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CHAPTER I

HISTORICAL EVOLUTION OF HUMAN RIGHTS

Introduction

Human rights, are the rights that belong to an individual or group of individuals simply for
being human, or as a consequence of inherent human vulnerability, or because they are
requisite to the possibility of a just society. Whatever their theoretical justification, human
rights refer to a wide continuum of values or capabilities thought to enhance human agency
or protect human interests and declared to be universal in character, in some sense equally
claimed for all human beings, present and future. It is a common observation that human
beings everywhere require the realization of diverse values or capabilities to ensure their
individual and collective well-being. It also is a common observation that this requirement—
whether conceived or expressed as a moral or a legal demand—is often painfully frustrated
by social as well as natural forces, resulting in exploitation, oppression, persecution, and
other forms of deprivation. Deeply rooted in these twin observations are the beginnings of
what today are called “human rights” and the national and international legal processes
associated with them.
In this chapter I mainly discussing about the evolution of human rights in each and every
period of time in the world. In the first topic I like to discuss about the historical evidence of
human rights in the world wide view. Under this topic we can see the human rights in the
ancient period, from the different civilizations whole over the world. Egypt, Romans, Anglo
Indian etc. then it goes to the classical period and then to the medieval period and sown. Next
sub heading is that human rights after 1945. In 1945 we know that coming up of United
Nations Organisation. After this sub title we see the evolution of human rights in Indian
context. Here we see through the Hindu and Islamic ancient law about human rights. Then we
discussed about the human rights development in the time of British rule, and after the
independence and so own.

1.1.Historical Evolution of Human Rights.


1.1.1. Human Rights in Ancient Period
Human Rights are not a modern phenomenon. It is the result of a long process of evolution.
E.S. Venkataramaiah is of the opinion that the Concept of human rights is very much the
product of history and human civilization, and as such is subject to evolution and change. The
2

concept of human Rights is found in all cultures but in diverse forms.1 At all times and in all
ages, right from the beginning there was oppression of human beings by human beings
leading to struggles, revolutions for restoration and protection of Human Rights. In history
and ancient scriptures there are references to the basic human rights. In ancient India the
observance or 'Dharma' a compendious term for all human rights and duties was regarded as
essential for securing peace and happiness to individuals as well as society2. The Atharva
Veda proclaims that all human beings have equal right over food and water. In ancient China
the Confucian tradition asserted that subjects have the right to expel a king who infringes on
the rights of the people3

In ancient Egypt one of the pharaohs gave instructions to his vazirs to the effect that "when a
prisoner arrives, make sure that all is done according to the law, that custom is observed and
the right of each man respected". The code of Hammurabi stipulated that the mission of the
king is to prevent the strong from oppressing the weak....and to promote the good of the
people”.4

The Romans gave utmost importance to law, but all were not considered equal before law. In
their view the women and slaves were inferior in status and also did not have had equal rights
with men or with their master. According to Kautilya the author of Arthasastra the king shall
provide the orphan, the aged, the infirm, the afflicted and helpless with maintenance; he shall
also provide subsistence to the helpless, expectant mothers and also the children they give
birth to”.5

Besides the Graeco-Roman view on human rights, the Judaeo-Christian perspective made a
greater contribution to it. As God is the creator of all, everyone has to be treated equally. The
basic thinking emerged from the understanding that "man is made in the image and likeness
of God"6 that everyone is created in the same dignity and status. The book of Proverbs, Isaiah
and Jeremiah speak of the rights of 'the afflicted, the destitute, the poor, the innocent and the
needy.7

