REFLECTION OF AWARENESS

IN THE

DEVELOPMENT PROCESS

OF

HUMAN RIGHTS
 CHAPTER - II

REFLECTION OF AWARENESS

IN THE DEVELOPMENT PROCESS

OF

HIhJI\/I^“^I^I ^31H T S

From the very beginning of human history, man has been

struggling for his existence against nature and his fellowmen, though
there was no marked awareness of any need for human rights at the
beginning. The concept of "the survival of the fittest" caused conflicts
among human beings that paved the way for the framing of rules and
regulations for the safeguard of the weaker sections. The formation of
states and empires was not always based on the principles of
establishing human rights.1 Through different practices, men enjoyed
their human rights in different ways because without these rights men
could not five in the society.
t Human Rights in India :
Historical, social and Political perspectives,
Edited by - Nirmal chiranjivi J. P.1
 15

our old scriptures and books also uphold a human life as

sacred and invaluable. But it was all in the exalted thoughts of poets and
philosophers. We have to tread the path of history to trace the genesis
of human rights emerging as an enforceable and enduring right.

“When a society changes from its traditional moorings into

a modern society, there is a gradual but fundamental change in the
style of life of the people and in their outlook on the world".2
Modernization involves a change of outlook, a belief in the possibility of
progress and change, and the acceptance of objective criteria and
standards for constant improvement in all aspects of individual and
social life. Its essence lies in the awareness of men as being self-
contained individuals who have the power to change and direct their
lives with their basic rights and transform society. "With the growth of
social modernization the individual finds himself in a wider world of
freedom in which there are restrictions on his ability to take decision
which touch him intimately. He is free to choose his own career, for
instance, rather than have it determined for him by the group in which
he was born. The restriction on his freedom comes more from the laws
of the land of the organization in which he works than from custom and
social practices".3

The origin of awareness of Human Rights is from the notion

2. Modernization of Traditional society and other essays - by Aiyar
S.P. P.4
3. ibid P. 7
 16

that all human beings are born free and equal in dignity and rights.
Every human being is entitled to certain natural rights by virtue of his
being a member of human society. These rights are called "Human
Rights".4Human rights are those rights which are inherent in nature and
without which we cannot live as human beings. Human Rights and
fundamental freedom allow us to fully develop our intelligence, and
dealings to satisfy our spiritual and other needs.

"Fundamental rights are the name for what have been

traditionally known as "natural rights"5 when human rights are
guaranteed by a written constitution they are called "Fundamental
Rights". The primitive man had not known anything like human rights.
There was no struggle for securing human rights except the struggle
which was better known as struggle for survival. They have no notion of
fundamental rights, though they enjoyed a number of limitless
freedoms which no civilized man could ever boast of. They had absolute
freedom of movement. They had freedom of speech and expression,
but this freedom had no real utility. They also had absolute freedom
of sexual relationship. As a whole, they had all possible and conceivable
freedoms but these freedoms had no meaning, no relevance. "With
the dawn of civilization one might hope that some respects for human
rights would emerge. It seems that the era of human rights dawned
4. The Protection of Human RightsAct and Relating Laws by
Mangarl rajendra. P.1
5. GolokNath vs state of Punjab air 1967s.c. 1643
 17

with the industrial Revolution. A clarion call was given that man is
endowed by birth with certain inalienable rights, of which, rights to
liberty and to property are sacrosanct. However, soon it was discerned
that human rights were the privilege of the rich, and the poor man's
human rights could be trampled upon with impunity. When poverty
deprives one of human existence, then human dignity and human right
dwindle into insignificance Rousseau, the torch bearer of the French
" .6

Revolution proclaimed that men were endowed with inalienable rights

of liberty, equality and fraternity, in primitive stage, the feelings for
humanity were there. But the awareness for their human right was in a
dormant stage. Due to the lack of that awareness they were unable to
enjoy their basic right as right because they did not know about their
right as human beings. They only enjoyed them in a natural way and
their feelings of humanity reflected in their way of action. Their feeling
of humanity was spontaneous. They were not aware of their
unawareness. But gradually time brought about a marked change in the
outlook and behaviour of groups which are characterized by the
functions they perform in society rather than by caste, language,
residence and other similar factors.

Basically, the concept of human rights is derived from

the dignity and worth inherent in every human being, in simple terms,
6. Human rights ana the Law, universal and Indian by Diwan Paras
•

and Peeyushi, Preface (i)

 18

whatever adds to the dignified and free existence of human beings

should be regarded as Human Rights, because without it we cannot live
as human beings. The fundamental freedom or right allows us to fully
develop and use our conscience and satisfy our spiritual and other
needs. These are all based on mankind's increasing demand for a life in
which the inherent dignity and worth of each human being will receive
respect and protection.

The Human Rights movement has been exercising

profound influence among the world' community. The whole world
fights for human dignity. The developing countries represent the
world's major religions and political ideologies like socialism, democracy
or feudalism. They were faced with tremendous problems of state
building, economic reconstruction and regional, sub-regional and ethnic
conflicts. There remains a sharp disagreement regarding the exact scope
and nature of basic human rights, several movements started with a
view to securing certain basic rights for individuals in different periods
of ancient human history. The roots of the Human Rights and
fundamental freedom of individuals have, however, to be traced out
from humanitarian traditions, the unceasing struggle for human
freedom and equality of individuals in ail parts of the world and historic
pronouncements of philosophers, political leaders and statesmen of
different centuries in general and in the 20thcentury In particular. The
constitutions of some of the countries did incorporate certain
democratic freedom of the people as early as in the 18thcentury. The
 19

awareness of human rights was reflected in different countries of the

world which can be discussed in a very brief manner.

