Transcript Human Rights – the essence of Constitutional Governance”

1
7/17/2015

A custodial death at Ajmer,
taken up as a PIL led to an
order of the kind which later
reiterated in Nilabati Behara
spelling out in detail the
principle of constitutional tort
and the public law remedy
for enforcement of the right
wherein sovereign immunity is
no defence
7/17/2015
2

Pollution of river Bandi at Pali by
discharge of trade effluents of
the industry was restrained by
judicial intervention. The
discrimination of Dalits in entry
into the Nathdwara Temple was
checked by direction given to
the state government to ensure
enforcement of their right to
equality. Gender justice was
promoted in Jani Bai’s case to
prevent gender discrimination
resulting from a literal
construction
7/17/2015
3
Concept: It is not necessary
to delve into the philosophic
foundations of human rights
except to remember that the
function of philosophy is to
deepen the understanding of
truth.
 human rights law is
deepened by appreciating
the underlying moral
justifications to it

7/17/2015
4

Understanding the nature of
‘right’ involved can help to
appreciate the degree of
protection available, the
nature of derogation
permissible and the priorities
7/17/2015
5
Incorporation of a Bill of Rights
in some early national
constitutions indicates that
the concept is not of recent
origin
 The Virginia Bill of Rights (1776)
proclaimed that :

7/17/2015
6

“All men are by nature
equally free and
independent and have
certain inherent rights, of
which, when they enter a
state of society they cannot
by any compact deprive or
divest their posterity: namely,
the enjoyment of life and
liberty, with the means of
acquiring and possessing
property and pursuing and
obtaining happiness.”
7/17/2015
7

“We hold these truths to be
self-evident: that all men are
created equal; that they are
endowed by their creator
with certain inalienable rights;
that among these are life,
liberty and the pursuit of
happiness.”
7/17/2015
8

“Men are born and remain
free and equal in rights… the
purpose of all political
association is the
conservation of the natural
and inalienable rights of man:
these rights are liberty,
property, security and
resistance to oppression.”
7/17/2015
9

The basic premise to
remember, is that human
rights are not the gift or
bounty of any political
sovereign through legislation
or any edict, but are rights
inherent in human existence.
The purpose of any law
dealing with these rights is
merely to recognize them, to
regulate their exercise and to
provide for their
enforcement,
7/17/2015
10

‘Human rights’ in practice
have been redefined to
encompass every aspect of
dignified human existence
which makes every human
being an equal member of
the human family
7/17/2015
11
Mahatma Gandhi said:
 “It has always been a mystery
to me how men can feel
themselves honoured by the
humiliation of their fellow
beings.”

7/17/2015
12

By the year 2015, all 189 United Nations
member states have pledged to meet
the goals:

Eradicate extreme poverty and
hunger
Achieve universal primary education
Promote gender equality and
empower women
Reduce child mortality
Improve maternal health
Combat HIV/AIDS, malaria and other
diseases
Ensure environmental sustainability
Develop a global partnership for
development







7/17/2015
13

Amartya Sen’s concept of
‘Development as Freedom’ is
the recognition of the aim to
secure the freedom, wellbeing and dignity of all
people everywhere. The
seven freedoms essential are:
7/17/2015
14
Freedom from discrimination –
by gender, race, ethnicity,
national origin or religion.
 - Freedom from want – to enjoy
a decent standard of living.
 - Freedom to develop and
realize one’s human potential.
 - Freedom from fear – of threats
to personal security, from
torture, arbitrary arrest and
other violent acts.

7/17/2015
15
- Freedom from injustice and
violations of the rule of law.
 - Freedom of thought and
speech and to participate in
decision-making and form
associations.
 - Freedom for decent work –
without exploitation.

7/17/2015
16

Article 1 of the UN Charter
states that promoting and
encouraging respect for
human rights and for
fundamental freedoms for all
without distinction as to race,
sex, language, or religion is
one of the purposes of the
United Nations
7/17/2015
17

Mahatma Gandhi in a letter
to Julian Huxley in 1947 had
emphasised the correlation of
rights and duties and said:
7/17/2015
18

“I learned from my illiterate but
wise mother that all rights to be
deserved and preserved come
from duty well done. Thus the
very right to live accrues to us
when we do the duty of
citizenship of the world. From
this one fundamental
statement, perhaps it is easy
enough to define duties of man
and woman and correlate
every right to some
corresponding duty to be first
performed……”
7/17/2015
19

The core values of our
constitutional philosophy
indicated in the Preamble to
the Constitution of India are
‘dignity of the individual’ and
‘unity and integrity of the
nation’.
7/17/2015
20

The Constitution of India by
amendment of Article 359
expressly makes nonderogable Article 20
(protection against ex post
facto penal law, double
jeopardy and testimonial
compulsion) and Article 21
(protection of life and
personal liberty) even during
national emergency
7/17/2015
21

Article 32 is the constitutional
remedy in the form of original
jurisdiction of the Supreme
Court of India for the
enforcement of these
Fundamental Rights.
7/17/2015
22

The Protection of Human
Rights Act, 1993 was enacted
to provide for the constitution
of a National Human Rights
Commission
7/17/2015
23

‘Human rights’ is defined in
Section 2(1)(d) of the Act to
mean the rights relating to
life, liberty, equality and
dignity of the individual
guaranteed by the
Constitution or embodied in
the International Covenants
and enforceable by courts in
India.
7/17/2015
24