1
E.S. Venkataramaiah. Confronting Capital Punishment in Asia. Bombay: Paul’s Publication, 2008. 32.
2
Veena Pani Pandey, International Perspectives on Human Rights. Westport: London Praeger
Publications, 2005. 9.
3
Adaikkalam Subbian, Human Rights, Philosophy, Promotion, Protection and Protectives, Delhi: The
Associated Publishers, 2006. p 3.
4
Veena Pani Pandey, International Perspectives on Human Rights.10.
5
O. P. Dhiman, Understanding Human Rights in India. Jaipur: Rawat Publications,2002. 38.
6
Genesis 1.26. NRSV
7
M. Stephen. Human Rights Concepts and Perspectives. 13.
3

The liberal tradition of human rights was developed primarily in the West. In Medieval
Europe rights were the prerogatives of only special groups of people like the feudal lords,
barons, slave owners etc. The common people had no rights whatsoever and were dependent
on the whims and fancies of their masters. People with power rarely acknowledged the rights
of those without power. Throughout history people who suffered from oppression and
discrimination had to struggle hard to achieve their rights8. However such struggles paved the
way for the evolution of Human Rights evolution of human rights and also helped in
enlarging the scope of rights.

The Anglo-Saxon contribution to human rights is noticeable. Recognition to individual


freedom emerged from the contracts between rulers and feudal lords. For instance, the
contract made by King Alphonso IX in 1088 with the feudal assembly of the kingdom of
Leon included series of rights: the right of the accused to a regular trial and the right to the
inviobility of life, honor, home and property. The most famous of such contracts was that
exacted by the feudal barons from King John, commonly known as the Magna Carta or Great
Charter of 1215. This feudal document conceded personal and political liberty to the barons
in return for their obedience to the king.9

Even though it did not affirm the rights and liberties of all, yet it gave expression to the idea
of individual freedom and became the symbol of the same for centuries to come. Clause 39 of
the Charter stated: 'No free man shall be taken or imprisoned ..., or exiled or in any way
destroyed ... except by the lawful judgment of his peers or (and) the law of the land". During
the Renaissance due to the efforts of the Humanists and in the 17th century, the popular view
that human beings are endowed with certain eternal and inalienable rights gained currency.
The liberal philosophers such as Thomas Hobbes, John Locke, and Rousseau etc. inaugurated
a new chapter in the history of human rights by extending the concept of human rights to all
classes of people. They spoke about the natural rights of man smell as right to life, liberty and
property, freedom of conscience, freedom of expression etc. The English Bill of Rights, 1689
enforced the rule of law, through a freely and frequently elected parliament.10 It listed 'the
true ancient and indubitable rights and liberties of the people like the right to election, right to
speech, right to trial by a jury and freedom from unusual cruel punishment.

8
Training workshop, Manual for Teachers of Human Rights Education. 1.
9
Stephen. Human Rights Concepts and Perspectives.13.
10
Adaikkalam Subbian. Human Rights, Philosophy, Promotion, and Protective’s. 45.
4

`Right of Man' became the slogan of the revolutionaries worldwide in the 18" and 19"'
centuries. Thomas Jefferson, author of the American Declaration men are Independence on
July 4", 1776 proclaimed that “All are created equal, that they are endowed by their creator
with certain unalienable rights that among these are Life, Liberty and the pursuit of
Happiness". Rousseau, the French philosopher noted in 'Social Contract' "Man is born free
and everywhere he is in chains".11 The Marquis de Lafayette in the Declaration of the Rights
of Man and of the Citizen insisted that "Men are born and remain free and equal in
rights...and defined liberty so as to include the right to free speech, thought and expression,
freedom of association, religions freedom and freedom from arbitrary arrest and
confinement".

The idea of rights continued to inspire the people in the 19th century known as the 'Age of
Nationalism and Liberalism'. The abolition of slavery, factory legislations, popular education,
trade unionism, the universal suffrage movement and other examples of the 19th century
reformist zeal afford ample evidence to the influence of the concept of human rights. It was
only after World War I (1914 -1918) that institutional form was given to human rights. The
major trends in the 20th century like the establishment of the League of Nations established
at the end of the I World War attempted to protect human rights between 1919 and 1939,
encompassing primarily minority rights, labour rights and rights of individuals in mandated
territories12. The outbreak of World War II in 1939 changed the world's perspective. The Nazi
experience and the Holocaust revealed the horror that could result in a system where the
individual counted for nothing and brought home the realization that human beings are
entitled to simple respect at least13. It was only after the establishment of the United Nations
Organization in 1945 that human rights became one of the central pre-occupations of
international relations.

