Introduction
“Human rights” in the words of R.J. Vincent, “are the rights that everyone has by virtue of his very humanity. They are grounded in our appeal to human nature. [1]Human Rights is a dynamic concept. It is most commonly referred to as Fundamental Rights or Natural Rights. The significance of Human Rights is derived from its name itself, rights that are necessary to protect human lives. The cost of compromising such rights would be the death of human lives.
Human Rights are protected by various national, international treaties and conventions. Article 1 of the Universal Declaration of Human Rights of 1948 states that, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”.
Section 2 (d) of the protection of the Human Rights Act, 1993 defines human rights as “the rights relating to life, liberty, equality and dignity of the individuals guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.”
Moreover, Part III of the Indian Constitution recognizes fundamental rights as the most set of rights which are universal.
What is Human Right?
According to Laski, “Rights are those conditions of social life without which no man can seek in general, to be himself at his best [2] Documents asserting individual rights, such as the Magna Carta (1215), the Petition of Right (1628), the US Constitution (1787), the French Declaration of the Rights of Man and of the Citizen (1789), and the US Bill of Rights (1791) are the written precursors to many of today’s human rights documents”.[3] Human Rights arising out of self -respect. They are essential to fulfill the purpose of life. Human rights are indivisible and include all basic fundamental right to freedom, to live, to move and to equal treatment. It is important to understand the comprehensive shifts in the priority of human rights.
Human Rights are classified into:
- Natural Rights – Rights that are inherent to humans on their birth.
- Moral Rights – Rights that deal with fair and just principles of law.
- Fundamental Rights – Rights that are basic and most important for human enjoyment.
- Legal Rights – Rights that are laid down in law.
- Civil and Political Rights – Rights which are laid down by the government for better economic growth of a country.
- Social Rights – Rights which aid in eradicating social inequalities.
There are two approaches to understanding the concept of Human Rights: The philosophical Approach and the Pragmatic Approach.
Philosophical Approach
Theory of Natural Rights
As its name suggests, Natural Right are rights which are born when human life is born. Humans are the creators of nature. The existence of natural rights is inevitable, inherent and inalienable. It is a natural right of a man regardless of its gender, caste, color, or creed. This right brings into existence the most common concept in the law that all men are equal before the eyes of the law and no one can be treated unfairly in any circumstance. John Locke advocated this theory affirming that natural rights were gifted rights to humans which cannot be abolished or taken away by the State. He also believed that humans are intelligent enough to make decisions as per their conscious. Such rights can be asserted anywhere. Any oppression or discrimination faced is a direct assault on the rights of humans.
Theory of Social Rights
The Social Welfare Theory is also known as the Social Expediency Theory. The advocates for a utilitarian system such as Bentham and Mill firmly believe in the concept of ‘the greatest happiness of the greatest number’. This principle forms the groundwork on the basis of which a State must take social measures. The utility can be determined by means of reason and experience. The laws, customs and traditions should be socially desirable. The importance of utility in such customary laws was determined by reason and experience. Social theory is considered to be essential to eliminate social injustice as it believes that sacrificing individual rights for the welfare of the others is a noble deed.
Theory of Legal Rights
This theory is opposed to the natural rights theory. Legal Right comes into existence when the State recognizes it. Once the State acknowledges the existence of a right, only then it can enforce it. The State must enforce such rights to protect the interests of the people. The theory is that the State is a better agency to regulate human rights than humans itself. This theory faced a lot of criticism because it ignored the natural rights and accepted the rights created by the State only. Jeremy Bentham and Austin advocated this theory. However, Rights cannot be restricted to the extent created by the State only as this may lead to tyranny of laws. A reference to primitive laws and customs cannot be ignored.
Theory of Historical Rights
History believes in tradition and custom. What follows as ‘change’ in the society cannot overlook the long, unbroken custom followed till date. One may the origin of these rights in the rights possessed by people. Historical Rights are passed from one generation to the other in the disguise of customs and rituals. These rights are habitually followed by all for very long.
Theory of Economic Rights
This theory highlights the structure of a country along with its functioning. The advocate of this theory, Karl Marx, justifies economic theory on the basis that State is an agency that holds the tool to control the interests and safeguards the rights of the people in a society. It is important for this theory to exist because it helps mold the legal duties of people depending upon the distribution of economic power. Economic structure gives a strong foundation to the political structure. He believes that a classless society is required for the rights to flourish, where everyone is equal and there is no existence of exploitation of rights.
Pragmatic Approach
This is rather a simple approach which gives reference to a series of Institutions that insert and amend the basic theories of human rights. All these provisos, laws, and regulations stem from the theories mentioned above. Globally, we have treaties such as the Universal Declaration of Human Rights, the International Covenant. Regionally, we have the European Convention on Human Rights and Fundamental Freedoms, the European Social Charter, the American Declaration of the Rights and Duties of Man, the American Convention of Human Rights, and the African Charter on Human and People’s Rights. Subsidiary treaties are those which deal with only one specific human right or a very small number of human rights. These treaties impose a more specific and detailed obligations upon the state parties. Such an approach is required to resolve complex situations where an infringement of a human right takes place.
Conclusion
One may believe in the theory and reject the others, however, it is important to remember that these rights have been originated from humans themselves. Right, are essential for the growth of a society. Different rights give rise to various situations which help a country grow richer in its roots and efficient in its economic functioning. Rights help protect the freedom and moral rights of humans. Dignity and standard of living are highly upgraded by existence of such rights. The distinctive theories mentioned above give an insight into various activities that rely upon such rights. It helps us understand the importance of the constitution, the legal fraternity and the powerful tool which humans possess to safeguard their interest. It is a matter of respect that is required from the new generations to protect this concept for a better civilization.
[1] R.J. Vincent “National Human Rights Commission of India” by A.K. Palai P.9.
[2] https://www.civilserviceindia.com/subject/Political-Science/notes/rights-meaning-and-theories.html
[3] https://www.civilserviceindia.com/subject/Political-Science/notes/rights-meaning-and-theories.html
This Article is Authored by Ayonee Madhani, 4th Year BLS/LLB Student at Pravin Gandhi College of Law, Mumbai.
Also Read – Theories of Human Rights
