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Part-I- Conceptualization of Right A. Meaning of Right B. Common Features of Rights C. Theories of rights D. Generation of Rights E. Classification of Rights Part-II- Concept of Civil rights Part-III- Human Rights A. Concept and Meaning of Human Rights B. Definition of Human Rights C. Theories of Human Rights D. Sources of Human Rights E. Instruments of Human Rights F. Features of Human Rights G. Principles of Human Rights H. Difference between Civil Rights and Human Rights I. Historical Development of Human Rights from International Endeavour J. International Efforts to Develop Human Rights Norms K. The Universal Declaration of Human Rights- L. Most important Human Rights Conventions
I. Conceptualization of Right A. Meaning of Right: The Rights are legal, social, or ethical principles of freedom or entitlements which are considered to the part of every human and social being. The rights can also be stated as the fundamental normative rules for people are allowed or owed. In simple words rights are stated as the common claims of people, which every civilized society recognizes as essential claims for their development and which are therefore enforced by the state. Rights are those necessary conditions of social life without which no person can generally realize his best self. These are the essential circumstances for health of both the individual and his society. It is possible only when people gets and enjoy the rights that they can develop their personalities and contributes their best services to the society. Rights can be of many kinds, such as legal rights, moral rights, civil rights, political rights, social rights, economic rights, cultural rights and so on. The Rights belong to individuals, and no organisation has any rights not directly derived from those of its members as individuals. Rights are also used in a variety of ways indicating differences in ideological and philosophical perceptions. Some human rights activist defined rights as a normative attributes that belong to a self conscious person who perceives himself as an agent of purposive creative action. Rights are those which are natural in a human being by virtue of his birth as a human being, Rights do not depend for their existence on the legal and moral practices of different communities. Definitions of Rights: Ernest Barker defined “ Rights are the external conditions necessary for the greatest possible development of the capacities of the personality”. According to Harold llaski Rights are t hose conditions of social life without which no man can seek, in general, to be his best. On their importance he remarked, "The state is known by the rights it maintains.
- Rights are inseparably related with duties : The rights and duties are being considered as a two faces of a coin, in which every citizen who enjoys rights have oblige his duties. Rights and Duties are supportive to each other.
- Rights need to exercise through enforcement : The rights enforces by the government through its constitution, Rights are compliances with laws, regulations, rules, and social Norms.
- Rights are protected and enforced by the laws of the state : The fundamental machinery for protection and enforcement of rights are the particular laws of the state. C. Theories of rights: The description of theories of rights expresses the fact that rights are originated inherently in human beings, the distinctive focus of each theory results in significant variations in their lists of specific human rights or the kind of activities that humans may participate. There are many compelling theories of rights offered by several theorists.
- Utilitarianism Theory of Rights
- Deontological theory of Rights or Kantianism Theory
- Laski’s Theory of Rights
- Barker’s Theory of Right
- Marxist Theory Rights C.1 Utilitarianism Theory of Rights: Utilitarian theory describes the rights are the just action which, relative to all other possible actions, maximises utility or the good. Utilitarianism is exclusively consequentialist, the justice or injustice of an action or state of affairs is determined exclusively by the consequences it brings about. If an action maximises utility, it is just. On this view, rights are purely instrumental. It is also worth noting that many in the utilitarian tradition have expressed hostility to the notion of rights of any nature. Utilitarian will honour a right when it will leads to the maximization of utility. This statement also indicates the limits of all rights. If the exercise of a particular will not maximise utility, the utilitarian is obligated to violate that person’s right for the sake of utility. Rights are limited by the utility principle. If the exercise of a right maximises the good, the right have to to hold. If it fails to do so, the right may be justly abridged.
