Concept of Human Rights

In its original sense, the term, right implied purity, virtue and innocence. It had been used to denote the benefit received or deserved. However, it did not carry the idea that one had these benefits as a matter of right.

In the eighteenth century, however, such adjectives as ‘natural’, ‘inherent’, ‘inalienable’, ‘imprescriptibly’ had usually been used before the term the ‘Right of Man’ to signify that the existence of these rights was independent of positive law. The contemporary use of the term ‘Human Rights’ as it finds its mention in the Universal Declaration of Human Rights of 1948, is of course, a revival of the eighteenth century concept of the ‘Rights of Man’1. It is clearly evident from Article 1 of the Declaration which runs as:

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”.

This is the basic philosophical postulate upon which the Declaration is based. It clearly implies that the right to liberty and equality are the birth right of every human being which cannot be alienated. The basic assumptions is that the human beings are possessed with rational and moral capabilities which differentiate them from other creatures on earth and therefore, they are entitled to certain rights and freedoms which other creatures do not have. Further, Article 3 of the declaration provides that the right to life, the right to liberty and the right to security of persons are basic rights upon which the enjoyment of all other rights is dependent. The same approach has been adopted in India. Section 2 (d) of the Protection of Human Rights Act, 1993 defines human rights as “the rights relating to life, liberty, equality and dignity of the individuals guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.” However, there are two main approaches to explain the nature and meanings of human rights. There are in particular philosophical or theoretical Approach and Pragmatic Approach. The philosophical approach can be described with the help of five theories and these are as follows:

(a) The Legal Right Theory;

(b) The Natural Right  Theory;

(c) The Social welfare Theory of Rights;

(d) The Historical Theory of Right, and

(e) The Idealistic Theory of Rights.

(a)  The Legal Right Theory:

This theory can be upheld to the extent that the recognition of a right by State is necessary for its enforcement. If a State does not recognize a right it cannot be enforced, however potential it may be. Even in democratic societies, where people will rein supreme recognition of rights by State is essential for their enforcement against the state.

(b)  The Natural Right Theory:

In the contemporary sense of the term, human rights has been defined by Elaine Pagels as “the idea that the individual has rights; claims upon society, or against  society; that these rights, which society must recognize, on which it is obliged to act, are intrinsic to human beings.” What is postulated here is not only that there are human rights but also that these have universal application. It is opposed to the idea that the human rights are conferred upon the individual members by the society in which they live. It postulates that the human rights are claimed upon or against the society and that these rights exist independent of and even prior to the formation of society. Thus the natural rights theory, in its ultimate analysis, rests upon the intrinsic nature of man. This natural rights explanation of the human rights has following three characteristic features:

1. Human Rights are said to be recognized.

2. Human Rights are said to be inalienable, natural and inherent.

3. All human beings are said to be essentially equal.

(c)    The Social Welfare Theory of Right:

The social Welfare Theory is also known as the Social Expediency Theory. The advocates of this theory believe that law, custom and natural rights, all are conditioned by social expediency. For instance right to freedom of speech is not absolute but rather regulated in accordance with the requirements of social expediency. Roscoe Pound and Prof. Chaffe have supported this theory.

The utilitarian like Bentham and Mill have also supported this theory. They have advocated for the ‘greatest happiness of the greatest number’ as a principle on the basis of which all the social measures should be judged. Utility can be determined by means of reason and experience.

(d)  The Historical Theory of Rights:

The historical theory maintains that the rights are the creation of historical process. A long-standing custom in the course of time concretize in the specific or of right. In the same spirit many of the natural rights have the sanction of the longest and the least broken custom, for example, the rights of Englishmen, which have found mention in the Magna Carta and the petition of Right, these, in fact, have been enjoyed from very early days. This justifies the comment of Ritchie that those rights which people think they ought to have are just and those rights which they have been accustomed to have or which they have a tradition (Whether true or false) of having once possessed. Custom is primitive law.

