87

Chapter 3

Historical study of emergence of Human Rights in

the United nations and in Ancient India

‘Human Rights provide a foundation

upon which Human Development and

Human Security can be pursued.’

- Fourth Ministerial meeting of the Human Security

Network in Santiago De Chile, July 2002.

88

Chapter 3

Historical study of emergence of Human Rights in

the United nations and in Ancient India

The purpose of this chapter is to provide a brief history of the

Human Rights development over the early years and then ultimately

leading up to more contemporary developments like birth of the

United Nations and the enactment of Universal Declaration of Human

Rights (Hereafter will be referred to as UDHR in this work). The

chapter is divided into three sections.

The first section develops upon the role played by United

Nations in giving sanction to certain rights as Human Rights and also

the Universal declaration of Human Rights.

The second section has an explanation of certain theories of

human Rights.

The third section has relevant provisions which existed as values

in ancient India.

SECTION-I

3.1:1 - United Nation’s Role in Identification of Human Rights

The United Nations was formed in 1946 with intent of

establishing an International Commitment of protecting Human

Rights on Global scale. On December 10, 1948 came the most

important Universal Declaration of Human Rights. This declaration

came about largely in response to governmental abuses of power and

89

atrocities committed during World War II. It was considered ‘A

Significant Milestone’ in protecting Human Rights1.

This declaration provided a set of standards, a model for countries

to follow. It served as a precedent for individual countries to establish

their own stand on Human Rights. The United Nations declaration

states that the inherent dignity and the equal and inalienable rights of

all the people are the foundation of Freedom, Justice and Peace in the

world. It repudiates barbarous acts which have outraged the

conscience of mankind and encourages the advent of the world in

which human beings shall enjoy freedom of speech and belief and

freedom from fear. Further, the declaration proclaims that Human

Rights should be protected by rule of Law, whilst promoting the

development of friendly relations between Nations.

The UN Declaration is said to serve as an affirmation of faith in

fundamental Human Rights, in the dignity and worth of human

person and in the equal rights of Men and Women. This has helped

in the promotion of social progress and better standards of life. One

of the United Nations mandates is to promote the social progress and

universal respect for and observance of Human Rights and

fundamental freedoms. The enclosed preamble of the declaration

expands upon its rationale.

The researcher emphasizes on giving a brief historical overview

of Human Rights in relation to natural laws and natural rights. It was

in the 18th, 19

th and the 20

th centuries, the idea of Human Rights

consciousness originated. The early notions of Human Rights were

1- UDHR (Section 2) 1

st Documentary use of expression ‘Human Rights’.

90

founded upon the recognition of basic needs. Time evolved and the

concept of natural law became inextricably linked to that of natural

rights. Thinkers and scholars all over the world kept on pondering on

the basic issue of requirement of these rights. This resulted in

precision of some major thoughts which led to important

development of shaping the concept of Human Rights. It is this

concept which is accepted in the western world today.

The development centric world which ran behind fulfillment of

their goals leaped forward while crushing the basic deserving needs

and rights of others. It was these people whose rights needed to be

protected, for which emerged the concept of Human Rights. An

outline of the events in the history of Human Rights is shown below.

It is to be noted that, the scale used for listing is not consistent:

3.1:2-Historical Outline of Human Rights

Year 1215 King of England agreed to Magna Karta

Year

1675-1774

Habeas Corpus Act passed, Magna Carta

official law

Year

1775-1824

French Declaration of the Rights of Man

and the Citizen, Declaration of

Independence

Year 1824-1850 Slavery abolished in British Empire

Year 1850-

1900

The United States abolished slavery by

adding the 13th Amendment.

3.1:3 - Ancient Times and Natural Rights

Only human beings distinguish themselves from other animals in

the world. This is because of their ability to think and reasoning

power. It is human beings who have natural tendency to question

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what they were taught and where they can apply it. This resulted in

development of more sophisticated methods of getting on in the

world. The major in questions world was the question of morality and

ethics. In the wake of modernization the concept of ‘human dignity’

remained unanswered.

It has been argued that the search for human dignity has been the

root of emergence of Human Rights. The advanced thought process

of human beings virtually resulted in quick realization of the fact that

they were different and unique to other species. Initially they

distinguished themselves from other animals; they felt the need of

protecting this uniqueness. Human beings recognized basic rights and

this recognisation paved the way towards development of rights of

human beings which presently is termed as HUMAN RIGHTS. When

the natural rights were violated, thinkers construed it as contravening

the natural laws. Thus it can be said that the concept of Human Rights

actually emerged from natural rights of people.

3.1:4 - Natural Law & Natural Rights

Natural rights are rooted in the moral and rational nature of

human and their capacity to reason. The denial of these rights is

regarded as foundation toward identification of natural rights. The

basic notion of Human Rights and civil liberty has grown out of the

concept of natural rights which in turn became synonymous with

natural law. Henry Campbell Black, a noted authority in definitions of

the terms and phrases of American & English jurisprudence defines

natural law as ‘A condition of society in which men universally

where governed solely by rational and consistent obedience to the

need, impulses and promptings of their true nature, such nature being

92

as yet undefined by dishonesty, false hood or indulgence of the baser

passions2’. The notion of natural law remains today as one of the two

major schools of jurisprudence the other being positives which are

known as the state made laws.

They found expression in the concept of natural law and became

the symbol of people’s movement against absolute despotism, and the

corner stone of constitutional democracy everywhere. The Magna

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

the French Declarations on fie Rights of Man (1789), the Bolschevik

Revolutions in Russia could be cited as important landmarks in the

development it 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 for

more social justice and economic security. The Bolschevik

Revolution in Russia (1917) went a step further. It emphasized that

economic and social rights were as important as the civil and political

rights.

