MODULE: Human Rights – Meaning, Defination and Scope

Component I(A) - Personal Details:

Role Name Affiliation Principal Investigator Prof. (Dr.) Ranbir Singh Vice Chancellor,

National Law University, Delhi Co-Principal Investigator

Prof. (Dr.) G.S.Bajpai Registrar, National Law University, Delhi

Paper Coordinator Prof. (Dr.) Arvind Tiwari Dean, School of Law, Rights and Constitutional Governance, Tata Institute of Social Sciences (TISS)

Content Writer / Author Prof. (Dr.) Arvind Tiwari Dean, School of Law, Rights and Constitutional Governance, Tata Institute of Social Sciences (TISS)

Content Reviewer Prof.(Dr) P. Madhava Soma Sundaram

Professor & Head Department of Criminology & Criminal Justice, Manonmaniam Sundaranar University, Tirunelveli-627012. TN

Component I(B) - Description of Module:

Subject Criminology Paper Criminal Justice and Human Rights

Module title Human Rights – Meaning, Defination and Scope

Module ID

Learning Objectives • To Understand The Concept Of Human Rights • To Understand Definition Of Human Rights • To Highlight Human Rights Debates And Approaches • To Describe Normative Structure Of Human Rights -

International And Domestic Law

Key words Concept Of Human Rights, Definition Of Human Rights, Historical Background, Normative Structure, International and Domestic Law

Structure

1. Introduction 2. The Concept Of Human Rights 3. What Are Human Rights? 4. Definition Of Human Rights 5. Universality Of Human Rights 6. Human Rights Debates And Approaches 7. Why Are Human Rights Important? 8. Historical Background 9. Normative Structure of Human Rights - International And Domestic Law 10. Summary

INTRODUCTION

The value system manifested in the idea of human rights is not necessarily modern or an imported concept from west; it is not something alien to our culture but found in all major cultures and religions in India and abroad. Human life, dignity, freedom, equality and property were posted by moral commandments. From the Vedic literature we have evidence highlighting the duties of the King and rights of the citizens. The duties were focused to achieve welfare, equity and justice by maintaining human dignity.1 In this vast geography called India, there is no language, culture, religion or practice, which allows humans to deal with another human, ‘inhumanely’. Any such practice, if practiced, does not have a sanction of the culture or religion and is practiced based on the mis-interpretation of the norms/practice.

The Concept of Human Rights Justice M. Rama Jois (1997)2 stated, “Bharatiya values regarding human rights perhaps have the oldest pedigree. The Rigveda, which is regarded as the oldest document, declares that all human beings are equal and they are all brothers. According to the Atharvanaveda, all human beings have equal right over food and water (natural resources). The Vedas including Upanishads (Shruti) were the primordial source of 'Dharma', a compendious term for all human rights and duties, the observance of which was regarded as essential for securing peace and happiness to individual as well as society. The 'Smritis' and the 'Puranas' were collections of the rules of Dharma including civil rights and criminal liabilities (Vyavahara Dharma) as also Raja Dharma (Constitutional Law) which were developed on the basis of fundamental ideals incorporated in the Vedas. There were also several other authoritative works on Raja Dharma, the most important of them were the Kamandaka, Sukraniti and Kautilya's Arthasastra. All of them were intended for securing happiness to all.”

The role of 'Dharma' has been expounded by the Supreme Court of India in its judgment in the case of A.S. Narayana Dixitulu vs. State of Andhra Pradesh [1996 (9) S.C.C. 548]. Justice Sri K. Ramaswamy after referring to a plethora of literature on the meaning of 'Dharma stated: “The word Dharma denotes upholding, supporting, nourishing that which upholds, nourishes or supports the stability of the society, maintaining social order and general well being and progress of mankind: Whatever conduces to the fulfillment of this object is Dharma. Dharms is that which approves to oneself or good consciousness or springs from due deliberation for one's own happiness and also for welfare of all beings free from fear, desire, disease, cherishing good feelings and sense of brotherhood”. (Paras 78-79).