To the Greeks, the idea of personal freedom was

unknown.7 In recorded history and ancient scriptures, there have been

references to the basic human rights though they were not referred to

by that name. The great Greek philosophers developed the idea of

"natural law” and laid down some essential ideas regarding natural

rights. The "natural law” thinkers believed that natural law was a body of

higher laws in subordination to which all human laws must be made, to

the Greeks the idea of human rights was unknown, even the idea of

personal freedom. According to Socrates, man possesses 'insight' and

this insight reveals to him the goodness and badness of things and

makes him know the absolute and eternal moral rules. This human

'insight' is the basis to judge the law. Citizens of certain Greek city states

enjoyed such rights as equality before law, respect for all and equal

freedom of speech. These rights are prominently reflected in the

modern human rights jurisprudence.

in the Hellenistic period, the stoic philosophers

formulated the doctrine of natural rights - something which belonged

to all men of ail times. These rights were not the particular privileges of

citizens of particular cities, but something to which every human being

everywhere was entitled by virtue of being human and rational. They

7. Human Rights, principles, Practices and Abuses. Edited by Sanajaoba N. p. 33
 20

believed In the universal brotherhood of man. in this respect Cicero

remarked- "Universal consent is the voice of nature".8

Roman lawyers followed the stoics closely in stressing the

fundamental resemblance and equality of men stemming from their

common possession of reason and from their capacity to develop and

to attain virtue. The influence of 'natural law’ was also found in the

‘institutes’ where justice was defined as "the constant perpetual desire

of giving to every man what is due to him”.

in the middle ages people started to think about the value

of natural law. They became aware of the moral validity of the law,

otherwise law would be unjust.

"The general awareness of human rights as well as the

attempts enunciate these rights through character. Bills
of rights, constitutional documents, national and
international conventions - all these are a distinctly
modern development, traced mainly from the English,
the French, and the American Revolutions of the
seventeenth and the eighteenth centuries, in England,
the early beginning of Human Rights could be seen in the
Magna Carta of 1215 a .d . in the classical world, Rome took
the lead in sowing the seeds of personal freedom in the
development of law. in Roman jurisprudence, ‘Jus’
signifies both law and rights. "Person" postulates bearing
of rights".9

8. international Law and Human Rights by Lauter Pacht, H. P. 99

-
 21

The g re a t p h ilo s o p h e r s o f th e m id d le ages lik e Thom as

A c q u in a s r e a ffirm e d th a t th e " n a t u r a l la w " is h i g h e r t h a n th e p o s itiv e

la w s a n d it w o u ld be obeyed by a ll. A c c o r d i n g to h im , a n y o rd e r or

a u t h o r it y w h ic h c o n tra v e n e d th e n a tu ra l la w , c o u ld be d is o b e y e d , fo r

" u n j u s t la w s h a v e n o m o r a l v a l i d i t y ." •

H o w e v e r, th e n e w v is ta s h a d o p e n e d t h r o u g h t h e s ig n in g

o f M a g n a C a r ta b y K in g J o h n ll w h i c h is s a i d t o b e t h e f i r s t m i l e s t o n e o n

th e ro a d to th e lib e r tie s o f th e p e o p le o f E n g la n d in 12 15 A .D . th a t

p r o v o k e d t h e h u m a n c o n s c ie n c e e ls e w h e r e .

The M agna C a rta w h ic h is a ls o know n as "th e g re a t

c h a r a c te r o f lib e rty " p r o v id e d th a t - "n o p e rso n s h a ll b e c a p tu re d or

im p r is o n e d o r d e c r ie d o r o u tla w e d o r e x ile d o r in a n y w a s d e s t r o y e d ,

n o r w ill w e go a g a in s t h im or send a g a in s t h im , e x c e p t b y th e la w fu l

J u d g e m e n t o f h is p e e r s o n l y u n d e r t h e la w o f t h e la n d . T o no o n e w ill

w e s e ll, t o n o o n e w ill w e d e n y o r d e la y r i g h t o f ju s tic e " . A f t e r th is , t h e

P e titio n o f R i g h t s o f 1 6 2 8 , t h e B ill o f R i g h t s o f 1 6 8 8 , t h e A m e r i c a n B ill o f

R ig h ts o f 1 7 9 1 a n d t h e F r e n c h D e c la ra tio n o f th e R ig h t o f M an o f 178 9

b e c a m e t h e m i l e s t o n e s a l o n g t h e r o a d in w h i c h t h e i n d i v i d u a l a c q u i r e d
i

p r o t e c t i o n a g a i n s t t h e v i o l a t i o n o f h is r i g h t s . T h e p e t i t i o n o f R i g h t s , 1 6 2 8

w as e n a c te d as a s ta tu te by P a r lia m e n t a n d it b e c a m e a p a rt o f th e

p o s itiv e la w o f E n g la n d . A t t h e s a m e t im e , H u g o G ro tiu s o f H o lla n d a n d

9. supra 7. P.33
 22

Thomas Hobbes and John Locke of England provided the necessary

wings to the movement of freedom and liberty. Grotius was categorical
that positive law was subordinate to "natural law", on the other hand,
Hobbes was basically a strong supporter and believer In individual
freedom and equality of man. He said that while living in the state of
nature, men were absolutely free and equal to each other. Similarly,
Locke's views were based on the theory of natural law which accepted
that there are Inherent in each individual, certain rights which are
innate and therefore indefeasible, i.e. they cannot be made void, in the
seventeenth century, Hugo Grotius and other lawyers also expounded
the "doctrine of Humanitarian intervention".

The Bill of Rights, 1689 was another great charter of

liberty, it was a statement of the basic rights which the Englishmen
secured in their long struggle against the autocratic rule of some of the
British kings. The Bill of Rights consolidated the important rights and
liberties of the people.

On 4th July 1776, the American Declaration of

Independence was adopted by the constitutional congress and it was
declared that "we hold this truth to be self-evident that all men
arecreated equal, that they are endowed by their creator with
certain inalienable rights, that among these are life, liberty and pursuit
of happiness".
 23

The u.s. constitution recognized and guaranteed the basic

inalienable rights of individual such as to life, liberty and pursuit of

happiness. That was the first national bill of rights, embodied as

constitutional norm at the national level. The Bill of Rights of the u.s.

