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HUMAN RIGHTS:
A HISTORICAL
PERSPECTIVE
 Every individual has dignity.1 The principles of human rights

were drawn up by human beings as a way of ensuring that the dignity of

everyone is properly and equally respected, that is, to ensure that a

human being will be able to fully develop and use human qualities such as

intelligence, talent and conscience and satisfy his or her spiritual and other

needs.

Dignity gives an individual a sense of value and worth. The

existence of human rights demonstrates that human beings are aware of

each other’s worth. Human dignity is not an individual, exclusive and

isolated sense. It is a part of our common humanity.

Human rights enable us to respect each other and live with

each other, in otherwords, they are not only rights to be requested or

demanded but rights to be respected and be responsible for. The rights

that apply to you also apply to others. The denial of human rights and

fundamental freedoms not only is an individual and personal tragedy, but

also creates conditions of social and political unrest, sawing the seeds of

violence and conflict within and between societies and nations.

Basically, human rights are the claims of the individual for

such conditions as are essential for the fullest realization of the innate

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characteristics which nature has bestowed him/her with as a human being.

It implies that there are inherent and inalienable rights which are due to an

individual by virtue of his/her being a human being and that they are

necessary to ensure the dignity of every person as a human being

irrespective of one’s race, religion, nationality, language, sex or any other

factor.

All “claims" of the individual, for example, freedom to live as

one wishes to or to do whatever one wants to do, cannot be treated as

human rights. Only these claims which are essential for the developments

of one’s personality and recognized as such by the “society” constitute

rights. But one has to recognize the fact that this idea is not the reality

and that what is conceptually recognized as rights, is often not legally

enforced or enforceable. So one must distinguish between what is morally

and universally accepted as rights and what constitute ‘legal rights’

established according to the law-creating process and judicially

enforceable in a given society.2

Evolution of Human Rights:

The nature has bestowed man with two related

characteristics-first as an individual and then as a social being. Living in a

group organized community is natural to him. To understand human

rights, one must look through their history, which will take us back to the

day when man first started living in groups. It was natural that many

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instances might prevailed over what was right; those who held power

dominated the weak.3

With the passage of time, these rights are established

customs or understandings including the relationship between the ruler

and the ruled were brought together in different forms in various parts of

the world. They found expression in the concept of natural, law and

became the symbol of peoples movement against absolute despotism,

and the cornerstone of constitutional democracy everywhere. The Magna

Carta in England (1215), the American Declaration of Independence

(1776), the French Declaration on the Rights of man (1789), the Bolshevik

Revolution in Russia (1917), could be cited as important landmarks in the

development of the concept of human rights.

Magna Carta yielded certain concessions only to the feudal

lords, though did set limitations to arbitrary rule and laid the foundation for

the Rule of Law. The American Declaration followed by constitutional

amendments contained fairly exhaustive guarantees for the rights of man.

While the American and French Declarations set the seal on the basic

principles of equality before the law, freedom of thought, human dignity

and democratic government, the countries undergoing rapid

industrialization were experiencing the need more for social justice and

economic security. The Bolshevik Revolution in Russia (1917), went a

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step further. It emphasized that economic and social rights were as

important as the civil and political rights.4

In Europe and North America the concept of natural right

was secularized, rationalized and democratized. By the end of the 18th

century there emerged a concept what was called “the Rights of Man”.

This concept covered substantially what is now known as civil and political

rights. Beginning the mid-nineteenth century, the developments that

followed, some time accompanied by violence within the industrial-capital

economy of Europe and North America took a new direction.

While countries in Europe and North America, with rapid

industrialization, were moving towards larger freedoms both political and

economic, the people of the rest of the world were more or less

experiencing the sufferings and humiliations of colonialism and

imperialism. It was natural that interaction and comparison between

peoples of the two groups generate wider awareness and demand for

human rights among the peoples under colonial rule. For them, a

declaration of great historical significance was the clarion call made at the

turn of the country in India, by Bal Gangadhar Tilak: “Swaraj is my birth

right and I shall have it’’5.

Universalisation of Human Rights:

As a result of convergence of several historical factors, a

concept of human rights was emerged by the middle of the present

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century. This development found expression in the Charter of the United

Nations - which proclaimed “universal respect for, and observance of

human rights and fundamental freedom for all without destinations as to

race, sex, language or religion”. The Charter made promotion of these

rights as one of its basic purposes and obligated member states “to take

joint and separate action in cooperation with the United Nations for the

achievement of this purpose". Thus human rights were being

universalized and internationalized, UN Charter that laid down principles

of a general nature, human rights are not defined or specified in this

Charter.

There arise necessity to define human rights and

fundamental freedoms so that objectives of the Charter could be pursued

and an international system, for promotion and protection of human rights

could be instituted. Hence in December 1948, the UN General Assembly

proclaimed the Universal Declaration of Human Rights. It define specific

rights - civil and political as well as economic, social and cultural with

equality and freedom from discrimination as a principal and recurrent

them. The Universal Declaration was not conceived as law but as a

“common standard of achievement” for all people and all nations.

