Cultural Discourse on Human Rights- An Indian Perspective
Sindhu Vijaya Kumar1
Abstract: Bharat the land of holistic culture has always given importance to life and its potentiality. However, we frequently connect life with freedom. Should the life be a life without freedom or life with freedom, more often to ask, what is the circumference of right? If freedom is to be ascertained as circumferences of right, then this leads to absolutism which can create a chaos and disorder, nonetheless, human right is defined as natural inalienable right, the paradigm is where to place this right, whether within the circumferences of freedom or within the realm of life. Many believe that human right has just a nominal performance in identifying the assimilated galaxy of rights, but the crux of the theory is that human rights has astonishingly surpassed its ability in interpreting and redeeming the justice-right from time to time. Human right as a concept is fundamentally interpreted by the judicial civilization of various countries. These understanding have been unique when interpreting various dimensions of legal rights as well. This research paper attempts to understand the observation of various cultures on human rights and it explores the aspects of human belief system which preaches and propagates the virtuosity of human right. The paper seeks to investigate not just the theoretical spectrum of human right but suggest with a dictum that how impressively the concept can help in redeeming the socio-economic justice to mankind. Cut-crossing the cultural, religious, linguistic and racial difference it makes us to belief that suffering of any one single individual at the corner of world reckons the conscious of mankind; because every man is connect to each other as spirit of one consciousness of being human.
Keywords: human life; justice; law; projective approach; transformation approach
The term human right is a genesis, right eventually transferred from generation to generation preserved and protected for mankind by mankind, the nature being the creator of this rights specifically reserve the interest of each and every individual, right from the first day of his or her life and hence it is called as natural and inalienable right. The term human right is so divine and holistic that it tends to protect each and every minute desire of individual existence. Why not, let me call it as the mother of all the rights. Its significance is relied in day today life of individual at home, work place etc, when individuals engage themselves in some or the other task which involves accomplishment of one’s responsibility, discharging one’s duties or enjoying one’s right. So there is an existence of these rights at every moment when the individual say, me and mine whenever the interest(reasons for wanting, something done) associated with such right is violated for instance, right to minimum wage is a fundamental right as well as human right, an individual who earns less then minimum wage has absolute right to demand the appropriate wage according to the Minimum wage Act2 until he realize that to what extent he could satisfy his interest with the earning wage, if the earning wages accomplishes the necessities of life compared to the living wages then the need would be limited, but then the right of the individual to demand the reasonable wages or the living wages is still existing as a matter of just reason and as a part of human right, even in absence of any special provision protecting such right3. However, the legal interpretation of human right becomes more effectual when the violated right is brought within the preview of law; in other word these rights has more efficacy when it has a legal force (Waldron, 1984, p. 11). At one point of time these rights were more confined to the customary principles, bylaws or the declaration of a superior authority which often came down as a mercy to its inferior or subjects. It was only in the recent era there happened to see a tremendous growth in its nature somewhat from ology to an identified branch of legal philosophy widening its dynamism and applying its rule in every walk of human life.
2. Historical Background
Human rights, the term is just not an abstract phenomenon but has both the physical and spiritual representation, as the nature never discriminate between the individual human being and every human being are the child of nature so are they entitled to such inalienable right of nature, human right is natural in the sense that their source is human nature (Raz, 1986, p. 1). The soul energy of human right flows from several religious text and documents like Vedas, bible and Quran. Originally these religious texts focus of human way of life and values. Though these religious texts may differ on some important principles, the soul message to treat fellow human as one among us never differs (Puntambekar, 1949, pp. 195-19).
The notion of righteousness present in ancient law and religion and many a time retrospectively included under the term “human rights” Hinduism which is the first Vedic religion, invokes the philosophy of human dignity and value for life they are the one to whom religion is not just practice but way of life, the Shanti mantras recites good happening to all human being including the whole universe. The verses states4.
‘Om’ Sarve Bhavantu Sukhinah,
Sarve Santu Niramayah.
Sarve Bhadrani Pushyantu,
Maa Kaschid Dukhabhaag Bhavet.
‘Om’ Shaanti Shaanti Shaanti.
