is a result of the political developments, wherein in 1990s, there was felt an increasing need for improved governance and democratisation. The end of the Cold War provided an opportunity ‘to establish principles of good governance, respect for human rights, and the rule of law- priority objectives in development cooperation. Thus, a vibrant civil society was considered an important pillar for establishing democracy, and support for it became
Institutional Mechanisms to Protect Human Rights 155
an obvious aim of democratization (Schmidt, 2000, p.312. Cited in Paffenholz, p.16). Civil society does influence the decisions of the state in many an important matter. It undoubtedly strives towards contributing to social, economic and political change for the betterment of the society.
According to the World Bank, there are three main functions of civil society: advocacy, monitoring and direct service delivery. This applies very well to the human rights aspects also. Merkel and Lauth’s function model of civil society has the following five essential features: (1) Protection- the civil society has the responsibility to remind the state of its work to protect people and compel the state to honour its commitment. (2) Intermediation between state and citizens- it ensures a balance between central authority and social networks and safeguard the rule of law. (3) Participatory socialization- civil society should encourage the people to participate actively in exercising democratic rights, be better citizens, involve in public life and develop trust, tolerance and acceptance. (4) Community-building and integration- it is a catalyst for civil virtues, helps build societal cleavages, foster social cohesion. (5) Communication- public communication is an important component of civil society and ensures room for debate, participation and democratic decisionmaking. Therefore, with such a virtuous role, civil society is the right forum to actively voice human rights concerns to the state, and remind it of its duty to safeguard the basic rights of security apart from ensuring basic necessities like food and clothing. On many occasions, the various groups of civil society in India actively advocated for state action to mitigate hunger, poverty and starvation and ensure food security to all. The state also becomes vigilant when there is a vibrant civil society and tries to ensure the betterment of all.
Media and Human Rights
Media, of late, has become more active in the realms of the Indian public life. It has been quite active in its reporting and update of various, political, social economic and related aspects thereby creating awareness among the public about the day-to-day developments. Further, the access to media like radio, television, internet and other sources, has made public much more aware of the developments around. Along with the increase in access to the media, the awareness about one’s rights has also increased considerably thereby making the citizens active participants in their public life. Though technology has developed and there is an increasing need of media to public, many people are still unaware of their rights. It is here that the media plays a crucial role in spreading the awareness so that every individual can lead a life of dignity irrespective of class, colour, creed and gender.
The role of media in protection of human rights cannot be undermined. Media is not only a communicator of the public, but also its span extends furnishing facts, analyse and comment on different issues so as to shape the public opinion. The media is an important tool to spread the social, political, economic and other agenda as set by the government or reflect public opinion. As 24×7 news channels are in operation, people have become more aware of their rights. In politically sensitive areas, the media is often restricted to air its news and opinion so as not to disturb the calm demeanour of the public. But often, media has been facing censure for its over-active approach.
Media plays major role in protecting and promoting human rights all over the world. It is essential to make people aware of the need to promote values for the betterment of all. Certain values like peace, non-violence, harmony, cordiality and maintenance and promotion of human rights to all irrespective of caste, colour and creed can be best
156 Human Rights: Indian Perspective
imparted through media. It has often exhibited its ability to shoulder such responsibility and maintain harmony among different groups. It can make people strive continuously towards the protection of their rights and pursue them till they are achieved.
Media can also give publicity to the individuals and organisations, which are engaged in securing human rights. This will encourage as well as motivate others to do the similar work.
Media can inform and educate the people of their rights and suggest ways and means by which they can solve their problems and thus empowering them to protect their rights.
Since media plays the role of communication between the state and the public, it can also play an effective role of making the authorities aware of their duties.
The main aim before the journalists should be to give facts but not in a manner and with the purpose to create sensation and to arouse the sentiments of the people. Projection and language should be decent and civilised.
While reporting such violation media should not get influenced by authorities. It should look deep into the problem and provide solutions. Mere reporting of the facts is not enough. It should give reasons of the problem and the nature of the violations and then give solutions.
Press has a sacred duty to focus human rights violations and then measures for protecting them. The right to freedom of expression is not absolute and unfettered in all circumstances but bound by duty to maintain peace and harmony of the body polity by exercising prudence and restraint in the exercise of right to freedom of speech.
(G.N.Ray, The Role of Media in Protection of Human Rights, see URL).