Thus, all rules, which are consistent with the fundamental principle propounded in the Vedas, which are intended to secure happiness to all, constitute 'Dharma'. These include all basic human rights. Further, an analysis of all the rules of 'Dharma' would show that, valuable human rights had been identified and recognised in Bharat from times immemorial and duty was cast on the State as also on specified individuals to protect such human rights. It also shows that these values included several human rights now incorporated in the Universal Declaration of Human Rights, and also in the various Fundamental Rights incorporated in Part III of the Constitution of India. This aspect is pointed out by the Supreme Court of India in the case of Maneka Gandhi vs. Union of India [1978 (1) S.C.C. 248] thus:

“These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent”. (p-277)

The highest ideal of human life is:

1 See address by Justice R.Rajendra Babu, Chairperson, National Human Rights Commission, India at Human Rights Day on December 10,2007, available at http: / /www.nhrc.nic.in 2 Justice M. Rama Jois: Human Rights and Human Values. 1997, New Delhi: NCTE Monograph Series.

That is, let all people be happy.3 WHAT ARE HUMAN RIGHTS?

The concept of human rights has two basic meanings. The first refers to the inherent and inalienable rights due to man/woman simply by virtue of his/her existence as a human being. These are moral ights, and they aim at ensuring his/her dignity as a human being. The second sense is that of legal rights which are established through the law-creating processes of societies, both national and international. It is generally believed that the state is the guarantor and protector of human rights. Human rights, as the term is most commonly used, are the rights which every human being is entitled to enjoy and to have protected. The underlying idea of such rights - fundamental principles that should be respected in the treatment of all men, women and children -exists in some forms in all cultures and societies.

Human rights are not the gift or bounty of any political superior. The laws are meant to reaffirm and recognize human rights and to provide mechanisms for their enforcement. The upholding of rights is essential for maintaining human dignity. Louis Henkin regarded rights as 'claims' rather than appeals to charity. Ronald Dworkin regards them as 'trumps' that set limits on state action whenever it encroached upon individual liberty. Jack Donnely pointed out that human rights are the new standard of civilization. 'All human rights for all' is the goal of the century and the aim is to ensure that human rights are universally accepted and respected.4 The seven essential freedoms are:

· Freedom from discrimination - by gender, race, ethnicity, national origin or religion;

· Freedom from want - to enjoy a decent standard of living;

Freedom to develop and realize one's human potential: · Freedom from fear - of threats to personal security, from torture, arbitrary arrest and other violent acts;

· Freedom from injustice and violations of the rule of law;

· Freedom of thought and speech and to participate in decision-making and form associations; and

· Freedom from decent work without exploitation.

Human rights are indivisible, inter-dependent and inter-related having a clear linkage with human development; and both share a common vision with a common purpose. The emphasis on human dignity is laid in the Charter of the United Nations (UN Charter), Universal Declaration of Human Rights (UDHR) and several international covenants. Same is the emphasis in the Constitution of India which assures dignity of the individual as a core value in its Preamble. The Constitution of India was drafted nearly at the same time as the UDHR and contains similar provisions. Part-Ill of the Constitution containing the fundamental rights correspond to Articles 21 of the UDHR and the Directive Principles of State Policy in Part- IV of the Constitution correspond to Articles 22-28 of the UDHR. The International Convent on Civil and Political Rights (ICCPR) and International Convent on Economic, Social and Cultural Rights (ICESCR), both of 1966 5 are a further elaboration of these rights.

3 Ibid 4 See Justice J.S.Verma (2002): Second Justice M. Hidayatullah Memorial Lecture on "Protecting Human Rights Through Judicial Process on December 21, 2002 at Bhartiya Vidhyapeeth,available at www.nhrc.nic.in (accessed on 27 January 2009) 5 Amended vide Protection of Human Rights (Amendment) Act, 2006 (No.43 of 2006) as (and such other covenant or convention adopted by the General Assembly of the United Nations as the Central Government may, by notification, specify)

1.2 Definition Of Human Rights

According to Section 2(d) of the Protection of Human Rights Act (PHRA), 1993, human rights are defined as under: Human rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International covenants and enforcement by courts in India.