In Europe and North America, the concept of natural right was

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

2 - Black’s Law Dictionary 5

th Edition 1979 P.925

93

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, sometime 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

people of the two groups generate wider awareness and demand for

human rights among the people 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.’3

It was Black, who stated that natural rights are derived from

natural laws and are not based on positive schools of thoughts. He has

defined natural rights as ‘Those which grow out of the nature of man

and depend upon his personality and are distinguished from those

which are created by positive laws enacted by a duly constituted

government to create an orderly civilized society’4. This, in other

words meant that the positivistic legal mechanisms, which are

unnatural themselves have been created to uphold and protect natural

rights which are grounded in natural law.

3- Swaraj means complete self government and independence.

4- Black’s Law Dictionary 1979 P.925

94

A learned theorist, Justice David Hume believed that although the

rules which govern humanity may be artificial in the fact that they are

fabricated, or manmade, he contended that the principles behind them

are in themselves natural. ‘Though the rule of justice is artificial, they

are not arbitrary. Nor is the expression improper to call them laws of

nature; if by ‘natural’ we understand what is common to any species,

or even if we confined it to mean what is inseparable from the

species5’.

Cicero stated in reference to natural law that it was unchanging

and over lasting and one eternal and unchangeable law which was

valid for all nations and for all times. Ancient Greek and Roman

philosophers such as Plato, Socrates and Aristotle were scholars of

natural law. ‘The philosophers of Ancient Greece from where the idea

of natural law originated, considered that there was a kind of perfect

justice given to men by nature and that men’s laws should confirm to

these, as closely as possible6’.

The researcher submits that the present day’s concept of equality

rights, for example, has its relevance to Aristotelian arguments

relating to Greek city state. These concepts percolated into Christian

Europe where it was purported that all people were considered equal

in the eyes of god.

3.1:5 - Recognition of Human Rights in Middle Age:

In the Middle Ages (about 600-1500 A.D.), theologians

developed on the concept of rights and moral behavior with respect to

5- David Hume, A Treatise of Human Nature, London 1911, Vol. II P.190

6- Oxford Dictionary of Law (3

rd Edition P.261

95

law. St. Thomas Aquinas, inspired by Aristotle, emphasized that

natural law was a superior law. It was Aquinas who developed a

natural law theory based upon Christian theology. Especially in his

work ‘Summa Theologies’ St. Thomas Aquinas stated that an unjust

and unreasonable law which is repugnant to the law of nature is not

law, but a perversion of law. The foundation of United Nations is

based on the need to preserve global peace and to guarantee Human

Rights worldwide. It is indeed relevant to understand ideologies and

genetics of Human Rights, Parenthetically and historically, but briefly

before examining the basic anatomy of United Nations.

The modern world expresses the central importance to Human

Rights. The concept of Human Rights is very much theory laden,

implying a general view of man and society, of individuality, politics

and the ends of government. This concept is profoundly historical and

expresses the aspirations of seeking remedy to ills of particular places

and times. Thus it is an ideal with a history, an idea that changes in

both content and social function. Human Rights in the modern sense

and individualistic ideology seems largely of western vintage due to

the works of thinkers and philosophers from the west.

While one probes into the basis of the same, it is observed that

Human Rights as an issue has an ancient, illustrious pedigree. The

English Bill of Rights, the American Declaration of Independence,

and the French Declaration of the Rights of Man and Citizen,

sprouted from the concept of universal Human Rights. It must be

stated that although not in explicit covenants, the traditional societies

of Asia and other continents, did reflect ideas of freedom and other

rights as part of those civilizations. In India what we call as Dharma

has been articulated and enshrined as Human Rights. It is the western

96

idea of quest for people’s rights, which has given a sharper edge to

what we now call as Human Rights.

3.1:6 - The Reformation:

The reformations brought about vital changes in the Roman

church. It was these reforms, which created the requirement for

protecting the freedom of religion. Such reforms led to balkanization

of thinking and opinions regarding the law and religion. In the 17th

century these beliefs followed certain variations and continued into

18th century. It was after the reformation that many philosophers like

Hobbes, Locke, Spinoza, Montesquieu, Grotius and Rousseau

emphasized that it was the natural law which is required to be uphold

and there should be less reliance on theological content in the natural

law itself.

The English history witnessed a radical change in 1215. It marks

the watershed in the recognition of rights of individuals. Any study on

evolution of rights would be incomplete without understanding the

significance of MAGNACARTA Petition of Rights and English Bill

of Rights.

There was a glorious revolution in England in the year 1688,

wherein people gained the Right to Limited Control of Governance.

This revolution was followed by passing of the Bill of Rights in 1689.

It was this bill which highlighted the respective powers of Monarchy

and Parliament. The bill provided limited guarantees against arbitrary

legal penalties.

While studying the development of Human Rights one observes

that it was in the latter part of the 17th century and throughout the 18

th

century, the recognition of rights of individuals increased. Any kind

97

of unjust treatment to the citizens by tyrannical governance was

highly criticized. Social theorists such as Hobbes, Locke, and

Rousseau thought of oppression and subservience. It was at this time

that the Social Contract Theory of government gained momentum.

There was a sharp contrast observed with the past in social

institutions. People began to change and individuals felt the need for

equality and fairness. This resulted in emergence of the notion of

public representation as people began demanding rights and

freedoms.