Constitution also contained specific rights with which the government

was categorically forbidden to interfere. Therefore, the Americans are

said to be the first who had conceived the grand notion of human

rights. The first ten amendments known as the "Bill of Rights" became

part of the American constitution on 15th December 1991 and the rights

of the people were defined in more details. Thus, the Americans were to

give the Bill of Rights a constitutional status.

The violation of human rights during the medieval period

in France and other European countries paved the way for a series of

revolution. The idea of human rights developed in the process of

revolution. Rousseau, who said "Man is born free aqd is everywhere in

chains”, and other philosophers, provided a rational perspective to the

revolution in 1789.

in 1789, the French Declaration of the Right of Man and of

the citizen issued by the constituent assembly asserted that men are

born and remain free and equal in respect of their right and it further

stated that the purpose of all political associations is the preservation of

the natural and inalienable rights of man. These rights are liberty,

property, security and resistance to oppression.

 This is evident from the fact that before w orld w ar I, the

question of protection of minorities loomed large and feebly, it was

accepted that international law is concerned not merely with states but

also with individuals. After the w ar and with the rise of dictatorships,

the question of fundamental human rights and freedom began

surfacing10 in the field of international Law also.

After the First World War, the Treaty of peace of 28th June

1919 between the Allied and Associated Power and Germany was the

most significant and enduring instrument which deals with a number of

political, legal, humanitarian and economic issues. The international

concern for human dignity and rights found expression in the covenant

of the League of Nations. Article 22 of the covenant of the League of

Nations established the Mandates system which proclaimed the

principle that "the well-being and development of the people in

mandated territories form a sacred trust of civilization. Article 23 of the

covenant of the League of Nations was also concerning human rights.

The worst kind of brutalization of human rights in the First and second

world Wars was the main motivating factor in pursuing the goals of

protection of human rights in the post-war period and many changes

occurred on the world scenario. "After the conclusion of the second

World war, movement for securing Human Rights to all gained strength.

The war, the great scourge on humanity, the atomic bombardment of

10. Human Rights and the Law, universal and Indian by oewan Paras
and Peeyushi, p. 23
 25

Hiroshima and Nagasaki made man realize that if something concrete

and tangible would not be done man's doom was heralded. Efforts at
securing human rights were intensified”. 11

A great assault on rights took place in Hitler's Germany. He

fed the German nation on a fiery diet of racial supremacy and put the
blame at the doors of the Jews for whatever went wrong in Germany.

Millions of Jews were huddled in barbed wire fenced

camps and led to the gas chamber to meet their maker, it has come to
be known as the holocaust. When the details of this unspeakable torture
and mayhem filtered through, a shocked world was numbed with the
i

cruel and barbarous methods adopted by Hitler and his co-horts.

The holocaust had sharpened the awareness about human

rights in a very significant and lasting manner.

The stalinist era In Russia bristles with gross violations of

human rights. It was directed towards the dissenters. They were
shepherded to Siberia as punishment for dissent. Poets, novelists, men
of letters had to undergo harrowing experiences in>the vast lonesome
expanse of icy Siberia. Many fled Russia. Boris Pasternak, a great poet
and novelist was not even allowed to receive the Nobel prize for
11. Ibid, Preface (i)
 26

lite r a tu r e f o r his tim e le s s n o v e l " D r. Z h iv a g o " . T h is p e r s e c u tio n also

b r o u g h t a b o u t w o r ld - w id e c o n d e m n a t io n and th u s h e lp e d s p re a d

a w a re n e s s a b o u t t h e n e e d t o p r o t e c t h u m a n rig h ts .

T h e e x p e r ie n c e o f t h e t w o w a r s le d t o a f i r m c o n v ic tio n

t h a t t h e in te r n a tio n a l p r o t e c t io n o f h u m a n r ig h ts w a s a n e s se n tia l

c o n d it io n o f in te r n a tio n a l p e a c e a n d p ro g re s s .

T h is c o n v ic tio n le d to th e d r a ft in g of hum an rig h ts

p r o v is io n in t h e U n it e d N a tio n s C h a r te r , t h e " In te r n a tio n a l Bill o f H u m a n

R ig h ts , a n d a n in te r n a tio n a l s ta n d a r d f o r t h e p r o t e c t io n a n d p r o m o t i o n

o f h u m a n rig h ts has b e e n e s ta b lis h e d . T h e p u r p o s e o f t h e u n it e d

N a tio n s is n o t o n ly t o m a in ta in p e a c e a n d s e c u rity in t h e w o r ld b u t also

to p ro m o te u n iv e rs a l re s p e c t f o r hum an rig h ts a n d fu n d a m e n ta l

fre e d o m irre s p e c tiv e o f d iv e r s ity a m o n g in d iv id u a ls a n d ra c e s . T h e

u n iv e rs a l D e c la ra tio n of Hum an R ig h ts , 19 4 8 has r e -a ffir m e d th e

p rin c ip le o f n o n -d is c r im in a tio n a m o n g In d iv id u a ls .

"Fo r th e f ir s t t im e in hum an h is to r y , th e u n iv e rs a l

D e c la ra tio n o f H u m a n R ig h ts , 19 4 8 h a d fu r n is h e d an e la b o r a te u n iv e rs a l

s ta te m e n t o n hum an rig h ts . T h e d e c la r a tio n , a lo n g w it h th e tw o

c o v e n a n ts o f 19 6 6 c o n s titu te s t h e in te r n a tio n a l Bill o f R ig h ts . A s ta n d a r d

h as b e e n laid d o w n f o r t h e f ir s t t im e f r o m w h ic h d e v ia tio n s , a b e r r a tio n s

 27

a n d v io la tio n s can b e m e a s u re d a n d e v a lu a te d " .12

T h e In te r n a tio n a l Bill o f H u m a n R ig h ts c o n s ists o f t h e

u n iv e rs a l D e c la ra tio n of Hum an R ig h ts of 1 9 4 8 ,t h e in t e r n a tio n a l

c o v e n a n t o n civil a n d p o litic a l r ig h t o f 19 6 6 , t h e in te r n a tio n a l c o v e n a n t

o n s o c ia l, E c o n o m ic a n d c u ltu ra l R ig h ts o f 19 6 6 a n d t h e F ir s t a n d s e c o n d

o p t io n a l p r o to c o ls t o t h e in te r n a tio n a l c o v e n a n t o n C ivil a n d P o litic a l

R ig h ts o f 19 6 6 .

