Historically the evolution of mankind has been a journey from tribal societies to the complicated governments of today with infinite state power and resources. The thought of human liberty has travelled across the centuries through the “Magna Carta” (1215 AD), Bill of English Rights (1689 AD), French Revolution (1789 AD) and the Constitution of the United States (1776) The journey consummated in the Universal Declaration of Human Rights stating 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”.

Justice V.R.Krishna Iyer had unflinching faith in the UDHR. He said and I quote,

“This profound proposition is central to the Charter of the United Nations which affirms its faith in the Fundamental Rights and in the dignity and worth of the human person. Human personhood, in its holistic dimensions, supra-mental potential and ultimate destiny, is the inscrutably sacred , inalienably sublime and integrally woven human divine unit of Cosmic Creative Intelligence.” He goes on to say that, “ Society is the human home, Law its discipline and Justice its perennial pursuit. The Jurisprudence of personhood or the philosophy of right to life in large freedom and expression of personality, as a fundamental of the world human order, focuses on this higher process as deserving of the loftiest concern of culture and vigilant commitment of law. Jurisprudence and Judicial Justice are but jargonised gibberish and robed caricature “

On one side of the thought are the positive dreamers and on the other side we have had the sceptics. To quote Professor Amartya Sen, “It is not disputed that the invoking of human rights can be very attractive as a general belief, and it may even be politically effective as rhetoric. Scepticism and anxiety relate to what is thought to be the ‘soft’ or the ‘mushiness’ of the conceptual grounding of human rights as just loose talk - well-meaning and perhaps laudable loose talk-which cannot, it is presumed, have much intellectual strength.”

Professor Sen goes on to cite Jeremy Bentham, from his Anarchical Fallacies written during 1791-1792, “Bentham insisted that ‘natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts’, by which, I take it, he meant some kind of an artificially elevated nonsense”. According to Bentham the human rights were only those rights which had the sanction of law. And the rest were only the imaginary rights. Bentham however ignored the crusaders of human rights who made possible the UDHR declaration in 1948 and all the milestones achieved in the past centuries.

Despite Bentham the idea of Human Rights kept the march on and achieved definite milestones. And the UDHR was a watershed victory of mankind. Justice V.R.Krishna Iyer said and I quote, “ To write this radical, human Manifesto of the person is a revolutionary paradigm shift, a human ascent and divine descent whose locomotive is the liberating hunger of the soul driving us all towards a distant perfection. Shakespeare’s diction poeticises the Humanist manifesto I have in mind: “What is peace of work is a man! How noble in reason ! How infinite in faculty-in form, in moving, how express and admirable ! in action how like an angel ! in apprehension how like a God ! The beauty of the world ! The paragon of animals !”

The ideal world with all the human rights has been summed up in the lines of Rabindra Nath Tagore,

“ Where the mind is with our fear and the head is held high;

Where knowledge is free:

Where the world has not been broken up in fragments by narrow domestic walls :

Where words come out from the depth of truth;

Where tireless striving stitches its arms towards perfection;

Where the clear stream of reason has not lost its way into the dreary desert sand of dead habit;

Where the mind is led forward by thee into ever widening thought and action-Into that Heaven of freedom , my father,

Let my country awake.”

I think no bill of rights is as exhaustive about the definition of human rights as these lines of Rabindra Nath Tagore. The poets are at times more expressive than the Constitutions and the Bill of Rights in the Parliaments.

H.G Wells cautioned in his, ‘Outline of history’: “ Human history becomes more a race between education and catastrophe” and if we want to get over the worst fears of mankind then we must admit the role of law and jurisprudence in educating the world populace.

We are at a threshold of history. The technological revolution is in the fast lane. It is beyond human comprehension and we have to be in touch with the latest through internet. (Facebook and Whatapp). It is a live update all the time. I wouldn't be surprised if some people here know me through my Facebook account or whatever information is available on the internet about me.

The dangers of technology pose a serious challenge to the protagonist of human rights. The technology and automation follows the capital and results in more concentration of power than we have witnessed ever in the past. Look at the American example; there is no middle class there. Either there are super rich or there are poor who have been provided the basic needs. This pattern is in the process of being replicated everywhere. The rich will become richer and the poor will grow poorer. But they will be kept alive to sustain the system; and even at the cost of their human rights. Is it an inevitable consequence of the scientific and economic progress? I leave this question for all of you to discuss. And I will also work upon to get the answers.

