ORIGIN AND DEVELOPMENT - Shodhgangashodhganga.inflibnet.ac.in/bitstream/10603/6598/7/07_chapter 2.pdf · kinhip, his parents, his wife, his children and on the other, hc is linkcd

CHAPTER II

ORIGIN AND DEVELOPMENT

OF HUMAN RIGHTS

Origin and Development of Human Rights 12

2.1 Introduction

In this chapter an attempt is made to analysc the origin arld

developmen1 of human rights which i s of' great importance today.

Man as a member. of human society has some rights in order to survivc

as well as to make his life heucr. All human rights derive tiom thc digniiy

and worth inhcrent in thc human person and that thc human person is thc

ccntral subject o f IIumar; Rights and fundamental freedom. In sirnplc terms,

whatever adds to the dignified and frce existence of a human hcing should

he rcgarded as Human Right1. 1':volution and crystallization of the conccpl

look a long time. In recorded history and ancient scriptures, thcre havc hccn

relcrcnces to basic Clunlan liights, though they wcre not referred to by that

namc. According to the Atharva Vcda:

"Man is not an i t~dividual. He is a social organism. Ciod Jovcs him

only, who scrvcs othcr hcings; men, cattlc and othcr creatures. His glory lies

in being a memhcr oT a big family. O n thc one hand, man is bound by blood,

kinhip, his parents, his wife, his children and on the other, hc is linkcd with

cvery individual of society whether ncar or Tar, it is given to man to lir~k

himsclf with those who could be his posterity. Man thus lives, works and


dics for society possessed of certain inalienable rights. Man is cxpcctcd to

dcvelop his craft, scicnccs and technology, and lcad sociciy form povcrt y to

prospcrity, with a happy today and a happier tomorrow"'. Although mosl

ohscrvers regard the fornlation of the United Nations and tlic promulgation ol

the Universal 1)cclaratioll of Human Rights as the beginning o l thc n~odcrn

struggle to protect human rights, one can trace the origin 01 human rights back

to early philosophical and legal thcorics of the NatlcralLaw, a law highcr than

the posi tivc laws of statcs. Acmrdi~lg to ~hcsc theories, individuals wurc cnt itlcd

to certain immutable rights as human bcings.

According to Fullcr, natural law would embrace the following hr licls:

"l'hcrc is an idcal system oC law dictated by God, by thc nature ol'man, or by

nature i1sclP'-'. This law is enacted by Gotl; hence it is obeyed by all. I t acccpls

the rights of all without any discrimination. Before God all arc cqual in dignity

and rights. 'l'hc uniqucncss olnatural law is so important. According l o Grotius:

"Natural law is so immutable that it cannot he disobeyed by god hirn~clf"~.

Hcncc natural law is eonsidcrcd to be thc supreme law of all othcr laws.

Modcrn jurisprudence cotlceivcs all rights as rclalivc o r as products 01-

particular socio-economic ordcrs prevailing in the nation. Rights arc cssentiill

Origin and Development of Human Righb 14

for the dcccnt living of man. Justice Home referring to natural law stetcd

that i t "is a purely inductive statement of certain minimum conditions wc

cannot do without if l i k is to he decent"'. '['his statement cclarly revcals tllc

fact that without certain conditions, we cannot livc with dignity, r igh~s

pertaining certain contri )l s over man and his behaviour towards thc socizt y .

'Ihc iclca of rights is intlispcnsable to modern moral discussion and it is as

old as thc institution oi'l~uman society. 'fhe idea of a righl bclongcd to man.

It is the main significance oI this idea. It stands lor the total progress o f a

man. Thc idca of Natrrral right derived horn the idea of Nutlirul luw. 'I'hc

con(-cpt of human rights has been evolved from the conccpt of natural rights.

The devcloprnent of thc idca ol' natural rights found its hasc in l~ngland".

Thoug11 thc devclopment of human rights and their recognition and protcclion

on intcrnaiional level can he dividcd into different periods.

2.2 Natunl Law and Natural Rights in Ancient times

1Iistorically the idca of natural rights is very old. I t begins with thc

claim which everybody ~laturally makcs. Each and evcry individual can enjoy

their rights only when thesc are recogniscd and guaranteed by the law ol thc


land. Every individual has some natural, noticeable, fundamental, inhcrcn~.

absolute and sncrcd rights by birth. According to Marcus 'I'ullius ( k c r o , thc

great Roman Jurist, "There is one eternal and immutable law which will

apply to all peoplc at all times and which emanates from God is Natural

laww7. Hence natural law is an idcal systcm oP law dictatcd by naturc ol'

man or by naturc itsell'.

2.3 Natural Law and Natural Rights in Middle Ages

The conccpt ol Natural 1 ,aw was claboratcd during thc middlc ages

and is li)und in the works of Christian Theologians. They followcd, the

bclicl' that thc Law of God, cxists above all human laws. According to

St .'rhomas Aquinas, "Natural Law was the participation in thc ctcrnal law

of the mind of a rationid creature". 'l'hc state is subject to that law which

dctermincs the rclation of the individual to the slate. The justification 01 thc

statc determines thc servicc to the individual. A king who is unfaithful to his

duty forreits his claim to obcdience. IIcnce [his idea led to the cstahlishmcnt

ol doctrine of natural rights and by the end of middlc ages thc cot~ccpt of

natural rights of man became well establisheda.


2.4 Natural Law and Natural Rights in the 17th and 18th Centuries

The scicntific and intellectual achievements o f the' 17Lh ccntury. thc

discoveries of (ialileo and Sir Issac Ncwton, the materialism oC l'homas

Hobbes, the Kationalisnl of Rene Descartcs and Gottfried llithelm Scihniz,

thc Wnlhcism of Benedict de Spinoza, the empiricism of Francis Bacon and

.lo1111 I~lckc, promoted a he l id in natural law'.

In the cightcenth ccntury, the law of nature had begunto assert itsclf

to pn~tcct the individual against the power of state. l'his culminatcd in thc

grcat general dcclaraiions of the rights of man in France in 1789, and in thc

Unitcd Statcs C'lonstitutional Arnendmcnt of 179 1 lo .