Theorists all over the world questioned the notion of governance

and the legitimate grounds pertaining there too. Locke and Rousseau

believed that the government which did not respect natural rights

should legitimately be opposed through civil disobedience and

rebellion. Specifically Locke contended:

“If man in the state of nature be so free as has been said; If he

be absolute Lord of his own person and possessions, equal to the

greats and subject to nobody, why will he part with his freedom?

Why will he give up his empire and subject himself to the dominion

and control of any other power? To which is obvious to answer, that

though in the state of nature he hatches a right, yet the enjoyment

of it is very uncertain and constantly exposed to the invasion of

others. For all being kind as much as he, every man is equal and

the greater part does not observe equity and justice, the enjoyment

of the property he has in his state is very unsafe, very unsecured.

This makes him willing to quit a condition which however free is

full of fears and continual dangers; and it is not without reason that

he seeks out and is willing to join in society with others who are

98

already united or have a mind to unite for the mutual preservation

of their lives, liberties and estates.7

It was few decades after the English revolution, Rousseau coined

the following phrase:

“Man is born free and everywhere he is in chains.”

It was at this time Montesquieu created his great philosophical

work, ‘L’esprit des Lois’ in which he further discussed the issues

relating to principles of rights and justice. It was from these and other

similar works of that time that two major revolutionary movements

emerged. These movements were perhaps the greatest social

revolutions ever. They witnessed the plight of rights and equality

namely the American and the French Revolution.8

3.1:7-The American Declaration of Independence:

At the end of the 17th century it was Locke and in the 18

th century

Rousseau stated that equality was derived from the state of nature. At

that juncture Thomas Jefferson combined the spirit of these historical

findings into the justification for the American Declaration of

Independence, 1776.9 Janis and Kay state that “The intellectual

influences of Locke, Montesquieu and Rousseau on Thomas

Jefferson’s documents were plain to see.”10

On July 4, 1776 came the historic American Declaration of

Independence, specifically stating that, ‘We hold these truths to be

7 -J. Locke, Two Treatises of Government P. 395, George Prior Publishers London, 1980

8- T. Paine, The Rights of Man, Dent: London, 1993.

9- Canadian Charter of Rights and Freedom Commentary, Toronto (1982)

10 -Janice (1990) at P. 2, European Human Rights Laws Hartford University

99

self evident that, all men are created equal, that they are endowed by

their creator with certain unalienable rights, that these are life, liberty

and the pursuit of happiness. That to secure these rights, government

is instituted among men deriving their just powers from the consent

of the governed; that whenever any form of government becomes

destructive of these ends, it is the right of the people to alter or

abolish it and institute new government, laying its foundation on such

principles and organizing its powers in such form, as them shall seem

most likely to effect their safety and happiness.’

The events in America served as an inspiration for the French and

then came the French Declaration.

3.1:8 - The French Declaration of the Rights of Man and

Citizen:

In the same revolutionary era, the French made a similar

declaration entitled, ‘The French Declaration of Rights of Man and

Citizen, 1789’ which states that

“In the presence and under the auspices of the supreme being, the

following rights of man and citizen; men are born and remain free and

equal in respect of rights. The purpose of civil associations is the

preservation of the natural and imprescriptable rights of man. These

rights are liberty, property and resistance to oppression”.

3.1:9-The United States Bill of Rights:

In September 1789, a few weeks after the signing of French

Declaration, at the first congress of United States of America, the first

8 amendments of what now constitutes the United States Bill of

Rights were presented. The American Revolution followed by signing

100

of the bill of rights made an impact on people and the government of

Europe and successfully instilled in them the feeling of courage and

faith. The French revolution instrumental in social reform to this day

prevails in France and in other countries throughout the world. The

impact of French and American revolutions has been far reaching and

is even felt today.

Reverberations of such powerful relevant documents of equality

and Human Rights stand as precedents to past and present movements

for democracy. In short, these revolutions advanced the notion of

liberty. This is a manifestation of the belief in power than the people

have agreed to delegate it.11

These revolutions further created a hope in the minds of people

that recognition of Human Rights is indeed possible. It is submitted

that in order to achieve this end, it takes both the will of the people

and the support of governing regimes that is a marriage between

popular and political support as in the French and American

examples. The French Declaration and United States Bill of Rights

were fundamental to establish democracy, recognizing the dignity of

the person and the worth of the individual consistent with basic

Human Rights principles, whereby certain civil liberties are granted.

It is in this spirit that monarchies and republics have come to limit the

authority of their leaders. But issues concerning civil liberties and

Human Rights only gained considerable worldwide attention in the

wake of World War II.

11- Trudeau P. 10, Canadian charter of Human Rights

101

1. Freedom of Life

2. Freedom of Religion

3. Freedom from Want

4. Freedom from Fear

This was not inculcated into the minds of people until the World

War II. At that point there was a need to have both political as well as

a popular support to have a stronger monitoring and enforcement of

International Standards of Human Rights. From such dialogues, came

the establishment of the United Nations (which later on grew as

League of Nations) and the enactment of Universal Declaration of

Human Rights.12

3.1:10-Human Rights and the United Nation:

The idea of Human Rights in western history and the way it was

perceived in ancient India are more or less similar. The term Human

Rights relatively sounds contemporary and its usage gives an idea of

right conscious modernism but the concept is not new. Since years

theologians, philosophers and social thinkers have had a discussion

on the ideas of basic rights of human beings for centuries. It is no way

wrong to say that Human Rights are as old as the civilization itself.

Historical perspective is important in gaining better understanding of

Human Rights and civil liberties. A glance at history attracts the

researcher to have a walk through the walls of history and identify

evolution of Human Rights and its protections under Domestic and

International Laws.