T h e im p o r t a n t c o m p o n e n t o f t h e in te r n a tio n a l Bill o f

H u m a n R ig h ts is t h e In te r n a tio n a l c o v e n a n t o n E c o n o m ic , so c ia l a n d

c u ltu ra l R ig h ts 19 6 6 , w h ic h r e c o g n iz e s t h a t e v e r y o n e w o u ld e n jo y his

e c o n o m ic , social a n d c u ltu ra l rig h ts as w e ll as his civil a n d p o litic a l rig h ts .

T h e m a c h in e r y f o r t h e im p le m e n t a t io n o f th e s e rig h ts c o n t a in e d in th is

c o v e n a n t is t h e E c o n o m ic a n d Social C o u n c il w h ic h s u b m its r e p o r t s t o

t h e G e n e ra l A s s e m b ly w it h r e s p e c t t o t h e e c o n o m ic , social a n d c u ltu ra l

rig h ts , c o -o rd in a te s a c tiv itie s of s p e c ia lize d a g e n c ie s and se ts up

c o m m is s io n s in t h e fie ld o f e c o n o m ic a n d social r ig h ts . T h e c o m m it t e e

on E c o n o m ic , so cial a n d C u ltu ra l r ig h t is a w o r k in g g ro u p o f th e

E c o n o m ic a n d so cial c o u n c il.

T h e u n iv e rs a l D e c la ra tio n o f H u m a n R ig h ts o f 19 4 8 is a

b as ic in te r n a tio n a l p ro n o u n c e m e n t of th e in a lie n a b le r ig h ts and

f r e e d o m f o r all t h e m e m b e r s o f t h e in te r n a tio n a l fa m ily . T h e

12. supra 7. p. 8
 28

Declaration represents the first endeavour of the U.N.O. elaborating

upon the normative ramification of the concept of the human rights.15

it is accepted as a milestone in the history of human rights movement.14

The Declaration consists of a preamble and thirty articles.

The preamble to the Declaration states that the member

states have pledged themselves to achieve and promote the universal

respect for observance of human rights and fundamental freedom

without any discrimination. The Declaration sets forth the civil and

political rights, viz. the right to life, liberty and security of person,

freedom from torture or cruelty or degrading treatment or punishment

to humans, the right to recognition everywhere as a person before the

law, the right to an effective remedy, freedom from arbitrary

interference with privacy of family, home or of correspondence,

freedom of movement, the right to seek asylum, the right to

nationality, the right to marry and found family, the right to property,

freedom of thought, conscience and freedom of religion and

expression, freedom of peaceful assembly and association, right to take

part in the Government of one's own country and right to equal access

to public services.15 The Declaration has been an important document

and fundamental source of inspiration for national, regional and

international efforts in promoting and protecting human rights.

13. H um an Rights a n d D em ocratization o f Rem edies - B h a g w a ti P.N.

pp. 585-586
14. H um an Rights in a D eveloping so c ie ty - Sen Sapkar, p. 26
15. universal D eclaration o f H um an Rights, 1948, A rticle 3 to 21
 29

Aw arenessinlndia:

in In d ia , t h e id e a o f H u m a n R ig h ts is as o ld as t h e h is to r y

o f h u m a n c iv iliz a tio n . T h e c o n c e p t o f "rig h ts o f m a n ” h a d a p la c e in

a lm o s t all t h e a n c ie n t c iv iliza tio n s o f t h e w o r l d . In d ia n h is t o r y w a r r a n t ,

t h e f a c t t h a t h u m a n rig h ts ju r is p r u d e n c e h as a lw a y s o c c u p ie d a p la c e o f

p r im e im p o r t a n c e in In d ia 's ric h le g a c y o f h is to ric a l t r a d it io n and

c u lt u r e .16 T h e t r u t h is t h a t w h a t t h e w e s t h as d is c o v e r e d a b o u t h u m a n

r ig h ts n o w , In d ia h a d e m b e d d e d t h e s a m e in its d e e p r o o t e d t r a d it io n s

sin c e t im e im m e m o r ia l.17

T h e N a tio n a l s tr u g g le f o r f r e e d o m w a s t r u ly a n a t t e m p t o f

t h e In d ia n s t o s e c u re basic h u m a n r ig h ts f o r all t h e p e o p le 18 w it h t h e

re s u lt t h a t t h e p r o m u lg a t io n o f t h e c o n s t it u t io n b y t h e p e o p le o f In d ia

in J a n u a r y 19 5 0 "s h a re d in t h e h e ro ic d e v e l o p m e n t o f t h e p h ilo s o p h y o f

h u m a n rig h ts in In d ia ".19

T h e h is to ric a l a c c o u n t o f a n c ie n t B h a r a t p r o v e s i t b e y o n d

d o u b t t h a t t h e H u m a n R ig h ts w e r e p r e s e n t in t h e A n c ie n t H in d u a n d

Islam ic C iv iliza tio n as in t h e E u r o p e a n C h ris tia n C iv iliz a tio n . A s h o k a ,

P r o p h e t iv ia h a m m e d a n d A k b a r c a n n o t b e e x c lu d e d f r o m t h e g e n e a lo g y

16. Third world Response to Human Rights by TyagI k. yogesh, opcit,

p. 127
17. Ibid, P. 108
18. Human Rights and Parliament by Kashyap subhas g, P. 20
19. Human Rights International Challenge, Vol. I by Subramaniam
Dr. s.p.23
 30

of human rights.20

The quest for equilibrium, harmony, knowledge and truth

inspired the ancient Indian minds more than their counterparts - the
Greeks and the Romans.21in ancient India, too, the human rights were
not unknown. About 5000 years ago, ancient Indian philosophers and
thinkers expounded a theory of higher moral law over and above
positive law embodying certain values of universal validity like Dharma
(righteousness), Artha (wealth), Kama (desire), and Moksha (salvation),
with a view to establish a harmonious social order by striking a balance
between inner and outer, spiritual and materia! aspects of life.22

In fact, the root of the concern for human rights in the

Vedic age may be traced in religion, humanitarian traditions and the
unceasing struggle for freedom and equality.

