Rights - Expanding horizons
Justice K. Sukumaran
Human beings have always
enjoyed a privileged position among God's creations or as
the finer products of evolution. They are not always
associated with strength. The saying "To err is
human" is an acknowledgement of weakness. When the weak
are in larger proportions, law enters with its protective
correctness. That is implicit in a statement which portrays
the law's visible representative in favourable colours.
The orthodox view has it that the police brought universal
benefits, especially to the weaker sections of the society.
( See 'The Politics of Police', Robert Reiner- P.53) A more
enduring solution for protecting the weak is to empower
them. To confer rights on them. When human beings are
conferred diverse rights, some rights stand in the
Many appellations are given to those more important rights.
Some of the more basic have been identified now. They
are classified as 'Human Rights'.
The efforts started seriously, soon after the second World
War. 'The founders of the United Nations realized that the
denial of human rights and appalling violations that had
occurred in Germany and elsewhere were some of the main
concerns following the second World War'. That led to the
setting up of the 'Commission of Human Rights' ('Human
Rights for the Twenty First Century' - P.86).
The passage of time has witnessed assignment of seriousness
in the theme and systematic and periodic evaluation of
performance in the field. It is no longer doing 'lip
service to human rights in high sounding language'. Doing
little or no service in terms of actual decisions is not
easily forgiven. That is a healthy sign.
In the process of protection of human rights it is the
entirety of people that is to be involved. Members of
Parliament and Judges of Courts, no doubt, play their
useful part. That is not adequate. This feeling is aptly,
expressed with reference to a group which would not
generally bother about carping comments. Robert Blackburn
states: "Constitutional reform cannot be left to
politicians alone - who are essential but not
Freedom from torture was considered as an important aspect
of human rights. The immediate background of the orgies of
torture which fascist forces unleashed might have been the
immediate cause of such a strong reaction. Other rights were
also treated as dear and near to a refined soul. 'Man does
not live by bread alone'. He has cultural aspirations.
Comforts of a clear conscience and the ecstasy of joy in
giving expression to one's views (it does not matter whether
they are obscene or objectionable) were also regarded as
Exploitation of the weak arising from physical disabilities,
social oppression or economic greed was also frowned upon.
Human rights, therefore, recognized protection for women and
insulation of the child against exposure to evils. The
horizon of human rights was expanding slowly but steadily.
Modern life gave many comforts to the fortunate people.
Telephone for talking to others by defeating distance,
enjoying entertainment in glossy publications or in numerous
channels of the electronic media and the like. They were,
doubtless, luxuries initially. They have almost become
necessities in later times. Interface with such facilities,
whether it would be intrusion into privacy or the tapping of
the telephone, was treated as unlawful, and enjoyment of
uninterrupted and un-interfered experiences was treated as
Maylong Vs United Kingdom is a classic instance where the
court projected the human rights under Article B, even
when he had been charged with offences relating to dishonest
handling of stolen goods. The march of human rights picked
up speed. Earlier the aspiration was only to protect people
against destruction. It soon took to other fields like the
projection of universal values "which are not less
significant to man than that of mere survival".
Sometimes one may wonder whether human rights had not
strayed beyond the boundary marks. 'Spare the rod and
spoil the child' is an old adage. "There will be many
among the older generation who did suffer, birched by the
strict school master. It is now a violation of human rights.
The punishment is treated as a 'degrading one'. That is
clear from a decision rendered in 1978, Tyrer Vs United
The children, however, need not be totally complacent about
total insulation from pinpricks, even when sphere thrusts
have been averted. That was the view taken fairly recently
in 1993. Costello-Roberts Vs United Kingdom. Three whacks on
the buttocks on a seven year old boy did not measure up to
the level of severity. It was held that the headmaster did
not violate Article 3.
Sometimes convictions are rendered in some courts, violating
Article 6. That led to a strong reaction from enlightened
democracies. Now it has emerged that foreign convictions
which violate Article 6 must not be enforced in convention
Possibly it is time to have a serious thought about certain
countries having economic or material leverage, but totally
flouting some of the basic rights. The conscience of the
world has not yet reacted effectively, in view of
apprehended economic embarrassments. It is high time to
think about it with equal enthusiasm as is shown in the
areas of gender discrimination or child abuse.
It is possible now to illustrate with specific factual data
how such important and essential basic rights are violated
with impunity by certain countries. A total deprivation of a
person's property by an arbitrary official or state, is not
a lesser violation of human rights than the tapping of the
telephone or the stopping of a speech. Right to property, at
least in specific situations can be treated as human rights.
That has been the concept in important democracies.
It has been observed that the British were "taught by
Locke and Blackstone to regard property as the best
guarantee of social security". John Pemble refers to
the travel of that concept to India in his book, 'The Raj,
the Indian Mutiny and the Kingdom of Outh',1809-1859, page
The courts have always been sympathetic towards property
rights. Bran Gold stated in 1989 that judges are....
"likely to be more familiar with value of property
rights than with social security, more sympathetic to
individual acquisitiveness than to community
Yet, even the records of the case of the Delhi High Court
would expose one of the worst violations of those human
rights in an oil rich country. And that too, inspite of the
judiciary of that very state, proclaiming the innocence of
an Indian, who toiled in those desert lands, but had been
tortured by a wily policeman, to leave the country, but
without even a single Dirham from his many million savings
of 18 years duration.
Curiously the Indian bureaucrat was fiddling even when an
Indian citizen's house was burning. Thanks to the vision and
dynamism, the Human Rights Commission of India sensed the
tragedy, and asked the Government of India to explain. It is
yet to obey the direction of the Commission to furnish an
explanation for the continued inaction. To make matters
worse, the Government acted most perversely and in total
ignorance of the existence of human rights, when ultimately
and belatedly it acted.
The incident is indicative of the illiteracy on human rights
even with the 'think-thank' in the External Affairs
Ministry. It is therefore, appropriate, that an educational
exercise on that behalf is undertaken now. Earnest
endeavours are bound to bear luscious fruits!
Khan's speech at the World Economic Forum, Davos,
Business Case for Human Rights
Human Rights Should Matter to the Business World
Misery of Arab World