Essay on Human Right Jurisprudence in India

Here is your essay on Human Right Jurisprudence in India:

Human rights may be regarded as those fundamental and inalienable rights which are essential for life as human being and which are possessed by every human being, irrespective of his or her nationality, race, religion, etc. simply because he or she is a human being. Thus, Human rights are those rights which are inherent in our nature and without which we can’t live as human beings.

Human rights are sometimes called fundamental rights or basic rights or natural rights. As fundamental or basic rights. They are the rights which cannot, rather must not be taken away by any legislature or by any Act of the Government and which are often set out in a constitution as Human Rights are not created by any legislation, they resemble very much to the natural rights. They cannot be subjected to the process of amendment even.

Human Rights allow us to develop our personality in physical, mental or spiritual sense up to the widest extent and to use our intelligence and talents fully. It has been universally accepted that human rights are more than a mere collection of socio-economic and political rights.

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Human rights were for the first time recognized by the General Assembly of United Nations in 1948 in the name of Universal Declaration of Human Rights. The Universal Declaration of Human Rights is the first segment of the International Bill of Human Rights, which include International Covenant on Economic, Cultural and Social Rights and International Covenant on Civil and Political Rights adopted by the General Assembly in 1966 and came into force in 1976.

Before it the Charter of United Nations also represent a significant advancement so far as in the respect for Human right is concerned, the appalling atrocities of the Nazis against jews and against other races during the Second World War led to a strong movement for the international protection of fundamental human rights and the charter contain numberous of references to them.

As a matter of fact, with the horrors perpetuated by Nazi and Fascist leaders still in their minds, so the makers of the charter of U.N. were determined that the rights of the individuals be made on international concern.

The provisions concerning human right rim throughout the U.N. Charter “like a golden thread”.

In the Indian context, it may be stated that parts III and IV of Indian constitution along with preamble to the constitution already embody the concept of human rights. Further, India is now a party to sixteen International treaties relating to Human rights including the International Covenant on Economic and Social and Cultural Rights and civil and political rights. It includes International Convention on Racial Discrimination, Covenant on Right of child and the political rights of women; slaves convention, etc.

With the emerging concept of welfare state, in democracy in India, state led to the trend of guaranteeing basic human rights in constitutional law. It presupposes that everyone has a right to life, liberty and security of person, freedom from slavery or servitude, etc. and ensuring equality before law and equal protection of law.

It is, therefore, evident that the Indian system from the very inception of the constitution has responded well to the Human Rights activism.

The preamble to the constitution which is wedded to the idea of socialistic pattern of society has ensured social, economic and political justice, liberty of thought, expression and belief, faith and worship, equality of status and opportunity to all without any discrimination as to race, caste, sex, religion, place of birth, etc.

Untouchability and titles of all kinds barring military and academic distinction stand abolished. The constitution of ours also provides for freedom of speech and expression, peaceful assembly and freedom of profession, practice and propagation of religion and educational and cultural rights. The constitution also provides reproach to these rights by making them enforceable by direct access to the Supreme Court or the High Court.

The S.C. and H.C. has opened new dimension to the concept of Human Right movement by liberally interpreting and expanding the meaning of Basic Human Right. There are number of cases where the concept of human rights has been given a new dimension through judicial activism.

Thus, the right to life and personal liberty has been interpreted so liberally that now it covers within its ambit variety of rights and includes Right to adequate nutrition, clothing and shelter, right to wholesome environment, right to speedy trial; right to legal aid to poor, right to know, right to compensation, etc.

Thus it is said constitution of India through judicial activism playing a decisive role in implementation of human right. Nowadays human right philosophy fully followed in India and it is base of constitution of India. Vienna Conference on human rights on June 25, 1993 recommended that every state ought to provide on effective frameworks of machinery or institution to provide remedies in case of violation of human rights.

It was after this conference several states including India established National Human Right Commission to redress human right grievances or violation and according to Article 51 of the Indian constitution state should strive to (a) Promote international peace and security.