The Declaration carries no legal sanction to compel states to

meet the obligation of ensuring observance and implementation of human

rights enshrined in the Declaration. To seek such a legal framework and

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convert the norms set in the Declaration into legally binding obligations,

efforts were directed, beginning 1947. After 20 years of preparatory work,

the General Assembly promulgated international covenants in December

1966, comprising these instruments as follows:

(0 International covenants on economic, social and cultural rights.

(ii) International covenants on civil and political rights, and

(iii) Optional protocol to the covenants on civil and political rights.

The covenants have assumed a prime place in international

law as the instruments that influence and at the same time judge the

disregard of states and by which the conditions of individual rights in

particular countries are to be assessed.6

Theories of Human Rights:

In order to gain the basic understanding of human rights one

should look at certain theories of the subject so that the shifting priorities

of rights during different phases of history could be observed. The

function of theory, however, is to provide an analytical tool by which it is

possible to determine the precise subject matter of the concept upon

which there might be an agreement.7 A precise insight into the major

theories of rights are as follows:

1) The Theory of Natural Rights:

This is the earliest theory of right and its origin can be traced

back to the ancient Greeks. According to this theory, rights belong to man

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by nature and thus are self-evident truths. They were considered as

inborn, absolute, pre-civil and according to some, even pre-social. They

can be asserted anywhere and everywhere. Thomas Paine, Grotius, Tom

Paine and John Locke, to name a few, are the main exponents of this

theory. These theorists derived their ideas about rights from God, reason

or a prior moral assumption. To them every individual possess a unique

identity and is expected to account his actions as per his own conscience.

However, the critics of the natural rights theory argue that

rights are not abstract, absolute or unidentified phenomena. Liberty, as

they argue, lives within restraints. So restraints upon rights create social

conditions where everyone has a share to develop his personality and

correspondingly has his obligations to others. Rights and obligations, in

fact, are the two sides of the same coin.

Despite the above shortcomings, the theory of natural rights

inspired the idea that any kind of unjust, arbitrary an oppressive treatment

to human beings is an assault upon humanity itself. Apart from this, it also

provided the basis for the English, French and American revolutions,

thereby resulting in the Bill of Rights.8

2) The Legal Theory of Rights:

This theory is a reaction against the theory of natural rights.

Advocates of this theory argue that the idea of natural law and natural

rights as abstract and ridiculous phenomena. Hence, the existence and

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enjoyment of fundamental rights of an individual could be better

maintained and practiced by the State rather than by the individual

himself. Thomas Hobbes, John Austin and Jeremy Bentham are the main

profounders of this theory. According to them, rights are purely utilitarian

concepts and thus the rule and regulations are necessary for the

identification and protection of one’s rights. Towards this end, every

individual was to sacrifice certain rights and freedoms for the general

welfare of the society.9

This theory has been severely criticized on the ground that

law alone does not create rights. Rather, it recognises and protects them.

Custom, tradition and morality also have a basis for rights. However, the

truth in this theory lies in the fact that it enables individuals to demand

certain specific and recognized rights as granted and guaranted by the

State.

3. The Anti-Utilitarian Theory of Rights:

There are yet other theorists who strongly argue that the

priority of the well being of the maority as stated by the utilitarians is not

the prime objective of the State. Amongst them Dowrkin, Nozic and John

Rawls are the leading ones.

They hold the view that the welfare of the majority might lead

to detrimental consequences as far as the welfare of a particular person or

a group of persons is concerned. So there has to be proper reconciliation

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between the welt being of the majority and individual well-being for the

better enjoyment of social and individual rights. Today, the demand for

right to development on international for a is perhaps the manifestation of

this theory.

4. The Legal realist Theory of Rights:

The Legal Realist Theory is of recent origin. It mainly

originated in USA with the expansion of regulatory activities followed by

President Roosevelt’s “New Deal Policy”. A group of Jurists such as Karl

Liewellyn, Roscoe Pound and others discussed the point as to what law

does, rather than what law is, in a highly complex and industrialized

society. These theorists did not propound a common theory of rights.

Rather, they considered rights as the end product of both the interaction of

prevailing moral values of the society as well as the broad-based

international sharing of values.10

5. The Marxist Theory of Rights:

Rights, according to Marx are simply a bourgeois concept

and a product of bourgeois capitalist society primarily designed to

maintain and reinforce the predominant position of the ruling class.11 This

theory of rights is very simple and to a certain extent convincing too. He

regards the State as a coercive agency to uphold the particular type of

social organization and law is a tool of the State that perpetuates and

safeguards the interest of the dominant group in the society. Karl Marx

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firmly believes that rights can exist and flourish only in a classless society

where all are equal and no one is an exploiter. Social and economic rights

are thus the main concern of this theory. However, the contribution of

Marxist thought to the development of international concern on economic,

social and cultural rights has been found in the International Covenant on

Economic, Social and Cultural Rights (ICESSR) in 1966. This theory,

however, does not include religion, customs, tradition and morality as

integral components of human rights.

6. The Socialist Welfare Theory of Rights:

According to the social welfare theory, rights are created by

society, and are aimed at realising social welfare. Conditions which make

the individual and society happy are rights, and these should have

precedence over customs, usages, traditions and natural rights. This

theory looks at rights solely through the angle of social welfare.