' The philosophers of the Vedic age endeavored to define

human rights as those rights which were inherent in human nature and
without which man could not live as human beings. They supported
vehemently the view point that human rights and fundamental
freedom allow man to fully develop and use human qualities, human
20. Supra No. 16, op cit, p. 124
21. Human Rights under the Indian constitution, the Philosophy and
Judicial Gerrymandering by Mehta P.L., Mehra ueena, P. 10
22. Fundamental of Jurisprudence, The Indian Approach by Dhyani
Profs. N. P. 97
 31

Intelligence, talents and conscience and to satisfy the spiritual and o th er

needs. There are m any references in the Vedas th a t1th ro w light on the

existence o f human rights.23

A fter Buddha, Ashoka protected and secured the m ost

precious o f human rights to equality, fraternity, liberty and happiness.

T orture and inhuman treatm ent o f prisoners w ere p rohib ited under

Ashoka's administration. He w orked day and night fo r protection o f

human rights. The rock edict o f Ashoka o f the th ird century B.c.
proclaim ing his concern fo r the well-being o f the hill dwellers is perhaps
i

a com bination o f humanitarian impulse and pragmatism.

King Ashoka in Kaiinga Edict li inscribes, "all men are m y

children and , just as l desire fo r m y children that th ey m ay enjoy every

kind o f prosperity and happiness both in this w orld and in the next, so

also do l desire the same fo r all men".24

Hence it is clear that the early developm ents in the field of

human rights w ere the result of historic pronouncem ents of

philosophers, statesmen, political leaders and unceasing struggle fo r

freedom and equality in all parts o f the w orld. However, the substantive

developm ent o f contem porary human rights jurisprudence started only

during the nineteenth century and it is still continuing. The Indian legal

25. supra 21, p. 12

24. A History o f Bharat b y Sethi R.R. and Narang K.s. P. 181
 32

philosophers were humanists, rationalists and, above ail, moralists who

evolved a system of legal theory which was based on higher values and

ideals i.e. on their conception of Dharma. Every aspect of life was

regulated by Dharma which has been impelling men since the Vedic ages

to strive for "righteousness'' and to regard it as the supreme law in

Ancient India. Dharma was the ideal of the ancient Indian legal theory

for the establishment of a socio-legal order free from traces of conflicts,

exploitations and miseries.

Kautilya, the Prime Minister of the Mauryan empire around

300 b c , the author of the celebrated political treatise Arthasastra, laid

great emphasis on the right to happiness of all individuals and the duty

of the king to protect that Right.

The concept of human rights got lost on its way in the

Middle Ages. Significantly, Muslim rule in India from the point of view of

Human rights was counter-productive to harmony, justice and equality.

Hazrat Mahammad advised Abdar-Rahman-lbn-Arlf never to commit

breach of trust, not to commit treachery, not to mutilate the body of a

person, not to kill any minor or woman. He described these injunctions

as a contract with God. in various chapters of the Quran female

infanticide has been condemned just as freeing a slave has been praised

as an act of great merit, in fact, the Prophet himself got hundreds of

 33

slaves freed. Islam was the earliest religion to emancipate women giving
them rights unknown in any other dispensation. These Included

women's right to contract marriage, divorce, and to'inherit and to

dispose of her property as she pleased. A new era began in Mughal

history of India from the time of Akbar in the field of human rights with

his policy of universal reconciliation and tolerance. Various European

travellers who visited Akbar's empire highly appreciated his zealous

regard for rights and justice. His justice-loving tradition was followed by

his son Jehangir, too. There was a popular legend that Jehangir

arranged a chain with bells to be hung outside the palace in order to

enable petitioners to approach him for the redressal of their grievances,

strictly speaking, it was an easily accessible individual petition system in

comparison to our modern lengthy and expensive writ petition

system.25

For proper realization of human rights, it is essential that

the society as a whole accepts the basic norms of human rights and that

the rule of its law is guaranteed. Though Buddhism has got acquainted

with the concept of human rights ad that the rule of its law is

guaranteed. Though Buddhism has got acquainted with the concept of

human right in a formal way at a later stage, it has been on the

forefront in imbuing the very ethos of the concept of human rights in
the form of defence of human essence and dignity Buddism does not

25. s u p ra 16, p. 123

 34

believe in discrim ination o r inequality sim ply on th e basis o f one's birth,

caste o r colour.

Buddhism as a philosophical proposition , as well as a

m oral w a y o f life, has been concerned w ith spiritual salvation whereas

hum an rights aim at natural salvation i.e. safety o f th e rights o f equality,

d ig n ity and fre e d o m at th e w o rld ly level. Th e Buddha has ta u g h t to

h o n o u r parents, brothers, sisters, children, o th e r relatives and o th e r

persons in th e society. If som eone hurts a n yb o d y physically o r even

vocally, he m ay be treated as a person lacking th e basic hum an qualities.

Regard fo r hum an dig n ity is th e basic social message o f Buddhism , o n e

can fin d a distinct link betw een th e evolution o f Hum an Rights concept

and the Buddhist Doctrines.

The m odern version o f hum an rights jurisprudence and

the prigin o f this ideal in India lies in the history o f India, especially in

th e struggle fo r fre e d o m against th e British rules .26 The legislature,

executive and judiciary w ere orien ted to p ro te ct and p ro m o te the

th e interests o f the British. The im pression gained in th e Indian m ind

was th a t th eir sacred inalienable hum an rights and vital interest had

been ignored, denied fo r the sake o f English rulers w h o ruled th e

c oun try, its wealth and even the law. th e trials o f Tilak and Gandhiji

w ere an eye o pen er to all Indians th at hum an rights, fundam ental

26. Supra 18, P. 20

 35

freedom and liberty and independence would not be granted to India.