2.5 Natural Rights and Doctrine of Humanitarian Intervention in

lgth century.

M c r thc French I<evolution the doctrine of natural law was a doctrinc

of abstract and immutable principles 01' cternal and inviolal>lc human rights.

in (ierrnany , reactions against the philosophy ol natural law emergcs with

'historical Schml of Jurisprudence", but in India the doctrine o f 'humanitarian

intervention' has bcen involved on account of Nationals or i~~habilants of'

Origin and Development afSluman Rights 17

forcign countries1'. I Iunlanitarian intcrvcntion is essential to protect I Iurnan

Righis. 'Tlurnanitarian' implies a 'man with certain values'. Rcspcct of I Iurnan

Rights comes Srom adherence to higher values 01 life. Today thert: is a lot ol

tension, restlcssness and misery all ovcr the world, due to the lack of humail

values in everyday l ik . 1 Ip,nce it is essential to practice a valuc based lift lor

thc protection and promotion of Iluman Rights.

Elforts to abolish slavery and thc slave tradc also arosc during thc

ninetccnth century. 1 lun~an rights concerns motivated thc format ion ol thc

Red Cross to give relief to the wounded and other victims oiarmed conilicts.

In addition, the late eighteenth and nineteenth centuries saw thc codil'icatio~~

of human righis guarantees in national constitutions. The term I Iuman Kights

was introduced in the United States Ucclaration of Indcpcndcncc in 1770

and the U.S. Chnstitution cmbodicd a Bill of Rights. French Kcvolution

gave birth to the Declaration of Rights o l man and citizcn in 1789. In 1929.

Instilute of International Law, Ncw York, U.S.A., preparcd a I.)cclaration ol'

1 Iuman Kights and Dutics. In 1945, thc Inter American Conlcrcncc passcd a

resolution secking est ah1 ishment of an International Forum for the furthcrancc

o l I Iumiln Kights of rnal~ljnd'?.


The Chartcr n l the United Nations Organisation in i ts prcainblc

declared "We the pcoplc ol the United Nations dcterminc to reall'irm faith in

the fundamental human rights, in the dignity and worth of' human pcrson, in

thc equal rights of men and women and ol thc Nations largc and small". 'l'hc

Charter also declared that thc purposc of the United Nations is "'Po achieve

international cooperation in solving international problems of an economic,

social, cultural or humanitarian character and in promoting and cnu~uraging

respect li)r Jiuman Rights and for fundamental freedoms for all without

distinction as to racc, scx, language o r religion". The United Nations also

proclaimcd the Universill Declaration of Human Rights in 1948".

The first documentary use of the expression human rights coulti hc

seen in the Charter of ihe United Nations which declared promotion and

tostcring of human righ~s as one o f thc basic goals ol' the United Nations1'.

'l'hc harrowing expcriincc ol the Second World War gave rise to the u~nviction

thal clTective intcrnatio~lal protection of human rights is onc of Lhc csscntial

conditions of international pcace and progress. The s e c o ~ ~ d world war.

witnessed not only trelnendous loss of livcs and properties but ruthicss

degradation of human rights. At that hazardous moment the Uniicd Nations


I

which arosc like a phocnix out of thc ashes ol the second world war put

utmost stress on promotion and fostering of human rights and basic liecdom".

For the protection and promotion of Human Rights, t hc United Nations havc

m adc scvcral attcmp t s.

2.6 U.N. Charter

TIIC Unitcd Nations Charter is thc l i n t multinational multilatcral ircbaty

on humall rights. 1 Iuman rights are those rights which cvcry human being

sho:lld enjoy. The provision in the Chartcr also place emphasis on equality

or non-discrimination which is clearly linked with the concept oS un ivcrsality .

Article 55 of the U.N. (:hartcr provides:

"With a view to thc creation of conditions of stability and well-

being which are necessary for pcaceful and friend1 y relations among

nations hascd on respcct for thc principle of equal rights and self'-

determination ol pco ples, thc United Nations shall promole universal

respect for, and ohszrvancc of, human rights and fundamental

freedom for all without distinction as to race, scx, languagc o r

iu i igion".16

Origin and Development of fluman Rights 20

2.7 International Bill of Human Rights

'l'ht: charter of Ihe Uni tcd Nations docs not further &fine the contcnls

of human rights. in accordance with the principles of thc charter, the con~pctenl

organs of thc United nations strovc to li~nnulate an international bill o f human

rights and to define the scopc and extent of the inherent rights ol' man. rl'llc

international Bill o T I Iuman Rights comprises:

(a) Universal Ilcclaration of Human Rights (1948),

(h) I ntcrnational (:ovcnant on I Iconomic, Social and Cul turd Kigh ts

(1966),

(c ) Intcrnational Covenant on Civil and l'oli t ical Rights (1 066).

'l'hcsc international covenants and the optional protocol dcals with

almost all aspects of human rights.

. 2.7.1 Universal Declaration of Human Right3

l 'he Universal lleclaration was adopted by liesolution 217 (1 11) 01'

the UN General Assembly. Tt was not intended to irnposc lcgal obligations

on states, but rather-to establish goals lor statcs to work towards. I t was a


"common s ta~~dard ol' achievement for all people". Thus, ihc opcrat ivc part

ol'thc Resolution reads as ii)llows:

Now, therelixe, thc General Assernhly pmcl aims this Universal

Tleclaration o l 1 Iurnaa Rights as a common standard o l ach icvcnlcnt

lor all peoplcs and all nations, to the cnd that every individual and

every organ o l socic ty, keeping this Declaration constantly in mind,

shall strive by teaching and education to promotc respect f i ~ r these

rights and freedoms and by progrcssive measures, national and

international, to secure their universal and cffcctive recognition and

observance, both among the peoples of member states thcmsclvcs

and among ~ h c peoples o f territories under their jurisdiction1'.