1.1.2. Human Rights After 1945

The founding members of the United Nations Organisation pledged to take joint and separate
action for the achievement of "Universal respect for and observance of human rights and
fundamental freedoms for all without distinction as to race, sex, language or religion".
Support for a strong human rights commitment came mainly from smaller countries in Latin
America, the West and the Third world, where the de-colonization movement created many

11
William Ebenstein, Great Political Thinkers. 441.
12
Adaikkalam Subbian, Human Rights, Philosophy, Promotion, and Protectives.48-49.
13
ABA Journal, "Lawyers' Role in Human Rights". 1.
5

new member states of the UN. The Preamble to the UN Charter declares that one of the chief
aims of the organization is "to reaffirm faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and women and of nationals large and
small". Article 1states that one of the principal purposes of the United Nations is 'to achieve
international co-operation..., in promoting and encouraging respect for human rights and
fundamental freedoms for all14... Article 68 required Economic and Social Council to set up
commissions for the promotion of human rights and on this basis the Council set up the
Human Rights Commission that drafted the Universal Declaration of Human Rights (UDHR).

The General Assembly adopted the declaration on 10th December 1948 with forty-eight states
voting for none against and eight abstaining which are six communist states, Saudi, Arabia
and South Africa15. The UDHR has been called the Bill of Rights for the world. The
Declaration consists of a preamble and 30 articles under which "the human rights and
fundamental freedoms, to which all men and women everywhere in the world are entitled,
without any discrimination" are enumerated.

The declaration has a certain western bias in its emphasis on rights rather than duties, on
individual rather than collective rights, on civil and political rather than economic, social and
cultural rights. The declaration was a historic document. Before the II World War there was
almost no international law of human rights. There are now approximately 200 international
legal human rights instruments of which sixty five acknowledge the universal declaration as a
source of authority. Subsequently the General Assembly declared 1968 as the International
year of Human Rights. The Declaration paved the way for the conclusion of specific human
rights treaties on genocide, civil and political rights, economic, social and cultural rights,
slavery and forced labour, racial discrimination, rights of refugees, rights of women, torture,
and rights of children16.

The UDHR had no provision for it implementation. The UN was committed to both state
sovereignty and human rights. It could not decide what was to be done if sovereign states
violated human rights because virtually all governments said that the declaration was not
legally binding. Hence from 1948 until the late 1960s the ability of the UN or the
international community to take effective action to protect human rights was extremely
limited. During that period the two main cold war adversaries, the USA and the USSR,

14
Adil-ul-Yasin, Archana Upadhyay. Human Rights, p.43
15
Michael Freeman, Human Rights. 35.
16
Michael Freeman, Human Rights. 36
6

directly or indirectly participated in the gross violation of human rights. New initiatives to
implement human rights were taken in the 1970s in the foreign policy of certain states. In the
USA President Jimmy Carter introduced human rights into his foreign policy in 1977. Human
rights NGO's also were making an increasing impact. Amnesty International for example was
awarded the Noble Peace Prize. In 1977 the human rights group 'Charter 77' was set up in
Czechoslovakia17. The human rights NGO's eventually played a vital role in the dismantling
of the communist system in Eastern Europe.