The British resorted to arbitrary acts such as brutal assaults on unarmed
j

“satyagrahis', internments, deportations etc. The freedom movement

and the harsh repressive measures of the British rulers encouraged the
fight for civil-liberties and the demand for constitutional guarantee of
some fundamental rights.27 The concrete demand for fundamental
rights came in the wake of the Nationalist Movement which coincided
with the birth of the Indian National Congress in 1885. The first explicit
demand of the people of the Indian sub-continent for fundamental
rights found place in the constitution of India Bill 1895. The
constitution of India Bill 1895 prepared by the Indian National congress,
also known as the “Home Rule Document", talked about a constitution
guaranteeing every one of the citizens basic human rights like Freedom
of expression, inviolability of one's own home, Right to property,
Equality before law etc.28

The evolution of civil liberties /Human Rights movements

in India can be traced back to the pre-independence period. At that
time the struggle was in protest of Injustice committed by the British
rulers. The focus was mainly on indefinite detention without trial, time
and in utter disregard to rule of law, which posed a serious threat to the
civil liberties. A series of congress resolutions adopted between 1917
27. Supra 21, p. 19
28. Supra 19, p. 122
 36

and 1919 repeated the demand for civil rights and equality of status

with the Englishmen.

The major development in this direction was the drafting

of Mrs. Besant's commonwealth of India Bill of 1925. Article 4 of this Bill

contained a list of seven Fundamental Rights:

(a) Liberty of person and security of his dwelling and

property,

(b) Freedom of conscience, profession and practice of

religion,

(0 Free expression of opinion and the right of assembly

peaceably and without arms and of forming associations

or unions,

(d) Free elementary education,

(e) use of roads, public places, courts of justice and the like,

tf) ’ Equality before the law, irrespective of considerations of

nationality, and

(g) Equality of the sexes.

Another landmark in the development of the recognition

of fundamental rights was the Karachi Resolution adopted by the

Congress session held in Madras in 1931. It held that real economic

freedom of the starving millions is necessary to end the exploitation of

the masses.
 37

T h e d e m a n d f o r a d e c la ra tio n o f F u n d a m e n t a l R ig h ts in

t h e c o n s titu tio n a l d o c u m e n ts w a s a g a in e m p h a s iz e d b y s e v e ra l In d ia n

le a d e rs a t th e Round T a b le c o n fe r e n c e p r io r to th e m a k in g of

G o v e r n m e n t o f In d ia A c t , 19 3 5 .

T h e d e c a d e o f t h e 19 4 0 's w a s m a r k e d b y a r e s u r g e n c e o f

in te re s ts in h u m a n rig h ts . T h e d e n ia l o f lib e rtie s u n d e r G e r m a n a n d

Russian to ta lita r ia n is m a n d e ls e w h e re re s u lte d in t h e A t la n t ic C h a r te r ,

t h e U n it e d N a tio n s c h a r te r a n d t h e a c tiv itie s o f t h e U n it e d N a tio n s

H u m a n R ig h ts C o m m is s io n .29

A f u r t h e r s ta g e in th e d e v e lo p m e n t o f F u n d a m e n t a l

R ig h ts in In d ia w a s t h e s a p ru c o m m i t t e e r e p o r t p u b lis h e d a t t h e e n d o f

19 4 5 w h ic h w a s a p p o in t e d b y a n A ll-P a rtie s C o n fe r e n c e in 19 4 4 -4 5 w it h

S ir T e j B a h a d u r s a p ru as its C h a ir m a n .

T h e B ritis h C a b in e t M ission in 1 9 4 6 r e c o g n iz e d t h e n e e d f o r

a w r it t e n g u a r a n te e o f F u n d a m e n t a l R ig h ts in t h e c o n s t it u t io n o f In d ia

in p a ra g ra p h s 1 9 a n d 20 o f its s t a t e m e n t o f M a y 1 6 , 19 4 6 e n v is a g in g a

C o n s t it u e n t A s s e m b ly fo r f r a m in g th e c o n s t it u t io n of In d ia . The

c o n s t it u e n t A s s e m b ly o n 2 4 J a n u a r y 1 9 4 7 v o t e d t o f o r m t h e A d v is o r y

C o m m it t e e a n d t h e C o m m it t e e , in t u r n , s e t u p fiv e s u b -c o m m it t e e s o n

F u n d a m e n t a l R ig h ts .

2 9 . T h e R e p o r t o f t h e J o i n t c o m m i t t e e o f I n d ia n c o n s t i t u t i o n a l
R e f o r m s 19 3 4 . v o l. l. o . 1 3 6 6 ________________________________________
 38

W h e n t h e fu n d a m e n t a l r ig h ts s u b -c o m m it t e e m e t f o r t h e

firs t tim e on 27 Fe b ru a ry 1 9 4 7 , it h a d b e fo re it a d r a f t lis t o f rig h ts

p re p a re d by B .N .K .T . S h a h , K .M . M u n s h i , B .R . A m b e d k a r , H a r n a m S in g h

a n d th e C o n g re s s E x p e r t c o m m itte e .

A c c o r d in g ly , th e p ro v is io n s c o n c e r n in g in d iv id u a l lib e r ty ,

r ig h t to e q u a lity , b a s ic fre e d o m e tc . w e re passed w ith c e rta in

lim ita tio n s . T h e r e fo r e , t h e A s s e m b ly passed F u n d a m e n ta l R ig h ts w h ic h

a re d iv id e d in to s e v e n p a r t s h a v i n g c lo s e r e s e m b la n c e t o hum an r ig h ts

e n s h r i n e d in v a r i o u s i n t e r n a t i o n a l h u m a n r i g h t s d o c u m e n t s .