In the context of India historically we celebrated when the UN General Assembly declared the Universal Declaration of Human Rights on 10th December 1948. Our Constitution makers were enchanted by the positive phrases and adopted the UDHR in Chapter III of the Constitution of India. We have actually the best drafted guarantee of human rights if we look at Chapter III of the Constitution. But unfortunately the framers put the most important of them into the category of “Directive Principles” which are not enforceable by the Court. They remain fundamental in the governance of the Country and the state is under no legal obligation to apply them in making laws.

(Caveat-If the law makers have read the Constitution)

And this puts an extra responsibility on the shoulders of the Judiciary. Over the years the Supreme Court of India has amplified the reach of the Fundamental Rights in the light of the Directive Principles of state policy. In 1989 the Apex Court said in V. Markanday versus State of Andhra Pradesh,

“Provisions contained in the chapter on Directive Principles of State Policy are not enforceable by any courts. But while considering the questions of enforcement of the Fundamental Rights of a Citizen, it is open to the court to be guided by the Directive Principles to ensure that in doing justice the principles contained therein are maintained. The Constitution aims at bringing about a synthesis between the “Fundamental Rights” and the “Directive Principles of the State Policy” by giving former a place of pride and to the latter a place of performance, together they form the core of the Constitution. They constitute its true conscience and without faithfully implementing the Directive Principles, it is not possible to achieve the welfare state contemplated by the Constitution.”

The Chapter III of the Constitution was amended w.e.f. 1st April 2010 by inserting a separate Article 21-A to include Right to Education as a Fundamental Right on the basis of the International Covenants on Human Rights which recognise that a minimum level of literacy and minimum educational qualification is necessary for human development, enjoyment of human rights and for effective participation of people in democratic process. Article 21-A reads, “ That the state shall provide free and compulsory education to all children of the age of 6 to 14 years in such a manner as the state may, by law determine.”

In Ashok Thakur versus the Union of India, 2008 Legal Eagle (SC) 558, a five Judge Constitutional bench of the Supreme Court emphasised the necessity of providing basic education. The court observed,

“The most important Fundamental Right may be Article 21-A since without Article 21-A the other Fundamental Rights are effectively rendered meaningless. Education stands above all the other rights, as one’s ability to enforce ones’ Fundamental Rights rises form one’s education. Education should be compulsory because in essence the citizen is only free when he can make a meaningful challenge to his fellow citizens or governments’ attempts to curtail his natural freedom, With our education , a citizen will never come to know his other rights nor would a citizen have the resources to adequately enforce them without education. This is ultimately why judiciary must over-see government’s spending on free and compulsory education. The state is under a mandatory obligation to implement Article 21-A on priority basis.”

The court further said, “ Basic primary education is Constitutional right and there is no corresponding right to higher education. Spending on higher education at the expense of primary/secondary education would result in curtailing the Fundamental Right under Article 21-A”

The Courts have throughout expanded the scope of Article 12 with the clear intention to inject respect for human rights and social conscience in our corporate structure.

The cases that mark the contours of human rights jurisprudence from the Judiciary have been very many and I quote a few of them which are poetry to any lover of human rights in India.

1.   Francis Coralie versus Administrator Union Territory of Delhi. (1981)

2.   Olga Telllis versus Bombay Municipal Corporation (1985)

3.   Pavement Dweller case. “deprivation of the means of livelihood also means the deprivation of life.” Life means something more than animal existence.

4.   Bandhua Mukti Morcha versus Union of India (1984) Right to life means not only animal existence but life with human dignity.

4.   Sheela Barse versus State of Maharashtra. (1987) Article 21 -- the word life has been construed to cover the humane living conditions of the inmates in jails.

5.   Sunil Gupta versus State of Madhya Pradesh (1990) -- Handcuffing of under           trial prisoners should not be made as a rule.

