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Unit 29: Human Rights Education : Concept and Importance of Human Rights Education and Role of Education ...

29.13 Human Rights and Indian Constitution Notes

Human Rights, intrinsic to all humans as members of humanity, are the modern and secular
version of the natural rights. All humans, being born equal are equally entitled to the Human
Rights without any distinction of birth, sex, race, status, religion, language or nationality.
Standing above the ideologies of the capitalism or communism, Human Rights reflect the
concern for democracy, development and peace.
The national awakening and social reform movements were for the equality, democracy and
social progress. During the freedom movement, the people of India fought against colonial rule
for their rights and liberties. Freedom fighter Lokmanya Bal Gangadhar Tilak proclaimed,
“Swaraj is my birthright and I shall have it.” Throughout the freedom struggle, the demand for
fundamental rights was always in the forefront.
The Indian National Congress at its Madras session in December 1927, resolved to draft a
“Swaraj Constitution for India, on the basis of the Declaration of Rights” and in 1928, an All
Parties Conference of representatives from Indian political parties proposed constitutional
reforms for India. Demanding dominion status and elections under universal suffrage, they
called for guarantees of rights deemed fundamental, representation for religious and ethnic
minorities and limitations on government powers.

Rane Cassin, the distinguished French Jurist who drafted United Nations
Declaration of Human Rights (UDHR) was awarded the Nobel Peace Prize in
1968 for his works on Human Rights.

A broad distinction is often made between rights that are ‘justiciable’, capable of being invoked
in Courts of law and enforced by judges, and those that are not. It is argued that many Economic,
Social and Cultural Rights, such as the rights to food, housing, health, education and social
security, are by their very character, not justiciable rights. They are no doubt legally binding,
in that, they create obligations on states. However, they are not legal with regard to their
applicability.
It is frequently argued also that Courts cannot intervene to enforce these rights because States
are legally bound to discharge these obligations progressively based on the availbility of
resources. It is suggested that Civil and Political Rights require mainly abstentions by State
authorities, involving no costs, whereas Economic, Social and Cultural Rights require positive
action by the State, involving significant expenditure.
This distinction is overdrawn. Several Civil and Political Rights also do require expenditures,
such as for legal aid, regulators and ombudsmen. On the other hand, there are Economic, Social
and Cultural Rights that only require the State to abstain from encroachment on people’s
rights, such as from the compulsory acquisition of the land of indigenous communities or the
eviction of urban sequatters. Several laws against discrimination against women, children,
socially disadvantaged groups and mintories, involving primarily Economic, Social and Cultural
Rights, would also not involve more significant public expenditure as compared to Civil and
Political Rights.

However, in the end, it must still be admitted that some of the most vital Economic,
Social and Cultural Rights do involve substantial public expenditure, such as the
rights to food, housing, education, social security, work and health care.

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