Aishwaryamastu, Udayostu, Udayostu
May all be happy.
May all enjoy health and freedom from disease
May all have prosperity and good luck.
May none suffer or fall on evil days.
The religion believes that peace and happiness can only come to you when you find your fellow human in happiness, as we are all connected to one another, which makes the saying “human rights are not just divine right within it, but is also constituent part of duties toward others”. It believes that peace is not when there is absence of chaos but when there is presence of justice or dharma. Islam, the monotheistic religions system of Muslims founded in Arabia in the 7th century and based on the teachings of Muhammad as laid down in the Koran is a complete way of life (Khan, 1967, pp. 29-232). Islamic religion brought many reforms among the nomads, significance of human life, importance of family life was emphasized through human right principle (Maududi, 1976, p. 10). Islamic social reform in area such as social security, family structures the rights of women and the ethnic rights were improved. Prophet Mohammed as a reformer condemned practice of pagan Arabs such as female infanticide, Promiscuity, alcohol, exploitation of poor, usury, murder, false contract and theft (Ishaque, 1974, pp. 30-9). Prof. Akbar.S. Ahmed briefly gives the essence of teaching of Prophet: “After Muhammad announced his mission to the world the Quraysh ruler of Makkah were understandably outraged by his preaching. He was claming Muslim were equal, like teeth of the comb. There was no lineage no castes in Islam: la bedawi fil Islam’ there is no bedouinism in Islam’. Muhammad’s god demanded justice, the doing of good and liberality to kit and kin. Worse, his God criticized their wanton way: He forbids all shameful deeds, injustice and rebellion (Akbar, 2002).
Christianity the predominant religion of peace, love and faith emphasis on the human right values, Jesus of Nazarath, beheld the right of his people, confronted the slavery system protested, the exploitation of poor with nonviolent spirit. It was than the human right gained a spiritually militant voice, the cross figured as a symbol of sacrifice of regained human dignity and divinity. H.C Well in his work “outline of history” states that Jesus did not merely urge of social and moral revolution, but his teaching wrapped in the language of kingdom of god had political bent on the plainest sort, he proved that kingdom of god recognizes no barrier it was open for those who knew the pain of other as his own5. Biblical anecdote states:
“While he yet talked to the people, behold his mother and his brother stood without desiring to speak with him. Then one said unto him, behold thy mother and thy brother stand without, desiring to speak with thee. But he answered and said unto him that told him, who is my mother? And who are my brother? And he stretched his hands toward his disciples and said behold my mother and my brother. For whoever shall do the will of my father which is in heaven, the same is my brother, and sister and mother.”
“And Jesus looked around about and said unto his disciple, how hardly they that have riches shall enter into the Kingdom of God! And the disciples were astonished at his word. But Jesus answered again, and said children, how hard is it for them that trust in riches to enter into the Kingdom of God! It is easier for a camel to go through the eye of a neddle, than for a rich man to enter into the kingdom of god”6
His words were pious yet addressing the gross need of deprived class of people who were exploited by the rich. He condemned the concentration of wealth.
“While he yet talks to the people behold his mother and his brethren stood without, desiring to speak with him. Then one said onto him behold they mother and thy brethren stand without, desiring to speak with thee. But he answered and said unto his that told him, who is my mother? And who are my brethren? And he stretched forth his hand toward his disciple and said behold my mother and my brethren. For whosoever shall do the will of my father which is in heaven, the same is my brother and sister, and mother. These enlightened words of Jesus are so much illuminating the moral conscious of mankind to feel the compassion and brotherly hood to each other he selflessly rejects the mere family relationship thus, laying foundation for morally and spiritually welded one world7.
The reference into this religious text emphasizes the notion that god stands beside the one who threshold the consciousness that he is not mere blood and flesh born to live and to die only for his selfish desire, but to share care, to be enthusiastic to help the fellow human beings in distress8.