Thc UDHR was adopted by the (iencral Assembly of thc Unitcd

Nations in Paris on llcccmher 10, 1948. Mrs. I '!leanor Roosvcl t, who chaircd

thc scssion, cxpresscd thc hope that the I Icclaration would become t hc ' Magna

Carts' o l all mankind. Thc Universal Ilcclaration of I luman Rights is>a

milestone in thc history ol thc human rights movement. I Icnce 10"' Ileccmbcr

is obscrvcd as the World I luman Rights Day evcry year. 'l'hc Declaration

consists of a Preamblc and 30 Articles setting forth the basic human rights

Origin and Development of Human Rights

and fundamental lrecdom to which all ~ n c n and women evcrywhcrc in 111c

world arc entitlcd without discriminat ion1'.

The Tjeclaratiun enumerated the basic postuletcs and principles ol

human rights in a most comprchensivc manner. It was rootcd in thc conviction

that rccognition of the inherent dignity and of the cqual and it~alicnahlc

rights of a1 1 m c ~ n hers of the human family is the loundation of liccde~in,

just icc and peace in thc worldlo.

2.7.2 International Covenant on Economic, Social and Cultural Rights

'The Internatitinal Covenant on iiconomic, Social and Cultural Rig11 ts

(ICI'SCK) was adoptcd by the General Assembly on 10 1)ccemher 1066.

The wwcnant has a Preamble and 31 Articlcs divided into livc parts. 'l'his

covcnant contains a longer and much morc comprehensive I ist of cconol nic,

social and cultural rights than the Universal Declaration of 1 luman Rigitts.

The Preamble to the covcnant scrvcs as an introduction to the articles

which Sollow. 'lhc first paragraph ol thc Preamble is a statement of gci~eral

principlc that rccognition of thc inhcrent dignity and of cqual and inalicnahlc

rights 01 all memhcrs o l the Iiuman la~nily is thc foundation of Srccdom,


justicc and pcace in thc world2'. This clsusc has been taken lio111 thc first

paragraph of the i'rcamhle to thc Universal Declaration oP 1 Iuman liigh ts.

The second paragraph o f the IJreamble to thc covenant rccognizes ihc

origin of human rights by stating that they dcrive horn the inherent dignity

of thc human person2'.

The third paragraph of the Prcamble rccognizes that in accordance

with ihc Universal 1)cclaration of Human Rights, thc ideal oS frcc human

hcing cnjoy ing freedom li-om Sear and want can only he achicved if conditions

are cleat cd whercby evcryonc may enjoy his economic, social and cul tiiral

rights as well as his civil and political rights". This paragraph ol lhc I'rcamhlc

undzrlincs the importance of not only economic, social and culiural rights

hut also of civil and political rights.

In the liwrth paragraph of the Preamble, it is said thal ihc statcs arc

rcminded of obligation under thc charter of the United Nations to promotc

universal respect for, and observance of human rights and frecdoins'.

Finally, cach intlividual has duties to other individuals and to thc

community to which hc belongs and it is considered the responsibility o l


each individual to strivc for thc promotion and observance ol thc rights

recogniscd in the prcsent ~ o v c n a n t ~ ~ .

2.7.3 International Covenant on Civil and Political Rights

The intcr~~ationai Covenant on Civil and Political Rig11 ts (I(:( ::'K)

was adopted by thc UN Gencral Assembly on Mth Dccemher 1966.

The covenant has a Preamhlc and 53 Articles divided into six parts.

'l'his covcnant contains a longer and much morc comprehensive list of civi 1

and political rights than thc Universal 1)eclaration of 1iuma11 Rights. All thc

civil and political rights enshrincd in the charter havc hcen drafted with

specilicity . ' lhc Preamble and articlcs I , 3 and 5 of the (:ovcnan~ on Civil

and I'olitical Rights are almost identical with ihc Preamblc and articlcs 1 , 3

and 5 01 t hc Intcrnat ional (:ovenant on I :conomic, Social and Cultural Kigh ts.

In thc third paragraph ol' thc Preamblc of the two covenants thcrc is din'crcncc

in cmphasis usages. '1n the Internatiotlal Covcnant on ( :ivil and I'olit i cal

Rights, the third paragraph statcs that the idcal of free human beings c~!ioying

civil and political liccdom and freedom from fear and want can only bc

achieved i f conditions arc created wherchy cvcryone may cnjoy his civil and

political righls, as well ;IS his economic, social and cultural rights".


2.8 Gandhian Influence on the Universal Declaration of Human Rights

Gandhiji was no1 a participant in the sessions o l thc Human liights

Commission of U1,: UN or in the (icncral Assembly sessions. 13ut by 1940.

he had become an inter~~ationally wcll-known figure and the impact 0 1 ' his

words and ideas was Sclt all ovcr the world. His efforts and argumc~lts 10

promote a~ld delend human rights wcrc widcly known, liandhiji was askcd

by .lulian I luxley, the 1)ircctor Gencral oP UNESCO to givc his opinion

concerning thc project of Universal ilcclaralion of l-luman liights. IIc

disclosed that he had leilrncd one prccious thing from his illitcratc hut wisc

mother, i.e. rights dc'rivcd horn dutics well p~rforrncd'~). Thc right ol' onc

person invokcs the obligation of others to recognize and respect it. Articl c

20 of thc Universal Declaration refcrs to duties: Evcryone has du tics t o thc

com~nunity in which ali~ne thc free and till development of' his p c r s o ~ ~ ~ l i t y

is possibleF. 'rllere wcre dillcrcnt typcs of humanism that influenced thc

commission on Human Rights. Gandhiji stood for thc ideal o f brotherhood

and sistcrhood of all humanity. His life was spent to carry on t hc mission of

human brotherhood, based on the equality o l all men and women as lied's

children. The first articlc of the Universal 1)cclaration reflccts cxactly what


Gaodhiji stood and wantcd for: "All human beings are born lrec wd cqual in

dignity and rights. They arc cndowed with reason and conscience and should

act towards one another in a spirit 01 brotherh~od"~! 'rl~is statcmcnt clcarly

rcveals the inllucnce of ( iandhiji on Universal Declaration ol' Human Rights.