(b) Maintain just and honourable relations between nation, etc. pursuant to the direction enshrined in Article 51 of the constitution and International Commitments, Parliament has passed the protection of Human Rights Act, 1993 and then set up a National Human Rights Commission from 1993.

The National Human Rights Commission will have power to go into instances of negligence on the part of public service personnel in preventing Violations National Human Right Commission (NHRC) has rendered a single service for the cause of observance of human rights, especially in the field of Civil Liberties.

NHRC’s intervention in some of the human right violation cases illustrates the Service it is doing for cause of human rights protection especially in the field of Civil Liberties. For example its work in the field of prevention of custodial deaths, rape and torture has been quite praiseworthy.

NHRC works as a check over deviant police officers and it is a sort of forewarning to the police officers that if they misuse their power or commit excesses, they may be penalized for this. NHRC’s directions to all District Magistrates and Superintendents of Police to report to the Commission all incidents of custodial death or rape within twenty four hours has made a very salutary impact in preventing such incidents NHRC work’s great and it has inspired the confidence of the people.

In Landmark Judgment in National Human Rights Commission v. State of Arunachal Pradesh, 1996 1 SCC 742

(Popularly called Chakmas Migrant Case)

In this case ‘PIL’ filed by NHRC for enforcing the rights under Article 21 of the constitution of about 65,000 Chakmas. The All Arunachal Pradesh Student Union had threatened to forcibly expel them from the state; the Supreme Court held that the state is bound to protect the life and liberty of every human being whether he is a citizen or non-citizen.

S.C. also ordered to protect all ‘Chakmas’ from any attempt to forcibly evict or drive them out of state by All Arunachal Pradesh Student Union and Court also directed the state to pay to the petitioner (NHRC) Rs. 10,000 as cost of the petition for bringing the matter before the court. This shows up the valuable works of NHRC in India.

Instead of above there are also some cases were NHRC work in an affection manner, for example alleged custodial Death of (1) Madan Lad in Delhi

(2) Suo motu action taken by NHRC which relates to death of a 20 years old girl Sarika occurred in Madhya Pradesh in 1997 due to Negligence of Indian Railways.

(3) In case of human right violation by the Border Security Force (BSF) NHRC intervened for the protection of Mohd. Rashid Ali who was a victim in the case.

(4) In another case, NHRC ordered the State Government of Bihar, to pay compensation of rupees ten lakhs as interim relief to the widow of a Ranchi based businessman who was negligently shot dead by the state police in 1997.

The commission also received a complaint and a report from people’s Union for Democratic Rights or from any other social organizations.

The above are cases illustrative of the signal services rendered by the commission. The Commission has become a sort of indirect but effective check on the misdeeds, excesses, abuse of power of police, now because of such work of commission. Police officials will have to think several times before attempting such misadventures.

The aforesaid discussion reveals that NHRC and the judiciary are playing an effective role in implementation of human rights, but despite this, the number of human rights violations cases is constantly increasing particularly in the states of Bihar, Uttar Pradesh, Jharkhand and Naxalite areas and so it is said that NHRC is a weak or impotent body and incapable to handle the problems of growing human right violations.

Because it is said that, though it has been entrusted with the important work of ensuring observance of human right, but the powers conferred on it are not sufficient, it has no power to take a binding decision, it can only recommend, NHRC has no independent and separate investigating agency and has to utilize and rely upon the service of any officer or investigating agency of the Central or State Government.

The concerned Government or the authority is not bound to accept the recommendations or may accept the recommendations with certain modification as it may deem fit.

The serious defect in the implementation of work of NHRC is that the definition gives in section 2(d) of the Protection of Human Rights Act is very narrow. It is not proper to limit the human rights only to the rights relating to life, liberty, equality and dignity of the individual even though they are the most important basic human rights.

It is also said that, according to Act, establishment of State Human Rights Commission according to Art. 21 (1) is discretionary for state and not mandatory and so only few states have so far established State Human Rights Commission.

Again, it is said that human rights’ concept not properly implemented because there is no strong jurisdiction of human rights court and no definite jurisdiction specified in the Act, it is not clear what cases will be conducted in such courts and what procedure shall be followed in such court and so it is always that protection of human rights act itself is a reason of loss of force of NHRC or loss of force in implementation of human rights in India.