Challengers of the utilitarian account of rights argue that in some cases it extends rights too far and in other cases it restricts the rights unjustly. C.2 Deontological theory of Rights or Kantianism Theory The Human Rights Philosopher Kant proposes that the essence of morality is captured by what has been called the Categorical Imperative. Deontological theory or Kantianism is a clearly a non-consequentialist approach. It is believed that the consequences of our actions are often determined by contextual factors beyond the control of the individual. Honor and blame are only coherent concepts where the subject is responsible for what they have done. In all appeals to consequences, the locus of responsibility must necessarily be displaced to a broad array of factors, only one part which is the agency of the individual in question. Moral responsibility for consequences is incoherent. Ethics must be a matter of intentions, these being the only things we can evaluate without extrinsic influence. The Categorical Imperative is a rule for testing rules of conduct. It will exclude as immoral any rule of conduct that implies that one person may do something, but another, in relevantly similar circumstances, may not. In other words, it demands consistency. This is relevant to human rights, because we think of human rights as universally applicable to human beings and Kant says that what is morally permissible applies to all rational beings. It is also relevant that this test tends to endorse the rules of action that protect our most basic interests, just the sorts of things that rights protect. C.3 Laski’s Theory of Rights: The Political Theorist Harold Laski depends rights as “those conditions of social life without which no man can seek, in general, to be himself at his best”. Laski calls rights as conditions of social life. Rights are social concept and deeply linked with social life. The essentiality of rights is established by the fact that individuals claim them for the development of their best self. He places rights, individuals and state on the same board in the sense that they cannot be separated from each other and there is no antagonism between them. The most important part of Laski’s theory is the functional aspect of rights. It emphasizes on the relation between right and duty. He stated that Rights are correlative to functions. The functional theory emphasizes that an individual is entitled to claim rights only when he performs duty otherwise the claim or demand for right cannot be entertained. This definitely opposes
Marxists have admitted that in a bourgeois society attempts are always made to expand the number of rights and in reality this is done. But the rise in the number of rights does not come to the benefit of common people. D. Generation of Rights D.1 First Generation of Rights : The rights of this generation are primarily political and civil rights and freedoms. Rights such as freedom of speech, free choice of residence and freedom of religion are among the first generation rights. The first generation of rights is generally about the person against political power and typically, maintains the originality of the human. This has been considered in article 2 to 21 of the Universal Declaration of Human Rights. Martin Golding called these rights as “selective” rights which mostly deal with the concepts of freedom and choice. They are the same traditional freedoms and citizenship privileges which have been formed as political and civil rights. The first generation rights mainly match the Liberalism Tradition because these are the inalienable rights of people which have immunity against aggression of common goods and state authority; the point emphasized by Liberalism. D.2 Second Generation of Rights : The second generation of Rights are shown in social and economical areas. Rights such as education, dwelling, hygienic protection, employment and an appropriate level of living, are considered as the rights of second generation. The rights of second generation guarantee an active life along with health. If a healthy nourishment and hygienic protection does not exist, doesn’t it harm the health of human and accordingly the health of the society? Although by approval of Universal Declaration of Human Rights in 1967, the pressure of socialist countries has had a powerful effect on the birth of International Convention of economic, social and cultural rights; but it was also the subject of attention for regulators of Universal Declaration of Human Rights who mainly had liberal viewpoints. According to the Introduction part of the Declaration: “lack of recognition through human rights and despising it has led to savage actions which caused the human soul to rebel, and the appearance of a world where human has the freedom of speech and fearless to poverty has been declared as the highest ideal of human being.
D.3 The third Generation of Rights : The establishment of the third generation was the result of new needs of human. The developing human international social procedure and moralizing the international rights and human rights and also weaknesses of the first and second generations led to appearance of the third generation of human rights. The rights of third generation or unity rights do not talk about human but put emphasis on the universal citizen. In this generation of rights, the beneficiaries are society and social groups which of course its general benefit is also shared with every individual. E. Classification of Rights: Rights can be broadly classified into two different perspectives: i. Firstly, from the perspective of various aspects of human life, social, economic, political, moral and civil. ii. Secondly, from the perspective of the methods of securing them. On the second basis, they are constitutional or legal. The rights are classified on the basis of the nature, characteristics, legal reorganization and constitutional parameters. Every right has its own belongings based on its functions and nature. Major Classification of rights.
- Natural Rights
- Moral Rights
- Contractual Rights
- Legal Rights E.1 Natural Rights : The Natural rights are those rights which derive force from the natural status of things that all human are born free, that every human being is equal without any artificial super impositions like in a society. It is the human nature that determines this status.