In the 1980s and early 1990s the theme of 'cultural relativism' became more prominent in UN
debates about human rights. In 1984 the Islamic Republic of Iran proposed that certain
concepts in the Universal Declaration should be revised as they were contrary to Islam.
Following this in the UN World Conference on Human Rights that was held in Vienna in
1993, there was much talk of a conflict between 'Asian values' and human rights. However
the final declaration ultimately reaffirmed the universality of human rights but conceded that
the significance of national and regional particularities and various historical, cultural and
religious backgrounds must also be taken into consideration in the implementation of human
rights. The conference also emphasized the special vulnerability of certain groups such as
women, children, minorities, indigenous, populations, handicapped persons, migrant workers
and refugees and opened the way for the appointment of a High Commissioner for Human
Rights.18

The UDHR call to every individual and every institution of society to promote respect for
human rights was given an institutional framework with the proclamation of the UN Decade
for Human Rights Education 1995-2004. The proclamation resulted in the drafting of the
International Plan of Action for the Decade. Mary Robinson, the then UN High
Commissioner for Human Rights said "the plan focused on stimulating and supporting
national and local activities and initiatives and is built upon the idea of partnership between
governments, international organizations, non-government organizations, professional
associations, individual and large segments of civil society. It also reaffirmed that education
in and for human rights are a right in itself that is the right of all to learn about the rights and
dignity of all and about means to ensure their respect. 19

17
Michael Freeman, Human Rights. 46-47.
18
Michael Freeman, Human Rights. 49-51
19
Digumarti Bhaskara Rao. UN Decade for Human Rights Education. 66.
7

1.2. Evolution of Indian Human Rights


1.2.1. Introduction

Since the days of the lndus Valley Civilization, Indian culture has been the product of a
synthesis of diverse cultures and religions that came into contact with the enormous Indian
sub continent over a very long stretch of time. As Jawaharlal Nehru notes, there is "an
unbroken continuity between the most modern and the most ancient phases of Hindu thought
extending over three thousand years."20 The rights of man have been the concern of all
civilizations from time immemorial. "The concept of the rights of man and other fundamental
rights was not unknown to the people of earlier periods."'21 The Babylonian Laws and the
Assyrian laws in the Middle East, the "Dharma" of the Vedic period in India and the
jurisprudence of Lao-Tze and Confucius in China, have championed human rights throughout
the history of human civilization.

The Indian concept perceives the individual, the society and the universe as an organic
whole. Everyone is a child of God and all fellow beings are related to one another and belong
to a universal family. In this context, Mahatma Gandhi remarks, "I do not want to think in
terms of the whole world. My patriotism includes the good of mankind in general. Therefore
my service to India includes the services of humanity."22

1.2.2. Origin and Development of Human Rights in India.

The Buddhist doctrine of non-violence in deed and thought says Nagendra Singh: "is a
humanitarian doctrine par excellence, dating back to the third century B.C.” 23 Jainism too
contained similar doctrines. According to the Gita, "he who has no ill will to any being, who
is friendly and compassionate, who is free from egoism and self sense and who is even-
minded in pain and pleasure and patient" is dear to God. It also says that divinity in humans is
represented by the virtues of non-violence, truth, freedom from anger, renunciation, and
aversion to fault-finding, compassion to living being, freedom from covetousness, gentleness,
modesty and steadiness-the qualities that a good human being ought to have.24 The historical
account of ancient Bharat proves beyond doubt that human rights were as muck manifest in
the ancient Hindu and Islamic civilizations as in the European Christian civilizations.

20
Jawaharlar Nehru. The Discovery of lndia. 88.
21
Attar Chand, Politics of Human Rights and Civil Liberties. Delhi: UDH Publishers, 1985. p45.
22
Jawaharlal Nehru. The Discovery of lndia. 420
23
Nagendra Singh, Enfor-ement of Human Rights. Calcutta: Eastern Law House Pvt. Ltd, 1986. p 7.
24
S. Radhakrishnan (trans.) The Bhagavadgita. London: George Allen and Unwin, 1958. p 276.
8

Ashoka, the prophet Mohammed and Akbar cannot be excluded from the geneology of
human rights.25