The theory has the great merit of upholding the principle of

social welfare Utilitarians, who supported the theory made a practical

approach to rights, and advocate legislation in different fields to uphold

rights.12

7, The Idealist Theory of Rights:

The idealist or personality theory Rightists says that the

human being needs congenial external conditions for the development of

his personality. Green, the idealist thinker of England says that rights are

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powers necessary to the fulfillment of man’s vocation as a moral being.

Krause, Henriki and wilde said that without rights man cannot become his

best self.

It is implied that rights arise in a society, and the rights of the

individual to be linked with the individual good and the common good of

all. The theory links with moral development of man, and looks rights

essentially from the ethical point of view. The opportunities on rights are to

be enjoyed by the individual and society. Hence they are to be

understood in a social context. As the individual wants to develop his

personality, others in society also have a similar aim.

According to the idealists like Kant and Green, conditions for

the individual’s ethical and moral development are created by the State.

But, extreme idealists like Hegel subordinate the individual to the State,

and expect the individual to surrender himself completely to the State.813* * * *

8. The Historical Theory of Rights:

As per the Historical theory of Rights, rights are the result of

historical evolution. In ancient times, rights were based on customs and

usages. But in the modern State, rights are recognised and supported by

law. In the course of ages, human beings in society evolved certain

usages, traditions and customs for the common good, and these unwritten

form became the basis of law, which gave rights to the individuals in

actual written form. To the primitive man, custom was unwritten law.

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 A custom which people go on following generation after

generation becomes a customary right, and this provides a basis for law.

The theory says that several rights rose as a result of historical evolution.

When the State was evolved, human beings must have had certain

customs and traditions hardened by time and these provided an evolution.

Certain rights are created by law, and they do not have history as the

source of their origin.

All products of history or custom cannot be regarded as

rights or continued as rights. For example, in some countries in ancient

times, buying and selling slaves was a custom or right of the slave-dealer.

So we can see that long-standing customs can come in the way of rights

instead of becoming rights themselves.14

To sum up, “there is not a single theory which can

adequately explain the origin and nature of rights. Each theory in the

product of its own time and in conformity with the genius of the people with

whom the propounders of the theory were associated. There is some

element of truth in all such theories. But there is one eternal truth which

cannot be ignored; that individual good and social good go together.

Society is an organic unit and welfare of the community is built upon the

welfare of the individuals, both go hand in hand”.15 Hence a good theory

of rights should take into consideration the most conducive variables

essential for the welfare of all the members of a society.

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Classification of Human Rights:

Human rights can be broadly classified into two different

perspectives: Firstly, from the perspective of various aspects of human life

- social, economic, political, moral and civil; and secondly, from the

perspective of the methods of securing them. On the second basis, they

are constitutional are legal. These classifications can be discussed under

the following heads:

1. Natural Rights:

Natural rights are those rights which are considered to be

inherent and integral to human nature. In fact, every individual by nature

is given an individual property of his own which cannot be taken away by

any authority. Such rights include intellectual rights, rights of the mind and

also rights of acting as an individual for his own comfort and happiness,

provided they are not injurious to the natural rights of others.16

2. Moral Rights:

These rights are based on the general principles of fairness

and justice. These are simply aspirations and ideals of the people who

claim for it. Sometimes, people justify these rights on the ground of the

role they perform or the position they occupy in society. For example, the

mother of a family might complain that she has the right to be consulted

about what is going on in her family. In this case, she is applying the

principle that parents are entitled to be consulted when family decisions

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affect the members. So it is the moral duty of other members to do the

same.17

3. Fundamental Rights:

There are certain rights which are more important and basic

than the others. For example, right to life is the most basic of all rights

upon which the enjoyment of other rights depends. These rights can

never be restricted or taken away by any authority. That is why, every

society has a fundamental duty to protect at all times. Among other basic

rights are the right to be recognized as a person before the law, the right

to equal protection under law, and freedom from illegal arrest or

detention.18

4. Legal Rights:

Legal rights are otherwise known as positive rights. These

rights are laid down in law. They are also guaranteed and protected by the

law of the State. Thus, legal rights are uniform open to all irrespective of

the caste, colour, race or culture.

5. Civil and Political Rights:

Right that are granted by government or civil society are

called civil and political rights. These rights provide the basis for the

fulfillment of elementary conditions of the social life. Without them,

civilized life is not possible and they are, therefore, considered very

essential for the free and progressive life of man. Civil and political rights,

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however, include the right to freedom of speech, of assembly, the right to

move freely, to hold property and practise trade or profession, and the

right to take part in the government of one's country. Part III of the

Constitution of India has resemblances with these rights.19

6. Economic, Social and Cultural Rights:

These are entitlements of the individual vis-a-vis the state, in

order to eradicate social inequality, economic imbalances and to limit

disadvantages caused by nature, age and so on. These rights, however,

are bestowed by the State. The State is not bound to meet these

entitlements all at once. It depends upon the economic resources of the

society. Most of the socialist states recognize these rights as fundamental

rights of the people. Right to equality, right to work, right to have family,

right to privacy, right to information, right to public assistance during old

age and sickness, right to health care, right to special care during

childhood and during motherhood are some of the examples of these

rights. Such rights have been incorporated in Part IV of the Constitution of

India as Directive Principles of State Policy.20

Since the adoption of the Universal Declaration, there have

been many controversies regarding the question as to which rights are

more important and which are less. The representatives of some states

had been asserting that civil and political rights are more important than

economic, social and cultural rights.