12- December 10, 1948, UN adopted Universal Declaration of Human Rights

102

The United Nations was formed in 1946 with intent of

establishing an International Commitment to protecting Human

Rights on Global scale. On December 10, 1948 came the most

important Universal Declaration of Human Rights. This declaration

came about largely in response to governmental abuses of power and

atrocities committed during World War II. It was considered ‘A

Significant Milestone’ in protecting Human Rights.13

This declaration provided a set of standards, a model for countries

to follow. It served as a precedent for individual countries to establish

their own stand on Human Rights .The United Nations declaration

states that the inherent dignity and the equal and inalienable rights of

all the people are the foundation of Freedom Justice and Peace in the

world. It repudiates barbarous acts which have outraged the

conscience of mankind and encourages the advent of the world in

which human beings shall enjoy freedom of speech and belief and

freedom from fear. Further, the declaration proclaims that Human

Rights should be protected by rule of Law, whilst promoting the

development of friendly relations between Nations.

The UN Declaration is said to serve as an affirmation of faith in

fundamental Human Rights, in the dignity and worth of human

person and in the equal rights of Men and Women. This has helped

in the promotion of social progress and better standards of life. One

of the United Nations mandates is to promote the social progress and

universal respect for and observance of Human Rights and

13- UDHR (Sec 2) First Documentary use of the expression Human Rights, See Dr D. D.

Basu in constitutional Law of India

103

fundamental freedoms. The enclosed preamble of the declaration

expands upon its rationale.

3.1:11-The Universal Declaration of Human Rights

The Universal declaration of Human Rights14

becomes the

cornerstone of international as well as domestic Human Rights law.

The United Nations has adapted the holistic approach that “All human

beings are born free and equal in dignity and rights.” Thus it actually

the quest of human mind to search a secured existence and have a life

full of dignity.

"All human beings are born free and equal in dignity and

rights" is the core of the human rights. Everyone is entitled to human

rights or freedoms set forth in our Constitution and also in the

Declaration of Human Rights, without discrimination of any kind.

To mention some of these rights and freedoms, they are:

♦ Everyone has right to life, liberty and security of person.

♦ No one shall be subjected to torture or to cruel and inhuman or

degrading treatment or punishment nor any one shall be

subjected to arbitrary arrest or detention.

♦ Everyone has the rights to standard of living adequately, for

health and well being of himself and of his family including

food, clothing, housing, medical care, education and necessary

social services.

♦ Right to security in the event of unemployment, sickness,

disability, widowhood, old age or other lack of livelihood in

14- UDHR Declared By the UN on December 10, 1948

104

circumstances beyond his control.

♦ Motherhood and childhood are entitled to special care and

assistance, whether they are born in or out of wedlock, shall

enjoy the same social protection.

♦ Everyone has right to education and good development of one's

personality and to strengthen the respect for human rights and

fundamental freedoms.

♦ Everyone has duty to the community, in which alone the free

and full development of his personality is possible.

But these rights and freedoms of every one are subject to such

limitations as are determined by law for purpose of securing due

recognition and respect for rights and freedoms for others and of

meeting the just requirement of morality, public order and the general

welfare in a democratic society.

The UDHR propounds the basic idea of identifying human

dignity and providing for a legal framework for other nations to

legislate on the basis of the underlying principles of UDHR, which is

evident from the wording of rationale of the UDHR. It is very

specifically to be understood from the following:

Whereas recognition of the inherent dignity and of the equal and

inalienable rights of all members of the Human family is the

foundation of freedom, justice and peace in the world.

Whereas disregard and contempt for Human Rights have resulted

in barbarous acts which have outraged the conscience of mankind and

the advent of a world in which human beings shall enjoy freedom of

speech and belief and freedom from fear and what has been

proclaimed as the highest aspiration of the common people.

105

Whereas it is essential if man is not compelled to have recourse,

as a last resort, to be a rebellion against tyranny and oppression that

human rights should be protected by the rule of law.

Whereas it is essential to promote the development of friendly

relations between nations.

Whereas the peoples of the United Nations have in the Charter

reaffirmed their faith in the fundamental human rights, In the dignity

and the worth of the human person and in the equal rights of man and

woman and have determined to promote the social progress and better

standards of life in larger freedom.

Whereas member states have pledged themselves to achieve, in

cooperation with the United Nations, the promotion of Universal

respect and observance of human rights and fundamental freedoms.

Whereas a common understanding of these rights and freedom is

of the greatest importance for the full realization of this pledge.

SECTION-II

3.2:1-Theories of Human Rights:

It is very important to have a reference of various theories on

evolution of Human Rights. They have influenced the study of human

rights and have paved the way towards articulation of Human Rights.

The study of human rights occupies a very important place, in the

discussion of politics and political theory. Internationally human

rights occupy a very high place among the theorists. The most

outstanding theories of human rights are given below:

106

♦ The Theory of Natural rights.

♦ The Legal theory of Rights.

♦ The Social Welfare theory of Rights.

♦ The Idealist theory of Rights.

♦ The Historical theory of Rights.

3.2:2- The Theory of Natural Rights:

The theory was advocated by the authors of the Social Contract

Theory like Hobbes, Locke and Rousseau. They say that man had

natural rights even before the society and state were born. According

to Locke,15

Nature has made man free and rational, and has given him rights

like right to life and liberty. Herbert Spencer, who also thinks along

the same lines, believes that the process of evolution shows that all

men have the fundamental right to equal freedom, which enables

them to do what they wish. Such a right comes from nature, and not

from any human agency like State. The theory was in the limelight in

the 17th

and 18th centuries; its basis was essentially non-juristic.

Rights are natural. Every human being enjoys them and finds them

indispensable for his very existence.

