An ‘ELSI Approach’ To Human Rights In India

This article takes a look at the evolution of Human Rights in India using the ‘ELSI Approach’ i.e. ethical, legal and social implications.

Introduction

The subject of human rights has always been a very crucial pillar for any rights-based government. This set of rights gives every person basic dignity and value, showcasing the requisite of a lawful and a civilized society. It is invaluable, in the sense, that it gives meaning to a person’s social and legal life. These are inalienable yet non-enforceable rights. In order to ensure their enforceability and make them claimable by people, the positive law has come into play.

Human rights are established from the time a person is born till his death, and it is the responsibility of law to ensure their protection. Generally, these rights are given to every individual of every society, however, it is not protected and utilized by all. Moreover, the violations of these rights occur due to the neglect on the part of the law-enforcing authorities.

It is important to know the importance and significance of these rights. Numerous authorities, national and international, work for the protection of human rights and towards its awareness. India, being a republican democracy, also has the duty towards the protection and implementation of such rights.

There are different kinds of rights provided in the society and by the State. There exists a hierarchy among human rights which helps us to understand their significance, enforceability, and linkage to each other, in the following manner:

What Are Rights?

Right is a claim. However, unless it is linked to law, the claim loses its significance. Hence, it is important to understand that the legal base of rights in general, and human rights in particular, gives strength to its ethical and moral components, which have been discussed later. Rights could be classified into various categories on different bases, such as:

1. On the basis of the source, rights may be grouped into three generations. These three generations include the rights acquired from the nature such as natural or human rights, rights that originate from the social system but are regulated by the politico-legal system such as civil and political rights, and rights that originate from the economic and cultural system incorporating the economic, social and cultural rights respectively.
2. Based on nature, rights may be classified into the constitutional, comprising all such rights that are expressly provided by the Constitution of a state; the political, incorporating all such rights that are either given or regulated by the political system, and the legal, that are granted by laws and statutes which include the procedural, proprietorial and other statutory rights.

Of all these categories, human rights occupy the most significant position and certainly are the most important. This is primarily because these are acquired by a person during his /her birth itself. Another reason for their significance is that natural rights are inalienable rights which are essential for the survival of a person.

The ELSI Approach

The Ethical, Legal and Social Implications (ELSI) is a three-dimensional approach to critically analyse any given issue. The value promotion and coherence of human rights can be done in a better manner through this approach. In fact, all issues must be looked at with this approach to get a three-dimensional view. Let’s understand each one of them one by one:

The Ethical Approach to Human Rights in India

The term ‘ethics’ originates from the Greek word ‘ethos’ meaning character, habits, customs, etc. Ethics is essentially a set of standards in the society to guide its behaviour, choices and actions.

In the above context, it is first required to have a brief idea of the prominent theories of ethics. Theories that are related to the values in life include the virtue theory, stoicism and hedonism. While the virtue theory focuses on excellence, practical wisdom and happiness, the stoic philosophy believes in self-control. It says that destructive emotions are the result of an error in judgment. On the other hand, the hedonistic approach deals with getting pleasure and reducing pain.

The second set of theories deal with deontology that is a duty-bound approach, utilitarianism which tries to bring maximum welfare to the maximum number of people and consequentialism i.e., the consequence of an action will decide whether it was right or wrong.

The idea behind giving this brief introduction to these theories is to understand that mostly it is the utilitarian approach that should be related to human rights. At the same time, it would be appropriate to utilize the duty-bound approach to protect rights. This is so because, in legal terms, rights and duties are correlatives and a duty-bound approach would always contribute to protecting the rights of a person.

When we look at the ethical approach to human rights, it is evident that the protection of such rights would help a person improve himself/herself in well-nigh all spheres. That is the reason why the United Nations says that in the absence of these rights the life of a human being becomes meaningless.

The Legal Approach to Human Rights

The international system of rights lays the foundation of the legal approach to human rights. This was launched after the adoption of the Universal Declaration of Human Rights (UDHR) on 10 December 1948. The Declaration was adopted by the General Assembly Resolution 217 and is considered the foundational document in the area of human rights. The most important aspect of the Declaration is that it commits the nations to recognise all humans as being born free and equal in dignity and rights regardless of his nationality, ethnicity, race and others.

The Declaration, however, is advisory in nature and gives philosophical guidelines to the member states. Hence, two documents were also adopted to implement the provisions of the Declaration. These are the International Covenant on Civil and Political Rights (ICCPR), 1966 (effective from 1976) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 (effective from 1976), creating a three-dimensional foundation of the international system of rights on which the rights-based approach to development is founded and is being practiced by the member states since then.

Natural Rights

The term “natural rights” signifies that it is acquired from nature and cannot, in any circumstances whatsoever, be separated from the inheritor. This category states that natural rights can be bifurcated into human rights and the other which may be called the non-human rights.