The Contractual rights originated from the exercise of promise-keeping. They apply to particular individuals to whom contractual promises have been made. Contractual rights ascend from specific acts of contract making. They normally come into being when the contract is made, and they reflect the contractual duty that another party has acquired at the same time. The Contractual rights may be justifiable by the law, and in that sense can rest upon legal rights, but it is possible to conceive of contracts made outside of a legal framework and to rest purely upon moral principles. However, such contracts are less secure than contracts done within a legal framework, for obvious reasons. Some examples of contractual rights such as: Rights to purchase a particular product or service Rights to be sell a product or service Rights to be the only seller or buyer Rights to delivery and timely payment Rights to refunds or repairs E.4. Legal Rights: The Legal rights are those rights which are acknowledged and put in force by the state. Any debasement of any legal right is punished by law. These rights can be enforced against individuals and also against the government. The legal rights are different from moral rights. Legal rights are equally available to all the citizens. All citizens follow legal rights without any discrimination. Types of Legal Rights: i. Civil Rights : The Civil rights are those rights which provide opportunity for each person to lead a civilized social life. These fulfil basic needs of human life in society. Right to life, liberty and equality are civil rights and civil rights are protected by the state. ii. Political Rights : The Political rights are those rights by virtue of which inhabitants get a share in the political process. Political rights are put in to force to the people in a democratic state these allow them to take an active part in the political process. These rights include: The right to vote
The right to get elected The right to hold public office The right to criticise The Right to oppose the government. iii. Economic Rights : The Economic rights are those rights which provide economic security to the citizens. These empower all citizens to make proper use of their civil and political rights. The basic needs of every person are related to his food, clothing, shelter, and medical treatment. Without the fulfilment of these no person can really enjoy his civil and political rights. Most Important economic rights as followed The right to work The right to adequate wages The right to leisure and rest The right to have social security in case of illness, physical disability and old age.
The evolution of civil liberties movement in India can be traced back in pre independence era when the national liberation struggle was stirring up against the British dictatorship. Main focus of these movements was on indefinite detention without trial which posed a serious threat to the civil liberties. Consequently, civil liberty movement got speed as a part of national movement. As a consequence, Indian civil liberty union was established by Pandit Jawahar Lal Nehru in 1931. The civil Rights are listed as follows:
- Right to Life
- Right to Family Life
- Right to Education
- Right to Personal Freedom
- Right to Religious Freedom
- Right to Freedom of Thought and Expression
- Right to Freedom of Movement
- Right to Freedom of Press
- Right to Equality
- Right to Justice
- Freedom to Form Associations
- Right to Culture freedom
- Right to Contract 1. Right to Life: The state has to make provisions for well-being and safety of its citizens. The right also implies to the right to self-defence and prevention of suicide. 2. Right to Family Life: Right to family life is of great significance for the continuation of human race. One can marry the person of his/her choice and produce children. 3. Right to Education: Every state gives the opportunity to its citizens to get an education as only educated people can participate in the working of society and government.
4. Right to Personal Freedom: Right to personal freedom is absolutely essential for the mental and physical growth of an individual. Right to personal freedom can be enjoyed in accordance with the laws made by the state and also in accordance with the interests of society. 5. Right to Religious Freedom: The State does not impose any religion on people and they are free to adopt any religion, and establish their religious institutions. 6. Right to Freedom of Thought and Expression: The Right to freedom of thought and expression is also very important for personality development. All people want the freedom to express and exchange their views and ideas with others. 7. Right to Freedom of Movement: Every citizen has the right to move freely throughout the country. Citizens are also given the right to go abroad. However, certain areas can be made restricted areas. 8. Freedom of Press: Citizens are given the right to get their views printed in newspapers and periodicals. This right is essential for spreading education and information among the people. 9. Right to Equality: In a modern democratic state, individuals are granted the right to equality. Though discrimination is done on the basis of religion, language, caste, sex and colour. Everyone is given equal opportunity to develop. 10. Right to Justice: To save the weak and the poor, right to get justice is also given. If this right is not given, many other rights also become meaningless. People are given the right to go to court for securing justice. 11. Freedom to Form Associations: In order to fulfil social, economic, political and cultural needs, many form different types of associations and the state recognise their right to do so. But state does not permit the formation of associations that are considered harmful to the interest of the society. 12. Right to Cultural Freedom: Citizens have been given the right to cultural freedom. They are free to develop their languages, customs, Folkways, literature, and traditions.