The theory goes back to ancient Greece and Rome. The stoic

philosophers of Greece spoke about natural rights and their writings

influenced Rome. The Romans believed that all human beings were

15- Historical Foundation of Human Rights and Subsequent Developments, in Vusak, K,

(1982), International Dimensions of Human Rights, Volume-.I )

107

subject to certain common principles of life as created by nature, and

hence, these principles, which Roman thinkers called natural law,

were applicable to people living within the Roman Empire. This

natural law bound people of all races together in Rome.

The concept of natural law,16

suffered a set-back in the middle

ages, as the Church thinkers spoke on terms of law of God and of the

Church. The English political thinker John Locke in the 17th century

took up the concept again and made it important. While dealing with

his social contract, Locke spoke of natural rights. The declarations

made by the American and the French revolutionaries echoed the

ideas of Locke.

The Americans proclaimed that all men are by nature equally

free and independent and have certain inherent rights. Similarly, the

French National Assembly breathed the same spirit pertaining to

natural rights as given by the great American leaders like Jefferson.

The French Assembly spoke in terms of the natural, inalienable and

sacred rights of man. Rousseau also spoke of natural rights. He said

that though man surrendered some of his natural rights, he continued

to enjoy the remaining rights.

In England, Thomas Paine spoke of the principle of natural

rights without connecting it with the Social Contract Theory.

According to Paine, the rights to liberty, property, security and

resistance to oppression are based on natural rights.

It is proper to interpret that natural rights stand for those rights

which work for man's good and create opportunities for his

16- Salmond on Jurisprudence P.27-28

108

development. As far as theory says that natural rights are necessary

for man's ethical and moral development, it is very valuable.

3.2:3 - The Legal Theory of Rights:

It is this theory of Rights which develops on the actual source

of Rights and according to the Legal Theory of Rights; the state is the

source of rights. Rights have not been gifted by nature, and are not in

man's nature itself. They are created by the State whose membership

brings rights to man. So, rights can be regarded as artificial creations,

Rights merge from the state, and are maintained by the State. The

state makes laws, and laws create rights. The individual owes every

right to the State, and he has no right against the State. Thus, the legal

theory is against the theory of natural rights.

According to the theory, Rights spring from the State. The

State defines what rights are and what not rights are and the state

provides the list of basic or fundamental rights. The Stale makes laws

to uphold rights, and also sets up a machinery to enforce law and

uphold rights. The State can change rights and their contents as it can

change laws.

Pluralisms strongly criticized the theory. They give great

importance to various associations, and say that the membership of

the stale alone does not confer rights on the individual. According to

them, the individual owes much to the various social groups for

enjoying different rights, and it is incorrect to regard the state alone as

the source of all rights.

109

3.2:4 - The Socialist Welfare Theory of Rights :

This theory develops on how rights are derived by men being

a part and parcel of society. According to the Social Welfare theory,

rights are created by society, and are aimed at realizing social welfare.

Conditions which make the individual and society happy are their

rights. These should have precedence over customs, usages,

traditions, and natural rights. This theory looks at rights solely

through the angle of social welfare.17

Human beings are the constituting factor of a society and

hence people derive these rights by being an integral part of the

society. Thus Rights bestowed on citizens ultimately result in a

welfare state. The theory has the great merit of upholding the

principle of social welfare. Utilities that supported the theory made a

practical approach to rights, and advocate legislation in different

fields to uphold rights.

3.2:5- The idealist Theory of Rights :

The Idealist or Personality Theory Rights states that human being

needs congenial, external conditions for the development of his

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

powers necessary to the fulfillment of man's vocation as a moral

being. Krause, Henrici 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 should be in harmony with those of others. Rights are to be

17- Prakash Sinha, ‘Human Rights Philosophically’ IJIL Vol 18 (1987) P.153.

110

linked with the individual good and the common good of all. The

theory links with moral development of man, and looks at rights

essentially from the ethical point of view. The opportunities or 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 exprct the individual to surrender himself to the state.

3.2:6- The Historical theory of Rights:

As per the Historical Theory of Rights, rights arc the result of

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

and usages. But in the modern state, rights are recognized 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 forms became the basis of law, which gave rights

to the individuals in actual written form. To the primitive man custom

was unwritten law.

A custom which people go on following generation after

generation becomes a customary right, and this provides a basis of

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. Law creates certain rights, and they do not have history

as a source of their origin.

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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.

3.2:7 - The Contract Theory:

It would be a grave mistake to attempt to trace back the

origins of human rights to social systems which were not familiar

with its basic condition governing the existence of human rights,

namely, the idea of freedom and equality. It is not possible to project

a new institution upon social relations which have been superseded,

and to which it does not correspond. In order for human rights to

appear as the general rule, in society and for them to be fell both as a

need and as a reality. It was indispensable for there to be basic social

changes in the relations of production (more precisely, in the relations

of ownership) within the previous social system of feudalism.

Everyone's rights had to be recognized as being, in principle, equal

with regard to ownership and the acquisition and enjoyment of

property.

The right of property had previously been regarded as a

natural right or in other words as a fundamental and inalienable right

of man, first by Aquinas, then later more explicitly by Grotius, who

set this right outside the universe of natural rights. Grotius had

asserted that the right to property had been 'introduced by human will'

and so that we should not be offended. He invited us to understand

and to consider our property as corresponding to natural law.

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Two major ideas emerged from this line of reasoning, but

both subsequently splintered off from this origin were: the ideas of

freedom and equality. The idea of freedom was that of free ownership

of the free possession of property and to this was later added the idea

of free enterprise, with all other corollaries of freedom.