2.9 Attitude to the concept of Human Rights in 20th century

Human rights is a 20th ccntury name li)r what has hcen traditionally

knowil as natural rights or rights oi' man. By Lhc wake of 20th century, the

concept of Hmnan Kights has got new dimension both at the international

and national levels. One 01 the main reasons is the Ncuremhcrg Trial attcr

thc second world war of Nazi war criminals and the atrocities co~nmittcd

agaiast thc Jews. This persuaded the U nitcd Nations to convene '( icnocide

Conventions' and pass resolutions against crime against humanity. A11 the

ti SO a members of the United Nations acccpted that resolution and India is . I

signatory to itx. Ordinary and dcprived people, women and cxcludcd groups,

and other scctions of socidy, cxploitcd i i ~ r centuries have now hccn awakc.lcd

and are demanding their rights as human hcings. 'l'hc wcakcr sections of

society suffered a lot of hardships with rcgard to the denial of human rights.

r 7 I his injustic:~ caused h e root o l serious social and economic problems faced


by the Indian society too. The twentieth century had witnessed thc two most

devastating wars in human history. The period from 1914, whcn thc first

world war broke out, to 1945 whcn the second world war ended has hccn

described as the age of catastrophe during the war against fascism, that thc

conceptualization and articulation of human rights in their present meaning

took place"'.

2.10 Human Rights in the 2Ist Century

'l'hroughout t he cent uri cs mil 1 ions of peoplc have been Sorci hl y

displsccd from thcir country and commu~iity by armcd conflict, internal stri fc:

and systematic violations o l human rights. Plight of people k~rcihl y displaced

whether withi11 the borders or across them, has recently become a major

focus ol international concern. Forced migration involving rerugccs and

inteaally displaccd is among the most scrious and complicated issue heh rc

thc international community. Worldwide, thc number 01' pcoplc displaced

within their own countries excceds thc number of those who havc crossed

international borders and hccome refugees. 'lbis was hecausc o f thc lack o f

basic necessities o f 1 ifc particularly food, clothing and shclter. And more

over the other essenti a1 requirements ol' liSe such as medical care, hca; thy


cnviroament, pcace arc --:*- cssen ial to lead a civilized l ife d mankind. 'l'hc

essential requircments o f life are to he known as Humarl Kighls. I t is

hndamcntal and without thcm we callnot live as human beings. l lu~nan

Righis are based on mankind's increasing dcmand for a decent civilized lilc

in which the inherent dignity o l each human being will receive rcspcct anti

protect ion".

According to Wcstern political and philosophical thinking human

rights are innatc in individuals and arc an intrinsic la:act.or in the quality ol'

human persons. The words of president Jelfcrson, "lnhcrcnt and inalienahlc

rights oPman3'". Hcrice the rights that arc required for the lull and complctc

development of human personality . Without rights, the dcvclopment of human

personality is an impossible thing. Respect for human rights is esscniial l i ~ r

the cxistcncc ol' pcace and sccurity in the society. The continuing anncd

conflicts, civil wars havc resulted not only in flagrant violations o f hurnan

rights hut also killing of innocent pcoplc including women and childrcn and

more over, a lot of peoplc become rcfugees and displacetl within their own

homc land. Many people in different parts ol thc world livc in absolute

povcrty, unemployment. hungcr, disease and shelterlcssness. liood, clothing


environment, peace are cssential to lead a civilized life of mankinti. 'l'hc

cssential requiremcnts of life are to he known as Human l i i ~ h t s . I t is

fundamental and without them wc cannot live as human beings. I Iuman

Kights are bascd on mankind's increasing demand l i ~ r a decent civilized li Sc

in which the inherent dignity oC each human being will receive rcspcct and

protection"'.

According to Wcstern political and philosophical thinking hurnan

rights arc innate in individuals and arc an intrinsic Bct.or in the quality 01-

huw.an persons. The words of president .leZkrson, "Inhcrcnt and inalic~lablc

rights of Hericc the rights that arc required l i ~ r the lull and complctc

developmcnt olhuman pcrsonality. Without rights, the development of human

personality is an impossihlc thing. Rcspcct for human rights is esscl~tial lor

thc cxistencc of peacc and security in thc society. The continuing ar~ncd

conllicts, civil wars have rcsultcd not only in flagrani violations of hutnan

rights but also killing o l innocent pcopl e including womcn and children and

more ovcr, a lot of people bccome relugces and displaced within thcir own

home land. Many pcople in different parts of the world live in ahsolutc

povcrty , uncmplo ymcnt. hungcr, disease and sheller1 cssness. Food, clothing


and shclter arc considered as I'undamcnlal human rights. Without that the

human existence is not possible. The right to life is thc most lundarncntal

and basic human right. With the end of the world wars and thc begi~~ning ol'

the proccss ol dccobnization, the internalional community laid thc foundation

Tor the promotion and pnrtcction o l human rights by proclaiming thc Universal

Declaration of Human Rights. It recognizes the inherent dignity and thc

cqual and inalienable rights of all mcmbcrs of the human family. And morc

ovcr, the General Assembly of the Unitcd Nations enshrincd thc right to l i k

in Article 3 of the Univcrcal Declaration of Human Rights, which states that

everyone has thc right to life, liberty and sccurity of person3! Rights inay hc

justified as being inalienable, transcendental, and absolute. Without thcm a

man cannot realise his scllor contribute to the good oL thc society in which

he lives. The li~undational norm governing the conccpt of human rights is

that of thc respect for human personality and its absolutc worth regardless o l

colour, race, sex, rcligion or other considerations. These rights arc essential

*

for the adequate devclopment of the human personality and for human

happiness.


2.11 Human Rights in India

The conccpt of human rights is not a new concept in Indian cont(:xt.

The ancicnt text Rig Veda cites three civil rights, that ol' Tmtu (Body), Skridhi

(Dwelling place) and .lobhari (Lifc). l b c Mahabharata tclls about thc

importance of the irccdom of the individual (civil liberties) in a state. 'l'llc

Arthasastra elaborates on civil and legal rights first formulated by Manu

which also included ccot~omic rights. when the British ruled India, rcsistancc

to foreign rulc manilcstcd in thc form of demand for hndamental Srecd.)m,

civil and political rights for the people. 111e promulgation of the cotlstituiion

by the people 01 India in January 1950 is a watershed in thc conccpt of

I Iuman Rights in India. The preamble, tundamcntal rights and thc directivc

principles o l state policy togcther provides thc basic IIuman Kights l i ~ r thc

ncople o f India.