The words "International Covenants" occurring in this definition mean, as per Section 2(f) of the Act, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the UN General Assembly on 16th December 1963 . It is well known that these two Covenants were adopted by the UN General Assembly with a view to provide legal enforceability to various rights embodied in the Universal Declaration on Human Rights adopted by the UN General Assembly on 10th December 1948. It is therefore apparent that the Parliament, while enacting the Act, wanted to protect not only fundamental rights enshrined in the Constitution but also civil, political, economic, social and cultural rights embodied in the two covenants to the extent that they were enforceable through law courts and hence treats all of them as "Human Rights". This may indicate that the definition is comprehensive and would include all rights that may be necessary to make life meaningful, complete and worth living. It also indicates that liberty, equality and dignity are basic human rights necessary to make life meaningful and complete.6

UNIVERSALITY OF HUMAN RIGHTS

The conventional wisdom has been that human rights are indivisible, meaning that respect for civil and political rights cannot be divorced from the enjoyment of economic, social and cultural Rights. Expressed the other way round, authentic economic and social development cannot exist without the political freedom to participate in that process, including the freedom to dissent.7

Vienna Declaration, 1993 reaffirmed the universality of human rights. "The universal nature of these rights is beyond question,' says the final Declaration. The entire spectrum of human rights was endorsed without division. 'All human rights are universal, indivisible, and interdependent and interrelated' the Declaration says. Human rights were reaffirmed as including both civil and political rights and the broader range of economic, social and cultural rights, as well as the right to development. This full conception recognizes, in the words of the Final Declaration, that 'the human person is the centre subject of development.'

Universality of human rights is the ideological basis of the development perspective. Recognizing the primacy of individual rights and entitlements, it maintains that the State has ultimate responsibility to build a social, economic and political environment in which all human beings, irrespective of their age, class, gender, caste, race, ethnicity, legal and political status, are able to fully enjoy their rights. Hence, it demands an interventionist state and an active civil society willing to intervene in situations of injustice and violation of rights. The market and the private sector have responsibility in defending and honouring the rights of the people. Grassroots organizations, peoples' movements and human rights activists lead its current thinking and practice.8

6 Justice Gulab Gupta, Our own Human Rights. (Bhopal: M.P.Human Rights Commission , 2001) at p.28 7 Reoch Richard (eel.) Human Rights: The New Consensus, (London: Regency Press, 1993) at p.11 8 For details see Harsh Mander & others, Good Governance: Resource Book ( Bangalore: Books for Change, 2004) at p.19

1.4 HUMAN RIGHTS DEBATES AND APPROACHES

How are human rights defined? The traditional view limits them to civil and political rights. Included among these are the right to life, liberty and security; the right not to be discriminated against on the basis of race, colour, sex, language, religion, social class or political opinion; the right to vote, freedom of speech and freedom of press; the right to be free from arbitrary invasion of privacy, family or home; and legal rights such as the right to due process of law and the presumption of innocence until proven guilty.

Increasingly, however, this traditional view is being challenged. Some say that it is too limited in scope and that a more multi-dimensional and holistic approach must be taken. Thus to basic civil and political rights are added crucial social, economic and cultural rights, including the right to an adequate standard of living, the right to education, the right to work and to equal pay for equal work, and the right of minorities to enjoy their own culture, religion and language. Of particular importance to this view is the protection and advancement of the rights of disadvantaged and minority groups (such as women, children and indigenous peoples). The United Nations (UN) has adopted this holistic approach in determining what human rights are, and the international community has repeatedly affirmed the interdependence of both sets of rights.9

What is the best way to ensure the progressive realization of human rights? Progressive realization of rights indicates that all human rights are fundamental in the governance in the country and the State is supposed to facilitate realization of these rights through appropriate legislative measures. One way is the "violations approach," whereby human rights are closely monitored to publicize abuses and hold States accountable for upholding the law and implementing their international human rights commitments. The second way, which can often complement the first, emphasizes a comprehensive view of human rights, stressing both the protection and promotion of rights. Thus, while ensuring that the rule and enforcement of law are crucial, so too are adopting measures that enable people to exercise their rights under the law. For example, promoting women's rights means not only changing and enforcing legal codes on gender equality and property rights, but also increasing women's access to para-legal services and local land and property title registration services. Sustainable human development is consistent with such a comprehensive approach.10

1.5 WHY ARE HUMAN RIGHTS IMPORTANT?

Human rights are important because they recognize that each person is special with his / her own individual talents and abilities and that no one is inferior or superior to another. At the heart of the idea of human rights is the notion that all people are born free and equal. Everyone is entitled to live with dignity and no one, including the State, community, family and society, has any right to discriminate or treat anyone unfairly or unjustly. The international system of human rights and the Indian Constitution insist that it is the duty of the State to promote respect for all the human rights of all people equally.11