Non-governmental Organisations and Human Rights
In India, the NGOs play a crucial role in highlighting and working for human rights issues. Infact it is the NGOs that often highlight the role of state as aggressor that violates the basic rights of the citizens. This, in a way, also acts as a check as the state becomes more vigilant in its conduct to ensure basic human rights. The NGOs help in creating awareness about the significance of rights; in getting the state initiate reforms in its policies and actions; and also apprise the marginalised groups such as women, backward sections and minorities about the necessity of human rights upliftment. The six major functions of human rights NGOs include:
Gathering, evaluating and disseminating human rights
Advocating human rights
Lobbying and mobilizing public opinion
Providing legal aid
Providing humanitarian relief
Developing human rights norms.
Institutional Mechanisms to Protect Human Rights 157
In a country like India, where different groups, cultures, traditions and languages exist, it is imperative that the tradition of human rights be upheld so as to live a life of dignity and respect. This also prevents arbitrary arrests and actions by government or its agencies; further, the marginalised groups too stand protected against untoward incidents. In the beginning, the NGOs concentrated primarily on civil liberties issues; they have now come to encompass various issues like economic and social rights; poverty, hunger and malnutrition; environment and ecological issues; women’s and children’s issues and so on. The NGOs have also been fighting against human rights violations in far-flung areas where the armed forces are usually at the centre of controversy. Unfortunately, most of the NGOs do not have a comprehensive approach and many of them are also isolated for their fight against important issues where there are vested interests. NGOs actively pursue human rights issues; create, implement and protect human rights; they play active role in extending legal assistance, literacy and awareness; and help in mobilising voluntary groups to work for legal aid and public interest litigation regarding human rights.
The Human Rights NGOs have major responsibilities in the course of their functioning. Some of them are enumerated as below:
1. Work consistently to improve human rights situation and make delivery of justice more efficient.
2. To help in imbibing and promoting a spirit of unity and integrity.
3. To promote advanced studies and research in the law and human rights issues.
4. To actively propel government and its agencies for reforms wherever necessary.
5. Undertake extensive studies and documentation in human rights issues.
6. Make legal remedies available to one and all for addressing their grievances.
7. Spread the knowledge and promote awareness on human rights in collaboration with schools, colleges and other relevant institutions.
Some of the important NGOs in India working towards this direction are Vigil India Movement (Bangalore); Prayas (New Delhi); Society for Rural Development and Action (Himachal Pradesh) etc. The role of the NGOs is incomparable for they provide legal, moral and intellectual support to these basic issues that concern one and all. It is through their efforts that justice- political, social, economic, cultural, are ensured thus making social justice an important component in our everyday lives (see V.R.Dasgupta, 2001).
12.8 SUMMARY
In this Unit, the learner is apprised of the various institutions that work consistently to uphold the rights of the public. From the Indian Constitution to the ordinary citizen, it becomes the pertinent duty to maintain these rights and help in ensuring them to all. The institutions as pointed out in this Unit are not the only ones working for protection of rights. There are others too who have been engaged in silently working for the rights issues. By no means is the information exhaustive. Therefore, it is necessary for the learner to take an indepth view relating to the subject. No rights are absolute; at the same time, no institution can be taken for granted as they hold their importance in carrying out this gigantic task for the benefit of the mankind. The institutional mechanisms provide us with a legitimate route towards securing our rights and ensure the same for others. Their
158 Human Rights: Indian Perspective role and contribution towards this end is trustworthy and deserves much respect from all
of us.
12.9 TERMINAL QUESTIONS
1. What is the contribution of the National Human Rights Commission in upholding the human rights of the citizens of India?
2. How do the State Human Rights Commissions contribute towards ensuring human rights?
3. Write short notes on the following:
(a) National Commission for Women
(b) National Commission for Minorities
(c) Role of Civil Society in the promotion of human rights.
4. In what way do the NGOs help in securing human rights?
5. Discuss briefly the role of National Commissions for Backward Classes in upholding the human rights.
SUGGESTED READINGS
Bhanwarlal, Harsh., Human Rights Law in India: Protection and Implementation of the Human Rights Act, 1993, Regal Publications, New Delhi, 2008.
Biswal, Tapan., Human Rights, Gender and Environment, Viva Books Private Limited, New Delhi, 2006.