III. Human Rights A. Concept and Meaning of Human Rights: The term 'human rights' came into usage after the Second World War, particularly with the founding of the United Nations in 1945. It replaced the phrase natural rights because it became a matter of great controversy and the later phrase the rights of man was not understood universally to include the rights of women. Human rights are the basic rights and freedoms that belong to every person in the world, from birth until death. They apply regardless of where a human from, what a human believe or how a human choose to live your life. Human rights are the natural, inherent and inalienable rights without which a man cannot exist, and are positive obligations on the part of the State. It is universal, do not differ with geography, history, culture, economic system or stage of development, gender, race, class or status and are to be protected by the State. The concept of human rights derives from human dignity and the inherent worth of a human being. Therefore, it is suggested that whatever adds to human dignity and the fundamental freedom of humans is a human right. In other words Human Rights are what each human being is entitled to as a human being to live a dignified, secure life of his/her choice. 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. Human beings are born equal in dignity and rights. These are moral claims which are inalienable and inherent in all individuals by virtue of their humanity alone, irrespective of caste, colour, creed, and place of birth, sex, cultural difference or any other consideration. These claims are articulated and formulated in what is today known as human rights. Human rights are sometimes referred to as fundamental rights, basic rights, inherent rights, natural rights and birth rights. B. Definition of Human Rights : According to RJ. Vincent: human rights are the rights that everyone equally has by virtue of his very humanity and also by virtue of his being grounded in an appeal to our human nature.
Dr. Justice Durga Das Basu defines “Human rights are those minimal rights, which every individual must have against the State, or other public authority, by virtue of his being a ‘member of human family’ irrespective of any consideration. Durga Das Basu’s definition brings out the essence of human rights. The Universal Declaration of Human Rights (UDHR), 1948 , defines human rights as “rights derived from the inherent dignity of the human person.” Human rights when they are guaranteed by a written constitution are known as “Fundamental Rights” because a written constitution is the fundamental law of the state. P.P.Rao : Human rights as the inherent dignity and inalienable rights of all members of human family, recognizing them as their foundation of freedom, justice and peace in the world. C. Theories of Human Rights: It very essential to gain the basic understanding of human rights one should look at certain theories of the subject so that the shifting priorities of rights during different phases of history could be observed. The fundamental function of theory is to provide an analytical tool by which it is possible to determine the precise subject matter of the concept upon which there might be an agreement. The theories of Human rights are as follows:
- The Theory of Natural Rights
- The Legal Theory of Rights
- The Anti-Utilitarian Theory of Rights
- The Legal realist Theory of Rights
- The Marxist Theory of Rights
- The Socialist Welfare Theory of Rights
- The Idealist Theory of Rights
C.4) The Legal realist Theory of Rights : The Legal Realist Theory is of recent origin. This Theory mainly originated in USA with the expansion of regulatory activities followed by President Roosevelt’s “New Deal Policy”. A group of Jurists such as Karl Liewellyn, Roscoe Pound and others discussed the point as to what the law does, rather than what the law is, in a highly complex and industrialized society. These theorists did not propound a common theory of rights. Rather, they considered rights as the end product of both the interaction of prevailing moral values of the society as well as the broad- based international sharing of values. C.5) The Marxist Theory of Human Rights: Rights, according to Marx are simply a bourgeois concept and a product of bourgeois capitalist society primarily designed to maintain and reinforce the predominant position of the ruling class. This theory of rights is very simple and to a certain extent convincing too. He regards the State as a coercive agency to uphold the particular type of social organization and law is a tool of the State that perpetuates and safeguards the interest of the dominant group in the society. Karl Marx firmly believes that rights can exist and flourish only in a classless society where all are equal and no one is an exploiter. Social and economic rights are thus the main concern of this theory. C.6) The Socialist Welfare Theory of Rights: According to the social welfare theory, rights are created by society, and are aimed at realising social welfare. Conditions which make the individual and society happy are rights, and these should have precedence over the customs, usages, traditions and natural rights. This Theory looks at rights solely through the angle of social welfare. The theory has the great merit of upholding the principle of social welfare. Utilitarian’s, who supported the theory made a practical approach to rights, and advocate legislation in different fields to uphold rights. C.7) The Idealist Theory of Rights:
The idealist or personality theory Rightists say that the human being needs congenial external conditions for the development of his personality. Green, the idealist thinker of England says that rights are powers necessary to the fulfilment of man’s vocation as a moral being. Krause, Henriki and wilde said that without rights man cannot become his best self. C. 8) The Historical Theory of Rights: According to the Historical Theory of Rights, rights are the result of historical evolution. In ancient times, rights were based on customs and usages. But in the modern State, rights are recognised and supported by law. In the course of ages, human beings in society evolved certain usages, traditions and customs for the common good, and these unwritten forms became the basis of law, which gave rights to the individuals in the actual written form. To the primitive man, custom was an unwritten law. All theories of human rights highlights the integration of human life and mankind, above all some have filled with different perspectives. Theories prefunded on human Rights create a conceptual understanding and literature base for the concept of Human Rights.
