Institute of Law
Human Rights Jurisprudence Indian Context
(Academic Year 2015-16)
Ms. Nanda Pardhey
Sr. No. Subject Page No.
CHAPTER I - RESEARCH METHODOLOGY
2 CHAPTER II - INTRODUCTION 4
3 CHAPTER III - JURISPRUDENTIAL STUDY 9
4 CHAPTER IV - ANALYSIS ON INDIAN LEGAL
5 CHAPTER V - COMPARITIVE STUDY 18
6 CHAPTER VI - CONCLUSION
7 CHAPTER VI - SUGGESSTIONS/ RECOMMENDATIONS
CHAPTER I: RESEARCH METHODOLOGY
The present project attempts to trace out the historical background of the Concept of Human
Rights in India and to critically evaluate the relevance of existing legal system and framework
in order to contribute in a extensive understanding of the concept. Therefore, the present study is
an attempt to fill up this gap. For the purpose of this study, the many theories of various jurists
are taken for consideration.
As far as methodological part of this study is concerned, the study is based on secondary data
sources. Existing literature, reports and consultation papers of various distinguished authors,
reports of Government of India and other reports have been consulted to attain the objectives of
CHAPTER II: INTRODUCTION
Human rights are a result of a philosophical civil argument that has boiled over for more than
two thousand years inside the European social orders and their pioneer relatives. This contention
has concentrated on a quest for good gauges of political association and conduct that is
autonomous of the contemporary society. As it were, numerous individuals have been unsatisfied
with the idea that what is correct or great is essentially what a specific culture or decision tip top
feels is correct or great at any given time. This unease has prompted a journey for persisting
good objectives that tie social orders and their leaders over the long run and from spot to place.
Furious verbal confrontations boiled over among political thinkers as these issue were contended
through. While a way was cleared by progressive masterminds that prompt contemporary human
rights, a second path was set down in the meantime by the individuals who opposed this bearing.
The development of human rights from the common rights convention did not come without
restriction, as some contended that rights could just from the law of a specific culture and
couldn't originate from any characteristic or inborn source. The pith of this level headed
discussion proceeds with today from seeds sown by past eras of logicians.
The earliest philosophies to human rights might be found in the accepted wisdom of `natural
right' urbanized by classical Greek philosophers, such as Aristotle, but this concept was more
fully developed by Thomas Aquinas in his Summa Theologica1. For several centuries Aquinas'
conception held influence: there were goods or behaviours that were naturally right (or wrong)
because God meant it so. What was naturally right could be established by humans by `right
reason' - thinking properly. Hugo Grotius2 further expanded on this notion in De jure belli et
paci, where he advocated the immutability of what is naturally right and wrong:
Now the Law of Nature is so unalterable, that it cannot be changed even by God himself. For
although the power of God is infinite, yet there are some things, to which it does not
extend.. ...Thus two and two must make four, nor is it possible otherwise; nor, again,
can what is really evil not be evil.3
1Summa Theologi of St. Thomas Aquinas, ST I-II, Q. 3, Art. 2, ad. 2 Hugo Grotius, The Law of War and Peace, ....p.22 3 Ibid
The ethical power of characteristic right was guaranteed in light of the fact that it had divine
origin. As a result, God chose what breaking points ought to be set on the human political action.
However the long haul trouble for this train of political thought lay exactly in its religious
As the reformation got on and ministerial power was taken aback and tested by logic, political
savants contended for new bases of regular right. Thomas Hobbes corresponded to the first
significant hit in 1651 on the heavenly premise of regular right by portraying a State of Nature
in which God did not appear to assume any element. Maybe all the more essentially, be that as it
may, Hobbes moreover made a critical jump from `natural right' to `a regular right'. As such,
there was no more simply a neglected of conduct that was regularly right or wrong; Hobbes
integrated that there could be some case or privilege which was gotten from nature. In Hobbes'
viewpoint, this regular right was one of insurance toward oneself.
Further support of characteristic rights accompanied Immanuel Kant's compositions later in the
seventeenth century that responded to Hobbes' work. In his view, the gathering of people into a
statestructured society came about because of a sound requirement for assurance from one
another's viciousness that would be found in a condition of nature. Then again, the key
prerequisites of profound quality obliged that each one treat an alternate as indicated by
widespread standards. Kant's political precept was gotten from his ethical reasoning, and as
being what is indicated he contended that a state must be sorted out through the burden of, and
compliance to, laws that connected all around; by the by, these laws ought to appreciation the
uniformity, flexibility, and self-rule of the subjects. Along these lines Kant, endorsed that
essential rights were important for common society:
A true system of politics cannot therefore take a single step without first paying tribute to morality. ...The rights of man must be held sacred, however great a sacrifice the ruling power must make4
4 Immanuel Kant, "Perpetual Peace," in Hans Reiss (ed.), Kant: Political Writings, 2nd.ed., Cambridge: Cambridge
University Press, 1991, p.125.
Consequently, the historical backdrop of political rationality has been one of a few hundreds of
years of open deliberation. The offspring of common rights savants, human rights, now hold an
effective place in contemporary political awareness. Notwithstanding, not one or the other
dominant faith in, nor even a agreement of backing for human rights don't answer the concerns
raised by the prior masterminds - are rights really the result of a specific vision and laws of a
general public? Then again, are human rights so intrinsic in humanness that their birthplaces and
establishments are incontestable?
A further trouble, with significant ramifications, that human rights speculations need to succeed
is their rising up out of these Western political customs. Not just are they a result of European
characteristic rights, however the specific rights that are seen as `natural' have been significantly
molded by the progressivism that developed in the nineteenth and twentieth hundreds of years.
With human rights, the logical structure of the regular rights custom now serves as a vehicle for
the estimations of Western progressivism.
A simple and compelling feedback is that human rights can't be general. In their fundamental
idea they are a Western creation, based on the European custom that people are distinct from
their general public. Anyway one may address whether these rights can apply to collectivist or
communitarian social orders that view the single person as a unified component of the entire
society. Westerners, and numerous others, now put a high esteem on each singular human;
however this is not a quality ruling that is all comprehensive. There is substantive opposition on
the level of, or even the necessity for, any insurance of people against their society.
Notwithstanding this issue with the idea itself, there are solid complaints to the way in which
human rights have been conceptualized. Numerous arrangements of human rights read like
particulars for liberal majority rule government. An assortment of conventional social orders can
be found in the world that work amicably, however are not focused around equity without taking
into consideration general suffrage.
A question that will repeat in later exchanges is whether the `human rights' pushed today are
truly social liberties that relate to a specific - liberal - origination of society. To a vast degree, the
determination of this issue relies on a definitive objective of human rights. On the off chance that
human rights are truly surrogate progressivism, then it will be alongside difficult to contend their
intrinsic power over contending political qualities. In place for human rights to appreciate
general authenticity they must have a premise that survives charges of ideological government.
Human rights must have an all around worthy premise with the goal there should be any
significant measure of consistence.