As for the idea of equality, it too owes its origin, to the

appearance of a new type of ownership. It signified equality for all as

regards the right to acquire property. But considering more closely its

true origin turns out to be connected with the political ideas of the

state in the modern sense of the term. It also concerned equality in

respect of participation in political life. Consequently, equality was a

political idea and a political right, whereas freedom possessed an

economic character, at least so far as its origins were concerned.

According to modern political philosophy, every individual

should possess equal rights in the life. Subsequently, the notion of

equality was made to apply to the whole of mankind, to all of man's

abilities and all of his rights. However, an important difference was to

remain between freedom and equality bound up with ownership.

Freedom was considered to be a right which the State should not

restrict because it was an absolute right. This was not true of equality

as it was regarded as a political right and, as such, it could be

restricted by the State.

SECTION-III

3.3.1-Evolution of Idea of Human Rights in Ancient India

India as a nation has a very rich cultural background and heritage.

The moral values inculcated in Indians are all pointing towards

having a respect towards all aiming at having a peaceful coexistence.

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India has the great epics like Ramayana and Mahabharata and the

various principles of life sciences laid down in the Vedas.

Indian values regarding Human Rights perhaps have their

reference in the oldest Veda, Rig-Veda. Rig-Veda is regarded as the

oldest document and it declares that all human beings are equal and

are brothers. The Atharvaveda declared that all human beings have

equal right over water and food (natural resources). The Vedas

including the Upanishads were the primordial source of ‘Dharma’

which is the compendious term for all the Human Rights and duties.

The observance of Dharma was considered and regarded as essential

for securing peace and happiness to individuals and to the society as

well. The deep rooted concepts of happiness for all us reflected in

judicial pronouncements while administering justice. In the case of

Maneka Gandhi v. Union of India18

, the Supreme Court of India

pointed out that ‘The Fundamental Rights bestowed by the Indian

Constitution represent the basic values cherished by the people of this

country since the Vedic times and they are calculated to protect the

dignity of the individual and create conditions in which every human

being can develop his personality to the fullest extent’. The highest

ideal of human life evolved in India, is incorporated in a short but

meaningful manner in the most popular prayer ‘Let all the people be

Happy’ ‘Sarve Janaha Sukhino Bhavantu’.

3.3:2 - Right to Happiness:

It is a natural desire of all human beings to be happy at every

stage and in every aspect of life. It is a natural Human Right. The old

18- AIR 1978 SC P.619

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Bharatiya values recognized this right and developed the idea that life

becomes meaningless without happiness. Right to be happy is the

most important and comprehensive Human Right as it includes every

kind of right, the fulfillment of which leads to happiness. An

individual has a capacity to fulfill his desires by his efforts and

thereby secure happiness for himself, for his family and for fellow

human beings. However non-fulfillment of desires causes

unhappiness resulting in the attitude of doing harm to others and

deprives others of their rights. Unhappiness paves way towards

committing an act of doing harm and wrong to others. Thus, human

beings commit mistakes and misdeeds. The hard fact of life is that life

is a mixture of both happiness and sorrow or misery. There are two

types of miseries, one beyond the control of human beings arising out

of natural calamities or acts of god which in law is called as vis

Major, such as untimely death of parents, children, relatives and

friends owing to diseases, accidents and havoc or damages to life and

property caused by floods, earthquakes etc. being unavoidable man

has to suffer them. Such miseries could be lessened by sharing of

sorrow by relatives, friends and other fellow human beings and by

rendering the required help and support by the state or society. The

second type also includes various miseries which are inflicted by

human beings by their inhuman behavior to others by acts such as

murder, rape, robbery, hijacking of airplanes, terrorist activities etc.

All these activities are aimed at destroying the happiness of others.

It has always been a matter of concern and anxiety for the people

with right thought process as to secure happiness for all and bring an

end to all manmade miseries. An attempted study of human nature

resulted in finding a solution to the internal problem confronting

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human race. It was ‘Dharma’ which was evolved to secure right to

happiness for all, without any exception. The idea that for good or

happiness of greater number, unhappiness or misery could be inflicted

on a smaller number was never accepted in Bhartiya culture or

civilization19

. Instead, the right of an individual to be happy was laid

down as an ideal.

‘Rajadharma’, the constitutional law of ancient Bharat, was

evolved on the basis of Dharma. The Arthashastra20

is an

authoritative work on Rajdharma. It emphatically declared the Right

to happiness of all individuals and the duty of king to protect that

right.

The Right to happiness is a compendious expression which covers

all specific Human Rights which are intended to secure happiness.

Declaration of this right is a mark of distinction of Hindu scriptures.

That is why the ideal that, Let all people be Happy –‘Loka samasta

sukhino bhavantu’ became an article of faith in our social and

constitutional system comprising of various specific Human Rights,

the protection of which leads to happiness.

3.3:3 - Duty Based Rights:

It is a unique model which was evolved by great thinkers of India

to secure the rights to every individual by creating a corresponding

duty in other individual. This was for the reason that they believed

that the sense of right always originates from selfishness, where as

sense of duty generates selflessness. Therefore, every kind of right

19- Written around 300b.c.by Kautilya who was the Prime Minister of Mouryan empire.

20- ‘Principles of Greatest Happiness of Greatest Number’ By Jeremy Benthams.

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which was evolved became the values of ‘Bhartiya’ culture based on

the concept of duties of an individual towards others. For example,

the duty of parents towards their children, and duty of children to

maintain their parents in old age, duty of teachers towards the

students and of students towards the teachers, duty of every

individual in the family towards other family members and ultimately

to other concerned members of the human society, duty of state

towards citizens and duty of the citizens towards the state were all

created to protect the basic Human Rights. The creation of duty in

one individual necessarily resulted in right of other individual and this

was for protection of such rights.