1.2.2.1. Ancient Hindu Law of Human Rights.

Scholars who have spent long time in lucubration on the Hindu "Dharmasastras" and the
"Arthasastras" and other legal treatises of the past have discovered an amazing system,
which, interalia, regulates the duties of Kings, judges, subjects and judicial as well as legal
procedures. The central concept is Dharma, the functional focus of which is social order. The
message is "Dharma" as the supreme value, which binds kings and citizens, men and women.
Human rights gain meaning only when there is an independent judiciary to enforce rights.
Here, the Dharmasastras are clear and categoric.26

The independence of the judiciary was one of the outstanding features of the Hindu judicial
system. Even during the days of Hindu monarchy, the administration of justice always
remained separate from the executive. It was, as a rule, independent both in form and spirit. It
was the Hindu judicial system that first realized and recognized the importance of the
separation of the judiciary from the executive and gave this fundamental principle a practical
shape and form. The case of Ananthapindika v. Jeta reported in the vinaya-pitaka,27 is a
shining illustration of this principle. According to it, a Prince and a private citizen submitted
their cases before the law court arid the court decided against the Prince. The Prince accepted
the decision as a matter of course and as binding on him. The evolution f the principle of
separation of the judiciary from the executive was largely the result of the Hindu conception
of law as binding on the sovereign. Law in Hindu jurisprudence was above the sovereign. It
was the "Dharma." The laws were then not regarded as much as a product of supreme
Parliaments and Legislatures as at present. Certain laws were regarded as above all human
authority. Such, for instance, were the natural laws, which no Parliament, however supreme,
could abolish.
"The State was not sacerdotal, nor even paternalistic; even the King was subject to the law,
as any other citizen and the 'Divine Right' of Kings known to western political science was
unknown to India. On the whole, the aim of the ancient Indian State may be said to have been
less to introduce an improved social order, than to act in conformity with the established

25
Yogesh K. Tyagi, "Third World Response to Human Rights," Indian Journal of International Law,
Vol .21, No.1 (January -March 1981): 120-121.
26
V.R. Krisha lyer, The Dialectics and Dynamics of Human Rights in India: Yesterday Today and
Tomorrow, Tagore Law Lectures (New Delhi: Eastern Law House, 1999) 115.
27
V.R. Krisha lyer, The Dialectics and Dynamics of Human Rights in India. 115.
9

moral order."28 Duty is not a tyrant, but a symbol of dignity to be discharged with affirmative
joy. The realization of this vast perspective is assured in the Dharmasastras by the wonderful
scheme or co-ordination of conduct adapted to different conditions, status and situations of
life. The scope of dharma takes in its vast sweep human rights as well.
There are many references in the Vedas, which throw light on the existence of human rights
in ancient India. The Vedas proclaim liberty of body (Tan), dwelling house (Skridhi), and
life (Jibase). In 1367 B.C. Bahmani and Vijayanayar Kings are stated to have entered into an
agreement for the humane treatment of prisoners of war and the sparing of lives of the
enemy's unarmed subjects.29 Human rights have always occupied a place of paramount
importance in India's rich legacy because India believed in the principle, "Vashudhaiva-
kutumbakam,30 1.e. welfare of all.
Legal literature of the Hindu period owes much to the distinguished law givers of the times as
well as to the two Epics and the Arthasastra (Kautilya) and Sukranitisara. We are not
concerned with the legal history of the India of those days, which was quite advanced but
with the constellation of rights and duties, which constitute human rights. Kautilya's
Arthasastra asserts that “in the happiness of the subjects lies the happiness of the King, and
what is beneficial t3 the subjects is his own benefit.”31 Kautilya also disapproved of the
theory of royal absolutism and subordinated the King also to the law. Similarly, Shantiparva
prescribes that a king may be punished if he does not follow the path of the Dharma.