Nomenclature of religious text embarked into the customary practice of states and later was codified into a written text. Several centuries old established unprecedented principle of different countries throws light on this issue. For instance, ancient Indian during the period of Mauryan Empire established principles of civil right during 3rd century B.C under the regime of King Chandragupta Mauryan. Codifications of these principles were under the guidance of guru Chanakya (Iyer, 1999, p. 115). The civil law saw the light of epitome with the embedded principle of justice called Dharmasastra which he felt necessary for peaceful administration. The unnecessary slaughter of or mutation of animals were abolished, the basic right of human being to clean food water and air was also stipulated by the king. According to Rama Jois in Rajadharma king was given the power only to enforce the law. Dharmasastra did not on or recognize any legislative power in the king. It’s clear that dharma is and only supreme and no one. The enforcement of law through dharmasastra prevailed in interest of human justice. The kautilya’s arthashastra clearly brings forth the right of consumer and mentions the protection of consumer interest against exploitation by producers and sellers. Malpractice such as adulteration, overcharging and underweighting of goods were considered as punishable of offence. Ahimsa or non violence, tolerance and mercy humility and concern for living creature are the roots of human rights. These values were nobly nourished by Buddha the founder of Buddhism and Vardahamana Mahaveera founder of Jainism, both strengthen the hold of humanitarianism and kindness on its follower making ahimsa the highest liberating principle. The code of principles based of human right was further extended to law of war and diplomacy. Asoka showed mercy to those imprisoned allowing them outside one day each year and offered free education to common citizens at universities. All subjects were treated equally regardless of their religion politics or caste (Mukherji, 1999, p. 115).
In Iran King Cyrus coded the first human right Charter which is known as Cyrus Human Right Charter. In this first Charter of human rights the Persian Empire established unprecedented principles of human rights in the 6th century BC, under the reign of Cyrus the Great. After his conquest of Babylon in 539 BC, the King issued the Cyrus Cylinder, discovered in 1879 and recognized by many today as the first document defining a person’s human rights (Kuhrt, 1983). The cylinder declared that citizens of the Empire would be allowed to practice their religious beliefs freely and abolished slavery. This means that all the palaces of the Kings of Persia were built by paid workers, in an era where slaves typically did such work. These two reforms were reflected in the biblical books of Chronicles and Ezra, which state that Cyrus released the followers of Judaism from slavery and allowed them to migrate back to their land. Following Persia’s defeat at the hands of Alexander the Great, the concept of human rights was abandoned (Kuhrt, 1983, p. 18).
3. A Journey from National Law to Universal Law
The metaphysical spectrums of universal law recognize that men are one and the same in human form with blood and flesh and his vehement nature to revolt against the unjust. It was when, these human rights were violated new revolution began in every land of man beyond race, color and creed. And the history witnessed it. As discussed above the embodiment of human values in the religious and customary text, prefixes the right of men, however it was with the permute order in administration, which halted the right and destroyed the state of human value, alas! And the history witnessed the holler of human spirits.
The State of Revolution
From time immoral human genesis had to strive hard to retain its existence, to say so, whether is a paradox or real. The revolution of human rights that we talk today was a century old phenomenon, mitigating to survive within the midst of human war, abuses, violations and the rest history speaks. The greatest violations of human rights are witnessed during war and the law is simply crucified under the dictum of tacit political agendas and becomes a mute spectator of gross human right violations. Massive hit to human civilization was witnessed during the first two world wars. The breakdown of traditional balance of power between the states was one among the causes for the First World War and so were the causes for Second World War but was an act of extreme end a disgrace to whole human civilization disregarding not only the Covenant of League of Nation but also the Kellogg Briand Pact (Brownlie, 1963, pp. 231-235). No soon the major power realized the need for constitution of a world Charter adumbrating need for peaceful co-existence of states and preventing any aggressive war in near future, indeed it was not just the demand of time but a strong urge of human pain and suffering witnessed during war. Four major super power France, United Kingdom, United States &Soviet Union concluded London Agreement which provided for establishment of International military Tribunal9, and an annexed Charter constituted Nuremberg Military Tribunal. The indictment comprised four charges namely Conspiracy of common plan, Crime against peace, War crime, Crime against humanity. This was a road map laid to prosecute and punish for any aggressive war causing major human right violation. From then onward until now the catastrophic effect of war is witnessed every movement. The consequence of war crime either by States, belligerents and Non-State actors are a continued propagation, and the scenes of human right violation is rampant. It is unfortunate to say that most wars of 21st century are mere violation of Humanitarian Law and gross violation of International rule of law. The Propagation by Non-State actors like Al-Qeda, Taliban, ISISI have spread their web of terror throughout the world (Joshi, 2016, pp. 421-428). The reason for such propagation could be anything but the cost is massive death and loss of innocent lives. The only question left unanswered is whether the legal system and its instruments can pace with the present situation. Whether the need for instrumental revolution of new legal order is pre-requisite? Unfortunate to say that most war waged in the name of human right are but the death deliberately endowed upon men by men. The state of revolution is never the end, but so carving in graft, struggling until each man feels that there is a universal forum to voice his right and seek justice.