HISTORICAL BACKGROUND

(a) The English Experience The origins of the contemporary conception of human rights can be traced from the period of Renaissance and later of the Enlightenment of which humanism may be said to be the heart and soul. The English, American and French Revolutions in their own ways contributed towards the development of Democracy in which certain rights were regarded paramount in protecting individuals from the State. The Magna Carta of 1215 was associated with the liberation of man while the Bill of Rights of 1689 was directed towards the protection of individual rights. The Glorious Revolution of 1688 provided a precedent that Rulers could be removed by popular will, if they failed to observe the requirements of constitutional legitimacy. 9 UNDP, Integrating Human Rights with Sustainable Human Development - A UNDP Policy (UNDP,1998) at p.1 10 Ibid at p. 2 11 Commonwealth Human Rights Initiative, Human Rights Commissions - A Citizen' Handbook (New Delhi: CHRI, 2004) p.4, available at http: / /www.humanrightsinitiative.org/publications/hrc/hrc handbook.pdf

(b) The American Experience The rights of man found clear and felicitous expression in the American Declaration of Independence (1776), which was drafted by Thomas Jefferson:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator 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, desiring their just powers from the consent of the governed. That whenever any form of Government becomes destructive of these ends, it is the right of the people to alter or abolish it.

The Bill of Rights of 1791 adopted by the United States contained a list of guaranteed individual rights.

(c) The French Experience Although the French Revolution and the American Struggle for Independence had many common features, they differed in one crucial aspect. Whereas the rebellious Colonies had simply sought to establish themselves as an independent sovereign nation; the French revolutionaries were concerned with the demolition of an old, absolutist system of Government and the establishment of a new democratic order. This, of course, posed the same question of legitimacy, which had been raised by the English Revolution a century earlier when the English had rid themselves from their monarch by enforced abdication. The theoretical solution to this problem identified by the French, taking the lead from American nations of popular legitimacy, was that of self-determination. The Central proposition of this concept was that the sovereignty of a nation lay with its people, and any Government which was not responsive to its citizens demands could be changed by expression of the popular will. The French Declaration of the Rights of Man and Citizen (1789) pronounced, "true happiness is to be found in individual liberty which is the product of the natural, inalienable and sacred rights of man". Thus, while the Declaration states that certain individual rights are protected—the right to due process, the presumption of innocence, the freedom to hold opinions and religious belief, and the freedom to communicate ideas and opinions—it prefaces these with a clear liberation philosophy. Article 2 of the Declaration provides that the aim of every political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, safety and resistance to oppression.

The history of advancement of human society over the Nineteenth Century reveals that the rights are by nature inherent, universal and inalienable, the protection of rights is best afforded within a democratic framework, and the limits of the exercise of rights could be determined or abrogating only by law.

(d) Bolshevik Revolution in Russia (1917) Since the Nineteenth Century, the Czar of Russia was ruling with ruthless authority. In 1917, a general strike was called and the Army refused to fire on the strikers. In this way, full revolt broke out, Czar Nicholas was abdicated and Russia came under the rule of Bolsheviks. Lenin emerged as a strong man of Russia and he restored the fundamental rights of the citizens particularly the rights of working class(es) and the proletariat.

(e) Industrial Revolution (1930) As a result of industrial progress, England was turned into a manufacturing country. However, the conditions of workers employed in the factories were very deplorable. Their basic rights were being ignored and in 1930, the Government enacted Industrial Laws and ensured human rights to work, to secure proper wages and suitable working conditions.

