This article is written by Rachit khamparia, a student of third year from Institute of Law, Nirma University. In this article the author discusses about the basic human rights.
Rights are the most essential conditions for overall development of a man in the society. Rights are given to human to help him in increasing the value of his life. Every man born in this planet comes up with certain rights. To live a life in a proper manner he should be protected by law. To avoid any discrepancies, human rights were formed by the international body and with the consent of every member these laws were made obligatory to every state party. The international covenant on civil and political rights (ICCPR) was formed and introduced the concept of non derogable rights. They made a clause that even in the state of emergencies in a nation there would be certain rights which has to be provided to its citizen at any cost and they cannot be suspended. They are the basic rights, most fundamental in nature. The author with this research paper has explained the concept of rights, human rights and why they were introduced to the world. The research would further explain about non derogable rights and which are the right qualified to be non-derogatory in nature. The researcher would further explain that why these certain rights are only included as non-derogatory rights and what are the stand of these rights in our Indian constitution. The author is with the view that these rights are very important and should be there for every individual.
What Are Rights?
Rights are claimed by an individual and when the claim has to be rational, universally applicable and which works for the common good of the society, has to be recognised by the society and backed by the state through making applicable laws and assuring it through legislation. No one has the right to take your certain rights not even the government. The government is duty bound to give its citizen certain rights and should make sure that no one would breach it. The idea of right was first suggested by English professor John Locke in 17th century. He gave a theory that every human is born with inherent right and they are natural to human being. According to Locke, right to life, liberty and property are inherent rights of the human being and government plays a vital role in preserving these rights to their citizen and if they fail to do so the people have a right to vote out the government.
Human Rights and the U.N Bodies
The concept of human right was evolved in 539 B.C. when the city of Babylon was subjugated by the king of ancient Persia, Cyrus. He stopped slavery and also endorsed citizen to follow their necessary religion and outcasts any kind of racial discrimination. Human rights are those rights which provide basic standard to humans to live with dignity and maintain status quo in the society. It gives those basic needs and livelihood. These rights are intrinsic in nature and should be provided to all human beings without any discrimination on the basis of religion, caste, colour, language etc.
Two world wars led to the foundation of united nation, which was formed to maintain the peace between the countries and protect people from any kind of atrocities faced by them. The UN made a body of law known as the charter of the United Nations and the universal declaration of human rights this created a mandate to the government to provide their citizen necessary rights and also protect them from any outrages. With the forming of UDHR in 1948 and also establishing two important covenant which were International Covenant on Civil and political rights (ICCPR) and International Covenant on Economic, Social, and Cultural Rights (ICESCR) which were treated as international law after their enforcement on 1976 they were the new face of human rights and any violation of the rights guaranteed by these covenant would be dealt by international laws in any part of the world.
The international covenant on civil and political rights (ICCPR) was formed to protect certain political and civil rights of every individual human living in the planet. This was adopted by UN in 1966. Human rights committee monitors the ICCPR. The extensive range of rights are included in this covenant ranging from right to life, freedom of thought, freedom of religion, freedom from slavery, political participation and even equality and non- discrimination. The covenant is divided into 6 parts and has 53 articles. Under article 3, it is the duty of the state parties to covenant to make sure that all civil and political rights given in present covenant should be vividly enjoyed by all man and woman.
Non Derogable Rights
Article 4 states that when there is an emergency in any states parties to the covenant they can derogate from the duties prescribed under covenant. So, basically the state has the right to suspend rights given under covenant but it also has certain obligation that the public emergency can only be proclaimed when there is threat to the life of nation and it should still follow certain international law and should not involve in any kind of discrimination on the basis of caste, ethnic group, religion, language, colour etc. but article 4(2) puts certain obligations on clause 4(1). It states that” No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision” This clause specifically states that the rights prescribed under mentioned articles in 4(2) cannot be suspended or derogated even in emergency situation and state has an obligation to allow its citizen to enjoy these 7 non-derogable rights under any circumstances. This clause has developed the concept of non derogable rights and it is in relation with core human rights and comprises mostly of first generation rights.
These are the 7 rights mentioned under ICCPR which cannot be suspended in emergency situation
- “right to life (art 6)
- freedom from torture or cruel, inhuman and degrading treatment or punishment; and freedom from medical or scientific experimentation without consent (art 7)
- freedom from slavery and servitude (arts 8(1) and (2))
- freedom from imprisonment for inability to fulfil a contractual obligation (art 11)
- prohibition against the retrospective operation of criminal laws (art 15)
- right to recognition before the law (art 16)
- Freedom of thought, conscience and religion (art 18).”
Article 6 of ICCPR
Article 6 talks about protecting right to life through law and as per article 6 the freedom to live is an inherent right to any individual and no one is allowed to snatch that right from him without following legal guidelines. Even the legal way has many obligations to do it. First of all if the country has death penalty as a maximum punishment for some crime then the crime should be very serious in nature to give punishment of death penalty. Any person who has given death penalty shall have the right to commutation of the sentence. It should be given in all cases. No person below the age of 18 years or a pregnant woman should be given the punishment of death penalty.
