What are human rights

• In the earlier period only state was given more importance and an individual
had no identity of his own. However later with the growth and development of
society rights of individual attained great significance. Human rights have
become a reality since the establishment of UN in 1945. The expression
“human rights” denotes all those rights which are inherent in our nature and
without which we cannot live as human beings. Human rights are essential for
individual to develop their personality, their human qualities, their intelligence,
talent and conscience. The basic features of human rights are :
• 1) Inherent in nature
Human rights being the birth rights are therefore inherent in all individuals
irrespective of their caste, creed, religion, sex and nationality. These are minimal
rights which every individual has against the state or public authorities.
2) Natural rights
Human rights are not created by any legislature
3) Fundamental for man’s existence –helps in developing personality, talent,
conscience, intelligence and human qualities
4) Inalienable
The human rights cannot be transferred from one person to another, from one
generation to another etc. Since because no one gives these rights and no one
can take them away, these rights are inalienable. An individual is entitled to these
rights by birth and hence they are termed as birth rights.
5) Universal
It means they belong to everyone, irrespective of their race, religion, caste, sex
economic status or place of birth. They are universal because their core ideas are
common to all religions, faiths and moral codes and cross national and cultural
boundaries. These rights belong not only to individuals but also to communities which
gives these a universal character. For eg: a community of tribal people has a right to
speak its own language and preserve its way of life provided these do not violate or
alter human rights of other individuals or communities.
6) Interrelated and indivisible
Human rights are called by various names and separated into different categories like
civil and political rights, economic, social and cultural rights. Every right depends on
another for its fulfilment. No right can easily be practiced without other rights. Thus
these rights are called indivisible and interrelated.
 Importance of human rights

Human rights recognize that each person is special with their own individual
talents and abilities and that no one is inferior or superior to another. All persons
are entitled to live with dignity and no one i.e. the state, the community, family
or society has any right to discriminate or treat anyone unfairly or unjustly. The
purpose of securing human rights is to provide protection to these rights against
the abuses of power committed by the organs of state, to establish institutions
for the promotion of living condition of human beings, for the development of
their personality and to provide effective remedial measures for obtaining
redress if these rights are violated.
 Origin and development of human rights
(Ancient period)

The concept of human rights was unknown in the early medieval period. They were closely
connected to customs, traditions and religion for ages. One of the first examples of
codification of laws that contained traces of individual rights was the Tablet o f Hammurabi
created about 4000 years ago. The first recorded declaration of human rights in history is the
Cyrus cylinder written around 539 BC
The then published Twelve Articles are considered to be the first record of movement of
human rights in Europe.
Magna Carta
King John of England granted Magna Carta or Great Charter to the English barons in 1215.
Among them were the rights of the church to be free from governmental interference, the
rights of all free citizens to own and inherit property and be free from excessive taxes. It
established principles of due process and equality before law. The age of Magna Carta also
witnessed the creation of Parliament in the year 1216-17. The Magna Carta provided
foundation for individual liberties in Anglo American jurisprudence.
 Development of human rights –perspective of various thinkers
Natural law and natural rights
(Medieval period)

• History of natural rights

• Although the term ‘human rights’ is new, the idea that a person has certain basic, inalienable
rights against a sovereign state dates back to the notions of Natural Law and Natural Rights.
• Natural law is a concept that originated in ancient Greece. Individual rights, according to this
theory, are derived from nature and so cannot be taken for granted or assigned by political
authorities.
• The idea of natural rights originated from natural law during the Renaissance Humanism era in
the early modern period, shifting the focus away from the community and onto the individual.
Whereas before, natural law was more concerned with the connection between the state and
society, natural rights granted the person the power to oppose injustice and bring claims against
the state.
 Evolution of natural law