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 The Vienna Declaration, issued after a Conference in which

representatives of 171 countries and hundreds of non-governmental

organizations participated, unambiguously affirmed that all human rights

are universal, indivisible, inter-dependent and inter-related. It has also

been affirmed that democracy is the sole guarantor of individual rights -

civil, political, economic, social, cultural and collective rights ’within states

and within the community of States’.21

The Global View:

In Europe, human rights mainly emerged under the umbrella

of the philosophical, political and legal values that gained ground from the

Renaissance onwards. The process of emancipation from medieval

theology and feudalism took place during the period of Reformation and

Renaissance in three stages. First, was the rise of Protestantism; second,

were views of Locke and Montesquieu; and third was the belief in popular

sovereignty and democracy.22

Human Rights in Greco-Roman Period:

In philosophy, the development of the notion of natural rights

of man was contributed by the stoic philosophers. They first developed

natural law theory and by virtue of it they explained the nature of human

rights, that is, the rights that every human being possesses by virtue of

being human.23 According to Socrates, the possesses ‘insight’ and this

insight reveals to him the goodness and badness of things and makes him

34
know the absolute, eternal and moral rules. This human ‘insight’ is the

basis to Judge the law.24 However, it may be noted that the citizens of the

Greek City states enjoyed some basic rights even before the formulation

of natural law theory by the Stoic philosophers. They were in particular:

• The Right to freedom of speech.

• The Right to equality before law and

• The Right to Equal respect for all.

According to the Greek Philosophy, the laws of nature are unwritten.

According to them, human beings are born with human rights, which are

inalienable.

The Stoic Philosophers formulated the theory of Natural Law

after the breakdown of the Greek City states. The central notion of the

Stoic Philosophy was that the Principles of natural law were universal in

their nature.25

There was a court at Athens, which tried animals and

inanimate objects and guilty human beings. Plato the great philosopher,

recommended the trial and punishment of animals and lifeless objects.

The Exodus says, ‘if an ox gore a man or a woman that they die, then the

ox shall be surely stoned and his flesh shall not be eaten, but the owner of

the ox shall be quit’.

The Idea of Justice, at an early stage in Greek Philosophy,

was a guiding principle not only for the behaviour of the individual, but also

35
for the organization of society. The most outstanding among the Great

Philosophers who speculated the concept of justice was Aristotle (384-322

B.C). One of the main ideas of Aristotle’s ethics is that like shall be

treated as like, and unlike as unlike. King August recognized the rights of

slaves. During 500 B.C. to 483 A.D. various changes were made. During

this period women were also given some rights, including the right to

diverse.

In part because Hellenstic Stoicism played a key role in its

formation and spread, Roman Law has allowed the existence of a Jus

naturale (natural law) and with pursuant to the Jus gentium (law of

nations), contain universal rights that extended beyond the rights of

citizenship.

According to the Roman Jurist Ulpian, for example, natural

law was that which nature not the State assures to all human beings,

Roman citizen or not. They believed in the universal brotherhood of man

and they related what they considered to be the ‘innate reason’ of man to

cosmic order. In this respect, Cicero remarked “Universal consent is the

voice of Nature”.26

Human Rights during middle Ages:

It was not until after the middle ages, however, that natural

law doctrines became closely associated with liberal political theories

about natural rights. One of the first attempts at codification of some thing

like a catalogue of rights can be seen in 1188 A.D. When King Alfonso IX

36
of the Kingdom of Leonso, confirmed a series of rights, including the right

of the inviolability of life, however, home and property, on his lords,

conferred on the feudal Assembly of the kingdom of Leon. In the Golden

Bull of King Andrew II of Hungary (1222) the King guaranteed among

other things, that no noble would be arrested without first being convicted

in conformity with judicial procedure.

During this period, the idea of human rights to take hold as a

general social need and reality, it was necessary that basic changes in the

beliefs and practices of society take place, changes of the sort that

evolved from about the 13th century to the peace of Westphalia (1648),

during the Renaissance and the decline of feudalism. The teaching of St.

Aquinas (1224-1274) and Hugo Grotius (1583-1645) on the European

continent, and the English Bill of Rights (1689) in England, were proof of

this change.27

The Magna Carta (1215 A.D.)

During the Hellenistic period, philosophers began to claim

that all people, regardless of position, should be guaranteed certain

political and human rights. During the middle ages in England, wealthy

land owners and barons stood up to suffering they were subject to under

the rule of King John, forcing him to sign the Magna Carta. This made it

mandatory for the King to rule in a fair manner and protect the barons from

unfair treatment from the government, although the peasants were barely

37
mentioned. Today the Magna Carta is hailed as one of the most important

landmarks in the history of human rights and free government.28

The most important event of this period was the signing of

Magna Carta by the King, which is said to be the first milestone on the

road to the liberties of the people of England in 1215 A.D. The Magna

Carta is also known as ‘the great charter of liberty’. The English King

John at Runnymede accepted to grant certain rights to a particular section

of his people. Its famous clause 39, stating: No freeman shall be taken or

imprisoned or banished in any way destroyed, nor will we go upon him,

nor send him, except by the lawful judgement of his peers or by the law of

the land has been termed as the symbol of individual liberty for centuries

» ?9
to come.

