Emergence of Civil Liberties Movements
In India, the last quarter of the 20th century has been witness to a growing recognition of the place and relevance of human rights. It is axiomatic that this interest in human rights is rooted in the denial of life and liberty that was a pervasive aspect of the Emergency (1975-77). The mass arrests of the leaders of the opposition, and the targeted apprehension of those who could present a challenge to an authoritarian state, are one of the dominant images that have survived. The involuntary disappearance of Rajan in Kerala is more than a symbol of the excesses of unbridled power.1 Forced evictions carried out in Delhi in what is known as 'Turkman Gate' conjures up visions of large scale razing of dwellings of those without economic clout, and of their displacement into what were the outlying areas of the city. The catastrophic programme of mass sterilisation is an indelible part of emergency memory. The civil liberties movement was a product of the emergency. Arbitrary detention, custodial violence, prisons and the use of the judicial process were on the agenda of the civil liberties movement.2
The same period also saw the emergence of a nascent women's movement. In December 1974, the Committee on the Status of Women in India submitted its report to the Government of India preceding the heralding in of the International Women's Year in 1975. The Status Report, in defiance of standard expectations
. set out almost the entire range of issues and contexts as they affected women. Basing their findings, and revising their assumptions about how women live, on the experiences of women and communities that they met, the Committee redrew the contours of women's position, problems and priorities.
. gave a fillip to the re-nascent women's movement.
The women's movement has been among the most articulate, and heard, in the public arena. The woman as a victim of dowry, domestic violence, liquor, rape and custodial violence has constituted one discourse. Located partly in the women's rights movement, and partly in the campaign against AIDS,3 women in prostitution have acquired visibility. The question of the practice of prostitution being considered as 'sex work' has been variously raised, while there has been a gathering unanimity on protecting the women in prostitution from harassment by the law. The Uniform Civil Code debate, contesting the inequality imposed on women by 'personal' laws has been resurrected, diverted and re-started. Representation, through reservation, of women in parliament and state legislatures has followed the mandated presence of women in panchayats. Population policies have been contested terrain, with the experience of the emergency acting as a constant backdrop. 'Women's rights are human rights' has demanded a re-construction of the understanding of human rights as being directed against action and inaction of the state and agents of the state. Patriarchy has entered the domain of human rights as nurturing the offender.
Public Interest Litigation
In the late '70s, but more definitively in the early '80s, the Supreme Court devised an institutional mechanism in public interest litigation (PIL). PIL opened up the court to issues concerning violations of rights, and nonrealisation of even bare non-negotiables4 by diluting the rule of locus standi; any person could move the court on behalf of a class of persons who, due to indigence, illiteracy or incapacity of any other kind were unable to reach out for their rights. In its attempt to make the court process less intimidating, the procedure was simplified, and even a letter to the court could be converted into a petition.5 In its early years, PIL was a process which
. recognised rights and their denial which had been invisibilised in the public domain. Prisoners, for instance, hidden amidst high walls which confined them, found a space to speak the language of fundamental and human rights.
. led to 'juristic' activism, which expanded the territory of rights of persons. The fundamental rights were elaborated to find within them the right to dignity, to livelihood, to a clean environment, to health, to education, to safety at the workplace..The potential for reading a range of rights into the fundamental rights was explored.
Individuals, groups and movements have since used the court as a situs for struggle and contest, with varying effect on the defining of what constitutes human rights, and prioritising when rights appear to be in conflict.
Struggle Against Pervasive Discrimination
Dalit movements have kept caste oppression, and the oppression of caste, in public view. Moving beyond untouchability, which persists in virulent forms, the movement has had to contend with increasing violence against dalits even as dalits refuse to suffer in silence, or as they move beyond the roles allotted to them in traditional caste hierarchy. The growth of caste armies in Bihar, for instance, is one manifestation. The assassination of dalit panchayat leaders in Melmazhuvur in Tamil Nadu is another. The firing on dalits by the police forces when they were seen to be rising above their oppression in the southern tip of Tamil Nadu is a third. The scourge of manual scavenging has been brought into policy and the law campaigns; there have been efforts to break through public obduracy in acknowledging that untouchability exists. In the meantime, there are efforts by groups working on dalit issues to internationalise deep discrimination of caste by influencing the agenda of the World Conference Against Racism.
Resisting Displacement Induced By 'Development' Projects
There has been widespread contestation of project-induced displacement. The recognition of inequity, and of violation of the basic rights of the affected people, has resulted in growing interaction between local communities and activists from beyond the affected region, and the articulation of the rights and the injuries has been moulded in the process of this interaction.
Resource rights were agitated in the early years of protest in the matter of forests; conservation and the right of the people to access forest produce for their subsistence and in acknowledgment of the traditional relationship between forests and dwellers in and around forests. Environmentalists and those espousing the dwellers' and forest users' causes have spoken together, parted company and found meeting points again, over the years. The right to resources is vigorously contested terrain.
The 1980s, but more stridently in the 1990s, communalism has become a part of the fabric of politics. The anti- Sikh riots following Indira Gandhi's assassination was a ghastly reminder that communalism could well lurk just beneath the surface. The Bhagalpur massacres in 1989 represent another extreme communal manifestation. The demolition of the Babri Masjid on December 6, 1992 is an acknowledged turning point in majoritarian communalism, and impunity. The complicity of the state is undeniable.