• The concept of natural law has played a significant role in shaping the development of western
legal systems. Natural law is rooted in the belief that there is a higher law, or set of moral principles,
that governs human behaviour and is inherent in the nature of the universe. The concept of natural
law has its roots in ancient Greek philosophy, particularly the works of Aristotle and Plato.
• Aristotle believed that the natural world was governed by certain laws that were inherent in the
nature of things, and that human beings had a natural inclination to act in accordance with these
laws. He argued that the ultimate purpose of human life was to achieve happiness, which could
only be achieved by living in accordance with the natural law.
• In the Middle Ages, natural law became intertwined with Christian theology, particularly through
the works of St. Thomas Aquinas. Aquinas believed that the natural law was a reflection of God’s
eternal law, and that it was discoverable through reason and revelation. According to Aquinas, the
natural law provided a framework for understanding human behaviour and for distinguishing
between right and wrong. He believed that the natural law was universal and applicable to all
human beings, regardless of their cultural or religious background.
• Kant, on the other hand, believed that natural law was based on the principle of
universal reason, which he believed was inherent in the nature of human
beings. He argued that reason was the source of all moral and ethical principles,
and that these principles could be discovered through the application of reason.
Natural law has played a significant role in shaping the development of Western
legal systems, particularly through its influence on the development of common
law.
• Common law is a legal system based on judicial precedent and custom, and it is
rooted in the belief that there are certain inherent legal principles that govern
human behaviour. These principles are often seen as being derived from natural
law.
• Thomas Hobbes (1588 – 1679), John Locke (1632 – 1704), and Jean-Jacques Rousseau (1712 – 1778)
developed the Natural Rights idea during the 18th century’s ‘Age of Enlightenment.’
• Type of natural rights
• Natural rights are divided into two categories, which are described below.
• Inalienable rights
• Inalienable rights are inalienable components of humankind that serve as the foundation for moral
interactions between people. These are privileges that can never be taken away. They are
irreversible components of mankind and the foundation for moral interactions between people.
• Alienable rights
• The term “alienate” comes from the field of property law. It refers to the act of transferring
something. Generally, we alienate property rights all the time by selling or giving them away.
The rights that can be classified as natural rights are listed
below :

• The right to life preservation

• Every human being has the right to survive, and no authority can ever deprive
them of that right.. The right to life, according to most philosophers, is the
most fundamental natural right.
• The right to property ownership
• Every individual has the right to own property, whether individually or jointly.
Some thinkers, such as John Locke, argued that the power to own property
included the ability to own one’s own labour.
• The right to liberty
• Every human being has the right to live a free life. They have the right to
freedom of movement (which includes the right to be free from unlawful
detention) as well as the right to think freely.
• The right to religious freedom
• Everyone has the right to choose their religion and build a relationship with it.
• Natural rights theory asserts that certain rights are inherent to human beings by virtue of their
existence and that these rights are not dependent on any legal or social institutions. According
to John Locke, a key proponent of natural rights theory, these rights include “life, liberty, and
property”.
• Locke argued that individuals have a natural right to these things and that the role of
Government is to protect these rights. This idea was later expanded upon by the American
founders, who included the concept of natural rights in the Declaration of Independence.
• The idea that certain rights are inherent to human beings and that these rights must be
protected by the Government has played a key role in many movements for social justice and
human rights. For example, the Universal Declaration of Human Rights, adopted by the United
Nations in 1948, enshrines many of the same rights that are central to natural rights theory,
including the right to life, liberty, and security of person.
 Concept of natural rights in India

• The idea of natural rights has been present in India since ancient times. The concept of
Dharma, which is central to Hindu philosophy, recognizes the importance of natural law and
rights. In the modern context, the concept of natural rights was enshrined in the Indian
Constitution
• The Constitution’s Preamble and fundamental rights provisions recognize the importance of
natural rights as the basis for a just and equitable society.
• Indian Constitution is a document which is governed by the rule of law as propounded by
Dicey and natural law is the backbone of that rule of law. There are certain rights which
emanate from the natural law which came to be known as natural rights. The Indian
Constitution pays special attention to these rights and has incorporated them in the
constitution in the form of Fundamental Rights. Articles 14 and 21 of the Indian Constitution
are synonymous to Article 3 of the Universal Declaration of Human Rights in the essence that
it captures the concept of natural rights as contended under the scheme of natural law.
 Interrelationship between natural law and natural rights

• Natural law and natural rights are two distinct legal concepts, but they are closely related and
interconnected. Natural law says that there are certain moral principles that are inherent in the
nature of human beings and can be discovered through reason. These principles are seen as
universal and immutable, and they serve as the foundation for all laws and legal systems. On
the other hand, natural rights are the individual rights that are seen as inherent and
inalienable, and they are grounded in the principles of natural law.
• Natural law is “the principle that human beings are entitled to certain basic goods, such as life,
health, knowledge, and friendship, which are necessary for a fulfilling life”. These basic goods
are recognized as natural rights because they are necessary for human flourishing and are
inherent to human nature. Natural law serves to protect these natural rights by providing a
framework for ethical and moral decision-making, as well as for the creation and enforcement
of laws that uphold these rights.
• Moreover, natural law also serves to limit the power of the State and prevent the State from
infringing on the natural rights of individuals. The purpose of natural law is to ensure that no
human authority may violate the inherent rights of individuals. This means that the State is
obligated to protect the natural rights of individuals and any laws or actions that violate these
rights are considered to be illegitimate.
• Jeremy Bentham rejected the idea of law of nature. According to him natural
law and natural rights were meaningless. Rights according to him were not
natural but are created by law depending on utility. Austin also rejected the
notion of natural law and natural rights.
• Petition of Rights 1628
• Milestone in the evolution of human rights. It was sent to Charles I as a statement of civil
liberties.
• Initiated by Edward Coke asserted 4 principles:
a) No tax can be levied without the consent of Parliament
b) No subject may be imprisoned without cause shown.
c) Martial law may not be used in the time of peace
d) Soldiers cannot be quartered in citizen’s house.
 Habeas Corpus Act, 1679