Mishra, Kaushlendra., NGOs in the Human Rights Movement, Navyug Publishers and Distributors, New Delhi, 2008.
Paffenholz,Thania., (ed), Civil Society & Peacebuilding: A Critical Assessment, Lynne Rienner Publishers, Inc, London, 2010.
Ray, Arun., National human Rights Commission of India: Formation, Functioning and Future prospects, Khama Publisher, New Delhi, 1997.
G.N.Ray, The Role of Media in Protection of Human Rights,
http://presscouncil.nic.in/speechpdf/ The%20Role%20of%20Media%20in%20Protection%20of%20Human%20Rights%20Visakhapatnam.pdf) accessed on 30-3-2012.
The National Commission Acts, Universal Law Publishing Co. Pvt. Ltd, 2006.
UNIT 13 GANDHI: THE FIRST CRUSADER OF HUMAN RIGHTS
Structure
13.1 Introduction
Aims and Objectives
13.2 South African Experiences 13.2.1 Gandhi: A Born Democrat 13.2.2 In South Africa
13.3 Conception of Rights
13.4 Satyagraha in South Africa
13.5 Right to Rebel
13.6 Concept of Swaraj and Theory of Satyagraha
13.7 Rights and Duties and Social Service
13.8 Summary
13.9 Terminal Questions
Suggested Readings
13.1 INTRODUCTION
The concept of human rights is as old as the human civilisation. Since human beings started to lead an organised life, the issue of human rights caught the fancy of those in the helm of affairs. All societies and cultures have developed some conception of rights for their members. The struggle for recognition of some basic rights of individual against political, social, economic and cultural oppression, injustice and inequalities has been an integral part of the history of all human societies. The recognition that every individual is entitled to enjoy certain basic rights merely by worth of being born in human species has evolved through this struggle. In the ancient scriptures, there have been references on basic human rights, though not referred by that name. In this context the Indian values regarding human rights, perhaps, have the oldest lineage. The ‘Rigveda’, which is the oldest document, declares that all human beings are equal and they are all brothers. The ‘Atharvaveda’ advocates equal right of all human beings over natural resources like air, food and water, likewise right to happiness (Sarve jana sukhino bhavantu) let all people be happy, right to education, right to practice any religion, right to social security, right to get fair treatment and protection etc., have been accepted and emphasised in various vedic and post-vedic ancient Indian literature and these emphasise the rights.
In the European context, two parallel trends have contributed to the evolution of the concept of human rights. First is the liberalist tradition advocated by philosophers such as Hobbes, Locke, Rousseau and Bentham. They advocated extreme powers for the State, which was often utilised against the individuals. This school of thought was much clearly reflected in French and American Revolutions which had very clear conception of the
160 Human Rights: Indian Perspective
rights that must be assured to human beings if they were to live with security and dignity. Considered as natural rights, these were summed up in the Lockean formula of ‘Life, liberty and property’ and represented the struggle of men against various forms of intrusions and oppressions.
In contrast to this approach, the Marxist concept about human rights puts greater emphasis on group (Social) rights. Marxists believed that the full realisation of individual’s self is possible only within the context of a society. Consequently they gave more importance to the economic and social rights than the individual rights.
The American Declaration of Independence maintains that “All men are created equal that they are endowed with certain unalienable rights, that among these are life, liberty and the pursuit of happiness that to secure these rights, Governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes distinctive of these ends, it is the right of the people to alter or abolish it, and to institute new Government”.
Aims and Objectives
After studying this Unit, you should be able to understand
Gandhi’s contribution to society as the first crusader of human rights;
As to how the Indian struggle for independence was the struggle for human rights;
The very essence of Satyagraha as the notion of human rights.
13.2 SOUTH AFRICAN EXPERIENCES 13.2.1 Gandhi: A Born Democrat
Gandhi had a keen sense of personal rights. He claimed to be a ‘born democrat’ and had a passionate desire for the reign of rights in the world. The entire life and activities of Gandhi were a revelation of his fighting spirit in quest of justice, truth and right. In quest of the rights of man, he struggled against all illegitimate and unjustified social traditions, irrational political conventions, colour prejudices and other barbaric customs and privileges. He was opposed to the ravages of imperialism and foreign exploitation because they compromised the dignity and rights of man. In his actual life and writings one finds the agony and torment of his heart whenever he had to meet a situation that thwarted and crushed the individual and denied him his rights.