The ancient philosophers of this land preferred to establish a duty

based society rather than having a right based society. This perhaps

emerged from the idea of having right as the foundation of social life

and having a society where every individual has the right to perform

his duty. This fundamental approach to life has been clearly laid

down and understood in all ancient literature. Among the various

countries, India or ‘Bharat’ is regarded as great because this is a land

which had a duty centric philosophy, in contradiction to others which

are the lands of enjoyment that is based on enjoyment of rights.21

Mahatma Gandhi, who professed Human Values throughout his

life, evolved with this idealism in the following words, “India is

essentially a ‘KARMA BHUMI’ (Land of Duty) in contradiction to

‘BHOGBHUMI’ (Land of Enjoyment).” What is the significance?

The answer is that according to the culture evolved into this land

everyone owes a duty towards others. By this method, Right of an

21- J. Rama Jois in ‘Seeds of Modern Public Law in Ancient Indian Jurisprudence’ P.175

117

Individual was made part of the duty of other individual. An eminent

western jurist, Duguit (1859-1928) who was a professor of

Constitutional Law in the University of Bordex, has propounded the

theory that ‘For peace and happiness of human beings, it is necessary

to establish a duty based society.’ This remark of the jurist is very

significant with the Indian concept of ‘Duty based Society’.

3.3:4 - Right to Equality:

‘Samata’ or Equality Right is perhaps the most valuable right,

without which happiness is impossible. If there is discrimination, it

leads to misery and unhappiness to those who face discrimination.

The Vedas, which constitute the primordial source of Dharma,

declared Charter of Equality (Samata). It is found to be incorporated

in the Rig-Veda, the most ancient of the Vedas and also in the

Atharvaveda. No one is superior or inferior. All are brothers. All

should strive for the interest of all and should progress collectively.

It further states that everybody had equal rights in articles of food

and water. The Yoke of the Chariot of Life is placed equally on the

shoulder of all. Everybody should live together in harmony,

supporting one another like the spokes of a wheel of a chariot. Thus

the Right to Equality of all Human Beings has been declared in the

Vedas. In order to emphasize the dignity of individuals it was

declared that all are brothers, which meant that all are children of

God. This further added to the philosophy that no one is inferior or

superior. Similarly, the verse in Atharvaveda declared that, ‘All have

equal rights over natural resources and all were equally important as

spokes in a wheel’. Both, the Rig-Veda and Atharvaveda declared

that cooperation between individuals is necessary for happiness and

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progress. It is noteworthy that Right to Equality was made a part of

dharma long before the state came to be established.

It is equally relevant to refer to the contents of Article 1 and

Article 7 of Universal Declaration of Human Rights which stated-

‘All Human Beings are born free and are equal in dignity and rights.

They are endowed with reasons and conscience and should act

towards one another in a spirit of brotherhood’.

All are equal before law and are entitled without any

discrimination to equal protection of law. All are entitled to equal

protection against any discrimination in violation of this declaration

and against any incitement to such discrimination. This declaration

made in 1948 is similar to the declaration of equality made in the Rig-

Veda from times immemorial.22

3.3:5-Duty of State to give Equal Protection:

When the states were established, the rulers were under an

obligation to protect the Right to Equality. It was made a part of the

rules of ‘Raja dharma’, the constitutional law.

‘Just as the mother earth gives support to all living beings, a King

should give support to all without any discrimination’. This meant

that the King was to offer equal treatment to all in the same manner in

which a mother treated all her children. This fact is further supported

by the ruling held by a thirteen judge bench of the Supreme Court of

India In the case of Keshavananda Bharati v. state of Kerala23

, in

22 -J. Rama Jois In ‘ Seeds of Modern Public Law in Ancient Indian Jurisprudence’ P.179

23- Keshavananda Bharati v. state of Kerala !973 4 SCCP. 225

119

which they stated that Right to equality constitutes one of the basic

elements of the structure of the constitution of India which cannot be

amended or altered even by the Parliament. We have Right to

Equality and prohibition against discrimination incorporated in Art.

14, 15 and 16 of the Constitution of India.

3.3:6 - Right to Education

Mahabharata ordains that every individual should discharge four

pious obligations. They were to be discharged towards The Creator,

The Parents, The Teachers and humanity. The relevant verses are:

The pious obligations which must be discharged by every individual

are towards God (Devareena), Towards parents (Pitrureena),

Towards teachers (Rishireena) and Towards humanity (Manavreena).

All the four obligations were founded on the sense of gratitude the

most fundamental among the Hindu values of life. Among the four

pious obligations, The third one namely the ‘Rishireena’ is relevant to

the present topic. As per these obligations, every individual was duty

bound to acquire knowledge and give it back to the society by making

useful addition to it and by using it for securing happiness to fellow

human beings.

It was much understood that every individual had to discharge its

obligation. However, greater burden lay on teachers from primary

level to the highest level. They were required not only to impart

knowledge, but also mould the character of an individual so that the

knowledge acquired is utilized, according to ethics and for the benefit

of the society. In ancient India education was given importance and

the following verse composed by great Sanskrit poet Bhartruhari of

the first century B.C ‘Education is the special manifestation of man’.

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Education is the treasure which can be preserved without the fear of

loss. Education secures material pleasure, happiness and fame.