• An act for the better securing the liberty of the subject, and for prevention of imprisonments
beyond the seas, otherwise known as the Habeas Corpus Act of 1679
• It was an act of Parliament that was passed in May of 1679, during the reign of Charles II. In
Latin, “Habeas Corpus” means “you may have the body,” and is used to determine the legality
of a person’s detention and as a guard against unlawful imprisonment. The writ of Habeas
Corpus had ancient beginnings in the common law of England and dates back before the
creation of the Magna Carta.
• The leading proponent of the bill was Anthony Ashley Cooper, Earl of Shaftsbury.
• section XI of the bill which states that prisoners could not be subject to transportation to
“Scotland, Ireland, Jersey etc before conviction.
• Important elements of the document concluded that prisoners who neglected to appeal for a
writ of Habeas Corpus by the space of two terms of their imprisonment would be denied it.
• that the writ of Habeas Corpus would not be given to those accused of felony or treason, and
that jailors were forbidden to move prisoners around from jail to jail to avoid the writ.
Various International instruments that led to the development of human rights

The English Bill of Rights, 1689

stated that there could be no taxation without representation (in Parliament), freedom from government
interference for church , the right to petition, and equal treatment in the court system. Furthermore, other
human rights were granted to civilians, such as no cruel and unusual punishment and the right to free speech

The Virginia Bill of Rights, 1776

It was drafted in 1776 to proclaim inherent rights of men. Some of the rights that were enumerated in the document
were as follows:
a) All men were by nature equally free and independent
b) Equality
c) The principle of separation of powers and free elections
d) Protection against cruel and inhuman punishment
e) Trial by jury was guaranteed.
The United States Declaration of Independence was adopted in 1776 which guaranteed 3 basic
rights life, liberty and pursuit of happiness. This part of history played a major role for the
mankind as it not only helped Americans to attain independence but also paved the way for the
French to undertake a similar revolt to achieve freedom.
The French Declaration on the Rights of Man and Citizen, 1789
This Declaration comprised principles upon which new Constitution of France is to be founded. It
stated that the preservation of natural rights of man was the aim of every political association.
The rights were broadly :
• 1. Men are born and remain free and equal in rights. Social distinctions may be based only on
common utility.
• 2. The purpose of all political association is the preservation of the natural rights of man. These
rights are liberty, property, security, and resistance to oppression.
• 3. The principle of all sovereignty rests essentially in the nation. No body and no individual may
exercise authority which does not emanate expressly from the nation.
• 4. Liberty consists in the ability to do whatever does not harm another; hence the exercise of
the natural rights of each man has no other limits than those which assure to other members of
society the enjoyment of the same rights. These limits can only be determined by the law.
• 6. The law is the expression of the general will. All citizens have the right to take part, in person or by their
representatives, in its formation. It must be the same for everyone whether it protects or penalizes. All citizens
being equal in its eyes are equally admissible to all public dignities, offices, and employments, according to
their ability, and with no other distinction than that of their virtues and talents.
• 7. No man may be indicted, arrested, or detained except in cases determined by the law and according to the
forms which it has prescribed.
• 8. Only strictly and obviously necessary punishments may be established by the law, and no one may be
punished except by virtue of a law established and promulgated before the time of the offense, and legally
applied.
• 9. Every man being presumed innocent until judged guilty, if it is deemed indispensable to arrest him, all rigor
unnecessary to securing his person should be severely repressed by the law.
• 10. No one should be disturbed for his opinions, even in religion, provided that their manifestation does not
trouble public order as established by law.
• 11. The free communication of thoughts and opinions is one of the most precious of the rights of man. Every
citizen may therefore speak, write, and print freely, if he accepts his own responsibility for any abuse of this
liberty in the cases set by the law.
• The American Bill of Rights, 1791
• The Constitution of USA was framed by the Convention of 1787 and brought into force in 1789.
It contained no guarantee of inalienable rights such as freedom of speech, assembly and
religion. It was soon felt inalienable rights of man should be adopted as part of the Constitution
which could serve as legal limitation on the powers of each of the organs set up by the
Constitution and would be enforceable by courts of law to invalidate legislative acts that might
violate these inalienable rights. Thus 10 amendments were made to the American Constitution.
They include:
a) Right to freedom of speech, press, religion and assembly
b) Protection from unreasonable search and seizure
c) The word ‘due process’ was added to the Constitution, in addition to this , rights of double
jeopardy, self incrimination
d) Trial by jury etc….
Abolition of slavery by the British and the US can be considered a step towards evolving the
concept of human rights.
The Russian Revolution, 1917 - Consequence was that now economic rights were introduced as
a part of human rights movement. For eg: right to property, humane conditions for workers etc.
 Impact of Ist and IInd World War on development of human rights