The Petition of Rights (1628):

The petition of rights is a celebrated document drawn up by

the English House of Commons in 1628, setting forth grievances against

King Charles I. The King had levied taxes without approval by Parliament:

he had illegally imprisoned persons who refused the loans - all in order to

pursue external policies as vacillating as they were unsuccessful. The

petition of Rights was a Parliamentary Declaration in which freedom of

people was dealt with, for example, that nobody shall be indebted nor

taxed without the permission of Parliament, and nobody shall be

imprisoned in an arbitrary way.

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 The Petition of Right, however, is a landmark in the English

history and constitutional development, echoed in the American

Declaration of Independence and the US Constitution.30

The Bill of Rights (1689):

The Bill of Rights was officially titled as an act for declaring

the rights and liberties of the subjects and for settling the succession of

the crown, 1689. This Act was enacted at the time when William of

orange and Mary Stuart ascended to the Throne of England. The

Declaration of Rights, which was drawn up and passed through

Parliament in 1689, completed the work which Magna Carta had begun.

Its clauses may be briefly summarized, First William and

Mary were declared to be King and Queen and a clause was added that

no person who was a Roman Catholic or who married a Roman Catholic

could succeed to the throne. Secondly, it declared to be illegal: (a) the

‘Pretended Power’ of the crown to suspend laws; (b) the power of

dispensing with laws ‘as it has been exercised of late’ by the crown; (c)

The existence of the Court of High Commission and similar courts.

Thirdly, Parliament was to be freely elected, to have freedom of speech

and to meet frequently, and there was to be no taxation without its

consent.

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 Fourthly, a standing army was declared illegal. The Bill of

Rights is concerned particularly with limiting, the powers of the King and

safeguarding certain rights of the subject.31

The Social Contract Theory:

The social contract theory 17th century was another cause

which survived the conception of human rights and pressed its power for

the development of it. In the 17th century, the protagonists of social

contract theory, mainly Rousseau undertook to explain that state of nature

emerged as a political society due to separate acts of individuals, whereby

they undertook with one another to set up a government which would be

responsible for promotion of their common interests. These social

contract writers revitalized the concept of natural rights and put forward

certain dynamic contents which greatly influenced the American and

French Revolutions.32
*

The American Revolution (1775-1783):

The American Revolution period from 1763 to 1788 was a

very important age of constructive ideas and progressive expectations.

The Charter of American Revolution is based on the views of Hobbes,

Locke, Rousseau, Bodin and Montesquieu etc. Thomas Jefferson’s

famous words in the United States Declaration of Independence are

ominous.

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 “We hold these truth to be self evident that all men are

created equal; that they are endowed with certain inalienable rights; that

among them are life, liberty and pursuits of happiness.’’33

Thus, was inaugurated the era of the declaration of

fundamental rights. The Constitution came into existence in which the Bill

of Rights was part of the Constitution. Jakson J. observed that the very

purpose of a Bill of Rights was to withdraw certain subjects from the

vicissitudes of political controversy, to place them beyond the reach of

majority and to establish them as legal principles to be applied by courts.

The constitutional history of the United States vividly brings to force the

concept of constitutionally recognized fundamental rights. About the bill of

Rights, Thomas Jafferson was of the view that all people are entitled to it.

The French Revolution (1789):

The trident of equality, liberty and fraternity found its most

emphatic expression in human history in 1789, when the French Assembly

declared the rights of man and citizen decreed by the French National, on

August 20-26, 1789. The remarkable thing that occurs with adoption of

this declaration is that the inviolable, natural law human rights are setforth

in a state document and thus, in so far as that goes, incorporated in

national positive law. The French Declaration of the Rights of Man and of

the Citizen, in its Article 1 stated:

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 “Men are born and remain free and equal in rights, social

distinctions can be based only upon public utility". The French Revolution

was the result of economic and social inequalities and injustices of the

ancient regime of French. The doctrine of natural law at the turn of the

century after the French Revolution was a doctrine on obstract, immutable

principles and eternal, inviolable human rights. It is against this ideology

of natural law that reaction sets in with tremendous violence in many

countries.

The idea of human rights as natural rights was not without its

detractors, however, even at this otherwise receptive time. In the first

place being frequently associated with religious orthodoxy, the doctrine of

natural rights became less and less acceptable to philosophy and political

liberals. Additionally, because they were conceived in essentially

absolutist - ‘inalienable’, ‘unalterable’, ‘eternal’ - terms natural rights were

found increasingly to come into conflict with one another. Most

importantly, the doctrine of natural rights came under powerful

philosophical and political attack from both the right and the left.

In England, for example, conservatives Edmund Burke and

David Hume united with Liberal, Jeremy Bentham in condemning the

doctrine, the former out of fear that public affirmation of natural of natural

rights would led to social upheaval, the latter out of concern lest

declaration and proclamations of natural rights substitute for effective

legislation.