2.12 Gandhiji's Influence on Fundamental Right,s in the

Indian Con3titution

The hndamcntal rights are guaranlccd in part I11 of the Indian

constitution. The declaration of fundamental rights in ihc Constitut ion serves

as reminder to the govcmment in power that certain liberties and Srccdorn

1301


essential for all the pcople and assured to them by the fundamcntal law o l

!hc land., The first explicit demand for fundamental rights appcarcd in thc

constitution 01 India Bill, 1895. l'his Bill guarantccd to cvery onc 01- hcr

citizens freedom of expression, inviolability of ones housc, cquality hcforc

thc law and in rcgard to admission to public ofliciccs, right to prescnt claiins,

petitions and complaints and right l o personal libertyi4. The Sundamcn~al

rights are guaranteed in Part I11 of the lndian (:onstitution consisting ol' articles

12 to 35.

According to thc Article 14 oi' thc Indian Constitution, '"l'he statc

shall not deny to anyxperson equality before thc law or the equal protcciion

of the laws within thc territory o l India'". It means that no man is ahovc ihc

law ol the land and that evcry person, whatever he his rank or status, is

subjcct to the ordinary law and amenable to the jurisdiction o l the ordinary

tribunals. It prevents victimization - lcgislativc and exccutivc hecausc for

Gandhiji,, thc major cvil of the state is the rcpressivc and cocrcivc character'".

Ciandhiji's satyagaha is a potential force to fight injusticc and it provides

sanction to the principle of equality beli~rc law. For Ciandhiji, it is not l i ~ r thc

stale to enforce equality hut lor the individual to demand it through soul-


forcc. The core of Sui~dament a1 rights 1 ics in thc sanction providcd by (iandhi ji

iu his tcchrliquc of satyagraha. Hence the spirit of equality vocifcratcd by

Gandhiji pervades in'~rtic1e 14. The Indian Constitution puts seal of 1 cgality

on social equality li)r which Gandhij i fought relentlcssly . According to articlc

15 (1) of the Constitution: "'r11c stale shall not discriminate against any citizen

o n grounds only of religion, racc, castc, sex, place of birth or any of thcm"".

Gandhiji hclieved that democracy can only exist and flourish amongst a

society of equalsix. 'Thc special treatment metcd out to women and children

in Article 15 (1) and (2) rellccts <iandhiji7s humanitarianism. Articlc 16 o f

thc CIonstitution aims at providing equality of opportunity to all citiycns in

mattcrs o I puhlic employment. Articlc 16 provides: "I ':qua1 ity of opportul~ity

in matters o f public cmploymentnW. Article 16 harps on the (iandhian tutlc

o f guaranteeing cquality and is cxpected to be a bulwark against thc

discrimination on thc basis of caste, community, and religion. Anothcr grcat

inlluence of Gandhiji is thc application of the doctrine of the digoi ty of man

to Indian life and this is providcd by Article 17 of thc C:onstitution. I t says:

" Un~ouchahility is abolished and its practice in any form is ibrhiddcn. Thc

cnibrcerncnt oI any disahil ity arising out of untouchability shall bc an o l l c ~ ~ c c


punishable in accordance with law""' . It guarantees social justice and dignity

o l man, thc twin privileges which were denied to a vast scction of Indian

socie~y for ccnturics together. Article 17 represents the (;andhian idcology

o f treating the unlouchablcs at equal par with other classes. rt'l~is article.

thcreforc, is the state's recognition of (iandhian doctrinc of equality ol all

persons. Article 19 of the Constitution says:

(1) Nl citizens shall have the right:-

(a) to l'reedom o C spcech and cxprcssion;

(b) to asscmhlc peaceably and without arms;

(c) to lorm associations or unions;

(d) to move lccly throughout the territory of India;

(c) to reside and settle in any part of the territory of India;

( IFr;reed(rm to acquire, hold and dispose o P property. This has

been omittcd by <:onstitution (Forty-fourth) Amendment Act,

1978 with cffect horn 20.06.1979]

( g ) to praclicc any profession, or to carry on any occupation, trade


'I'he constituent assembly could not but inlusc the (;andhian spirit

into these articles. The ( :onstit ution lays down certain provisions to prcvcnt

exploitation of thc weakcr sections of thc society who, compelled by crushing

poverty, allowed themsclves to bc exploited by unscrupulous individuals or

even by the state: It is in this respcct that (iandhiji's inlluc~~ce on thc lian~crs

of the Constitution bccomes perceptible. Thc Constitution in Articlcs 23

and 24 puls an end to such exploit ation by prohibiting traffic in human beings.

Article 23 says: prohihilion of traffic in human bcings and forced labour:-

(1) Traffic in human beings and beggar and othcr similar (orms of

forced lal~our are prohibited and any contravention o f this

provision shall hc an of'ence punishahlc in accordancc with

law.

(2) Nothing in this article shall prevent thc state from imposing

compulsot-y service for pub1 ic purposes, and in imposing such

service thc state shall not make any discrimination on grounds

only of religion, race, caste or class or any o l thcm"'.

Article 24 says: "No child below the agc of fourtccn years shall be

cmploycd to work in ally factory or minc or engaged in any other hazardous


Children are the assets of the nation and this provision is in

the intcrest of public health and salcty of life of children.

Indian secularism is a great part of inheritance i'rom Gandhiji.

I':veryonc living in the state shall he entitled to propagate his or hcr rcligion

without lei or hindrance4? Gandhi rnaintaincd that his Hinduism taught him

to rcspcct all religions'". Though a religious man at heart, Gandhiji declared:

"If I wcre a dictator, rcligion and statc would be separate. I swcar hy m y

religion I would dic for it. Rut it is my pcrsonal allidir. The statc has nothing

to do with it"'". l'his implies a high dcgree of rcligious tolerancc on thc part

of Gandhi ji. l'hc members of the constituent assembly drovc close to (;andhi j i

in ci;acting Articlc 25 giving thc right 'freely to proless, prnclicc, and

propagate religion'. Art icl c 25 provides: "Freedom of consciencc and frec

profession, practice and propagation of religion47. Thc prevcntior; ol

exploitation of the wcakcr scctions of the community ci~visaged through 23

and 24 exhibits (iandhiji's passion for thc welfare of the downtroddcn. As a

truc secularist, Gandhiji maintained that the state cannot concern itsell with

rcligious cducation4! (iandhiji was also opposed to state aid to religious

bodies. Articlc 28 (1) and 30 (2) cmbody the Gandhian spirit in this rcspcct.

