Articles

              Human 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 forefront. 

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 sufficient". 

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 prominent. 

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 human rights. 

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 Kingdom. 

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 states.

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 145.

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 responsibility". 

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!

More Articles

Irene Khan's speech at the World Economic Forum, Davos, Jan,23, 2003.

The Business Case for Human Rights

Why Human Rights Should Matter to the Business World