1.6 NORMATIVE STRUCTURE OF HUMAN RIGHTS - INTERNATIONAL AND DOMESTIC LAW

India had representatives in the drafting committee of the UDHR and is bound by the provisions of the two

International Covenants viz. International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). The Constitution of India guarantees almost the entire gamut of civil and political rights. Through Chapter IV of the Indian Constitution that deals with the Directive Principles of State Policy, the Government is mandated to promote a variety of social and economic rights that would lead to an equitable social order and betterment of the quality of life of all sections of society. The rights or obligations, which flow from the International Covenants to which India is a signatory, can have meaning and substance only if they are included in the Constitution or other domestic laws. In this context, the format of Indian Constitution in respect of human rights is remarkable as it has sought to achieve a delicate balance between what has been termed as civil and political rights, on the one hand, and social, economic and cultural rights on the other. The Constitution-makers believed in giving equal importance to the two sets of rights as a cardinal tenet of the philosophy underlying it. While the civil and political rights are made fundamental and judicially enforceable even though subject to reasonable restrictions, the economic and social rights are also made basic to the governance of the country and have to be progressively realized through administrative action and legislative acts. Charter of the United Nations.

ENFORCEABLE HUMAN RIGHTS IN THE CONSTITUTION AND LAW

It is said that a Constitution is basically a people's covenant, their charter of freedom and the blueprint for their future. As it is, the Indian Constitution is envisaged to be an instrument for economic growth and social change. The achievement of social and economic democracy, as much as political democracy, has been one of the cardinal concerns of the Indian Constitution. The fundamental rights and directive principles of state policy are key elements of the overriding concern. Dr. B. R. Amendkar, in his concluding address, stated as follows in the Constituent Assembly:

"Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorced one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the same supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things."12

Salient provisions of fundamental rights and other legislations are as given below: CONSTITUTION OF INDIA Art. 14 Equality before laws Art. 17 Abolition of untouchability Art.19 Fundamental freedoms Art.20(l) Protection against conviction / enhanced punishment under ex post facto law Art.20(2) Protection against double jeopardy Art.20(3) Protection against self-incrimination Art.21 Protection of life and personal liberty Art.22 Right against arbitrary or illegal arrest Art.23(l) Abolition of bonded labour Art.32 & 226 Right to remedies for enforcement of human rights Art.46 Promotion of interests of weaker sections Art.39A Free legal aid to the poor

12 Report on Fifty years of Indian Parliamentary Democracy published (New Delhi: Lok Sabha Secretariat, 1997) at p. 3

CRIMINAL PROCEDURE CODE

Sec.57,41/151,46,49 Right against arbitrary or illegal arrest Sec.50 Right to be released on bail Sec.47,51,100 Right against arbitrary or unreasonable searches and seizure Sec.54,162,164 & 176 Protection against cruel or inhuman treatmentduring investigation Sec.53 & 54 Detainees should have the right to a medical examination Sec.160 Women and children should not be taken to police stations for purposes of investigation Sec.300 Protection against double jeopardy Sec.161 Protection against self-incrimination

INDIAN EVIDENCE ACT

Sec.24,25 & 26 Protection against cruel or inhuman treatment during investigation Sec. 101 to 104 Right to benefit of doubt Sec.ll3-A,113-B & 114-A Protection of women against certain crimes

INDIAN PENAL CODE (IPC)

Sec.330 & 331 Protection against cruel or inhuman treatment during investigation Sec.376 & 304-B Protection of women against certain crimes

CODE OF CONDUCT FOR THE POLICE

Clause 1,3 & 4 Protection of Human Rights Clause 7 Code of Behaviour for Police Officers Above all, the Constitution clearly states that the State shall not make any law which takes away or abridges the rights conferred and that any law made in contravention of the clause, shall, to the extent of contravention, be void.

DIRECTIVE PRINCIPLES OF STATE POLICY AND THE PRACTICE OF WELFARE STATE MODEL

The Directive Principles of State Policy are essentially in the nature of certain directions to the state while making laws. The Constitution provides that the directive principles are not enforceable by any court but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in the making of the laws. Essentially, the directive principles enshrine the ideal of social and economic democracy and are humanitarian in social precepts which aim at the realization of a welfare state. In crux, the directive principles are intended to ensure the dignity of human life and pursuit of happiness. In this regard, several legislative measures have been taken both by Parliament and State Legislatures to secure these objectives.