In the Post-Vedic period, the rise of Buddhism and Jainism were certainly a reaction against
the deterioration of the moral order as against the rights of the privileged class. Life was more
human and liberal in the Post-Vedic era. After Buddha, Emperor Ashoka protected and
secured the most precious of human rights, particularly the right to equality, fraternity, liberty
and Happiness. Ashoka successfully established a welfare State and made provisions for
securing basic freedoms.32

Ashoka, the champion of civil liberties, allowed even the forest folk in his domain to enjoy
security of life, peace of mind and enjoy their life on par with other people in the society.

28
Mathews, Shajimon K. Human Rights in India: with special reference to the role of the Kerala State
Human Rights Commission. Mahatma Gandhi University. 2013. p54.
29
Paramjit S. Jaswal and Nishtha Jaswal, Human Rights and the Law, 1 st ed. New Delhi: Ashish
Publishing House, 1995) 5.
30
Z.A. Nizami Arid Devil: A Paul, ed. Human Rights in the Third World Countries. New Delhi: Kirs
Publications, 1994. p 107.
31
Mathews, Shajimon K. Human Rights in India. p 54.
32
Mathews, Shajimon K. Human Rights in India. p 56.
10

Torture and inhuman treatments of prisoners were prohibited under Ashoka's benign
dispensation.

1.2.2.2. Human Rights in the Islamic Era


The downfall of the Rajput administration gave rise to the advent of Muslim rule in India. It
was under Muizz-ud-Din that the first Muslim Empire was founded in India. The Muslim
invasion of India created a new situation wherein the Muslim rulers or Sultans followed a
policy of discrimination against the Hindus. So the significance of Muslim rule in India was
counter- productive to harmony, justice and equality. M.K. Nawaz is objective enough to
quality his conclusion with the observation that 'Islamic law' at least in its traditional
interpretation, considers certain human being as more equal than others." There was one law
for the Muslims (the faithful) and another for the Hindus (the Kafirs or the infidels) and as a
result the principle of equality was not given much importance.33

The Muslim conquerors like Mahmud Ghaznavi and others made frontal attacks on ancient
Hindu way of life and religion. With the Mughal rulers, especially with Akbar a new era
began in the Mughal history of India in the field of human rights as a result of his policy of
'Universal Reconciliation and Tolerance.' The European travelers who visited Ashoka's
empire highly appreciated his zealous regard for rights and justice. His justice-loving
tradition was followed by his son Jehangir too. The trend initiated by Akbar came to be
reversed by Aurangzeb, though the Marathas and the Sikhs opposed and fought the
fanaticism of Aurangzeb.34

1.2.3. Human Rights in British India


The modern version of human rights jurisprudence may be said to have taken birth in India at
tile time of the British rule. When the British ruled India, resistance to foreign rule
manifested itself in the form of demand for fundamental freedoms and the civil and political
rights of the people; Indians were humiliated and discriminated against by the British. The
freedom movement and the harsh repressive measures of the British rulers encouraged the
fight for civil liberties and fundamental freedoms.

Under the British rule, human rights and democracy was suspect and socialism was an
anathema. In the Indian cultural history, the British colonial period remains the Indian
equivalent of the 'Dark Ages'. Lord Macaulay rejected the ancient Indian legal political

33
Mathews, Shajimon K. Human Rights in India. P57.
34
Mathews, Shajimon K. Human Rights in India. P57.
11

system as 'dotages of brahminical superstition', and condemned ancient legal heritage and its
35
inner core as an 'immense apparatus of cruel absurdities'." Lord Wellesley condemned the
Indians as vulgar, ignorant, rude and stupid and Lord Cornwallis described as an axiom that
every native of Hindustan is corrupt. The English East India Company debarred Indians from
high offices an3 deprived them of their political, social and economic rights. The impression
created in the Indian minds was that their sacred inalienable human rights and vital interests
had been ignored, denied, and trampled upon for the sake of England and the English rulers.
Mahatma Gandhi organized the people of India under his leadership and launched his non-
violent struggle to achieve self government and fundamental rights for themselves.
Lokmanya Tilak advocated that "freedom was the birth right of Indians for which they will
have to fight.36 It was because of the stiff opposition from the people of India that the Charter
Act of 1813 was enacted to promote the interest and happiness of the native inhabitants of
India. Similarly, the Government of India Act, 1833 was passed to allow the Indians to enjoy
some political rights. The proclamation of Queen Victoria on 1st November 1858 contained
some principles of state policy, which were similar to fundamental rights in nature.

