CHAPTER TWO
LITERATURE REVIEW
2.1 The Concept of Human Rights
The concept of human rights is globally recognized and are been protected by all means in different countries. The initial impetus of the current human rights legal regime and movement was in reaction to the Nazi atrocities of World War II. Human Rights are importantly referred to in the United Nations in both the Preamble and under Article 1 though only sparingly. The preamble of the UN Charter reaffirms "faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women" (The United Nations Charter, 2014). The Charter established the Economic and Social council which set up the UN Human Rights Commission now the United Nations Human Rights Council. Chapter VI of the Charter entitled International Economic and Social Cooperation provides Article 55 (c) the "universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion". Article 56 requires States to take joint and separate actions in cooperation with the UN to achieve their mutual aims. Human rights are inherent in the progress of economic social and cultural goals and therefore to Human Development as such (Robertson and Geoffrey, 1999).
The Universal Declaration of Human Rights 1948 is not binding law and reflects an unwillingness of Allied powers to codify an International Bill of Rights where fears that colonial interests would be negatively affected were still influential (Universal Declaration of Human Rights, 2014). Human rights are viewed as universal, indivisible, interdependent and interrelated. René Cassin one of the architects of the declaration conceived the rights as divided into 4 pillars supporting the roof a temple, "dignity, liberty, equality, and brotherhood". Articles 1 & 2 comprising the first pillar relates to human 'dignity' shared by all individuals regardless of religion, creed, ethnicity, religion, or sex. Articles 10019 the second pillar invokes first - generation rights civil 'liberties' fought for during the Enlightenment. Articles 2026 the third pillar are second generation rights, relating to political, social and economic equity, championed during the Industrial Revolution. Articles 2728 the fourth pillar are third generation rights associated with community and national solidarity advocated from the late 19th. These pillars support the roof of the temple Articles 2930 representing the conditions in society under which the rights of individuals can be realized (Ishay and Micheline, 2004).
2.2 Meaning of Human Rights
Human rights, as the term is most commonly used, are basic entitlements bestowed upon each and every human being by virtue of birth. The underlying idea of such rights is to ensure that all men, women and children are treated with respect and dignity. For example, as human beings, it is our birthright that all of us should be given equal treatment and should not be discriminated on any account due to differences of religion, caste, class, color, gender or anything else either by the State or the community or for that matter the family. This is because each person is special with their own individual talents and abilities and none are inferior or superior to each other. Likewise, it is our birthright to have access to opportunities, whereby we can develop to our fullest potential and achieve all that we aspire to become. These rights include the right to life, freedom and justice. These rights guarantee our dignity as human beings. It is precisely for these reasons that human rights are sometimes called ‘natural rights’ (Franck, T.M, 1982).
2.2.1 Characteristics and Nature of Human Rights
The fact that nobody gives us these rights nor can anyone take away these rights from us, human rights are said to be ‘inalienable’. Human rights are also recognized as being ‘universal, interrelated and indivisible’. This means that they belong to everyone irrespective of one’s religion, community, caste, class, gender, and age, social or economic status. Furthermore, respect for civil and political rights cannot be divorced from economic, social and cultural rights. In other words, economic and social development cannot be achieved without the political freedom to participate in that process, including the freedom to dissent (Donnelly, Jack, 2003).
The nature and characteristics of Human Rights can be further understood as under:
i. Human Rights Are Essential and Necessary: In the absence of human rights, the ethical, natural, societal and spiritual welfare of an individual is impossible. Human rights are also indispensable as they provide a conducive environment to augment the physical and moral life of society.
ii. Human Rights Support and Advocate Human Dignity: To treat others with dignity irrespective of whether that person is a male or female, rich or poor etc. is the basic concern of human dignity. For e.g. In 1993, India had enacted a law that forbade the practice of an individual carrying human excreta. This law is called ‘Employment of Manual Scavengers and Dry Latrines (Prohibition) Act. However, this practice is still prevalent in some parts of the country.
iii. Human Rights Are Universal: No one class of people however privileged they may be, have monopoly over human rights. They are essentially universal without consideration and without exception. The values such as divinity, dignity and equality which form the basis of these rights are inherent in human nature.
iv. Human Rights Are Inalienable: ‘Inalienable’ means unable to be taken away. When we say human rights are inalienable we are saying that the rights are inherent in us and we cannot give it away or renounce it. For example, if an individual give, even in writing, telling the police that he should be arrested for a crime that he had committed and locked up without a trial. It cannot be considered a valid statement. This would be a violation of his/her basic human right of life and personal liberty i.e. Article 21 of Indian Constitution. These rights should be the same for individuals irrespective of their caste, creed, religion, sex and nationality. As a matter of fact, human rights are conferred on an individual even after his death. The various rituals in different religions bear testimony to this fact.