Why it is considered as non derogable right?
Right to life is the most absolute, precious, holy right for the citizen. It is the primary right, to be precise it lays the foundation of all the fundamental rights. A human without having a right to life is just like an animal. Living is inherent in nature no other human provide you this right but you take it from god, he gives you birth, so no one can snatch it away from you nor you can breach other human right to live. Today right to life is not just about existence or just being alive but it’s also about living with dignity and comfort. In India, article 21 of the constitution provide right to life with dignity to its entire citizen. But whether this right is guaranteed to citizen in emergency was developed over the years. A.D.M. Jabalpur v. Shivakant Shukla was the case which dealt with bringing article 20 and 21 free from emergency situation and justice Khanna and also supported to keep article 21 free from emergency provision. With this 44th amendment came into force which altered article 359 of the Indian constitution and declared that article 20 and 21 would not be suspended even during emergency declared in India.
Talking about clause 2 of article 6 which discuss about death penalty and when it should be given. To give or not to give capital punishment is a big and never ending debate. Many countries like Austria, Germany, France, Belgium has abolished the use of capital punishment and even UN also says that we are not defending the capital punishment and we should strive towards overall development of the mankind and our aim is to promote progress and also to protect men from prejudices. Article 6 of ICCPR does not say that capital punishment should not be used. They have left it for the discretion of the country but it specifically mentions that the misuse should not be there and the punishment of death penalty should only be given to rarest cases. India’s laws are very much in agreement with international covenants. Frankly speaking, death penalty should be abolished and why this clause is non derogatory is that it does not serve the end of justice and also that no human have the power to give life to any person, not even any state or government can give life then who are we to take someone life. We don’t have any right to take others life.
Article 7 of ICCPR states that every human should be protected from cruel, humiliating and also no one without his consent should be used for some medical or scientific experiment as it used to be done by Nazis. Again, certain threat to a country does not justify anyone to mistreat humans or do any sort of alteration with their body. Doing any kind of cruel activity or giving any kind of serious punishment would eventually lead to threat of their life and would also kill that human. Body of a human functions in a certain way, and any kind of external substance will hamper the biological process of body and the natural function would suffer leading to cause death and no one is allowed to play with human body as no state is also permitted to take anyone life.
With this article slavery and any kind of human trade that is trafficking of human body is abolished and against human rights. Under no circumstances it should be practiced as no one has an authority over other human body. Keeping human as a slave is the most degraded experience which one can give to another human. A person is treated worse than an animal and he is forced to work for more than his body can bear which makes him weak and also threaten his life. He is not even payed for the work which does. Article 23 of Indian constitution, prohibit any kind of human trafficking and forced labor and practising it would amount to criminal activity. Forced labor is not as such defined in constitution but Supreme Court in several judgements gave the definition of under paid. S C states that no one would like to work if he is not paid the exact amount which the work demands and if he still do that it means he is under some compulsion which is forcing him to do it.
This article gives a right to person to not to put behind the bars if he is not able to fulfil his contractual obligation. Just because someone is poor doesn’t necessarily puts him in the jail. It is unjust as poverty is not under his control. In the case of jolly George Verghese v. Bank of Cochin, Supreme Court held that imprisonment of not fulfilling contractual obligation would amount to violation of article 21.
The article 15 is about retrospective laws. It is also a fundamental right for Indian citizen under article 20(1) talks about ex post facto laws. It is inhumane in nature, a person perform any kind of activity with relation to the current laws and any person living in a society always strive for peace and when there are laws it is the guiding light to them. If doing certain activity is legal now but after 5 years it becomes illegal then, only those people should be punished for that act when they willingly did that act, they were having knowledge that doing this would amount to a crime. A person intention is always considered to prove his guilt.
Article 16 gives you the right to be recognized by law. A person without identity is ruthless and more inclined for violence. Law protects them from every suffering they face and if they are not identified by law then the human would face identity crisis. A country has its citizen and there are certain rights which are only enjoyed by their citizen and if you are an outsider then sometimes living would be difficult as u cannot enjoy everything given by laws. In emergency situation if a law does not recognized a person then this thing can be misuse as state would not be under any obligation to provide them basic need and other non-derogatory rights prescribed under ICCPR.
It gives freedom to person to enjoy any kind of religion which he believes to be good to him. It is his personal choice and state interfering in this matter is violation of his human rights. Even in the state of emergency his freedom to practice religion should be protected as human follows certain religion greatest belief.
The difference which lies between animal and human is that we human are following guidelines and we with consent of all human make laws and follow it. When a human is born he comes with certain inherent right and no one is allowed to take that right as these rights are given to him by the god. Non derogable rights protect the basic and fundamental rights of human and it safeguard them from volatile nature of wars.