13.2.2 In South Africa
From his earliest years, almost instinctively, he accepted human equality. Hence in his political career he always stressed the rights of man. Soon after his return from England, when the Political Agent of Kathiawad insulted him, he wanted to ‘proceed against’ him judicially and could be restrained only by the advice of Pherozeshah Mehta. That was ‘the first shock’ of his life.
In South Africa when he was taken to the court by his employer, he had an unpleasant experience, for the judge ordered him to remove his turban in accordance with the prevalent practice and norms of the court. Every person had to remove his head gear on entering the court room. He refused to do so and left the court in protest as he viewed the order as an insult to an Indian. He defended his action in the local press which raised
First Crusader of Human Rights 161
a heated controversy that gave him some publicity. There does not appear to be any fault of the judge who ordered him to remove his turban. For, Gandhi was entirely a stranger there as he had no case. Possibly his employer took him to the court to make him familiar with the procedure of the courts in South Africa (Malhotra, 2001, p.29). But his deep sense of dignity and rights compelled him to leave the court.
However more humiliating and horrid experiences were in store for him when the young barrister was sent to Pretoria in Transvaal to help his employer’s counsel in the case for which he had been called from India. In terms of his status he set forth with a first class ticket. Dada Abdulla came to the station to see him off. He advised him to get bedding on reaching Maritzburg, the capital of Natal by paying five shillings. But Gandhi did not pay heed to this advice as he was carrying his own bedding. At this station a servant asked him whether he required bedding. On his refusal another official came and asked him to go to the van compartment irrespective of the fact that he had a first class ticket; when a European- on entering the compartment- reported that a black skinned person was traveling in the first class compartment. On his refusal he was thrown out of the compartment followed by his luggage. It was a bitter cold night. In a dark waiting room he shivered in the cold. One thought that haunted him throughout the night was whether to return to his home country in order to avoid such a humiliating treatment in a foreign country or to fight for his rights as a brave person. He decided to fight. Ordinary human beings would have accepted the injustice as a fait accompli and led a peaceful life without telling this incident to others. Extraordinary persons like Gandhi thought this to be unfair and rebelled against it. Satyagraha was born in the mind of Gandhi in that railway station. This was the most momentous decision in Gandhi’s life. A few decades later, in a chat with an American missionary, who asked him about his most creative experience of his life, Gandhi stated that the struggle in his mind in the dark waiting room of Pietermaritzburg was the most revolutionary experience of his life. For, self-respect was his natural trait and it was unmanly for such a person to submit to injustice simply because of the colour of his skin.
More indignities were awaiting him during this journey. At that time there was no direct rail-road link between Durban and Pretoria. So part of the journey had to be covered by coach up to Johannesburg. Racial discrimination was more rigorously observed in Transvaal. Dark skinned passengers were not permitted inside the coach. So Gandhi was given a seat outside on the coach box. In the course of the journey, the leader of the coach asked him to sit on a sack cloth on the footboard as he himself wanted to sit on the coach box to enjoy the fresh air. Nothing could be more humiliating for a proud person to sit at the feet of any person. He refused and so blow after blow from the hefty leader of the coach started falling on him till other passengers intervened and agreed to accommodate him inside the coach (Gandhi, 1927, p.105). On reaching Pretoria, he called a meeting of the Indians living there through a Muslim merchant, Tyeb Sheth, his opponent in the law suit, in order to make them aware of their deplorable condition in a foreign country and explore methods for raising their position. Most of those who attended it were Muslims as there were very few Hindus in Pretoria. The burden of his speech was that in order to raise their status in South Africa, Indians must be aware of their rights. He urged them to form an association to bring their hardship and disabilities to the attention of the authorities.
When Natal legislature tried to disfranchise the Indian, Gandhi drafted a petition against this. The submission of the petition was followed by letters to the editors, Memorial to
162 Human Rights: Indian Perspective
the Natal Premier and a petition to the Governor. All these show high degree of erudition. He appears to have worked hard to justify the claims of his clients. He made full use of the researches of European Indologists and western admirers of democracy and liberty to support the claim of Indians for franchise. He was quite familiar with the writings of Mill, Burke, Bright, Henry Maine, Hunter, Maxmuller, Schopenhaur as well as contemporary bureaucrats and heads of governments who had come in contact with the Indians. His main arguments were;
1. That the Indians were the British subjects and the treatment meted out to them was against the British sense of justice.