While human rights are given to the persons living in society, the term “non – human rights” contains subjects such as animal rights (living entities who are not persons). Over the years, awareness regarding animal protection has increased. The laws regarding the protection of rights of animals[1] help in preventing the infliction of unnecessary pain or suffering on animals. Further, it also lays down the manner and procedure relating to animals used for scientific experiments.

The legal approach to natural rights is directly and intimately linked to the principle of natural justice especially the rule against bias. This is so because nature does not discriminate. In other words, natural rights could be protected if the state practices the principle of no-discrimination. This concept, as far as India is concerned, emanates from the provisions contained in Article 14 of the Constitution which lays the foundation of the Rule of Law. Thus, the rule of law is the working principle of protecting natural rights.

Constitutional Rights

The human rights guaranteed by the law in a particular State is provided in the Constitution. Hence, the term Constitutional rights. The Constitution of India also signifies various types of natural rights under its ambit. The fundamental rights[2] take the priority followed by civil and political rights, and then economic, social and cultural rights. All these rights, generally, overlap each other as well.

Fundamental rights are covered from Articles 14 – 32, in Part III (Articles 12-35) which are based on the democratic principles of justice, liberty, equality and fraternity. The Constitution of India has adopted the approach of no-discrimination to protect human or natural rights, hence the Rights to Equality from Articles 14-18 occupy the most significant position. These rights are followed by the Rights to Freedom signifying the importance of liberty as one of the components of human rights in India, which have also been endorsed by the Protection of Human Rights Act, 1993 (amended in 2019).

Human rights that are present in the form of Civil Rights in the Constitution provide for the abolition of untouchability by forbidding its practice and any discrimination on its basis in Indian society[3]. More importantly, the practice of untouchability in Article 17 has been declared an offence, punishable under law. For this purpose, the Untouchability (Offences) Act, 1955 was passed, which was renamed as Protection of Civil Rights Act, 1955 in the year 1976 making it more comprehensive in nature and wider in extent and scope.

Another civil right is contained in Article 23(1) of the Constitution which prohibits traffic in human beings and begar and other similar forms of forced labour which may include child labour, bonded labour, contract labour etc. Again likewise, the practice of untouchability and prohibited acts in Article 23 (1) have also been declared offence punishable under law. Especially, human trafficking, which is the sale and purchase of human beings like goods. It also includes immoral trafficking in women and girls. Such acts are already punishable under the Indian Penal Code (IPC).[4]

Moreover, it is also regulated by the Suppression of Immoral Traffic in Women and Girls (SITA), 1956. However, under Clause (2) of Article 23, the state is empowered to take compulsory service for public purposes and against that no discrimination is done on its part.[5] Through these clauses, the Constitution of India ensures the protection of civil rights in the State.

Human rights which are present in the form of Political Rights guarantee adult suffrage for the purpose of elections to the House of the People and to the Legislative Assemblies of the States.[6] It ensures that if a person is a citizen of India, sane, above 18 years of age[7], and not convicted of any crime or any corrupt or illegal activity, then that person is a voter regardless of any discrimination[8].

Economic Rights in the Constitution of India include the Right to Property[9], which ensures that no person shall be deprived of his property without the authority of law. This means that private property may be acquired only by the law made by the legislature and not by any executive order or ordinance. Any illegal eviction made even by the Government is not justified and permissible.[10] Further, in case, if it is necessary for the State to acquire a particular land from a private person then it should be done with due care and caution otherwise it leads to the violation of this right.[11]

Other provisions relating to the Right to Property include Freedom of Trade and Commerce[12], providing free trade, commerce and intercourse throughout the territory of India.[13] The concept of economic justice can be considered as well in this category which is to be provided by the State. These include policy-making by the State on the ownership and control of the material resources of the community which is to be distributed to subserve the common good;[14] and, that the operation of the economic system does not result in the concentration of wealth. Thus, economic justice is founded on the Doctrine of Distributive Justice which emanates from reading Articles 38, 39 and 46 together.

Statutory Rights

In addition to Constitutional rights, India also provides for human and fundamental rights through statutes. Moreover, it also provides for certain rights as recognised by the Judiciary. For instance, the Right to Information Act 2005 gives the Right to Information as a fundamental right deriving strength from Article 19(1)(a) which enshrines the Right to Freedom of Speech and Expression. In fact, this right is founded on the Right to Know, which ultimately inspired the lawmakers to make the Right to Information as a Fundamental Right.

Similarly, the Right to Food has been granted through the Right to Food Act, 2013. This was recognised for the first time by the judiciary in the Right to Food Case[15] in 2001. Similarly, the Right to Livelihood has also been declared a fundamental right in 1996.[16] The Court has also recognised Right to Sleep[17] and Right to Privacy[18] as fundamental rights under the Constitution[19].