The State of Transformation
A qualitative change in any system is a must. Any revolution against the injustice expects that wrong done be mitigated with justice done in either way. Thus UDHR adopted on 10th December 1948 emphasis’s that recognition of inherent dignity and of equal and inalienable rights of all members of human family is the foundation of freedom justice and peace in this world. Now these expression falling under the declarative Charter is the aspiration of human feeling & to have a legal text proclaiming the rights of men beyond creed class color and sex, but that wasn’t enough because aspiration need to be given concrete forum, to redress the gross violation of human right and much expected aspiration processed with the establishment of human right courts (Malcolm, 2017, p. 196).
The enchanting notion of egalitarianism is superficial until one defines its heart and soul, and where does it lie, the paradox is that it lies in human thoughts and practice, vulnerable sects the so called women and transgender are not vulnerable by nature, neither the cosmos has disdained their right, but the marathon social practice, supervening complex structure of masculinity and male domination, the echo’s wisped for century that “women are just by nature women”. The justice when recalling egalitarianism suffixes the right of equality, and that women are just the part of men so vice versa, thus entitling her to all the rights she deserves as her fellow friend (Rawls, 1971, pp. 47-52).
4. Globalization and Human Right
Globalizations have furthered the process of integration and interdependence, the transaction and telecommunication including the ideas and views as aspects of culture. This has generated the further interdependence of not just economic and cultural activities but connected the network of global consciousness of human right. Imbibing the cultural values, transformation of state diplomatic relations, exchange a pragmatic view on human resource as an asset of any organization via nation is witnessed through globalization of human right (Shelton, 2002).
Globalization is a conventional concept evolving the process of interaction among the people and government of different nations including the entrepreneurs’ and industries undertaking main stream approach to mitigating international trade and information promoted by information technology. Since the rise of mankind, globalization has witness transformation of human civilization into much expected epitome whereby the social economic and cultural diversity have identified and cherished as religious zeal. This efficacy has promoted viably the importance of Human Right globally.
Theoretical spectrum on globalization is yet another debate. It is an irrefutable fact that globalization has both positive and negative affect especially upon vulnerable class of people around the world. Many researchers focus on how economic and environmental consequences of globalization can affect social relationship and individual opportunity. Globalization though has a direct nexus to economic and commercial world today, the attempt to achieve social and economic egalitarianism seems to be a slow process within it, further nothing can work better if the process fails to pay greater attention to basic human right needs and changing this reality for a better tomorrow is a greater challenge. Many times, a healthy strategic approach need to be adopted like the human right scheme should be added to the development policy. The policy makers should understand that the basic needs (food, shelter, clothing, fresh air and drinking water) are not just human need but a fundament legal right and as such a matter of claim. A transcendental governing structure could be more appealing (Sharma, 2020) where even the poorest of the poor must be given space to claim this right as legal and let participate in social, economic and political decision making (Sharma, 2020). Transcendental government policy should always ensure access to justice and protect against social and economic discrimination.