2. That the Indians made substantial contribution to the economy and welfare of the colony (Natal).
3. That the Indians were cultured and so can exercise their right to vote judiciously.
13.3 CONCEPTION OF RIGHTS
One of the prime themes in Gandhi’s political philosophy is the conception of right because the entire theory of Satyagraha is based on the notion of the individual’s inalienable right to resist a coercive social and political system. Against the claims of state omni competence, Gandhi puts up the right of the internality of judgement.
He declared in his Ethical Religion that conscience is the voice of God, the final judge of the rightness of every deed and thought. He wrote in 1919 that “there are times when you have to obey a call which is the highest of all, i.e. the voice of conscience, even more, separation from friends, from family, from the state to which you may belong, from all that you have held as dear as life itself. For this obedience is the law of our being” (The Collected Works of Mahatma Gandhi, XV, p.138). Further, in matters of conscience, the law of majority has no place. Repeatedly, in South African courts and subsequently in India, he appealed to a higher court than courts of Justice, the “Court of Conscience” that supersedes all courts. “The human voice can never reach the distance that is covered by the still small voice of conscience. The only tyrant I accept in this world is the still small voice within” (Young India, 02- 03-1922).
His belief in the holiness and sanctity of the inner voice was only a religious way of registering his fidelity to the right of individual conscience to resist despotic power. By his advocacy of the superior binding character of the commands of inner conscience, he has rendered a great service to the appreciation of the concepts of right in the modern world. He regarded the restoration of the rights of the dispossessed as the indispensable condition for the establishment of justice and peace in the world. Without the exercise of legitimate rights, the individual cannot attain the realisation of moral personality. Hence the conception of unconditional obedience to the determinate political or legal superior could have absolutely no place in Gandhi’s thought because the individual has, according to him, a moral right to oppose a law, command, decree or direction that goes against either divine laws or against the canons of conscience. Gandhi, hence, would thoroughly and categorically repudiate the divine right of kings to rule.
13.4 SATYAGRAHA IN SOUTH AFRICA
Gandhi’s advocacy of rights was revealed in the famous Satyagraha in South Africa from September 11, 1906 to January, 1914. He wanted the recognition of the right to equality
First Crusader of Human Rights 163
of the Asiatic races in South Africa. The issues that were involved there referred mostly to civil rights: (i) The first demand of the Indian community was the abolition of the annual tax of three pounds imposed in 1894 on the indentured Indian labourers who desired to settle in the province of Natal at the end of their covenanted term of service. The original plan of the Whites in Natal was to impose an annual tax of 25 per head. But it was of reduced to 3. Gandhi considered this 3 tax as ‘inhuman’ and atrocious (Gandhi, 1927, p. 113). (ii) The second demand was the civil right to unrestricted freedom of movement in the Union territories. (iii) The third demand concerned the legal legitimisation and validation of all non-Christian marriages whose moral and legally binding character was being threatened by a judicial decision of the Cape Colony. The decision of Justice Searle of the Cape Supreme Court delivered on March 4, 1913, invalidated all non-Christian marriages. The Government refused to accede to Gandhi’s request for getting either this decision negated or the law, interpreted by the judge, amended. The other demands were (iv) with regard to the removal of the anti-Asiatic bias in the immigration policy of the Union government and (v) an assurance that the existing laws affecting Indians would be justly administered with due consideration of vested rights wheresoever existing. Thus the basic demands of the Indian community did not primarily refer so much to the political right of participation in the institutional and administrative mechanism of the government as to the civil and personal rights of the citizen.
As a man of the people, Gandhi stood for the civil rights of the lowliest and the humblest. Against the prerogatives of racial ascendancy, he advocated the right to equality of all residents of the country. He was never convinced of the glories of racial imperialism. Hence, even when he believed in the benefits of British rule, he valiantly fought the unfounded dogma of the supremacy of the white man in Africa. Although in South Africa, Gandhi launched Satyagraha for the vindication of the civil rights of Indians, he was opposed to the latter claiming any superiority to the Black peoples.