Origin and Development of ,Human Rights 36

Articlc 28 providcs: "Freedom as to attcndancc at religious instruction

or religious worship in certain cducational institutions - ( I ) No rcliglous

instruction shall bc provj dcd in any educational institution wholly maintained

out of state funds4''. Article 30 (2) says: l h e state shall not, in grallting aid to

cducationai institutions, discriminate against any educational institution on

the ground that i t is undcr the management of a minority, whether based on

rcligion or languagccO. l 'he most significant influence o f Gandhij i on Indian

polity is in thc realm of the enlargement of the concept o f democracy, l'hc

ctms~itucnt assembly translated Gandhiii's concept of mass democracy into

practice. The Indian Constitution not only provided for adult suffrage; i t

also ensured adcquate rcpresentation ihr the depressed classes. (iandhiji ' s

dream aCPoornu Sw~ru, j became a rcality in the Indian Constitution. Ilencc

thc i~llluencc of Gandhiji on fundamental rights of the Indian Constitution is

very significant in many respects.

2.13 Definitions of Human Rights

Iluman rights and fundamental heedom allow us to dcvclop fully

and use our human qualities, our intclligcnce, our talents and our cotlscicncc

and to satisfy our spiritual and other nccds. 'l'hcy are hascd on mankind's


increasir~g demand for a life in which the inherent dignity and worth o f each

human being will receive respect and protection. In the language ol Ul~itcd

Nations (:cntre li)r human rights: "Human rights could bc generally dclincd

as thosc rights which arc inhcrent in our nature and without which we calu~ot

live as human bcitlgs"? There arc numerous delinitions o f human rights

g ivcn by scholars according to their own conceptions.

Shree. V.M.Tharkunde, an cminent judge has attributed ahout thc

human rights as Iollows:

"'l'hc term human rights, in its normal usage, comprises thc rights of

thc individual in all spheres of social life. They are exercisable by thc

individual against those who posscss political and economic power

and also against harmful social customs as untouchability in India,

racialism in Sorith Africa and inequality of women in all parts of thc

world. The recognition of rights in individuals also marks the

recognition of certain social obligations on them. Since individual

lrecdom call he experienced only in a moral socicty, the rights and

duties o l thc individual are necessarily inter connected. Freedom and

morality arc the two cssenlial componcots of a hcalthy socicty"".

Crigin and Development of Human Rights 38

ITuman rights arc inviolable because they are not only vital for thc

devclopmcnt of human personality but also because without them men would

bc ruduced to the lrvcl of animals. Ibe dcnial of human rights ant1 lul~damcntal

freedom not only is'an individual and personal tragedy hut also creates

conditions of social and political unrest sowing thc seeds of vioJcncc and

conflict within and betwecn societies and nations. If we want to act on thc

improvement of human rights, wc must do our duty first. Without duty, wc

have no right. 11 is no usc clamouring for human rights if wc arc not prcparcd

to accept o u r human duties.

M.H.Rcg, former Chicf Justice of India has delincd human rights as

Sollows:

"Human rights imply justice, equality and freedom from

arbitrary and discriminatory treatment: Thesc cannot hc

subordinated to thc interests of the rulers. No one call bc

rejectcd to cc).crcion kjr holding particular religious heliels.

The doctrine of national sovercignty cannot justify violation

ol human rights"".

Origiv and Development of Human Rights 39

2.13.3 Leonid F. Evmenov

Lconid F. Bvmenov described al~out human rights as follows:

"1 Iuman rights should not only be dcclared but be codified in legislation.

Not only codified in legislation hut rcalizcd according to the nonns of

national legislation and international human rights ads - that is thc

only objective condition under which humanism ol' any social shadc

can be rcvcaled, from Mahatma (;andhi's ahimsa to Tienin's

l 'hilanthr~py' '~~.

2.13.4 H.R. Khanna

Justice I1.R. Khanna has described about human rights as k)llows:

"It is in an ambience imbued with the sanctity of human righls that

socicty is assured of thc rule of law, an essential ingredient and a

postulate of which is thc existence o l independent courts. I t hcars

reiteration that equality bcfore law and ihc equal protection ol thc laws

arc among the most vilal human rights. it is hssic to the el'lectivcncss

of thcse rights that thc courts are indcpendent. Indepcndcncc of courts

thus necessarily flows from the chartcr ol human rights"'.

Origin and Development of'Human Rights 40

According to U. Il.Raphoc1, "What are human rights? In a gencral

scnsc lhcy denote the rights of humans. IIowcver, in more specific scnsc,

human rights constitute those very rights which one has precisely hccausc of

being a human bcing. Pcrtinently thc tcrm human rights reccived wider

acceptance in place ol thc righis of men in post-world war liberal terminology

as it conveycd equal concern for thc rights of both sexes. Moreover, thc

usage of thc term ' Iluman rights' also rcveals their source: I Iumanity, Nature,

hcing a person or human

2.13.6 Shridath S. Ramphal

Sluee Shridalh S. Ramphal., Secretary General of Common Wcal t h

Nations has described l ~ u ~ n a n rights as: "We havc come a long way sincc

1948; hut wc have a long way to go hcl'ore wc translate the commitments

implicit in :he Universal Ilcclaration in to performance. 'l'hc record to date

is far too delicicnt both within nations and between thcm; and it is also

dclicicnt at a much more pcrsonal level in terms of relations bctwccn

individuals. Furthering human development is a proccss in which cvcryonc

Origin and Development of Human Rights 4 1

has a rolc to play: international organisat ions hut perhaps most of all, peoplc

ovcr the world. In thc pccking order o f decision making, people may sccm

the rllost lowly and incf kctual. In reality, it is people who rcprescnt our hcst

hope for truly furthering human dcvelopmcnt and advancing the goal o f thc

Universal Declaration"".