At one stage the judicial thinking was that fundamental rights had primacy over directive principles. Subsequent judicial thinking was that fundamental and directive principles complement each other and together they form the core and conscience of our Constitution. The present judicial trend is that in determining the reasonableness of restrictions imposed on the fundamental rights the court can take into consideration the relevant directive principle. A seven judge Bench of the Supreme Court by majority in the case of State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat13 held that "judging reasonability of restrictions imposed on fundamental rights, relevant consideration are not only those as stated in Article 19

13 2005(8) SCC 534

itself or in Part III; Directive principles stated in Part IV are also relevant - Implementation of directive principles in within the expression 'restriction in the interest of general public' in Article 19(6)-A restriction placed on any fundamental right, aimed at securing one or more of directive principles will be held as reasonable, and hence intra vires, subject to two restrictions: (1) that it does not run in clear conflict with the fundamental right, and (2) it has been enacted within the legislative competence of enacting legislature under Part XI chapter I"

In the words of Soli Sorabjee, directive principles, in substance, article the goals which a truly welfare state aims to achieve. They are intended to ensure distributive justice for the removal of inequalities and disabilities and to achieve a fair division of wealth amongst members of the society. Directive principles comprise of social and economic rights such as right to health, the right to shelter, right to living wage, right to food, right to work, protection and improvement of environment and safeguarding of forests and wild life. Our Supreme Court has, by judicial craftsmanship, incorporated some directive principles in fundamental rights and thus expanded their scope and ambit.14

A striking instance of expansive judicial interpretation is the Supreme Court's decision in Francis Coralie's case.15 The Court ruled that the expression "life" in Article 21 does not connote merely physical or animal existence but embraces something more. It further opined: "We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head".

Based on this expansive interpretation the Supreme Court has appreciably contributed to environmental protection. It has ruled that the right to live with human dignity encompasses within its ambit, the protection and preservation of an environment free from pollution of air and water. It has ruled that hygienic environment is an integral facet of right to healthy life and accordingly right to health and sanitation fall within the ambit of Article 21.

For example:

(i) The right to compulsory primary education which is referred to in Art. 13(2)(a) of the ICESCR (J.P. Unikrishanan vs. State o/A.P.)16

(ii) The right to health which referred to in Art.12 (1) (a) of the ICESCR (State of Punjab vs. Mohinder Singh Chawla)17

(iii) The right to shelter which is referred to in Art.ll(l) of the ICESCR (U.P. Awas Avam Vikas Parishad vs. Friends Coperative Housing Society Ltd)18

(iv) The right to food which is again referred to in Art. 11 (1) of the ICESCR (Madhu Kishwar vs. State of Bihar)19

(v) The right equal pay for equal work which is referred on in Art. 7 (a)(1) of the ICESCR (Randhir vs. Union of Indians,20

(vi) Right to legal aid (Madhav vs State of Maharashtra)21

14 Sorabjee, Soli, 'Indian Democracy - Economic, Social and Cultural Rights', journal of National Human Rights Commission, India, Vol.5,2006, at p. 8 15 Francis Coralie Mullin vs, Union Territory of Delhi & others AIR 1981, SC 746:1981(1) Sec 608:1981(2)SCR 516. 16 AIR 1993 SC 2178 17 AIR 1997 SC 1225 18AIR 1996 SC 114 19 1996(5) SCC 125 20 AIR 1982 SC 879 21 AIR 1978 SC 1548

The National Commission to Review the Working of the Constitution (NCRWC)22 in its report recommended that certain socio-economic rights be included in Part III of the Constitution as fundamental rights. For example, every child shall have the right to care and assistance in basic needs and protection from all forms of neglect, harm and exploitation. The NCRWC recommended that the following rights to be incorporated in the fundamental rights part namely, every person shall have the right (a) to safe drinking water; (b) to an environment that is not harmful to one's health or well-being; and (c) to have the environment protected, for the benefit of present and future generations so as to (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

Two directive principles need special attention. The first is Article 39(b) which provides that the State should direct its policy towards securing that the ownership and control of material resources of the community are so distributed as best to subserve the common good. Next is Article 39(c) which mandates that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. These, along with other directive principles, make it clear that social justice which is reflected in the preamble to the Indian Constitution is the signature tune of our Constitution.23

The National Commission to Review the Working of Constitution headed by Mr. Justice M. N. Venkatachaliah, Former Chief Justice of India and Chairperson, NHRC, in its report submitted to the Government of India in March 2002 recommended the establishment of a body of high status which first reviews the state of the level of implementation of the directive principles, in particular (i) The Right to Work, (ii) The Right to Health, (iii) The Right to Food, Clothing and Shelter, (iv) Right to Education up to and beyond the 14th year, and (v) The Right to Culture. The report also enumerated various steps to be taken for ensuring that the Directive Principles of State Policy are realized more effectively.24