The concrete demand for fundamental rights came logically in the wake of the nationalist
movement, which coincided with the birth of the Indian National Congress in 1885. The
Constitution of India Bill 1895 known as the "Home Rule Document" prepared by the Indian
National Congress paved the way for a constitution guaranteeing every one of the citizens the
basic human rights like freedom of expression, inviolability of one's own house, right to
property and equality before law. The Government of India Act, 1915, in pursuance of the
demands for fundamental rights, guaranteed equality of opportunity in public services. A
series of resolutions adopted by the National Congress between 1917 and 1919 repeated the
demand for civil rights and equality of status with the English.

1.2.4. Motilal Nehru Committee


In 1925 the Indian National Congress finalized the draft of Common Wealth of India Bill
adopting a 'Declaration of Rights.' The Madras Session of the Congress held in the year 1927
– demanded incorporation of a 'Declaration of Fundamental Rights' in any future
constitutional framework. A committee under Motilal Nehru was appointed by the National
Congress to study the fundamental rights. It is interesting to note that the Constitution of the

35
S .N. Dhyani 143.
36
Sunil Deshta and Ms Kiran Deshta. "Philosophy of Right to Life, A Movement from Rigidity to
Flexibility." Civil and Military Law Journal, Vol. 31:123. (July-September. 1995): 101
12

Republic of India, enacted in 1950, incorporated ten of the nineteen rights enumerated in the
Motilal Nehru Committee Report, 1928. The rights emphasised by the Motilal Nehru
Committee were:37
a) Personal liberty, inviolability of dwelling place and property
b) Freedom of conscience, and of profession and practice of religion
c) Expression of opinion and the right to assemble peaceably without arms and to form
associations
d) Free elementary education
e) Equality for all before the law and rights
f) Right to the writ f Habeas Corpus
g) Protection from punishment under ex-post facto laws
h) Non-discrimination against any person on grounds of religion, caste or creed in the matter
of public employment
i) Equality of right in the matter of access to and use of public roads, wells etc.
j) Freedom of combination and association for the maintenance and implementation of labour
and economic factors
k) Right to keep and bear arms
l) Equality of rights to man and woman

The Simon Commission, appointed by the British Government in 1927, however, totally
rejected the demands voiced by the Nehru Committee reports. In 1930 tie Congress Working
Committee gave the clarion call for the attainment of 'Purna Swaraj.' The Karachi Session of
the Congress in 1931 adopted a detailed program of fundamental rights. The Government of
India Act, 1935 was passed without any bill of rights much to the disappointment of the
Indian leaders. It was the 'Sapru Committee' of 1945 that subsequently stressed the need for a
written code of fundamental rights and the Constituent Assembly raised a forceful demand
for the inclusion of human rights in the Constitution.

