People’s Right 📚

People’s Rights 

• King John of England gave people certain rights in the name of Magna Carta. The French declaration of rights of man, American constitution also accorded prime position to the rights of man. 

• The UN Universal Declaration of Human Rights on Dec 10, 1948 reflects first International effort to speak about human rights. In the year 1966, Covenant on civil and political rights and Covenant on socio-economic cultural rights were adopted.

•  CEDAW that is ‘Convention on Elimination of all forms of Discrimination Against Women’ was adopted in 1979.

• UN took many efforts to protect the rights of various sections of peoples like stateless people migrants, children, women, disabled, people effected by wars, racism etc. UNHRC was formed in 2006 replacing UNHRC commission .

• Rights which are essential and sacrosanct can be studied as three generations of rights. The division of human rights into three generations was initially proposed in 1979 by the Czech Jurist, Karel-Vasak. His division follows the three keywords of the French Revolution- Liberty, equality and fraternity.

• 1st Generation Rights: They comprises of civil and political rights of the citi- zens including freedom of thought and expression, freedom of movement, free- dom of association etc. These rights are against the governmental interference on individual freedom. They are the part of democratic rights of the citizens and also paved the way for the evolution of the 2nd generation rights. For example in India Article-21 deals with Right to life (or) Right to personal liberty. Now it was extended to Education, Healthcare, access to livelihood, Pollution free environ- ment etc.

• 2nd Generation Rights: 2nd generation human rights are related to Equality and began to recoginsed by the governments after that World War-II with the growing consciousness among disadvantaged sections and their sympathisers. It was realised that the 1st generation rights were not sufficient to take care of all sections of society. Hence, certain rights were added which are called as 2nd generation rights. These require the state to play positive role. These included Right to education, Right to work, medical care and housing etc.

• 3rd Generation Rights : Many Nations of the world have a sizeable portion of cultural minorities. Their language identity, customs should be protected as 3rd generation rights. They go beyond civil and social rights. Some times they are also called Green rights, that is right to pollution free environment, sanitation,clean air are also included in 

• Theories of Rights 

• Natural Rights Theory: Rights are Transcendental. It treats the rights of man as a corollary of Natural Law. In other words these rights are not granted by the state, but they come from the very nature of man. This theory was broadly developed on two important basis / perspectives

• * Contractual basis: Certain rights were enjoyed by man in the state of Nature,that is before the formation of civil society itself. These comprise the natural rights of man which must be respected and protected by the state.

•  John Locke is the famous proponent of natural rights theory. Right to life, liberty property etc.., are inviolable (should not be taken away). John Locke saidthat the contract is a trust and sovereign is expected to protect these rights.

•  Locke, however postulated that man surrendered only some of his natural rights,

• particularly the right to be Judge of his own acts.

•  If the state fails to protect these rights, man can break away from the contract

• and can revolt against the government. State is not the originator of the rights, it

• only protects the rights.

• Teleological Basis: Teleology means the doctrine of final results (or) consequences. It refers to the view that any incident (or) development in human life is the product of the purpose. The consequence of every action is important. The Teleological view of rights, therefore, seeks to relate the rights of man with the purpose of human life. These rights do not depend on any institutional arrange- ment but come from the very nature of man and serve the purpose of his life. Tom Paine is a famous propounder of this theory.

• Moral Rights Theory

• Moral theory of rights relies on human beings sense of right and wrong, good and evil etc. Accordingly rights should come from, what is morally right (or) good. It is important to note that moral standards (or) norms have to be recognised as superior to custom or law. There was a moral element in all the laws. Moral factors gain the strength in the course of social development and legislations.

• Immanuel Kant, a German philosopher was a noted exponent of moral theory of rights. He argued that reason is the distinctive feature of man. It implies him to treat himself and all other persons as ‘ends’ and not as the means only. He pro- pounded a concept called “Kingdom of ends”. If every human being, thinks that he is the end and other person is also the end, the world will become a beautiful place to live in.

•  T.H.Green argues that the rights of man do not emanate from transcendental law as John Locke has said but they have come from the moral character of man himself. Since all individuals share some moral consciousness, they have com- mon goals. State should make it’s citizens happy.

• Legal theory of Rights

• Theory of rights believe that all rights of man depend on the state for their exist- ence. There can be no right in the proper sense of the term unless it is granted by the state. Rights depend on the law of the land, they vary with time and space. Rights have no substance until they are guaranteed by the state. Legal right’s.      theory implies

• * There are no rights prior to the state

• * It is the state which declares law and these by guarantees and enforces the rights. No rights can exists beyond the legal frame work provided by the state.

• * As law may change from time to time, the substance of rights also changes. i.e., there can be no fixed rights.

• Thomas Hobbes, John Austin etc, said that “Law is the command of the sover- eign”. Thomas Hobbes said that, ‘except the right to self-preservation all other rights are surrendered to the sovereign’. Man was dependent on the state for the maintenance of his rights.

• Jeremy Bentham is the famous proponent of legal rights theory. He rejects the doctrine of Natural rights as unreal and ill founded.

• Bentham said “Rights properly so called, are the creatures of law. Real laws give birth to real rights”.

• Bentham condemns Natural rights. According to him, “ Natural rights are fanta- sies and inventions of fanatics. They are dogmatic and unintelligible, devoid of reasoning.” According to Bentham “Natural Rights are nothing but nonsense upon stilts”. For him “Instead of examining laws by the effects, instead of Judg- ing them as good or bad, they consider them in relation to these pretended “natural rights are Chimera’s” (imaginations).

•  Historical theory of rights believe that rights are the products of a long historical process. They differ from state to state and from time to time because of the dif- ferent levels of historical development of society. Rights grow out of customs which are stabilized through usage since several generations.

• This theory originated in the 18th century conservative political thought. It’s upholders defended evolutionary change and rejected revolutionary changes.

• Edmund Burke is the great champion of historical theory of rights. He criticized French revolution, for it was provoked by a conception of abstract rights of man liberty, equality and fraternity. On the contrary, he glorified the glorious revolu- tion of 1688 which sought to reassert the customary rights of English men. In short the state has to recognise only those rights of men which have already come into vogue (presence) through long standing usages and customs.

• This theory was criticized on the grounds that the customs, like slavery, infanti- cide, polygamy etc, are present in the societies and the state have abandoned them instead of uplifting them as rights. In India also customs like child mar- riages, sati, Deva dasi, untouchability etc, are well established. But they were prohibited today
• Social welfare theory of Rights marks a departure from the conventional theories of rights. If seeks to set the standards on which rights should be founded al- though they would become operative only when translated into legal provisions. This theory postulates that the rights are, in essence, conditions of social welfare. The state should set aside all other considerations and recognise only such rights as are designed to promote social welfare.

• Roscoe Pound and Zechariah chaffee are the contemporary advocates of social welfare theory of rights. Pound argues that interpretation of law should follow it’s defined social purpose. Chaffee holds that law, custom, Natural rights etc.., should confirm with what is socially useful (or) socially expedient. Rights should be determined by the Balance of Interest under the prevailing social conditions and developments