(e)   The Idealistic Theory of Rights:

The Idealistic Theory of Rights is also known as personality Theory of Rights. This theory insists on the inner development of man, on the development of his full potentiality. Hence, it treats right of personality as a supreme and absolute right. All other rights, such as, right to life, right to liberty or right to property are derived from this one fundamental right. These various rights are related to the right of personality. It may be illustrated thus; I have a right to life only to the extent to which it is essential for the development of my full potentiality. In this sense society may not permit me to take away my life or to commit suicide. The chief merit of this theory is that it insists upon right of personality as the only absolute rights and all others rights are derived from it and are conditioned by it.

Pragmatic Approach: Besides philosophical and theoretical approach, another way of looking at the meaning and nature of human rights is pragmatism. Every right whether it has been perceived as inalienable or otherwise can have validity and effectiveness only through some process or institution. Thus it cannot be defined without reference to some institutional structure. As a room cannot be defined without reference to the walls, so human rights cannot be defined without reference to institutional settings.

In the Indian context, for instance, fundamental rights are incorporated in Part III of the Constitution of India. Although the term fundamental right has nowhere been defined in the Indian Constitution, but on careful examination of these several fundamental rights one would conclude that these rights constitute restrictions on the power of state and also require the state to adhere to the guidelines pronounced in the matter, by the Supreme Court of India. Viewed as such, the nature and meaning of ‘human rights and fundamental freedom’, as referred to in the charter of the United Nations should be ascertained with reference to the catalogue of human rights. This may be divided into three broad categories:

(a)                             Global, such as, the Universal Declaration of Human Rights, the International Covenant of civil and Political Rights, the International Covenant on the Elimination of all forms of Racial Discrimination against women, the convention on the Rights of Child and such other covenants and declarations.

(b)                             Regional, such as the European Convention on Human Rights and Fundamental Freedom, the European Social Charter, the American Declaration of the Rights and Duties of Man, the American Convention of Human Rights, and the African Charter on Human and People’s Rights. These human rights instruments have been developed under regional forums, such as, the Council of Europe, the Organization of American State and the Organization of African Unity.

(c)                             Subsidiary treaties, which deals with only one human right or very small number of human rights impose more specific and detailed obligation upon the state parties. For instance, the Conventions Relating to the Status of Refugees and the Status of Stateless Persons contain detailed provisions for the specific application of ‘right of asylum’ proclaimed under Article 14 of the Universal of Human Rights Declaration.

Interdependence of Three Categories of Human Rights:

At one stage, it was argued that new economic, social and cultural rights should have precedence over the old civil and political rights, first, because new rights are more important than the old one and secondly, new rights, economic, social and culture, represent the basic needs of the human being, therefore, they must be satisfied first. In the same way, it is also argued that the human right of third generation is even more important. If these rights are not implemented immediately, the earth planet will soon become uninhabitable. However, in the present day world, all human rights are considered tone interdependent. Various international institutions have emphasized upon the interdependence, complementarily and indivisibility of human rights.

For instance, the Teheran International Conference on Human Rights stated in its Declaration that since “human rights and fundamental freedom are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights, is impossible. The achievements of lasting progress in the implementation of human rights are dependent on sound and effective national international policies of economic development”.

Similarly, General Assembly in its resolution asserted that:

(a)                             All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, promotion and protection of civil and political and economic, social and cultural rights;

(b)                             Consequently human rights questions should be examined globally taking into account both the overall context of the various societies in which they present themselves, as well as the need for the promotion of the full dignity of the human person and the development and well-being of the society.

(c)                              Regarding the implementation and importance of third generation of human rights. Louis B.Sohn has advocated that the implementation of these new rights may not, like the economic, social and cultural rights, be achieved immediately still they set new goals for us that can be accomplished progressively step by step by making strenuous efforts:

“They are vast and overwhelming, but so is our problem. The damage to humanity that might be inflicted by a nuclear war or an environmental catastrophe is almost beyond comprehension; we need to grasp any tool that is available to stem an engulfing tide that is of horrifying proportions”.