Gandhi was gentle and humble but he could not tolerate any attack on the political rights of Indians. While his leadership of the Satyagraha in South Africa was based on his fearless advocacy of the cause of civil rights, the Indian theatre witnessed an extension of his activities in quest of political rights. In India, he had to fight the unchallenged sway of an arrogant imperialism. He gave the slogan of non-cooperation in 1920 which became the prelude to the defiant war-slogan of “Quit India”. With eminent courage and devotion, he fought for India’s political rights. His leadership of the movement of Indian nationalist independence from 1920 to 1947 was a momentous struggle for the assertion of the political right of Swaraj.
13.5 RIGHT TO REBEL
In one of his early speeches in Madras, he advocated “the right to rebel” as the indefeasible right of a British citizen. In 1920, he interpreted political right as equivalent to the acquisition of Swaraj. In his famous Trial Speech of 1922, Gandhi condemned the Rowlatt Act of 1919 as designed to rob the people of all real freedom although its declared purpose was only to suppress sedition. He said that the Section 124 A of the Indian Penal Code under which he was being tried was designed to suppress the liberty of the citizen. His emphasis upon the right of freedom of political expression is also brought out in this speech. He says: “Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to live the fullest expression to his disaffection so long as he does not contemplate, promote or incite to
164 Human Rights: Indian Perspective
violence”. In 1928, Gandhi was content with dominion status provided it was granted within one year. But in 1929 he blessed the Congress proposal for Purna Swaraj or complete independence. For the realization of political right, it was essential to cultivate an indomitable will. “If we develop the force of will we shall find that we do not need the force of arms” (Ibid., 29-05-1924).
As an outspoken champion of civil rights, Gandhi- at least indirectly- attempted to get a legal and social recognition of the worth of man as a moral being. Thus Gandhi interpreted the conception of civil right as being vitally connected with the moral conception of the personality of man. Kant confessed that Rousseau had made him aware of the meaningfulness of the feelings and sensibilities of the common man. Similarly, it can be justifiably said about Gandhi that the conception of the rights of the plain forgotten Indian peasant assumed a concrete shape through his efforts. He fought in order that the distressed and disinherited people could become “apostle of life-giving freedom” and could hold aloft the brilliant torch of individual rights.
13.6 CONCEPT OF SWARAJ AND THEORY OF SATYAGRAHA
Concept of Swaraj
Gandhi was the first in Indian history who gave a mass or democratic orientation to the concept of freedom. Political independence in the sense of transfer of power from one set of rulers to another set did not satisfy him. The freedom he sought was not merely the absence of alien bondage. It was something more than that. His perceptive mind could easily diagnose the basic malady of political self-government unaccompanied by economic freedom. It did not require him much intellectual attainment to see that politically free nations were nominally free in the sense that power did not belong to the people. This keen sense of reality led him to enunciate his ideal of Swaraj. As he was interested not in name but in the substance of things, it was only natural that he would prefer the content and not the shell or outward form of political self-rule. His politics was not power-oriented in the current sense of the term, but he knew well enough that power to whom? Who will wield that power? Gandhi did not suffer from equivocation on this point as was the case with many nationalist leaders of his time. The key point of his concept of Swaraj was that power must belong to the people. It was not legal sovereignty that he aspired to, the sovereignty or supreme power that he aspired to; the sovereignty or supreme power that he wanted was for the people at large. The people were not an abstract concept for him. A careful study of his writings would suggest that he meant by the people primarily the toiling people in the fields and factories. As India was (and still is) a predominantly agricultural country he spoke more in terms of the Indian peasants. It is true indeed that he represented peasant India- the real India as Gandhi used to call it- more than anybody else. It was for this toiling and suffering humanity that he wanted freedom-freedom from political subjugation, economic exploitation and social tyranny- and his concept of Swaraj evolved not out of academic theorising but out of his personal encounter with living reality. He understood that constitutional Swaraj- a liberal political concept- would not touch the fringe of the basic maladies that India suffered from. His realistic mind and sensitive soul could see through the inadequacy of upper-class Swaraj- Swaraj of moneyed men and educated classes. That explains why he always insisted on poor man’s or people’s Swaraj.