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 This assault upon natural law and natural rights thus began

during the 18th century and early 20th centuries. John Stuart Mill, despite

his vigorous defense of liberty, proclaimed that rights ultimately are

founded on utility. The German Jurist Frederich Karl Van Savingnly

England’s Sir Henry Maine and other historians emphasized that rights are

a function of cultural and environmental variables unique to particular

communities. The Jurist, John Austin insisted respectively. That the law

is the command of the sovereign.34

Human Rights prior to World War II:

Ever since ancient times, especially since the emergence of

the modern state system, the Age of Discovery, and the accompanying

spread of industrialization and European culture throughout the world,

there has developed, for economic and other reasons, a unique set of

customs and conventions relative to the humane treatment of foreigners.

This evolving international law of state responsibility of the injuries to

aliens, as these customs and conventions came to be called, may be

understood to represent the beginning of active concern for human rights

on the international plane. The founding fathers of International Law

particularly Francisco devitoria (1486-1546). Hugo Grotius (1583-1645),

and Emmerich de vattel (1714-1767) were quick to observe that all

persons, outlander as well as other, were entitled to certain natural rights;

and they emphasized, consequently, the importance of according aliens

fair treatment.35

43
 Throughout the 19th and early 20th centuries numerous

military operations and diplomatic representations, not all of them with the

purest of motives but done nonetheless in the name of ‘humanitarian

intervention', undertook to protect oppressed and persecuted minorities in

the Ottoman Empire and in Syria, Crete various Balkan countries,

Romania and Russia. Paralleling these actions, first at the Congress of

Vienna (1814-1815) and later between the two World Wars, a series of

treaties and international declarations sought the protection of certain

racial, religious, and linguistic minorities in Central and Eastern Europe

and in the Middle East.

By the end of World War I, there were scarcely any theorists

who would or could defend the ‘rights of man’ along the lines of natural

law. Indeed, under the influence of 19th century German idealism and

parallel expression of rising European nationalism, there were some

Marxists, for example, who although not rejecting individual rights

altogether maintained that rights, from whatever source derived, belong to

communities or whole societies and nations permanently. The following

observation of F.H.Bradlay, the British Idealist, made in 1894 aptly depict

the entire scenario.

The rights of the individual are today not worth serious

consideration - the welfare of the community is the end and is the ultimate

standard.36

44
The League of Nations:

The covenant of the League of Nations, the Treaty which in

1920 established the League and served as its Constitution, contained no

general provisions dealing with human rights and while failing to lay down

a principle of racial non-discrimination as requested by Japan.

Nevertheless committed the League’s members to several human rights

goals; fair and humane working conditions far men, women and children.

The execution of agreements regarding traffic in women and children.

Under the general supervision of the Permanent Mandates Commission,

the administering powers were obligated to ‘promote to the utmost the

material and moral well-being and the social progress of the ‘inhabitants’

as a sacred trust of civilization. The establishment of League of Nations

received special impetus when President Woodrow Wilson announced his

historic 14-Point Programme in January 1918. The covenant came into

force on January 10, 1920 after obtaining the ratification of requisite

number of States.

These agreements did little to slow the descent toward

World War II. In the Atlantic Charter of 1941, President Franklin D.

Roosevelt and Prime Minister Winston Churchill pledged to respect ’the

right of all people to choose the form the government under which they will

live to see sovereign rights and seif government restored to those who

have been forcibly deprived of them.

45
 Roosevelt's emphasis on the ‘four freedoms’, that is,

freedom of speech and expression, freedom of worship, freedom from

want and freedom from fear and were incorporated into the Atlantic

Charter in August 1941 and also foreshadowed the post war Universal

Declaration of Human Rights, and the decision immediately after the war,

to try German and Japanese leaders for war crimes and ‘crimes against

humanity’ represented the first effort to determine responsibility for

violating human rights.

The United Nations and Human Rights:

The idea of human rights emerged stronger after World War

II. The extermination by Nazi Germany of over six million Jews, Sinti and

Romani, persons with disabilities horrified the world. Trails were held in

Nuremberg and Tokyo after World War II, and officials from the defeated

countries were punished for community war crimes, ‘Crimes against

peace', and ‘Crimes against humanity’.37

With the drafting of the Charter of the United Nations, human

rights achieved a central place on the world stage. The founders of the

United Nations sought to avoid the weaknesses of the League of Nation,

including its cumbersome procedures, its inability to counter aggression

effectively, and the lack of American participation. Its purpose included to

develop friendly relations among nations based on respect for the

principles to achieve informational corporation in promoting and

46
encouraging respect for all without distinctions as to race, sex, language

and religion.38

The economic and social council which in turn established

the Commission on Human Rights in January, 1946 was charged with

Human Rights Protection. This Commission composed entirely of

Government representatives, has played an important role in drafting

declarations and treaties that have given human rights a far stronger

footing international law than ever before.

Human Rights under the U.N. Charter:

At the San Francisco Conference it was expressed by

several delegates that the United Nations should establish on International

Bill of Rights. Although that could not be done, it was well realised by the

members that it should be the obligation of the international community to

cooperate in eradicating the scourge of war, and they were therefore

determined that the promotion and respect for human rights which at

present constitute so important and so conspicuous be an integrated part

of the U.N. Charter.39

The result was that the Charter contains provisions for the

promotion and protection of human rights and fundamental freedoms in

the preamble and in Articles 1, 13 (1) (6), 55, 56, 62 (2), 68 and 76 (c).