N e e d le s s to p o in t o u t th a t F u n d a m e n ta l R ig h ts and

Hum an R ig h ts o v e rla p in c e r ta in re s p e c ts . Hum an R ig h ts a re m o re

e l e m e n t a l r i g h t s . I t is n o t o n l y c o n c e r n e d w i t h t h e e l e m e n t a r y r i g h t s o f

e a c h i n d i v i d u a l f o r h is o r h e r b e i n g s i m p l y b o r n a s a h u m a n b e i n g , b u t i t

a ls o t r a n s c e n d s t h e l i f e - t i m e o f a n i n d i v i d u a l , i t m a k e s n o d is tin c tio n o n

th e b a s is o f a g e , s ix , r e l i g i o n , c a s t e , c r e e d e tc . E v e n a new b o rn baby

a c q u ir e s h u m a n r ig h ts f r o m t h e m o m e n t o f h is / h e r b i r t h . S im ila r ly , e v e n

t h e d e a d b o d y o f a n in d iv id u a l h a s t o b e t r e a t e d w it h re s p e c t, c a re a n d

d i g n i t y . H u m a n d i g n i t y is t h e e s s e n c e o f h u m a n r i g h t s . I t a p p l i e s t o b o t h

l i f e a n d d e a t h . I t is a u n i v e r s a l r i g h t , n o t s u b j e c t t o t e r r i t o r i a l l i m i t s . E v e

a n o u t l a w d o e s n o t lo s e h is m i n i m u m o f h u m a n r ig h ts .
 39

in the year 1919, after the establishment of the

International Labour Organization an impetus was provided to the
workman for protection of his basic right at the place of his
i

employment though it did not work in the field of promotion and

protection of human rights, particularly for the workers and minorities.
The International Labour organization which functioned in collaboration
with the League of Nations provided an efficient system for developing
and coordinating new international machinery for economic and social
cooperation rather than to define rights and to devise measures for
promoting them. The Universal Declaration of Human Rights which was
adopted by the General Assembly of the United Nations in December
1948 advocated for the recognition of the basic rights of human beings.
The Declaration of the united Nations organization strongly inspired for
human rights provisions in the constitution of Asian and African
member countries including India. In addition to the resolution and the
declarations of the United Nations on Human Rights, conventions on
Human Rights have been approved and adopted by the Member states
from time to time. The declaration has influenced the framing of
various national constitutions and other domestic legislation. India is
one of the signatory state parties to the Declaration. The constitution of
India was greatly influenced by the Declaration. The constitution of India
in both parts III and IV has articulated the historic Declaration, which is
unique in human history. The fundamental rights and freedoms,
guaranteed in Part III of the constitution of India are more or less similar
to the provisions of the Declaration.
 40

T h e 19 9 0 ‘s h a v e s e e n t h e e n a c t m e n t o f h u m a n r ig h ts

le g is la tio n in In d ia . T h e N a tio n a l c o m m is s io n f o r W o m e n A c t (1990)

p r o v id e d f o r a N a tio n a l c o m m is s io n f o r w o m e n . T h e p r o t e c t io n o f

H u m a n R ig h ts a c t, 19 9 3 p r o v id e d f o r t h e c o n s t it u t io n o f a N a tio n a l

Hum an R ig h ts c o m m is s io n , s ta te Hum an R ig h ts c o m m is s io n s In

in d iv id u a l s ta te s a n d a H u m a n R ig h ts C o u r t . A s a re s u lt, t h e p r o p o s a l f o r

N a tio n a l H u m a n R ig h ts C o m m is s io n Bill w a s in t r o d u c e d in t h e L o k s a b h a

o n M a y 1 4 , 19 9 3 a n d t h e c o m m is s io n w a s u ltim a te ly e s ta b lis h e d o n

O c t o b e r 1 2 ,1 9 9 3 .

N a tio n a l H u m a n R ig h ts C o m m is s io n o f In d ia is o n e o f t h e

m o s t e f f e c t iv e r ig h ts c o m m is s io n s in t h e w o r ld . T h e N a tio n a l H u m a n

R ig h ts c o m m is s io n is a n in d e p e n d e n t a u t o n o m o u s b o d y a n d is n o t

s u b s e r v ie n t t o a n y s ta te o ffic ia l o r a g e n c y . N a tio n a l H u m a n R ig h ts

c o m m is s io n is c h a r g e d w it h t h e ta sk o f p r o t e c t in g and p ro m o tin g

h u m a n rig h ts a g a in s t t h e m i g h t o f t h e s t a t e , it e n jo y s w id e p o w e r s

r e la tin g t o e n q u ir y a n d in v e s tig a tio n s r e g a r d in g h u m a n r ig h ts , i t has

w id e r a n g e o f fu n c tio n s . S e c tio n 1 2 o f t h e A c t ■ can e n q u ir e o n a

p e t it io n p r e s e n te d b e f o r e it b y a v ic tim o r a n y p e rs o n o n b e h a lf o f t h e

v ic t im , in t o c o m p la in t o f :

(a) v io la tio n s o f h u m a n r ig h ts o r a b e t m e n t t h e r e o f , a n d

(b) n e g lig e n c e in t h e p r e v e n t io n o f su ch v io la t io n b y a p u b lic

s e r v a n t.
 41

The commission can study jail conditions and suggest

reforms and also intervene in any proceeding involving any allegation of

human rights pending before a court. The important function of the

commission is to spread human right literacy amongst various sections

of the society and promote awareness of the safeguards available for

the protection of these rights. The commission would encourage

linkages between the academic and non-governmental organizations so

that the best academic minds can bring their talehts to the practical

work being done by such groups.