2.13.7 Fathima Beevi

Justicc Fathima Beevi has obscrved about human rights as “The

concept of human rights has acsumcd importance globally during thc past

k w decades and has intcrnalional significance as cvery country is subjcct to

international scrutiny by the world body which indicts mcmher s tatcs for

violations, whilc there is increasingly widespread concern for universal

respect and ohservancc of human righis, gross violation o l international l y

recognised norms continue unabated in almost all parts of thc world. Thc

ovcral l situation has becn characterized by large scale breaches o f civil and

political rights, as well as economic, social and cultural rights.

'l'hc right to life. to an adequatc standard of living, to freedom of

cxpression, to protection from torture, arbitrary arrest and many of thc

Origin ar.d Development of Human Rights 42

common standards of achievements for all peoplc and all nations, arc as f i r

horn realization now, as evcr. The obligations set out in thc course oC

inter-national conventions and multilateral treaties for, the promotion and

protection o f human' rights and accepted by most of thc govcrnmcnt arc

floutcd by thcm with impurity"".

Justice R.N. Misrma, h n n e r Chairperson of National 1 luman Rights

Commission of India, has obscrved as "It is an obligation which all of us

have to perform. Man, wherevcr he lives, whatever rcligion hc prol'csscs,

whatever food he takes. is a member of one family. N1 of us must icarn to

lovc like a membcr of onc family. The whole world is one family. One then

we will be able to develop the culture of Human Rights. In the absence o f

human rights, societies. individuals and families are disintegrating in ihc

modern era. It is a challenge to human proccss. We should all bc prcparcd

and united to lace thc challenge o l thc indiscipline. I, therefore, call upon

you all whether you are in a company, industry, factory, university t o I'acc

this challenge and help the Commission in meeting this challenge. Evcryonc

must realize that what is prcscrihcd by law is not for ncxt man, o r thc man

follow. but for you"'.


2.13.9 V.R. Krishna lyer

According to V.K.Krishna Iyer, "Human rights and Su~ldamcntal

frcedoms are indivisible. The full realization olcivil and political rights and

cultural rights, is i mpossiblc. This process of realization calls li)r lcgal

positivisation, not political polemics nor diplomatic clap-trap hut normative

fbrmulation. But what are human rights'? We may discover that the religion

o f man is located in the Vedas, Buddhist Texts, Biblc, The Quran or the holy

iitcrature or other authentic teachcrs to upholds human divinity. Every human

being is a divine bcing and has title to dignity, liberty, equality and othcr

basic rights. we cannot understand or cvaluate human rights divorccd lrom

the historical and social context. Idlc ideals and empty assertions cut no ice.

The status of human rights takes us to the lifestyle of a society. 'l'hat is why

the Indian constitutional approach is soaked in the social milieu and human I

conditions. India has a plural society and the conccpt of the human rights in

such a society has a dificrent and uniquc positi~n' '~~'.

Justicc R.N.Bhagwati on Human Rights as fundamental rights are of

great importance for individual freedom, but thcsc fundamcntal rights arc a

very minimal sct of rights and therefore, human rights, which arc clerivcd


fronl the inhcrent dignity o f the human person and cover evcry aspect of lilc

and not just a small*numher of prelcrrcd Srecdom again$ thc statc, havc

tremendous significance. For thc 1argc number of people in a developing

country like India, who are only solution li)r making fundamc~~tal rights

meaningful would he rcstructurc the social and cconomic order so that they

may hc able to realixc thcir economic rights. Iluman rights conference callcd

by thc Unitcd Nations (jcneral Assembly in 1968 declarcd that "since human

rights and hndamental Sr~edorns are indivisible, thc Cull realization of civil

and political rights without the enjoyment of economic, social and cultural

righis is irnp~ssiblc""~.

2.13.11 Gandhiji .

Gandhiji always emphasized the need to think oT onc's dutics firs1

and foremost and leave the rights to take care of themselves for hc hclicved

that rights li~llowed upon the proper fulfilment of one's duties and not vicc k

versa'12. It is Gandhiji's studied opinion that the true source of right is thc

perlormancc of duty. According to Gandhiji, "11 we all discharge our dutics.

rights will not be hr to seck. If leaving dutics unperformed wc run ~fLcr


rights, they will cscape us like a wi 11-o-the-wisp. The morc we pursuc thcm.

thc Firthcr will they ily"'". If all people simply insist on rights and tlot dutics,

Ciandhiji said, therrc would bc utter confusion and chaos. But howcvcr, "If

instead of insisting an rights evcry one does his duty, thcre will immediately

he the rule of order established among mankind"". liefcrring to ihc

correlation between rights and duties (iandhiji says:

I venturc to suggest that rights do not 17ow directly from duty well

performed are not worth having. 'fhcy will bc usurpations sooner

discarded the better. If you apply this simple and universal rulc to

cmploycrs and labourers, land lords and tenants, the princcs and

their subjects or the I Iindus and the Muslims, you will find that tllc

happicst relations can be established in all walks o l lifc without

creating disturbance in all dislocation of life and business which

you sec in India and in other parts of the worldo5.

Tn the above, wc have discussed about the nature and definitions o'i'

human rights. It is our duty to follow various scholars ' definitions of' human

rights and fuodamen<al rights and bring thc society into a peaccful and happy


2.14 Conclusion

rlhc origin and dcvclopment of human rights took a long timc. 'l'hc

historical evolution of [he idea of human rights was based on thc idca o l

natural law. The natural law was thc foundation oT natural rights which has

been based on God. Hence it is equally important and appl icahle to all human

beings. The natural rights werc later tratlsformcd into human rights. 'lhcsc

rights are inhcrent and i nalicnable and available to all persons irrcspcct ivc

of racc, colour, scx, language, religion, political or other opinion, natural or

social origin, property, birth or other status. It is universally applicahlc to all

pcrsons. The Universal Declaration of Human Rights causcd thc

univcrsalisation of human rights lo all persons of the world. Ciandhiji's-

inll?lcnce on the ileclaration is very significant with rcgard to thc subject

matter of the study.-Moreover, the inllucnce of Gandhiji's ideas o n thc

fund amenla1 rights in the Indian Constitution reveals the relcvancc o T

(iandhiji's idcas in thc discourse of human rights of the contemporary world.