5. Human Rights in 21 Century
Right presupposes duties. Human rights in 21 century seems nasty and vulnerable, the century which celebrates the carnival of human right through debate at various platform and linking each human desire within the realm of this right, witness the gross violations at the other end, suffix the truth is that we talk of human rights when threat to its existence is more, perhaps that reflects the circumstance and factors causing gross violation of human rights. So, are we prone more to violation of human right today? Not to disdain the truth that we are, and literally as mentioned above, factors and circumstances contribute to the graft. Man, the propagator, circumstance the cause of strength and man the victim, these triangular sequences are overall connected and may arise at each and every situation like political crises, technological transformation, privatization, and globalization as such. Gross violation of human right and its study reveals that society which reserves and prefers rights and precludes duties suffers to its heap gross violation of human right is but the negation of duties owned by men to men, society to nation and nation to world at large, aftermath the two World War consequential transformation of world globalization the world community is connected as a single network. The reverberation is that, violation of human right at one end echoes at the other end, sometime may even witness minimal effect on to its neighboring country. Thus, the awakening call of dying human spirit is to with hold its sheer identity that the right being mistreated and disdained are but the virtue he earned in one birth, shall last till his death and so need to be respected.
Roughly speaking protecting these rights are not just metaphor, but something more and standard approach is a must. This involves:
Projective Approach and Transformation Approach
To put the right into action, duties should be emphasizing to its eminence, cardinal relations between the duty and right cannot be negated by legal fraternity or justice system. Projective approach is when mitigations are made by state administrative authority to meets the needs of human right, through action plan. This functional approach involves implementation by definite action plan and execution of such action plan to its completion. Both governmental and nongovernmental organization and the judicial system needs to apt itself to these modulations, projective approach should greatly emphasize on post human right violations treatments and meets the standards to mitigate the needs of victims right. The end goal should be result oriented, with a mission that, the set of standards adopted for particular problem is reliable, and can be applied to any similar situation. Thus, the projective approach helps to set standard rules for transformation and helps to trigger the violation of human right in various dimension Projective approach should involve.
1. Projective Test
The incident of increasing human right violation concerns the legal and administrative system equally, complexity is when state fails to redeem the situation of grievance and reach out to the victim’s appeal. At this point law does not expect the state to play the role of protector rather as a guardian guaranteeing the rights protecting the same at the interest of the victim by punishing the wrongdoer (Greve, 2019, pp. 135-150). Amidst state action as a mediator to protect the interest of the victim and guarantee the justice becomes a necessity. Synthesizing the rights and the duty to reckon just human right condition is a must. If the existing laws are inadequate to enforce the needed discipline, then the legislative vacuum needs to be filled.10 If legislation and judicial direction are available and still there are violations of fundamental duties by the citizen this would call for other strategies for making them operational. The desired enforceability can be better achieved by providing not merely for legal sanction but also combining it with social sanction and to facilitate the performance of the task through exemplar role models. The elements of compulsion in legal sanction when combined with natural urge for obedience of the norms to attract social approbation would make the citizen willing participants in the exercise. The real task, therefore, is to devise methods which are a combination of these aspects to ensure a ready acceptance of the programme by the general citizenry and the youth, in particular11
2. Policy Formulation
Absence of law does not itself result violation of rights but could lead to injustice in miniature, indirectly interfering with the essence of egalitarian status of rights. Thus Article 14 of the constitution guarantees equality until which was down the line a promise of sanctified law, eventually the application of rule of equality was far a bit debate and consensual application of the same with Article 39 was a redeem promise to attain social justice, thus where government order reserving seats for the various communities for admission in medical college was challenged as violation of Art 29(2) and this resulted in draft policy of reservation which was introduced by amending Art 15 of the constitution in the year 1951 to iron out the anomalies, the object of the amendment was to bring Art 15 and Art 29 (2) in the same stream with Article 16(1) of the constitution to provide for reservation for backward classes of citizen in educational institution also the amendment facilitated the scope and provided for reservation of seat for backward classes of citizen the Schedule caste and Schedule Tribe in public run educational institutions12. Many such needed changes were introduced to protect the miniature human right that nourished the absolute concept of personal liberty.