6.   Keshwananda Bharti -- Basic structure of the Constitution.

Thus essentially the courts were on the trail of Dr. Ambedkar’s statement in the Constituent assembly. He said and I quote:

“ In my judgment, the directive principles have a great value, for they lay down that our ideal is economic democracy. Because we did not want “merely a parliamentary form of government to be instituted through the various mechanisms provided on the constitution , without any direction as to what our economic ideal, as to what social order ought to be” we deliberately included the Directive Principles in our Constitution”

Despite our tryst with destiny for almost seven decades now, there are question marks raised on the performance of successive governments on the fulfilment of the promises in the Part III and IV of the Constitution. We still have human rights violations and there is no denying the fact. I am sure you will agree with me that still the human right violations are a daily routine. The high handed of the state machinery is being tasted by all. We have to pay bribe for small procedures. Despite the Honourable Supreme Court passing so many judgments to pronounce the importance of the human rights there are about thirty-million cases pending before the courts today. If a person does not get justice during his life time then is this not violation of Article 21.

What ails the governance of the country? or say What ails the justice delivery system of the country ? I may ask you whether the system of parliamentary democracy has suited us to deliver what the constitution makers had deemed off? Or whether democracy and human rights are not complimentary to each other ?

I may state that democracy and human rights are not synonymous. Election only gives you an opportunity to choose your tyrants. Is it not the juncture where we Indians seriously need to discuss the change in the form of government. Why not have an “Elective dictatorship”. We can do so without changing the basic structure as contemplated in Keshwananda Bharti case by the Honourable Supreme Court of India. Constitution may remain supreme but the form of government may undergo a change of format. Parliamentary democracy gives chance to the local mafias and musclemen to get into the assemblies and even the parliament. We need some kind of government wherein we can have proportional representation in the parliament on the basis of the total votes polled for any party. The representatives of the party can be sent by the party by their own choice. There can be other ways also to control the criminal elements entering the political arena.

Nani Palkhiwala the legal legend said and I quote, “ In the world today, governments that are most successful are authoritarian ones and veneration for human rights promises to be a cult of slow growth. That is because human rights cannot exist in a cultural and economic vacuum. Their chances of being understood and respected improve as the economic and educational level of the society rises. It is a noble maxim that it is better for a man to go wrong in freedom than to go right in chains; but it sounds like an empty rhetoric to people who live in economic chains below the minimum subsistence level.”

Yet the economic and social rights achieved by the present day democracies cannot be ignored. We have to understand that the rights are not only against the government but also against the people. My liberty extends to the extent where your liberty starts. We all have our obligations to each other. The test of a civilisation is how it treats its poor.

Human right violations may take place by virtue of neglect by the government. But the worst kind of violation is when the state follows a policy which deprives the population of its human rights to decent living; right to food, medicine and education etc.

And the most important reason is the pattern of human behaviour towards its own species. We take liberty as licence. See how we drive on the road. See how we break the que. See how we bribe to jump the ques. See how we ignore other claimants to our advantage. See how you pray God making only for yourself and your family; why not the entire society.

And it is so because you have not been trained and educated in enjoying your liberty. Liberty never travelled alone since the French revolution; equality and fraternity came along. And we have forgotten them. Your liberty comes with responsibility; It comes with morality; it comes with you duties; And it demands your respect for law and justice. Remember Article 51-A. If you want the Constitution to work than apply the Fundamental duties to yourself.

I am tempted to quote Palkhiwala again, “ Liberty has a hypnotising sound; while , unfortunately responsibilities has no sex appeal. Freedom is like alcohol-it must be taken in moderation. Perhaps we are making life too easy for criminals and too difficult for law-abiding citizens. In free societies too many crooks break the law, blight young lives, traffic in drugs, and claim the fundamental right to exploit commercially sex and violence.”

In this light think of the human rights of those who are hardened criminals, who kill hundreds of people and there is no evidence against them. What do you say of the freedom to burn crackers of those insensitive people who choked Delhi and the Delhites had a tough to breathe for a fortnight?

We have to strike a balance between individual liberty and the common good. We have to educate each one about their rights and prepare them for the endless debate as to what is the best form of governance. The debate is endless. But the vibrancy of the arguments will show the level of awareness among the citizens on the both the sides. The debate shall never have a solution. The definition of liberty will keep evolving and the changes in technology will give better solutions to guarantee the delivery of human rights to the people.

Ajay Veer Singh, Advocate

218, M.C.Setalwad Chambers,

Supreme Court of India,

NEW DELHI-110001