First Crusader of Human Rights 165 Theory of Satyagraha
As a votary of freedom and dignity of the individual, Gandhi championed throughout his political life the rights of the racially humiliated, colonially subjugated, economically dispossessed and socially depressed humanity. The theory of Satyagraha is based on the notion of the individual’s inalienable right to resist a coercive social and political system. He hoisted the standard of non violent revolt against injustice, bondage and denial of rights. In all his activities a passionate desire for the reign of right is evident. Whether in South Africa, or in India, he championed the cause of individual conscience as against the forcibly imposed dictates of political power. One commentator has aptly remarked: “Gandhi’s philosophy of right is cardinal point in his Philosophy of politics” (Varma, 1959, p.170). As the prophet of Satyagraha, he stood for the inalienable moral right of man to stand against untruth and injustice. But one of the greatest fighters for the assertion and vindication of human rights that he was, he was also a constructive thinker. He stressed the correlation between rights and duties.
13.7 RIGHTS AND DUTIES AND SOCIAL SERVICE
Gandhi thought that rights are the opportunity for self-realisation. They are innate in the sense in which moral values are innate. Vedanta teaches that right to self-realisation accrues through self culture and spiritual self-determination of the reason endowed individual, free, equal, and divine in nature. The way to self realisation is the realisation of one’s spiritual unity with others by serving them and doing one’s duty to them. It is in one’s duty towards the social good that the true source of rights is to be found. This was one of his basic tenets which changed very little with time. Gandhi, who believed in the Gita gospel of selfless action, wrote in 1925: “The true source of rights is duty. If we all discharge our duties, rights will not be far to seek. If leaving duties unperformed we ran after rights, they escape us like a will o’ the wisp. The more we pursue them, the farther will they fly. The same teaching has been embodied by Krishna, in the immortal words: ‘Action alone is thine Leave thou the fruit severely alone.’ Action is duty: fruit is the right” (Ibid., 08-01-1925).
And, “No people have risen who thought only of rights. Only those did so who thought of duties. Out of the performance of duties flow rights, and those that knew and performed their duties came naturally by the rights. .. He who thinks not of the right gets it, and he who thinks of it loses it. That is the rule of conduct which I would like to place before you” (Ibid., 15-01-1925).
While championing the cause of equal right of every man to the necessaries of life, he stressed on the corresponding duty. He wrote in 1931: “Every man has an equal right to the necessaries of life even as birds and beasts have. And since every right carries with it a corresponding duty and the corresponding remedy for resisting any attack upon it, it is merely a matter of finding out the corresponding duties and remedies to vindicate the elementary fundamental equality. The corresponding duty is to labour with my limbs and the corresponding remedy is to non-co operate with him who deprives me of the fruit of my labour” (Ibid., 26-03-1931).
Similarly, he said in 1939: “Rights accrue automatically to him who duly performs his duties. In fact the right to perform one’s duties is the only right that is worth living for and dying for. It covers all legitimate rights. All the rest is grab under one guise or another and contains in it seeds of himsa” (Harijan, 27-05-1939).
166 Human Rights: Indian Perspective
In a cable to H. G. Wells, in reply to his On The Rights of Man, Gandhi wrote: “You will permit me to say that you are on the wrong track. I feel sure that I can draw up a better charter of rights than you have drawn up. But what good will it be? Who will become its guardian? If you mean propaganda or popular education, you have begun at the wrong end. I suggest the right way. Begin with a charter of Duties of Man, and I promise the rights will follow as spring follows winter. I write from experience. As a young man I began my life by seeking to assert my rights, and soon discovered that I had none not even over my wife. So I began by discovering and performing my duty by my wife, my children, my friends, companions and society, and I find today that I have greater rights, perhaps, than any living man I know. If this is too tall a claim, then I say I do not know anyone who possesses greater rights than I” (Ibid., 13-10-1940).
In the same vein he told Julian Huxley, the then Director General of UNESCO, in 1947: “I learnt from my illiterate but wise mother that all rights to be deserved and preserved come from duty well done. Thus the very right to live accrues to us only when we do duty of citizenship of the world. From this very fundamental standpoint perhaps it is easy enough to define the duties of man and woman and correlate every right to some corresponding duty to be first performed. Every other right can be shown to be a usurpation hardly worth fighting for” (Ibid., 08-06-1947).
Emphasis on Social Services
The Gandhian theory of rights lays emphasis on social service rather than on self regarding propensities of the Individual. As Gandhi wrote: “..people who obtain rights as a result of performance of duty, exercise them only for the service of society, never for themselves.”