The Preamble of the Charter in its first substantive paragraph laid down

that ‘the peoples of the United Nations determined to re-affirm faith in

47
fundamental human rights, in the dignity and worth of the human person,

in the equal rights of men and women and of nations large and small’ one

of the purposes, therefore, as set out in Para 3 of Article 1 of the Charter

was the achievement of international co-operation in promoting and

encouraging respect for human rights and for fundamental freedoms for all

without distinction as to race, sex, language or religion.

The above provision shows that the desirability of promoting

and encouraging respect for human rights and fundamental freedoms,

without distinction as to race, sex, language or religion was generally

recognized. However, despite the differences as to what rights and

freedoms are, the achievement of the maximum freedom and dignity of

the human beings was the primary aim of the United Nations. The

General Assembly and the Economic and Social Council were given the

task for the realisation of the promotion of human rights and fundamental

freedoms. By the terms of Article 13, the General Assembly was

empowered to initiate studies and make recommendations for the purpose

of assisting in the realisation of human rights and fundamental freedoms

all without distinction as to race, sex, language or religion. Article 55

provides that the United Nations shall promote, universal respect for and

observance of, human rights and fundamental freedoms for all without

distinction as to race, sex, language or religion and by the terms of Article

56 members of the United Nations pledged themselves to take joint and

separate action in co-operation with the organisation for the achievement

48
of the purposes set forth in Article 55. Article 62 of the Charter authorizes

the Economic and Social Economical to make recommendations for the

purposes of promoting respect for, and observance of human rights and

fundamental freedoms. Article 68 directs the Council to establish

Commissions in Economic and Social fields and for the promotion of

human rights, and such other Commissions as may be required for the

performance of its functions. Para (c) of Article 76 stipulated that one of

the basic objectives of the trusteeship system is to encourage respect for

human rights and for fundamental freedoms for all without distinction as to

race, sex, language or religion, and to encourage recognition of the

interdependence of the peoples of the world.

The above provisions of the Charter make it clear that the

State’s treatment of its own citizens is a matter of international concern.

Although there was no universal agreement as to the precise extent of the

‘human rights and fundamental freedoms’ guaranteed to all by the

Charter, there is at present no dissent from the view that they have

become one of the basic principles of international law.40

The Charter by incorporating the provisions relating to

promotion of human rights and fundamental freedoms opened a new

dimension towards the progressive development of international law. It

was the first international document which recognised the respect for

human rights and fundamental freedoms as a principle of international

49
law. Their recognition and their further realisation was deemed necessary

as they were regarded as one of the methods of achieving greater unity

between the states and also because they are indispensable for the

maintenance of international peace and security. It is clear from the

wordings of Article 55 of the Charter which lays down that the United

Nations shall promote universal respect for, and observance of human

rights and fundamental freedoms for all without distinction as to race, sex,

language or religion with a view to the creation of conditions of stability

and well being which are necessary for peaceful and friendly relations

among nations. The observance of human rights therefore contains an

essential element of peace. President Truman at the closing address to

the San Francisco Conference as to relationship of the promotion of

human rights and the maintenance of international peace and security

stated that:

“The Charter is dedicated to the achievement and

observance of human rights and fundamental freedoms. Unless we can

attain these objectives for all men and women everywhere without regard

to race, language or religion one cannot have permanent peace and

security in the world".41

It is to be noted that the Charter neither defined the human

rights nor they were enumerated therein. The guarantee for the protection

of human rights and fundamental freedoms was also not provided therein.

50
Although it was proposed by the Latin American States during the drafting

of the Charter at San Francisco Conference that it should contain an

‘International Bill of Rights”, a specific list of rights could not be prepared

due to lack of sufficient time.

INFERENCE:

The most striking feature of the concept of human rights is

that they may be difficult to define but impossible to ignore. The theories

and the ideologies, the politicians or statesmen, may quarrel about the

forms of government or the principles of State Government but they

cannot repudiate the indefensibility of torture, cruelty, inhuman and

degrading treatments, hunger, genocide, arbitrary arrests and detentions

and the like.

The word ‘right’ in the most general sense means that it is

something to which we are entitled. This word in ordinary English usage

not only implies a ‘Lawful Entitlement’ but a ‘Just Entitlement’. This

entitlement is due to various factors such as law, custom and morality.

Rules and principles cause an individual to have rights. As the concept of

human rights is a complex and contradictory one, it is desirable to go

through some of the standard definitions offered by different scholars from

time to time.

Human Rights can be broadly classified into two different

perspectives. Firstly, from the perspective of various aspects of human

life - social, economic, political, moral and civil; and secondly, from the

51
perspective of the methods of securing them on the basis, they are

constitutional or legal.

A study down the memory lane of human rights reveals two

parallel trends having evolved over the years, particularly in the European

context. The first and foremost is the liberalist tradition advocated by

philosophers like Locke and Bentham. Magna Carta, American

Declaration, French Declaration, Bolshevik Revolution in Russia, could be

cited as important landmarks in the evolution of the concept of human

rights.