And so it is said that the position of Human Rights Commission in India is far from satisfactory.

But apart from such shortcomings yet it would not be correct to say that National Human Rights Commission has no teeth or there were not any praiseworthy and commendable work done in the case of violation of human rights. Because according to Section 18 (G) of the Act.

It is mandatory for the commission to publish its inquiry report together with the comments of the concerned Government or authority, and such report when published creates strong public opinion and so the Central Government or State Government will have to think several times before deciding to avoid or refuse to implement the recommendations of commission.

Because no Government in a democratic country like ours can afford to resist or avoid such public opinion because Government always tried to be in power, so it is said that public opinion is a binding force of human right implementation of commission and so instead of being reluctant or repulsive, the Government will be too willing to accept and implement the recommendations of the commission.

And though it is true that narrow definition of ‘human right’ in Act limits the scope of commission to ensure the observance of human right. But Supreme Court nowadays recognized a number of separate and independent fundamental rights as being either part of the existing fundamental rights or rights emanating from them.

Moreover, the S.C. has recognized in a number of cases, International Conventions on human rights can be used in interpreting the constitutional provisions. Now fundamental rights such as right to gender equality and prohibition of sexual harassment of working women at their places of work, can be recognized in future by the Supreme Court.

Thus, it may be concluded that despite several shortcomings and drawbacks in the Act, the commission, in practice has proved to be an effective body for the observance of human rights in the country within a short period, i.e., only a few years, it has performed creditable and praiseworthy works and Government should generally accept and promptly implement the recommendations of commission. For example, in the review of Acts and statutes such as Terrorist and Disruptive Activities (Prevention) Act, 1987 TADA and Prevention of Terrorism (POT) Bill, 2000

Most of the recommendations of Commission have so far been accepted. So it can be said that Central or State Government should pay serious heed to the recommendations of the commission nowadays.

And so it may be recommended that there is need to some amendments in the existing Human Rights Act so as to remove the defects and shortcomings in order to streamlining the machinery of protection and observance of human right.

There is also need to create public awareness about human rights specially among women and rural inhabitants for their effective implementation.

And for that use of media such as radio, television, newspapers, etc. should be useful for increasing Human Right Literacy and popularizing human rights movement to the grass root level.

There is need to spread all over the human rights education especially for brutal, deviant police officers who misuse their position and exploit people so there is need to teach police and jail personnel about human right education.

It will definitely be helpful in controlling the violation of human rights and also effective for its implementation and finally it is recommended that public awareness is the main need to solve the problem of human right violations and for its better implementations and for that human right education must be started in schools, colleges and universities so that future generation is well aware of it and may help to giving new transition to the Indian human right jurisprudence.

But it is also recommended that there is need to check over excessive human right philosophy in present age. There are many social organizations, which are under the name of protection of human right wrongly interfere in any criminal case only to gain popularity in media, such deviant social workers admire themselves as a protector of human right and create many different situations and such persons lay great stress on only reformation of criminals but there are some recidivists who are beyond any reformation and they are only know language of deterrence and human right philosophy have no effective impact on them, it is necessary for the security of society to eliminate them from society and the punishment is only one solution for such recidivists reformative measures, have no effect on them.

Because of this attitude, sometimes common masses hate over emphasis of human right philosophy, and this is always a contraversile issue in India there are many cases of such situations appear in India.

Especially, there has been a hot discussion on this subject in entire India, when two criminals Chalapathi Rao and Vijayavardhana Rao (in Chilakalooripeta bus plundering, burning and 32 passengers burning case) awarded death penalty, Human right activists opposed the judgment and said that it is unhuman and capital punishment is brutal, etc. and so common masses expresses their grievance against such activists, that though, such criminals committed unhuman act why?

Human right activists support them, and because of such overall emphasis of Human right philosophy on excessive reformation of criminals and abolition of death penalty. Human right philosophy, nowadays contempted by common masses.