1.9 FUNDAMENTAL DUTIES

The proliferation of rights and dilution of corresponding duties has been a cause for concern. One response was the Forty Second Constitutional Amendment which incorporated certain fundamental duties of citizens in Article 51 - A of the Constitution which are:25

• Conformity to the Constitution, its ideals and institutions,

• Respect for the national flag and the national anthem;

• Cherishing ideals of freedom, fighters; • Protection of sovereignty, unity and integrity of the country;

• Defense of the country and performance of national service , when called for;

• Harmony amongst people, cutting across religious, linguistic and regional diversities and upholding the dignity women;

• Preservation of heritage and composite culture;

• Protection of environment;

• Development of scientific temper;

22See Report (3 volumes) of the National Commission to Review the Working of the Constitution, March 2002 23 Sorabji, Soli, 'Indian Democracy - Economic, Social and Cultural Rights', Journal of the National Human Rights Commission, India, Vol 5, 2006, at pp. 7-10 24 Adapted from Report on Fifty years of Indian Parliamentary Democracy published (New Delhi: Lok Sabha Secretariat, 1997), at p. 19 25 Sorabji, Soli, 'Rights have Duties' The Indian Express, Mumbai, 27 September 2004 at p. 8

■ Safeguarding public property and abjuring violence; and

■ Striving for all round excellence, individually and collectively.

At present, when fanaticism and bigotry stalk our land, utmost importance should be given to the fundamental duties. Intolerance stems from an invincible assumption of the wisdom and infallibility of one's beliefs and the mind set which regards any questioning of these cherished beliefs as pernicious and subversive. We talk eloquently about freedom of speech and expression but freedom for the thought we hate is noticeably absent. Freedom to dissent which is a pre-requisite of democracy is under siege. Religious strife and communal disharmony are generated by propagating stereotypes and prejudices. Ancient historical events are resurrected for that purpose.

Our people are steeped in superstition. Irrational beliefs, practices and customs are pervasive. Priests, pujaris and soothsayers thrive on superstition. Rational dispassionate thinking and the spirit of inquiry has taken a back seat. These phenomena need to be countered by implementing the fundamental duty listed in Article 51-A(e) of developing a scientific temper and the spirit of inquiry and reform.

It is debatable whether fundamental duties by themselves are justiciable and can be directly enforced in a court of law. The Supreme Court may, by innovative interpretation, make certain duties partly justiciable by infusing them into directive principles and gradually incorporating them in fundamental rights. But that is "a perpetual possibility only in a world of speculation."

What is urgently needed is the creation of a citizenry conscious of their rights and duties. Measures must be adopted by the Union and state governments to promote an awareness of constitutional rights and responsibilities among citizens and to sensitize them to the values embodied in our constitution. The Justice Verma Committee on Fundamental Duties of Citizens has rightly observed that "The desired enforceability can be better achieved by providing not merely for legal sanctions but also combining it with social sanctions and to facilitate the performance of the task through exemplary role models. The real task, therefore, is to devise methods which are a combination of these aspects to ensure a ready acceptance of the programme by the general citizenry and the youth, in particular."

Summary

Hon'ble Supreme court in a landmark judgement MRS. SANTOSH SINGH .vs.UNION OF INDIA & ANR26

has observed that The purpose of education is to engender in the young, a spirit of enquiry, a desire for knowledge and a sense of values. Among those values are the fundamental values on which our constitutional core is founded: liberty, equality and the dignity of each individual. The purpose of education also includes the creation of responsible and informed citizens conscious both of their rights and of their duties to others.

What is now needed for protection and promotion of human rights is a concerted effort to create a nation-wide awareness of the need for systematic reforms to ensure good quality governance. The reforms may include decentralization of power to grass-roots levels planning and polity building from the base, disciplining our political parties and politicians, streamlining criminal justice administration aiming to adhere to rule of law and participation of citizens in day-to-day governance. Last but not least, the important task for protection and promotion of human rights would be educating the people regarding their rights and obligations.

26See Ministry of Human Resource Development - Department of Education, Report on Fundamental Duties of Citizens (New Delhi: Government of India, 1999) at p. 46