• The Nuremberg Trials were a series of trials or tribunals for the prosecution of prominent
members of political, military and economic leadership of Nazi Germany after its defeat in
World War II for committing various crimes.
• Under the Nuremberg Charter,
• each defendant accused of a war crime was afforded the right to be represented by an
attorney of his choice. The accused war criminals were presumed innocent and could not be
convicted until their guilt was proved beyond reasonable doubt.
• Right to challenge incriminating evidence
• cross examine adverse witnesses and
• Introduce exculpatory evidence of their own.
 Role Of League of Nations in development of human rights

• The Treaty of Versailles was negotiated at the Paris Peace Conference of 1919, and included a
covenant establishing the League of Nations, which convened its first council meeting on
January 16, 1920.
• Members of the League of Nations were required to respect the territorial integrity and
sovereignty of all other nation-states and to disavow the use or threat of military force as a
means of resolving international conflicts. The League sought to peacefully resolve territorial
disputes between members and was in some cases highly effective.
• US President Woodrow Wilson enunciated the Fourteen Points in January 1918. The Fourteen
Points laid out a comprehensive vision for the transformation of world politics.
• Wilson believed that affairs between nations should be conducted in the open, on the basis of
sovereignty, self-determination (the idea that all nations have the right to choose their own
political identity without external interference), and the disuse of military force to settle disputes.
 Impact of IInd World War in development of human rights

• The Nuremberg trials made three important contributions to international law:

• All persons are individually accountable for their behaviour during war times.
• Nuremberg trials established that individuals could not shield themselves from the liability of
war crimes by asserting that they were simply following the orders issued by a superior.
• The trials established 3 substantive war crimes:
a) Crimes against peace
b) Crimes against humanity
c) Crimes in violation of transnational obligations embodied in treaties and other agreements.
Nuremberg trials led to the establishment of Permanent International Criminal Court which led to
the adoption of Statute of the International Criminal Court. Nuremberg trial helped to draft :
Genocide Convention 1948, UDHR, 1948 , Nuremberg principles, 1950
 Establishment of UN

• The United Nations replaced the League of Nations, which had been created at the end of the
First World War to provide states with an international forum for the peaceful resolution of
disputes. Even though US President Woodrow Wilson was one of the key supporters of the
League of Nations, the United States never officially joined the organization due to intense
opposition from isolationist members of Congress. The League of Nations ultimately proved
ineffective in preventing the outbreak of another world war and was formally dissolved in
1946.
• The United States played an instrumental role in the founding of the United Nations. The UN
Charter, with its emphasis on peace, security, international law, economic development, and
human rights, reflected the influence of US President Franklin D. Roosevelt and British Prime
Minister Winston Churchill, who shared a vision for the postwar world. In 1941, the two
leaders drafted the Atlantic Charter, which declared that there would be no territorial
enlargement as a result of the war, that postwar international relations would be cooperative,
and that disputes between states would be resolved through peaceful negotiation and not the
use or threat of force. The Atlantic Charter eventually became the basis for the UN Charter
UN CHARTER
 Classification of human rights

a) The first generation of Human Rights

The various rights contained in the ICCPR come under this category and their
origin can be traced back to 13th century Magna Carta. These rights are those
which protect right to life, personal liberty, right to privacy, freedom from torture,
inhuman and degrading treatment etc.
b) The Human Rights of Second generation
These rights refer to economic and social which are considered to have been
originated in the Russian revolution of 1917 and in the Paris Peace Conference of
1919. These rights include right to adequate food, clothing, housing and adequate
standard of living and freedom from hunger, right to work, right to social security,
right to education etc. that have been provided in the International Covenant on
Economic, social and cultural rights.
c) The Human Rights of Third Generation (Collective Rights)
These rights include a right to self determination, right to development, right to peace etc.

Right to self determination

• The right to self determination may be defined as the right of a people or a nation to determine
freely by themselves without any outside pressure their political and legal status as a separate
entity, preferably in the form of an independent State , the form of government of their choice
and the form of their economic, social and cultural system. Though the right to self
determination is frequently used to refer to the right of a nation or country to self-governance,
the term has equal applicability to people whose group identity is defined by criteria other than
geographic boundaries, including people self -identified by cultural or racial characteristics,
sexual orientation, gender, or disability status .