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Edit Comment Close Premium member Presentation Transcript “Human Rights the essence of Constitutional Governance” : “Human Rights the essence of Constitutional Governance” by Arvind Kumar Mudgal "Problems cannot be solved by the same level of thinking that created them." 12/25/2010 1 Introduction : Introduction A custodial death at Ajmer, taken up as a PIL led to an order of the kind which later reiterated in Nilabati Behara spelling out in detail the principle of constitutional tort and the public law remedy for enforcement of the right wherein sovereign immunity is no defence 12/25/2010 2 Slide 3: Pollution of river Bandi at Pali by discharge of trade effluents of the industry was restrained by judicial intervention. The discrimination of Dalits in entry into the Nathdwara Temple was checked by direction given to the state government to ensure enforcement of their right to equality. Gender justice was promoted in Jani Bai’s case to prevent gender discrimination resulting from a literal construction 12/25/2010 3 What are human rights? : What are human rights? Concept: It is not necessary to delve into the philosophic foundations of human rights except to remember that the function of philosophy is to deepen the understanding of truth. human rights law is deepened by appreciating the underlying moral justifications to it 12/25/2010 4 Slide 5: Understanding the nature of ‘right’ involved can help to appreciate the degree of protection available, the nature of derogation permissible and the priorities 12/25/2010 5 Slide 6: Incorporation of a Bill of Rights in some early national constitutions indicates that the concept is not of recent origin The Virginia Bill of Rights (1776) proclaimed that : 12/25/2010 6 Slide 7: “All men are by nature equally free and independent and have certain inherent rights, of which, when they enter a state of society they cannot by any compact deprive or divest their posterity: namely, the enjoyment of life and liberty, with the means of acquiring and possessing property and pursuing and obtaining happiness.” 12/25/2010 7 The American Declaration of Independence further said: : The American Declaration of Independence further said: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.” 12/25/2010 8 The French Declaration  said: : The French Declaration  said: “Men are born and remain free and equal in rights… the purpose of all political association is the conservation of the natural and inalienable rights of man: these rights are liberty, property, security and resistance to oppression.” 12/25/2010 9 Slide 10: The basic premise to remember, is that human rights are not the gift or bounty of any political sovereign through legislation or any edict, but are rights inherent in human existence. The purpose of any law dealing with these rights is merely to recognize them, to regulate their exercise and to provide for their enforcement, 12/25/2010 10 Meaning : Meaning ‘Human rights’ in practice have been redefined to encompass every aspect of dignified human existence which makes every human being an equal member of the human family 12/25/2010 11 Slide 12: Mahatma Gandhi said: “It has always been a mystery to me how men can feel themselves honoured by the humiliation of their fellow beings.” 12/25/2010 12 Slide 13: By the year 2015, all 189 United Nations member states have pledged to meet the goals: Eradicate extreme poverty and hunger Achieve universal primary education Promote gender equality and empower women Reduce child mortality Improve maternal health Combat HIV/AIDS, malaria and other diseases Ensure environmental sustainability Develop a global partnership for development 12/25/2010 13 Slide 14: Amartya Sen’s concept of ‘Development as Freedom’ is the recognition of the aim to secure the freedom, well-being and dignity of all people everywhere. The seven freedoms essential are: 12/25/2010 14 Slide 15: Freedom from discrimination – by gender, race, ethnicity, national origin or religion. - Freedom from want – to enjoy a decent standard of living. - Freedom to develop and realize one’s human potential. - Freedom from fear – of threats to personal security, from torture, arbitrary arrest and other violent acts. 12/25/2010 15 Slide 16: - Freedom from injustice and violations of the rule of law. - Freedom of thought and speech and to participate in decision-making and form associations. - Freedom for decent work – without exploitation. 12/25/2010 16 International instruments : International instruments Article 1 of the UN Charter states that promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion is one of the purposes of the United Nations 12/25/2010 17 Slide 18: Mahatma Gandhi in a letter to Julian Huxley in 1947 had emphasised the correlation of rights and duties and said: 12/25/2010 18 Slide 19: “I learned from my illiterate but wise mother that all rights to be deserved and preserved come from duty well done. Thus the very right to live accrues to us when we do the duty of citizenship of the world. From this one fundamental statement, perhaps it is easy enough to define duties of man and woman and correlate every right to some corresponding duty to be first performed……” 12/25/2010 19 Constitution of India : Constitution of India The core values of our constitutional philosophy indicated in the Preamble to the Constitution of India are ‘dignity of the individual’ and ‘unity and integrity of the nation’. 12/25/2010 20 Slide 21: The Constitution of India by amendment of Article 359 expressly makes non-derogable Article 20 (protection against ex post facto penal law, double jeopardy and testimonial compulsion) and Article 21 (protection of life and personal liberty) even during national emergency 12/25/2010 21 Slide 22: Article 32 is the constitutional remedy in the form of original jurisdiction of the Supreme Court of India for the enforcement of these Fundamental Rights. 12/25/2010 22 Protection of Human Rights Act, 1993 : Protection of Human Rights Act, 1993 The Protection of Human Rights Act, 1993 was enacted to provide for the constitution of a National Human Rights Commission 12/25/2010 23 Slide 24: ‘Human rights’ is defined in Section 2(1)(d) of the Act to mean the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. 