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FI Choudhury

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FI Choudhury

  1. 1. cover story 31INDIAN CURRENTS 07 - 13 December 2015 31 EVOLVING RIGHTS N atural rights are inalienable and inherent which distinguishes a human being from an animal. Human right although is fairly a modern concept, but the concept of rights can be traced even in Babylonian times. ‘The Cyrus Cylinder’, a clay tablet containing statements of Cyrus the Great is believed to be the first declaration of human rights in history. Cyrus after conquering the city of Babylon in 539 BC freed all slaves. Much later ‘Magna Carta’ (1215) laid the foundation for the modern state propounding that everybody including the Crown was subject to law. Bill of Rights (1789-91) was another important document in the arena of rights that ensured series of personal freedoms to US citizens. The initial impetus of current human rights regime emerged as a reaction to the horror of holocaust and atrocities caused by the World War II which led to the formation of United Nations in 1945 for bolstering global peace. The concept of rights got a new dimension when UN adopted the Universal Declaration of Human Rights (UDHR) on 10th December, 1948. It can be regarded as the modern ‘Magna Carta’ that recognizes inherent human rights. In the beginning of the preamble of UDHR, it says “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world…………” India is a signatory to UDHR. Indian jurisprudence has evolved with many landmark judgments ensuring protection of human rights BY F. I. CHOUDHURY British colonial rule in India ended at midnight of 15th August, 1947. Tilak’s slogan of freedom and Gandhi’s struggle for self-governance had great impact on the freedom movement. Having been freed from subjugation, thirst for freedom loomed larger than hunger in independent India. Constitution of India, the longest constitution in the world came to be drafted. It gave primary importance to human rights and incorporated substance of the inherent human right, proclaimed in the UDHR. In ‘Keshavananda Bharati’ case the Supreme Court observed, “The Universal Declaration of Human Rights may not be a legally binding instrument but it shows how India understood the nature of human rights at the time the Constitution was adopted.” The preamble of the Constitution of India encapsulates the objectives of an egalitarian society free from fear and bias. It defines our fundamental rights and has created Supreme Court of India as the final interpreter with the solemn duty to guard and protect our rights. Its power to protect our fundamental rights against its illegal invasion is often described as the “Cornerstone of the Democratic Edifice”. Article 21 of the constitution ensures that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. This corresponds toArticle 3ofUDHRwhichreads,“Everyonehastheright to life, liberty and security of person”. Supreme Court of India interpreted that the word ‘Life’
  2. 2. cover story 32 INDIAN CURRENTS 07 - 13 December 201532 has been used in Article 21 of the Constitution as a basic human right in the same sense as understood in the Universal Declaration of Human Rights. The jurisprudence continued to evolve. The country witnessed extreme police brutality in a series of incidents in between 1989-90inBiharinwhich80suspectedcriminals were blinded during Police investigation. Popularly known as ‘Bhagalpur Blinding Case’, Supreme Court condemned it as “barbaric act and a crime against mankind” and awarded compensation to the victims. Justice Bhagwati said, “If compensation was not to be granted, Article 21 would be reduced to a nullity, “a mere rope of sand”. Enlarging the scope of ‘right to life’, Supreme Court ruled that the use of third degree method by police in custody is violative of Article 21. It has held that inhuman treatment of the accused in police custody is the gross and blatant violation of Human Rights. A 22-year-old boy of Orissa who was taken in police custody for investigation was found dead later on a railway track. Dealing with the seriousness of the case, Supreme Court struck down the doctrine of ‘sovereign immunity in the arena of public law’ and awarded compensation for contravention of fundamental right to life guaranteed under Article 21 (Nilabati Behera’s case-1993). When Bangladeshi national Hanuffa Khatoon who was gang-raped by the Railway employees atYatriNiwas,HowrahStationin1998,aserious debate arose on a foreign national’s right under public law. Supreme Court observed that UDHR which has the international recognition as the “Moral Code of Conduct”, its principles thereof may have to be read into the domestic jurisprudence, if so needed. While affirming a compensation of Rs. 10 Lacs, Supreme Court held that as a foreign national she could not be subjected to a treatment, which was below the dignity, nor could she be subjected to physical violence by the Government employees who outraged her modesty. In fact Supreme Court in a case has already held that “rape” as an offence which is violative of the Fundamental Right of a person guaranteed under Article 21 of the Constitution. Political groups threatened ‘Chakma refugees’ with dire consequences. Supreme Court came to its rescue and held that State of Arunachal Pradesh was under Constitutional obligation to protect and safeguard the life of ‘Chakma’ refugees who fled Bangladesh due to persecution and cannot be sent back as they may be killed there and that would