Similarly, on right to life and personal liberty the supreme court of India emphasized the role of directive principle of state policy, which in deed is the life breath of Article 21 “implementing the enshrined principles of Article 21 is necessary” the court said. In order to Protect the health and strength of workers, men, women and the tender age of children against abuse, to provide opportunities and facilities for children to develop in a healthy manner and in a condition of freedom and dignity, state should adopt a functional approach in protecting these rights rather than depriving a person of enjoyment of these basic essentials13. The state government taking the note of constitutional duties has chosen to introduce the welfare scheme of Akshara Dasoha14 by which poor students are provided mid-day meals. On the other end gender discrimination causes lot of discrepancies in attaining equality among men and women, gender discrimination is not only a social stigma and hurdle to social progress, but grave injustice to the sect of gender. In light of female infanticide and to protect the deprived the government of India introduced a reckoning scheme of “Beti Bacho Beti Padhao”15 a promise of egalitarian justice indeed.
2. Transformation Approach (state obligation to protect human right –duty in action)
Implementation and standard commitment –
Whether laws are implemented in due course of time? A basic challenge before world community member is whether human right justice can be achieved at various dimensions. The machinery of legal system plays major role in achieving the same, the implementation mechanism needs to work a bit hard in scanning and scrutinizing the necessity loophole in law and its way to modify if needed. The objective of international Bill of Rights has a universal appeal to undertake progressive realization to meet the end.
Impact assessment and transparency – Progressive realization
The doctrine of progressive realization imposes moral obligation on states to see that the nation is free from wants and free from the fear of wants of basic necessities, the doctrine withstands the test of reliability that a state onus responsibility is welfare of its people. However, the progressive realization in any system of government is a challenging task. The steps taken to mitigate the wants of society should have goal-oriented objective, where in the government can introduced the schemes for short duration and continuously check the outcome until the same implemented for a longer period. From minimum to maximum approach, it would enhance the ability of the government to analyze the problem form grass root level and get prepared for any necessary changes required to be made in its relief programme.
Changes are caused by series of class struggle as stated by Karl maxks. The sea changes that could be witnessed on individual recognition in few decades are the outcomes of revolutionary concept know as human right. The concept of human right has explored the various dimensions in interpreting the value of human life its potentiality and quintessential quality of human life. The paper attempts to revisit the pathway that configures the birth, growth, development and commendation of human right. Being ardent concept for human revolution, it has voluminously contributed both in letter and spirit for the growth of human civilization not just by identifying the subtle nature of human rights but redefining the entitlement of being human.
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1 PhD, School of Law University of Mysore Karnataka India, Address: University Of Mysore Campus, Mysuru, Mysuru, Mysuru, Karnataka 570006, India, Tel.: 8050547957, Corresponding author: email@example.com.
AUDRI, Vol. 14, No. 1/2021, pp. 36-50
2 Indian Wage Act 1936
3 Supreme court of India on Minimum Wage and Right.
4 Verses from shantimantra also know as peace mantra from Upanishad the Hindu scripture. https://www.siddhayoga.org/shanti-mantras/om-dyauh-shanti.
5 H.C Well in his work “Outline of history”
6 H.C Well in his work “Outline of history”
9 8th August 1945 Agreement became base for the IMT.
10 See Ranganath Misra v/s Union of India, (2003) 7 SCC 133: (2003) 7 JT (SC) 2006: (2003) 6 Scale 247: (2003) 5 Supreme 459: (2003) 4 SLT 860: (2003) 8 SRJ 432 reported in Union of India v/s Naveen Jindal, AIR 2004 SC 1559 at p. 1575.
11 D.J.D.E, The constitution of India, Asia Law House, 3rd Edition 2008, pp. 1500.
12 Champakam doreirajanv/s State of Madras AIR 1951 SC 226. Also, see D.J.D.E the constitution of India
13 D.J.D.E, The constitution of India, Asia Law House, 3rd Edition 2008, pp. 1500.
14 Akshara Dasoha introduced in state of Karnataka, integrating centrally sponsored scheme (NPNSPE) envisions expansion of child right to education with right to health by ingesting nutrition’s food is a wholesome part of mid-day meal programme.
15 Launched by Government of India on 22 January 2015; the most remarkable initiation under Sri.Narendra Damodardas Modi Government honorable Prime Minister of India, a step taken to banish Gender discrimination and to establish egalitarian Justice.