12/25/2010 24 Slide 25: The interpretation of the fundamental rights, particularly, Article 14 (right to equality) and Article 21 (right to life) by the Supreme Court, inter alia, by reading the requirements of directive principles into them, together with the impact of the Vishaka judgment enabling provisions in the international instruments being read into these guarantees has considerably enlarged the meaning and scope of human rights in India. 12/25/2010 25 Linkage between Human Rights and Human Development : Linkage between Human Rights and Human Development The Human Development Index (HDI) is the new measure of development and it is said: “a nation’s ability to convert knowledge into wealth and social good through the process of innovation is going to determine its future”. 12/25/2010 26 Slide 27: The four essential components of human development paradigm indicated in the Human Development Reports are: Productivity – economic growth with people’s participation in income generation; Equity – people’s access to equal opportunities;. 12/25/2010 27 Slide 28: Sustainability – access to opportunities must be not only for the present generations but also for future generations to all forms of capital i.e. physical, human, environmental; and Empowerment – opportunity with developed capabilities of all people to participate in policy and decision making processes that shape and affect their lives. 12/25/2010 28 Slide 29: the essence of good governance is the respect for human rights of every individual so that the human resources are augmented by full development of each individual with his empowerment. Human rights and human development share a common vision and serve a common purpose. The dignity of the individual assured in the Constitution along with unity and integrity of the nation emphasizes respect for human rights as the essence of constitutional philosophy embodied in the Preamble to the Constitution. 12/25/2010 29 Linkage of HDI with Governance : Linkage of HDI with Governance The concept of humane governance takes this model forward by asserting that governance, if it is to promote human development, has to be not just pro-people or people-centred, it has to be owned by people.” 12/25/2010 30 Nature of Polity : Nature of Polity Directive principles vs Fundamental rights 12/25/2010 31 Constitutional Philosophy : Constitutional Philosophy Good governance promotes economic growth and development. There is need for economic growth model which empowers people and raises HDI level. Even though India has 1/6th of the world population, its GDP is 1.35% of the world GDP which needs to be raised to 4%. China has increased its GDP to 3.2%. The Foreign Direct Investment (FDI) inflow in India is US$ 3.5 billion against US$ 105 billion of China, of which 70% is from Non-Resident Chinese. 12/25/2010 32 Slide 33: seven principles recommended by the Nolan Committee in England, which are: 12/25/2010 33 Slide 34: Selflessness: Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends. 12/25/2010 34 Slide 35: Integrity: Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations, that might influence them in the performance of their official duties. 12/25/2010 35 Slide 36: Objectivity: In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit. 12/25/2010 36 Slide 37: Accountability: Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office. 12/25/2010 37 Slide 38: Openness: Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands. 12/25/2010 38 Slide 39: Honesty: Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest. 12/25/2010 39 Slide 40: Leadership: Holders of public office should promote and support these principles by leadership and example.” 12/25/2010 40 Democratic Ethos : Democratic Ethos The theme of the UNDP Human Development Report, is “Deepening Democracy in a Fragmented World . The report highlights the need for an inclusive democracy so that every section of society is involved in policy making and decision making. Free and Fair elections 12/25/2010 41 Role of Judiciary, Media & the people : Role of Judiciary, Media & the people Right to corruption-free governance is also a basic human right in a democratic polity. Corruption anywhere is detrimental to society but it is even more in a developing nation. Corruption has the adverse effect of denying to the people that which is legitimately due to them for their development 12/25/2010 42 Slide 43: It is through the judicial process of PIL that serious issues pertaining to probity in public life, rights of the marginalized and sustainable development, relating to environment, ecology, public accountability etc. have been dealt with by the Supreme Court and High Courts. 12/25/2010 43 Slide 44: Mahatma Gandhi administered this caution when he said: “There is a higher court than courts of justice and that is the court of conscience. It supercedes all other courts.” 12/25/2010 44 Slide 45: “A society so riven that the spirit of moderation is gone, no court can save, a society where that spirit flourishes, no court need save. In a society which evades its responsibility thrusting upon the courts the nurture of that spirit, that spirit in the end will perish. 12/25/2010 45 Slide 46: What is the spirit of moderation? It is the tempo which does not press a partisan advantage to its bitter end which can understand and will respect the other side, which feels a unity between all citizens – real and not factitious product of propaganda which recognises their common fate and their common aspirations in a word, which has faith in the sacredness of the individual. 12/25/2010 46 Slide 47: I often wonder if we do not rest our hopes too much upon constitutions, upon Laws and upon courts. Believe me, these are false hopes. Liberty lies in the hearts of men; when it dies there, no court can do much to help it.” 12/25/2010 47 Million $ Question ? : Million $ Question ? Do you have live hearts ? 12/25/2010 48 Slide 49: 12/25/2010 49 You do not have the permission to view this presentation. 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