REFERENCES

Arvind Kumar; Encyclopaedia of Human Rights, Vlolence and Non-l/iolence,

Vol. I. Institute for Sustainable Development, Lucknow, Anmol' Publications Pvt.

Ltd., New Delhi, 1998, p. 1.

Kris hna Mohan Mathur; Crime Human Rights and National Security Gyan

Publishing House, New Delhi, 1996. p. 159.

M.G.Chitkara; Human Rights, APH Publishing Corporation 5, Ansari Road, Darya

Ganj, New Delhi, 1996, p. 10.

Gokulesh Sharma; Human RighhandSixiallustice, Deep and Deep Publications,

F - 159, Rajouri Garden, New Delhi, p.3.

Ibid., P. 3.

Walter Laquer, Barry Rubin (ed.). The Human Rights Reader, A Meridian Book,

p. 6.

G.S.Bajwa; Human Rights in India, Anmol Publications Pvt. Ltd., New Delhi,

1997, p. 27.

Ibid., p . 28.

Human Rights; The Background and Evolution of the concept, Kerala CaL1ing,

vol. 19, No.2. December 1998, pp. 9 - 10. (Source: Encyclopaedia Britanica,

1989 Edition).


lo Att a rc h a n d ; Politics of Human Rights and Civil Libeeies. Urn D . H . P u b l i s h erst

4078 Naisarak, Delhi, p. 19.

G.S. Bajwa, op. cit., p. 30.

l2 Arvind Kumar, op. clt., p. 1.

l3 Ibid., p. 1 - 2.

l4 Sankar Sen; Human Rightsin a Developing Society. APH Publishing Corporation,

5, Ansari Road, Darya Ganj, New Delhi, 1998. p. 3.

Ibid., p. 23.

l6 Ibid., p. 24 - 25.

17 A.H.Robertson, J.G.Merrills; Human Rights in the World ManchesterUniversity

Press, New York, 1996, p.28

la Ibid., p. 28 - 29.

l9 H.O.Agarwal; Implementation of Human Rights Covenants, published by Kitab

Mahal, 15, Thornhill Road, Allahabad, 1983, p. 7.

20 Aljun Dev, Indira Arjun Dev, Gupta Das (Ed. ) , Human Rights, A source Book,

NCERT, New Delhi, 1996, p. 37.


Ibid. p. 37.

22 Ibid. p. 37.

23 Ibid. p. 37.

24 Paramjit S. Jaswal, Nishtha Jaswal: Human Rights and the Law. APH Publishing

Corporation, 5, Ansari Road, Darya Ganj, New Delhi, 1996, p. 42 - 43.

2S Ibid. p. 48.

?6 The collected Works o f Mahatma Gandhi, Published by the Ministry of

Information and Broadcasting, Government of India, New Delhi, 1958 - 1984:

Vol. W I X , pp. 346-'347. (Hereafter referred to as CWMG).

27 A j u n Dev, Indira Aljun Dev and Supta Das (Ed.): Human Rights, A Source

Book National Council of Educational Research and Training, New Delhi, 1996,

28 A j u n Dev, Indira Arjun Dev, and Supta Das (Ed.), op. cit., p. 28 - 29.

29 N .Gangadha ran, Human Rights and Socia t Justice, Kerala Calling, Vol . 20, No.

2, December 1999. p.22.

30 Arjun Dev, Indira Ajun Dev, and Supta Das (Ed.), op. cit., p. 12.

Origin and Development of,Human Rights 50

31 M.G.Chitkara, Human Rights in Pakistan. APH publishing Corporation, 5, Ansari

Road, Darya Ganj, New Delhi, p. 29, 30.

32 Debichatte jee, Sucheta Ghosh, and Sumitra Sen (Ed.), Human Rights Theory

and Practice, South Asian Publishers, New Delhi, 2002, p. 101.

33 Ibid., p. 102.

34 Dilip Kumar Chatterjee: Gandhiand Constitution making in India. Associated

Publishing House, New Delhi. 1984, p. 95 - 96.

35 Durgadas Basu (Justice). Introduction to the constitution of lnda, Prentice

Hall of India Private Limited, New Delhi, 1985, p. 87.

36 N.K.Bose; An Intendew with Gandhiji, Modern Review (Calcutta), Vol. 58,

October 1935, p. 412.

37 Durgadas Basu (Justice), op. cit., p. 90.

38 M. K.Gandhi, Democracy and Trust,Har~an, 16 November 1947, p. 409.


40 Ibid., p. 93.

41 Paramjit S. Jaswal and Nishtha laswal, Human Rights and the Law, APH

Publishing corporation, 5, Ansari Road, Darya Ganj, New Del hi, 1996.

Origin and Development 6f Human Rights

42 Ibid., p. 103 - 104.


44 M.K.Gandhi, 'Secular' Harijan, 24 August 1947, p. 292.

45 M.K.Gandhi, 'Secret'of Rama Raj' Hargan, 19 October 1947, p.378.

46 M.K.Gandhi. 'If I were a Dictator' Hari/'an, 16 March 1947, p. 63.


48 M.K.Gandhi, 'Secular' Haruan, 16 March 1947, p. 63.

49 Paramjit S. Jaswal, Nishtha Iaswal, op. cit., p. 108.

50 Ibid., p. 110.

Mamta Rajwat: Burning Issues of Human Rights, Kalpaz Publications, Delhi,

2001, p.32.

52 Ibid., p. 37.

53 Ibid., p. 44.

54 Ibid., p. 411 - 41.

5s Ibid., p. 42.


56 Ibid., p. 47.

57 Ibid., p. 45.

58 Ibid., p. 46.

59 Ibid., p. 47.

Ibid., p. 53 - 51.

61 Ibid., p. 52 - 53.

62 Shukla, C. Gandhik view of life, p. 64.

63 Young India, 3anuar-y 8, 1925.

" Harijan, July 6, 1947.

65 Ibid.

Documents

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