The killing of Graham Staines and his sons in Orissa was another gruesome aspect of communalism. The questioning of conversions in this climate is inevitably seen as infected with the communal virus. The forcible 're-conversion' in the Dangs area in Gujarat too has communal overtones. Attacks on Christians are regularly reported in the press, and the theme of impunity is being developed in these contexts.
New Movements and Campaigns
The professionalising of the non-governmental sector has had an impact on finding public space for certain issues and in making work on the issues sustainable. Child labour, AIDS-related work, the area of devolution and aiding women's participation in panchayat institutions, and battling violence against women have found support and sustainability in funding infrastructure development and support. These have existed alongside civil liberties groups and initiatives, grassroots campaigns such as the Campaign for the Right to Information based in Rajasthan, the development struggle which has the Narmada Bachao Andolan at its helm, or the fishworkers' forum that has combated, sometimes successfully, the encroachments by the large-scale and capital-intensive into the livelihoods of traditional fishing communities.
Movements for self-determination, militancy, dissent and the naxalite movement have provoked various extraordinary measures which have, in turn, prompted human rights groups into protest and challenge. The Terrorist and Disruptive Activities (Prevention) Act (TADA) is an instance.6 The Armed Forces Special Powers Act (AFSPA) continues. Encounter killings, disappearances and the ineffectiveness of the judicial system in places where 'extraordinary' situations of conflict prevail, characterise the human rights-related scenario. A jurisprudence of human rights has emerged in these contexts.
Networking, and supporting each other through conflicts and campaigns, is not infrequent. There are glimmerings of the emergence of, or existence of a human rights community in this. This has had groups and movements working on tourism, forest dwellers rights, civil liberties, displacement, women's rights and environment, for instance, finding a common voice in protesting the nuclear blasts in May 1999, or in condemning the attacks on the filming of 'Water' which had undisguised communal overtones. There has also been a building of bridges across causes and the emergence of an inter-woven community of interests.
As the vista of rights has expanded, conflicts between rights have begun to surface. There has been a consequent prioritisation of rights. The determination of priorities has often depended on the agency which engages in setting them- sometimes this has been environmental groups, at others workers, and yet other times, it has been the court, for instance.
In this general setting, we embarked on a mapping of
- human rights issues
- responses - state and non-state - to human rights situations
- conflicts between rights and prioritisation of rights, and
- a miscellany of issues including the treatment, and the place of state and non-state violence, and the question of who speaks for whom, and the relationship between the advocate of an interest and the persons or classes of persons affected by the advocacy.
Fundamental Rights in India
'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, freedom of association and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violations of these rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste, creed, color or Gender. They are enforceable by the courts, subject to certain restrictions. The Rights have their origins in many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man.
The seven fundamental rights recognised by the constitution are:
- Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.
- Right to freedom which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases.
- Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings;
- Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.
- Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.
- Right to constitutional remedies for enforcement of Fundamental Rights.
- Right to education which ensures that children up to the age of 14 get education. It can also be free of cost.
Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions.
Right to property was originally a fundamental right, but is now a legal right.
Do you know Laws?
- The Indian Penal Code (Act No. 45 of Year 1860)1
- Acts By Indian Court
- The International Court of Justice (ICJ)
- Public Interest Litigation (PIL)
- Other Laws
- The Universal Declaration of Human Rights
- NHRC Publications
- List of Human Rights
- Human Rights by Country
- International Human Rights Law
Universal and inalienable
The principle of universality of human rights is the cornerstone of international human rights law. This principle, as first emphasized in the Universal Declaration on Human Rights in 1948, has been reiterated in numerous international human rights conventions, declarations, and resolutions. The 1993 Vienna World Conference on Human Rights, for example, noted that it is the duty of States to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems.
All States have ratified at least one, and 80% of States have ratified four or more, of the core human rights treaties, reflecting consent of States which creates legal obligations for them and giving concrete expression to universality. Some fundamental human rights norms enjoy universal protection by customary international law across all boundaries and civilizations.
Human rights are inalienable. They should not be taken away, except in specific situations and according to due process. For example, the right to liberty may be restricted if a person is found guilty of a crime by a court of law.
Interdependent and indivisible
All human rights are indivisible, whether they are civil and political rights, such as the right to life, equality before the law and freedom of expression; economic, social and cultural rights, such as the rights to work, social security and education , or collective rights, such as the rights to development and self-determination, are indivisible, interrelated and interdependent. The improvement of one right facilitates advancement of the others. Likewise, the deprivation of one right adversely affects the others.
Equal and non-discriminatory
Non-discrimination is a cross-cutting principle in international human rights law. The principle is present in all the major human rights treaties and provides the central theme of some of international human rights conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women.
The principle applies to everyone in relation to all human rights and freedoms and it prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race, colour and so on. The principle of non-discrimination is complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights: "All human beings are born free and equal in dignity and rights."
Both Rights and Obligations
Human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights. At the individual level, while we are entitled our human rights, we should also respect the human rights of others.