Social Approach To Human Rights in India

The Social approach to Human Rights demands a concise and precise understanding of the Socialization of Law- a concept which provides for the embodiment of law and legal principles as a moral duty by a person in order to understand the code of conduct to be performed in the society and to understand that any violation in this regard shall be considered as damaging to the person and the society, in general.[20] Thus, this theoretical concept places human rights on the platform of social ethics and guides the behaviour and the conduct of the people giving them the inspiration to be duty-bound.

Social ethics, in fact, is a component of applied ethics and can be seen in wide-ranging areas making the principle of utilitarianism truly practical. Therefore, when human rights are viewed from the prism of socialization of law, it not only protects such rights but also strikes a balance between the individual and social interests and prevents all possible conflicts.

The Constitution of India under Article 13(3)(a) while defining the term ‘law’ says that if a custom or usage is found to be inconsistent with the rights, it shall be declared void. It is one of the striking examples of the socialization of law as perceived by the framers of the Constitution. Socialization of law prompts us to have a perusal of some of the social and cultural rights as enshrined in the Constitution of India which are also the essential ingredients of human rights.

Firstly, the Right to Education in Article 21-A[21] is such a social-political right that lays the foundation for what we may call ‘starting right’ that is, from the very beginning. This also provides a sound footing to the process of human resource development and thereby, human capital formation in India, as education is one of the pillars of this process.

Secondly, the Rights to Religious Freedom from Articles 25-28 are examples of cultural rights which are also founded on the principle of equality. These rights enshrine the principle of religious tolerance or what Barry Kosmin of the US-based Institute for the Study of Secularism in Society and Culture (ISSSC) calls ‘soft secularism’. Thus, human rights are also to be considered from the social perspective as one of the powerful tools to establish, maintain and sustain the secular character of India. This may also be construed as the ethics behind social and cultural rights, having secularism as their essence.

Furthermore, cultural and educational rights have also been given due importance, especially to protect the interests of the minorities in India.

As a matter of fact, the human rights of the Minorities are generally considered vulnerable due to possible arbitrary actions by the state or by the practice of discriminatory or prejudicial behaviour of a few sections of the society. Considering this, the framers of the Constitution in Articles 29-30 have not only protected such rights, but they have also given impetus to the protection of the language, script or culture of such groups. Thus, it may be said that these constitutional provisions make India religiously, culturally, ethnically and linguistically secular.

Conclusion

The foregoing approaches constituting the ‘ELSI’ make it evident that rights, be it civil and political, economic, social, cultural and even natural or human rights shall not and cannot be viewed unilaterally. Rather, a three-dimensional approach is always needed to get their thorough understanding. The most significant aspect of the concept of ELSI is that it sensitizes the population, both persons and citizens towards the duties so that the rights of others are respected, protected and fulfilled, as guided by the ICCPR, 1966. It means that human rights of all categories of persons shall be given due importance both by the state and society.

On the other hand, none of the steps, whatsoever be taken to damage their very character or uproot their essence. The state shall take all-out efforts to create such an enabling environment in which every person is able to exercise his/her rights and enjoy the natural freedom as acquired by them from nature during their lifetime i.e., from birth till death.

Moreover, the onus is not only on the state, but the citizens are also equally responsible to ensure the protection and fulfilment of human rights by applying the duty-bound approach. Especially, in a country like India, which essentially practices democratic socialism, citizens should be sensitive enough to not only protect democratic values but also contribute to the best of their ability and competence to the state in the distribution of resources equitably. Only then human rights can be respected, protected and fulfilled.

Conclusively, both the citizens and the state shall join hands to ensure the blending of the rights-based and the duty-bound approaches.

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[1] The Prevention of Cruelty to Animals Act, 1960

[2] Guaranteed under Part – III of the Indian Constitution.

[3] Article 17.

[4] Sections 370, 370 A, 371, 372, 373, and 374.

[5] Compulsory services include social services and services for national security, while public purposes include all such purposes as enshrined in Part IV of the Constitution.

[6] Article 326.

[7] Provided by the Constitution (61^st Amendment) Act, 1988.

[8] As per Article 15.

[9] Article 300 A.

[10] Meghmala v. Reddy, (2010) 8 SCC 383.

[11] Darshan Lal Nagpal v. Govt. (NCT of Delhi), (2012) 2 SCC 327.

[12] Articles 301 – 305.

[13] The term “free” does not mean free from taxation, held in Jindal Stainless Ltd. v. State of Haryana, (2017) 12 SCC 1.

[14] Article 39 (b), (c).

[15] People’s Union for Civil Liberties v. Union of India PIL Petition (Civil) No. 196/2001.

[16] Air India Statutory Corporation v. United Labour Union & Others, 1996.

[17] In Re Ramlila Maidan Incident, 2012.

[18] Justice Puttaswamy (Retd.) and Anr. v. Union of India, 2017.

[19] Article 21.

[20] This theoretical connotation is awaiting patent/copyright in favour of the Author.

[21] Inserted by the Constitution (86^th Amendment) Act, 2002.

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1. Human Rights; Notes, Case Laws and Study Material