The interpretation of the
fundamental rights, particularly,
Article 14 (right to equality) and
Article 21 (right to life) by the
Supreme Court, inter alia, by
reading the requirements of
directive principles into them,
together with the impact of the
Vishaka judgment enabling
provisions in the international
instruments being read into
these guarantees has
considerably enlarged the
meaning and scope of human
rights in India.
7/17/2015
25

The Human Development
Index (HDI) is the new
measure of development
and it is said: “a nation’s
ability to convert knowledge
into wealth and social good
through the process of
innovation is going to
determine its future”.
7/17/2015
26

The four essential
components of human
development paradigm
indicated in the Human
Development Reports are:
Productivity – economic
growth with people’s
participation in income
generation; Equity – people’s
access to equal
opportunities;.
7/17/2015
27

Sustainability – access to
opportunities must be not
only for the present
generations but also for future
generations to all forms of
capital i.e. physical, human,
environmental; and
Empowerment – opportunity
with developed capabilities
of all people to participate in
policy and decision making
processes that shape and
affect their lives.
7/17/2015
28

the essence of good governance
is the respect for human rights of
every individual so that the human
resources are augmented by full
development of each individual
with his empowerment. Human
rights and human development
share a common vision and serve
a common purpose. The dignity of
the individual assured in the
Constitution along with unity and
integrity of the nation emphasizes
respect for human rights as the
essence of constitutional
philosophy embodied in the
Preamble to the Constitution.
7/17/2015
29

The concept of humane
governance takes this model
forward by asserting that
governance, if it is to promote
human development, has to
be not just pro-people or
people-centred, it has to be
owned by people.”
7/17/2015
30

Directive principles vs
Fundamental rights
7/17/2015
31

Good governance promotes
economic growth and
development. There is need for
economic growth model which
empowers people and raises
HDI level. Even though India has
1/6th of the world population, its
GDP is 1.35% of the world GDP
which needs to be raised to 4%.
China has increased its GDP to
3.2%. The Foreign Direct
Investment (FDI) inflow in India is
US$ 3.5 billion against US$ 105
billion of China, of which 70% is
from Non-Resident Chinese.
7/17/2015
32

seven principles
recommended by the Nolan
Committee in England, which
are:
7/17/2015
33

Selflessness: Holders of public
office should take decisions
solely in terms of the public
interest. They should not do so
in order to gain financial or
other material benefits for
themselves, their family, or
their friends.
7/17/2015
34

Integrity: Holders of public
office should not place
themselves under any
financial or other obligation
to outside individuals or
organisations, that might
influence them in the
performance of their official
duties.

7/17/2015
35

Objectivity: In carrying out
public business, including
making public appointments,
awarding contracts, or
recommending individuals for
rewards and benefits, holders
of public office should make
choices on merit.

7/17/2015
36

Accountability: Holders of
public office are
accountable for their
decisions and actions to the
public and must submit
themselves to whatever
scrutiny is appropriate to their
office.
7/17/2015
37

Openness: Holders of public
office should be as open as
possible about all the
decisions and actions that
they take. They should give
reasons for their decisions and
restrict information only when
the wider public interest
clearly demands.
7/17/2015
38

Honesty: Holders of public
office have a duty to declare
any private interests relating
to their public duties and to
take steps to resolve any
conflicts arising in a way that
protects the public interest.
7/17/2015
39

Leadership: Holders of public
office should promote and
support these principles by
leadership and example.”
7/17/2015
40
The theme of the UNDP
Human Development Report,
is “Deepening Democracy in
a Fragmented World . The
report highlights the need for
an inclusive democracy so
that every section of society is
involved in policy making and
decision making.
 Free and Fair elections

7/17/2015
41

Right to corruption-free
governance is also a basic
human right in a democratic
polity. Corruption anywhere is
detrimental to society but it is
even more in a developing
nation. Corruption has the
adverse effect of denying to
the people that which is
legitimately due to them for
their development
7/17/2015
42

It is through the judicial
process of PIL that serious
issues pertaining to probity in
public life, rights of the
marginalized and sustainable
development, relating to
environment, ecology, public
accountability etc. have
been dealt with by the
Supreme Court and High
Courts.
7/17/2015
43
Mahatma Gandhi
administered this caution
when he said:
 “There is a higher court than
courts of justice and that is
the court of conscience. It
supercedes all other courts.”

7/17/2015
44

“A society so riven that the
spirit of moderation is gone,
no court can save, a society
where that spirit flourishes, no
court need save. In a society
which evades its responsibility
thrusting upon the courts the
nurture of that spirit, that spirit
in the end will perish.
7/17/2015
45

What is the spirit of moderation?
It is the tempo which does not
press a partisan advantage to
its bitter end which can
understand and will respect the
other side, which feels a unity
between all citizens – real and
not factitious product of
propaganda which recognises
their common fate and their
common aspirations in a word,
which has faith in the
sacredness of the individual.
7/17/2015
46

I often wonder if we do not
rest our hopes too much
upon constitutions, upon Laws
and upon courts. Believe me,
these are false hopes. Liberty
lies in the hearts of men;
when it dies there, no court
can do much to help it.”
7/17/2015
47

Do you have live hearts ?
7/17/2015
48
7/17/2015
49