"in exercise of the powers conferred under section 21 (1 )

of the Protection of Human Rights Act, 1993 (No 10 of 1994) the

Governor of Assam is pleased to constitute a body to be known as the

Assam State Human Rights Commission constituted vide Notification No

PLA 362/94/51, dated 19.03.96 to exercise the powers conferred upon,

and to perform the function assigned to a state commission under

chapter V of the said Act.30

CONCLUSION :

So it has been found that the concept of Human Rights is

not anything new. This concept was earlier referred to as “natural

rights”. The idea of human rights is as old as the history of human

30. News Letter, Assam Human Rights Commission, vol. No. 1,1997
(Jan), p. 2
 42

c iv iliz a tio n , o n ly t h e t e r m “H u m a n " is o f r e c e n t o r ig in . T h is c o n c e p t o f

rig h ts o f m a n a n d o t h e r fu n d a m e n t a l h u m a n rig h ts w a s n o t k n o w n t o

th e p e o p le s of e a rlie r p e r io d s , in re c o rd e d h is to r y and a n c ie n t

s c rip tu re s , t h e r e h a v e b e e n r e fe r e n c e s t o t h e basic H u m a n R ig h ts ,

t h o u g h t h e y w e r e n o t r e fe r r e d t o b y t h a t n a m e . " G o in g t o its s p iritu a l

r o o t s , w e d is c o v e r t h a t t h e r e lig io n o f m a n , b e it lo c a te d in t h e V e d a s ,

t h e B u d d h is t t e x t s , t h e B ib le , t h e Q u o r a n o r t h e h o ly lite r a tu r e o f o t h e r

a u th e n tic te a c h e rs , u p h o ld s h u m a n d iv in it y . E v e r y h u m a n b e in g is a

d iv in e b e in g a n d has t it le t o d ig n it y , lib e r ty , e q u a lity a n d o t h e r basic

rig h ts " .31

T h e c o n c e p t o f h u m a n r ig h ts in w o r ld h is t o r y f o u n d its

fir s t e x p re s s io n in t h e M a g n a c a rta o f 1 2 1 5 a n d a f t e r th is t h e p e t it io n o f

R ig h ts 1 6 2 8 , t h e Bill o f R ig h ts 16 8 8 , t h e A m e r ic a n Bill o f R ig h ts 1 7 9 1 a n d

t h e F r e n c h D e c la ra tio n o f t h e R ig h t o f M a n 1 7 8 9 b e c a m e t h e m ile s to n e s

a lo n g t h e ro a d in w h ic h t h e in d iv id u a l a c q u ire d p r o t e c t io n a g a in s t t h e

c a p ric io u s acts o f k in g s .32

T h e c o n s c io u s n e s s a b o u t t h e rig h ts o f m a n is r e fle c te d in t h e

w h o le w o r ld in d i f f e r e n t n a m e s a n d s tyle s . “T h e h ig h e r c o n s c io u s n e s s o f

t h e h u m a n fa m ily , in t h e s e ttin g o f p o litic a l, e c o n o m ic a n d c u ltu ra l

5 7. Human Rights and the Law by Justice v.r. Krishna lyer, p. 4

32. Human Rights and Personal Liberties in India, Pakistan and
Bangladesh by Patwaris [Link] Mafisal Islam, p. 34
 43

d e v e lo p m e n t a m o n g n a tio n s , is r e fle c te d in t h e e n r i c h m e n t o f h u m a n

rig h ts a n d t h e ir c o d ific a tio n . V ie w e d f r o m t h e In d ia n s t a n d p o in t , h u m a n

rig h ts h a v e b e e n s y n th e s iz e d , as i t w e r e , in t o a n in t e g r a t e d fa b r ic b y t h e

P r e a m b u la r p ro m is e s a n d c o n s titu tio n a l clauses o f t h e N a tio n a l c h a r t e r

o f 19 5 0 , s u re ly in flu e n c e d in t e r alia b y t h e U .N . C h a r te r a n d t h e U n iv e rs a l

D e c la ra tio n o f H u m a n R ig h ts .33

T h o u g h t h e p h ilo s o p h y o f H u m a n R ig h ts in In d ia has

c o m e a lo n g w e a r y w a y y e t t h e p ro g re s s t h r o u g h t h e h is to ric a l p a t h has

a lw a y s r e m a in e d g ra d u a l a n d n e v e r lo s t its lin k w it h t h e p a s t.

In In d ia h u m a n ita r ia n id e a s b e c a m e p o p u la r f r o m th e

b e g in n in g o f t h e n in e t e e n t h c e n t u r y . T h e a b o litio n o f sati (18 29 ), s la ve ry

(1843) a n d fe m a le in fa n tic id e (18 70 ), t h e f o r m a t io n of th e T o rtu re

C o m m is s io n In t h e M a d ra s P re s id e n c y in 18 5 5 , in t r o d u c t io n o f w i d o w

re m a r r ia g e b y le g isla tio n (1856) a n d p r o h ib it io n o f c h ild m a r r ia g e (19 29 ),

w e r e re s tra in ts im p o s e d o n t r a d it io n a n d t h e b e g in n in g o f h u m a n ita r ia n

le g is la tio n . T h e e n a c t m e n t o f t h e In d ia n P e n a l c o d e in i8 6 0 (XLV ) a n d a

se ries o f p ris o n a n d jail r e fo r m s b y r e g u la tio n s a n d a cts w e r e b a s e d o n

r e f o r m is t te n d e n c ie s . F o r p re s e rv in g t h e rig h ts o f fe m a le c h ild r e n , t h e

A g e o f c o n s e n t A c t o f 18 9 1 a n d t h e A b o lit io n o f c h ild M a rria g e A c t o f

19 2 9 w e r e p a s s e d . T h e s e h u m a n ita r ia n le g is la tio n s p r e p a r e d t h e g r o u n d

35. s u p r a 3 1 , p , 5
 44

for an awareness of human rights during the war years.34

Thus gradually the people of India are growing conscious

about their right. As a result, at the time of framing the Indian
constitution its framers were inspired by the French Document, namely
Rights of man and the American Bill of Rights besides the declaration of
Human Rights of 1948 and included chapter ill of the constitution, in
spite of all efforts made by the united Nations Organization for
protecting human rights of the common masses, their condition
continues to be miserable, particularly in developing countries mainly
due to increasing population and rampant poverty. Now, the human
rights issue has become everybody's concern and it is high time to
mobilize public opinion for giving due regard to human rights, so that
people can realize that only international protection and
promotion of human rights can achieve international peace
and progress. Due to lack of awareness, human rights are abused all over
the world including India. The level of awareness of human rights and
sensitivity among the general people and even elite is very poor, so the
investigator intends to create awareness among the masses particularly
in Assam so that the fight against the violation of Human Rights grows
into a people's movement because it is a global phenomenon,

34. Supra 1, p. 6