Gandhi’s position is quite in contrast to that of the Utilitarians for whom the assertion of rights is more fundamental than the performance of duties. For Gandhi, rights are created, not by the State or any other group, but by the individual himself as he acquires and develops fitness for the right by the pursuit of satya and ahimsa. The State does not create rights, it only recognises rights. Individual freedom and social obligation being not incompatible, in Gandhian thought, rights will not require the long arms of the state for their enforcement in the ideal society envisaged by him.
Gandhi’s emphasis on duties as being prior to rights may lend the impression that his outlook was conservative. The conservative view holds that duty is of greater importance and priority than right. The citizen funds his duties as a member of a given section of society. It is his moral obligation to fulfil these duties. In one of Gandhi’s writings on the subject one comes across a statement of like nature. He wrote in 1939 “… rights of true citizenship accrue only to those who serve the state to which they belong.” But was Gandhi truly a conservative? Dr. Bonduraunt’s observations deserve attention. She says: “In traditional Hindu polity, emphasis upon duty is extended to the king. The king, above all others, is obliged to fulfil his kingly duties towards his people, and proper fulfilment of such duties is the sole justification for expecting his subjects to obey him. Gandhi, who would make every man a king, consistently emphasized duties as prior to rights. But the effect of his reasoning was not precisely conservative in nature.” “Rights accrue automatically to him who duly performs his duties”, Gandhi wrote. But these rights, Bondurant argues, are not to be rigidly confined to rank and order on the conservative structuring of society arising out of caste.
First Crusader of Human Rights 167
13.8 SUMMARY
Gandhian rights, fundamentally, are rights to pursue and realise values. The supreme right of human freedom, then, becomes not merely an absence of restraint, the detachment of the individual from all relations and bonds, but freedom to achieve things, made possible only (a) by the overcoming of obstacles and (b) by assuming the obligations of co operative effort. Gandhi’s emphasis on duty as prior to rights can be explained in terms of the social obligation that an individual owes. Other regarding activities or devotion to an ego transcending cause implies service. Service is the outward expression of an obligation that an individual feels for otherselves and for the society as a whole. His concept of Swaraj as personal Swaraj underlies this assumption of the obligation of individuals to co operative effort. This subjective stress in Gandhian thought is evident in all his writings. It was his sincere belief that only reformed individuals could realise freedom, the supreme right, and that reformation from within enables one to stand up against unjust and immoral laws.
13.9 TERMINAL QUESTIONS
1. Do you agree that Gandhi was the first crusader of Human Rights in India?
2. “The very essence of Satyagraha is the notion of the human rights.” Comment.
SUGGESTED READINGS
Andrews, C. F., (ed.), Mahatma Gandhi at Work, George Allen and Unwin, London, 1931
Bandyopadhayaya, Jayantanuja., Social and Political Thought of Gandhi, Allied Publishers, Bombay, 1969
Bhattacharya, Buddhadeva., Evolution of Political Thought of Gandhi, Calcutta Book House, 1969
Dhawan, Gopi Nath., The Political Philosophy of Mahatma Gandhi, Navajivan Publishing House, Ahmedabad, 1962
Gandhi, M.K., An Autobiography or The Story of My Experiments With Truth, Navajivan Publishing House, Ahmedabad, 1927
Harijan, A Journal of Applied Gandhism, 1933-1955, Garland Publishing Inc., New York and London, 1973
Iyer, Raghwan N., The Moral and Political Thought of Mahatma Gandhi, Oxford University Press, Delhi, 1973
Malhotra, S. L., Lawyer to Mahatma, Deep and Deep, New Delhi, 2001
Pyrare Lal., Gandhiji’s Correspondence with the Government, (1944-47), Navajivan Publishing House, Ahmedabad
Sharma, Jai Narain., Power, Politics and Corruption: A Gandhian Solution, Deep and Deep, New Delhi, 2004
168 Human Rights: Indian Perspective The Collected Works of Mahatma Gandhi, Delhi, The Publication Division, Ministry of
Information and Broadcasting, Government of India, 1958-1982
Varma, V.P., The Political Philosophy of Mahatma Gandhi and Sarvodaya, Lakshmi Narain Aggrawal, Agra, 1959
Young India, 1919 to 1931.
Tags: Human Rights : Evolution of the Idea