be amounting to deprive them of their right to life under Article 21. Judicial activism reached its pinnacle when Dalit social-worker, Bhanwari Devi, was brutally gang raped by enraged higher-caste feudal patriarchs of Rajasthan, for her efforts to prevent a child marriage. Confronted with a statutory vacuum to address the issue of sexual harassment at workplace at that relevant time Supreme Court relied on international conventions to promulgate guidelines for protecting inherent rights guaranteed by the Constitution, popularly known as Vishakha Guidelines (1996). It re-affirms the constitutional guarantee of “gender equality” in the workplace for women in India. Article 14 of the Constitution guarantees equality and to achieve this dream it has prohibited discrimination on the basis of caste, religion, sex etc. and ensured equal opportunity in jobs amongst others. This provision corresponds to Article 7 of UDHR which recognizes equality before the law without any discrimination to equal protection of the law as our human right. The recognition of the transgender/ eunuch as third sex by the Supreme Court in 2014 was a milestone in the concept of gender equality. A significant world population dies periodically out of hunger. Reminiscence of starvation deaths in Kalahandi and Koraput districts in Odisha still hounds our memory. It caused global embarrassment for India. It kindled our thought for ‘right to food’. It can guarantee freedom from hunger and access to safe food. Supreme Court interpreted ‘right
  3. 3. cover story 33INDIAN CURRENTS 07 - 13 December 2015 33 to food’ is an implication of the “right to life” enshrined in Article 21 of the Constitution while answering a PIL filed in the wake of starvation deaths despite excess grain stocks in the State of Rajasthan in the year 2001. This judgment re-established the dicta of wherein it was held long ago that right to life includes the right to live with human dignity. Article 25 of UDHR recognizesrighttofoodas inherent human right. It says “Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food.” For long it was not known whether constitutional guarantee extends to prisoners also. A new jurisprudence evolved in ‘Sunil Batra’s case (1978)’ when the court defined that imposition of solitary confinement on a death row convict was illegal. Court even condemn that putting bar fetters to the prisoners would reduce the prisoner from human being to an animal. The views reflect the assurances given inUDHR.Article5ofUDHRsays,“Nooneshall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. While Article 6 ensures that, “Everyone has the right to recognition everywhere as a person before the law”. Maneka Gandhi’s case (1978) established the principle that the procedure established by law to deprive life and personal liberty as contemplated by Article 21 must be right, just and fair but not arbitrary, whimsical or oppressive. This principle was enlarged to hold that speedy trial is a right guaranteed in Article 21 of the Constitution. Recently, Supreme Court commuted death sentences of 15 convicts to life propounding the principle that inordinate delays in deciding their mercy pleas had violated their right to life. Right to speedy trial is now a universally recognized human right. Although no express provision in the constitution protects right to privacy similar to Article 12 of UDHR which protects an individual from arbitrary interference with his privacy, but in a landmark case in Kharak Singh v. State of UP (1963) Supreme Court has held that the ‘domiciliary visits’ is an infringement of the right to privacy and is violative of personal liberty guaranteed under Article 21. In recent times it has been affirmed that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens by Article 21 and a citizen has a right to safeguard his privacy. Rights-based approach demands guaranteed access to information, the movement which led to the enactment of Right to Information Act, 2005, replacing the erstwhile Freedom of information Act, 2002. This right has been recognized as human rights in Article 19 of the UDHR which states that right to seek and receive information is included in freedom of opinionandexpression.SupremeCourtofIndia has interpreted that the right to information is a part of the Right to Freedom of Speech and Expression under the Constitution and has been elevated it to the status of a human right. Supreme Court in its land mark judgment in ParamanandKataravUnionofIndiaestablished that right to medical aid is a fundamental right. It ruled that it is the professional obligation of all doctors, whether government or private, to extend medical aid to the injured immediately topreservelifewithoutwaitinglegalformalities to be complied with by the police. Article 21 of the Constitution casts the obligation on the State to preserve life. No law or State action can intervene to delay the discharge of this paramount obligation of the members of the medical profession. Chief Justice Subba Rao in ‘Golak Nath’ case observed, “Fundamental rights are the modern name for what have been traditionally known as natural rights”. Without rights life would be meaningless. Now it is settled that, any law violative of fundamental right, is void. The promises in the Universal Declaration of Human Rights have been translated into a reality to a large extent by the evolving jurisprudence under the Indian Constitution. (The writer is Advocate, Supreme Court of India.)

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