The global perspective on human rights in Europe, human

rights mainly emerged under the umbrella of philosophical political and

legal values that gained ground from the Renaissance onwards. In this

direction, first, was the rise of Protestantism, second, were views of Locke

and Montesquieu and third was the belief in popular sovereignty and

democracy.

During the Greco-Roman period the development of human

rights a significant role the stoic philosophy. The central notion of the stoic

philosophy was that principles of natural law were universal in their nature.

In this aspect, Cicero remarked ‘Universal Consent is the Voice of Nature’.

Human Rights during middle ages, this period the Idea of Human Rights to

take hold as a general social need and reality and this period witnessed

the Renaissance and the decline of feudalism.

52
 The United Nations played an important role in the field of

Human Rights. The United Nations established the Commission on

Human Rights in January, 1946. The United Nations proclaimed the world

significant Declaration called as the Universal Declaration of Human

Rights on December 10, 1948.

On Human Rights under the U.N. Charter, at the San

Francisco Conference it was expressed by several delegates that the

United Nations should established on International Bill of Rights. The

result was that the Charter contains provisions for the promotion and

protection of human rights and fundamental freedoms, opened a new

dimension towards the progressive development of international law. The

Charter is dedicated to the achievement and observance of human rights

and permanent peace and security in the world.

53
REFERENCES:

1. C.Naseema, Human Rights and Education Conceptual and

Pedagogical aspects, Kanishka Publishers, New Delhi: 2002, p.1.

2. Ibid., p.2.

3. Szabo, 1., (1982), “Historical foundations of Human Rights and

Subsequent Developments”, in Vasak, K. (1982), International
Dimensions of Human Rights, Vol. 1.

4. Dr. H.O.Agarwal, International Law and Human Rights, Central

Law Publications, p.643.

5. C.Naseema, Human Rights and Education Conceptual and

Pedagogical Aspects, p.3.

6. C.Naseema, Human Rights Education, pp.4-5.

7. Arun Kumar Palai, National Human Rights Commission of India

Formation, Functioning and Future Prospects, Atlantic Publishers,
New Delhi, p.10.

8. Ibid., p.11.

9. Ibid., pp.11-12.

10. Ibid., p.12.

11. Scott Davidson, Human Rights, Philadelphia Open University

Press, 1993, p.2.

12. C.Naseema, Human Rights Education, p.7.

13. C.Naseema, Human Rights Education, p.8.

14. Ibid.

15. A.C.Kapur, Principles of Political Science, S.Chand Company Pvt.

Ltd., New Delhi, 1987, p.210.

16. C.Naseema, Human Rights Education, p.14.

17. Ibid.

18. Ibid.

54
19. Ibid, p.7.

20. Ibid, pp.15-16.

21. Suptadas, Arjun Dev and Indira Arjun Dev, Human Rights: A
Source Book, NCERT Publications, 1996, Introduction part.

22. Rajinder Pawar, “Historical Development of Human Rights”,

American Law Journal, 1-7 at 4.

23. U.Chandra, Human Rights, 1, Allahabad: Allahabad Law Agency,

1999.

24. Paramjit S.Jaswal. and Niswtha Jaswal, Human Rights and the
Law, (New Delhi: A.P.H. Publishing Corporation, 1996).

25. The School of Philosophy founded by Zero of citizen, which held

that universal working force pervades all creation and that human
conduct therefore should be judged according to and brought
harmony with the Law of Nature. F.N. detail sec. Burns H. Weston:
“Human Rights”, 6, 3, Human Rights Quarterly, 257, (1984).

26. Paramjit S.Jaswal and Nishtha Jaswal (1966), Op.cit., p.118.

27. Indian Socio-legal Journal, Vol. XXXI, 2005.

28. George Townsend Warner et.al. (1968): The New Ground Work of
British History: 136, London, Blackie Limited.

29. Indian Socio-Legal Journal, Vol.XXXI, 2004, p.3.

30. Encyclopaedia America, 814 (1999).

31. K.C.Wheare: Modern Constitutions, 10, (Bombay: Oxford

University, 1984).

32. The concept of Social contract was closely linked with the Ideas of
Natural Law from which is derived in authority and Sanction,
according to manly thinkers. Thus the nations of Individual Rights,
property and justice were believed to pre-exit logically the society
in which they were operative. For further details see: 25
Encyclopedia Americana, 126-27 (1999).

55
33. The American Revolution was a conflict between Britain an 13 of
its colonies on the Atlantic Coast of North America it is also called
the American War of Independence and War of Revolution, 25
Encyclopedia American, 126-27 (1999).

34. Jacob E.Salfra and James E. Goulka 20 Encyclopaedia Britannica,

656, Chicago: Encyclopaedia Britannica Inc, 1997.

35. Indian Socio-Legal Journal, Vol.XXXI, 2005, p.42.

36. Ibid.

37. 14, Encyclopaedia Americana, 552-e (1999).

38. 14 Encyclopedia Americana, 552-C (1999).

39. Dr. H.O.Agarwal, International Law and Human Rights, Central

Law Publications, Allahabad, 1987, p.644.

40. Ibid.

41. Economic and Social Council, Official Records: First Year, First
Session (1946), Annexure, p.148.

56