1.2.5. Constituent Assembly and Human Rights


The Indian Constitution was framed by the Constituent Assembly of India, which met for the
first time on December 9, 1946. The Constitution of India gave primary importance to human

37
S.Subramanian, Human Rights. International Challenge. Vol.1. New Delhi: Manas Publication. 1997.
p 57.
13

rights. To quote Guha, "The demand for a declaration of fundamental rights arose from four
factors."38
1. Lack of civil liberty in I1ndia during the British rule
2. Deplorable social conditions, particularly affecting the untouchables and women
3. Existence of different religious, linguistic, and ethnic groups encouraged and exploited by
the British
4. Exploitation of the tenants by the landlords
The Constituent Assembly incorporated in the Constitution of India the substance of the right
proclaimed and adopted by the General Assembly in the Universal Declaration of Human
Rights. Further on 10th December 1948, when the Constitution of India was in the making,
the General Assembly proclaimed and adopted the Universal Declaration of Human Rights,
which surely influenced the framing of India's Constitution. Viewed from the Indian
standpoint, human rights have been synthesized, as it were, not as an integrated fabric by the
Preambular promises and various Constitutional clauses of the National Charter of 195039

1.2.6. Human Rights and The Indian Constitution

The Constitution of the Republic of India which came into force on 26th January 1950 with
395 Articles and 8 Schedules is one of the most elaborate fundamental laws ever adopted.
The Preamble to the Constitution declares India to be a Sovereign, Socialist, Secular and
Democratic Republic. The term 'democratic' denotes that the Government gets its authority
from the will of the people. It gives a feeling that they all are equal "irrespective of the r race,
religion, language, sex and culture." The Preamble to the Constitution pledges justice, social,
economic and political, liberty of thought, expression, belief, faith and worship, equality of
status and of opportunity and fraternity assuring the dignity of the individual and the unity
and integrity of the nation to ail its citizens.

1.2.7. India and the Universal Declaration

The constitution of India is known as one of the most right-based constitutions in the world.
It was drafted around the same time when the Universal Declaration of Human Rights by the
United Nations came into force (1948). Indian constitution provides the spirit of human rights
in its preamble and the sections on Fundamental rights and Directive Principle of State
Policy.

38
Sunil Deshta and Ms. Kiran Deshta. 102
39
A.B.M. Mafizul Islam Patwaris, Fundamental Rights and Personal Liberty in India, Pakistan and
Bangladesh, 1sted'. (New Delhi: Deep and Deep Publications, 1991) 63
14

Individual partly and wholly expects that he/she should be provided the good environment for
his/her overall development. Rights provide that environment. Rights have been defined as
those claims of an individual that are necessary for the development of his/her own self and
recognized by state or society. Some of the rights provided by the state and enshrined in the
constitution are known as fundamental rights. Fundamental rights are those rights that are
enforceable through the court of law.
The Indian constitution is based on the theory that guided India’s struggle against British
colonialism, which was marked by the violation of civil, political, social, economic and
cultural rights of the people. Therefore, after independence the framers of the constitution
provided some fundamental rights to the citizens which are enshrined in the part III of the
constitution. These fundamental rights are defined as basic human freedom for a proper and
harmonious development of personality of every Indian citizen. These fundamental rights
apply to all Indian citizens, irrespective of caste, creed, color, sex, race or place of birth. They
are also enforceable by the courts, subject to certain restrictions. The rights have their origins
in many sources including England’s Bill of Rights, the United States Bill of Rights and
France’s declaration of the Rights of Man.

Conclusion

In this chapter we discussions about the origin and nature of human rights pose significant
challenges to their operation as universal standards of behavior. Fundamentally diverging
foundations for human rights may be given, that ultimately must rely upon either divine
revelation, human reason extrapolating from nature, or deliberate human invention and
agreement. Even if a satisfactory basis for human rights can be constructed, further
fundamental challenges emerge to both the `human' and `rights' dimensions of human rights.
It is not self-evident what it is about humans that generates the moral entitlement to certain
benefits, neither is the status clear of those humans who do not share these qualities. A
particular problem is posed by the manner in which these benefits are asserted to be `rights',
since this concept can operate in practical circumstances as a liberty, power, immunity, or
claim-right. The locus of any corresponding duty for a claim-right is no less problematic.
Consequently human rights must be examined more closely, because they are at once so
important and yet so vulnerable to probing questions about their origin, foundation,
substance, and operation.

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