Education is the teacher of the teacher. Education is the friend when

one goes abroad. Education is God incarnate. Education secures

honor at the hands of the state, not money. A man without education

is equal to animal. In the above verse, Bartruhari, king of Ujjain

turned philosopher, apart from highlighting the importance of

education to life, this verse equated man without education to an

animal. By saying so, he wanted to impress upon every one about the

pious obligation to acquire and disseminate knowledge to the next

generation. This aspect of our civilization is alluded to, by the

Supreme Court in the case of Mohini Jain case v. State of Karnataka24

in which while holding that right to education must be regarded as a

fundamental right, the court said thus-

Indian civilization recognizes education as one of the pious

obligations of the human society. To establish and administer

educational institutions is considered as religious and charitable

object. Education in India has never been a commodity for sale, again

in the case of Unnikrishnan v. State of A.P25

, the Supreme Court

referred to the importance of education as emphasized in the

Neethishakatem by Bhartruhari and held that right to education is

therefore part of fundamental right26

under Article 21 of the

Constitution of India.

24- Mohini Jain Vs State of Karnataka 3 S.C.C. 666

25 - Unnikrishnan Vs State of A.P (1993) 1 s.s.c. 645,

26 -By 81

st Constitutional amendment Act Right to Education has been recognized as

Fundamental Right.

121

Thus, it is by way of creating the pious obligation of Rishireena

through acquisition and dissemination of knowledge, the human right

to education of every individual was sought to be created and

projected. This has been discharged in ancient India by Rishis by

establishing Gurukulas. The state used to support, respect and honor

Rishis who discharged such an important pious obligation. There are

innumerable texts in Sanskrit as also in other languages which

stressed the duty of parents and teachers to impart education to the

younger generation and pointing out that it would be a declaration of

duty on their part if they honored those who discharged such an

important pious obligation. There is a verse in ‘Hitopadesha’ about

education.

‘Education imparts intellectual culture; intellectual culture secures

capacity and suitability. Capacity and suitability enable to secure

wealth. Wealth so secured, enables to confirm to Dharma which in

turn secures happiness’. The human right education also aims at

ultimately securing happiness. The Universal Declaration in its article

26, states that right to education is one of the Human Rights which

needs to be practiced by all.

3.3:7 Right to protection

The right to protection of the people was created by casting duties

on the Rulers as part of Rajdharma, the Constitutional Law of

Ancient India. It applied to all the Rulers, who might be ruling in any

part of the territory of India. Some of the duties of the kings were as

mentioned in the following verses.

‘To punish the wicked, to honor (protect) the good, to enrich the

treasury (exchequer) by just methods, to be impartial in rendering

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justice to the litigants and to protect the kingdom’. These are the five

yajnas (selfless duties) to be performed by a king.

The king conducting himself always in conformity with

Rajdharma, should command all his servants to work for the welfare

of his people.

The highest duty of a king is to protect his people. The king, who

receives the prescribed taxes (from his subjects) and protects them,

also acts according to Dharma. These ideals set out in the

Mahabharata and other works on Rajdharma inspired and guided by

and large, all the kings in Ancient India. They invariably acted in

conformity with them. The belief of proper functioning of kings,

Dharmic supremacy generally prevailed, which corresponds to

constitutional supremacy under the present day written Constitutions.

In Kamandaka, an important authority on Rajdharma, there has

been a specific provision which gave paramount importance to the

duty of the kings, to afford full protection against injustice to

individual, whoever the person it may be, who inflicted injury or was

attempting to inflect injury, as is obvious from the following verse.

‘The subjects require protection against wicked officers of the

king, thieves, enemies of the king, royal favorites (such as Queen,

Princes etc.) and more than all against the greed of the king himself.

The king should protect the people against these fears’. It shows that,

law is supreme. No one is an exception not even the King himself.

The doctrine ‘King can do no wrong was not at all accepted in

Rajdharma’. He was in duty bound to give full protection to his

people while this is a general provision, there were also certain

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specific provisions which throw considerable light on the importance

given to the Human Right to protection.

The king should cause restoration of stolen property to the owner,

if it is not possible to restore the same property, he must pay the

owner the price of the stolen property. If the thief is caught, but the

stolen property is not recovered from him, either the thief must be

made to pay the price, if possible, or the king himself must pay it.

There is an illuminating case, recorded in Rajatarangini as to how

Chandrapida, the king of Kashmir (600-680 A.D.) upheld the rule of

law and protected the interest of a Charmakara (Cobbler) against the

proposed actions of his own officers. The officers of the king under

took construction of a temple of Lord Tribhuvanaswami on a certain

site where there was the hut belonging to a Charmakara. He refused

to remove his hut in spite of being asked to do so by the king’s

officers. Thereupon, the officers complained the matter to the King

reporting the obstinacy of the Charmakara. However to their surprise,

the officers got a rebuff form the king, who censured them for lack of

fore-sight in encroaching upon the site belonging to Charmakara and

starting construction without taking his consent. The king ordered -

‘Stop construction or build (the temple) somewhere else, who

would tarnish such a fierce act by illegally depriving a man of his

land’. Later, the Charmakara over whelmed by the suo-moto relief

granted by the king sought an audience with the king. He represented

before the king ‘just the palace is to your Majesty, the hut is to me. I

could not bear to see its demolition. You can very well appreciate the

plight of a man who is deprived of his dwelling. However, if your

Majesty were to ask for it, I shall give it up having due regard to the

code of good manners’.

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Subsequently, the king purchased the hut by paying a price to his

satisfaction. The Charmakara then told the king with folded hands

that “Yielding to another (however law) adhering to the principle of

Rajdharma is the appropriate arise to the king. I wish you will and

you may live long, establishing the supremacy of law (Dharma)

seeing in you such faith in dharma, others would act accordingly”.

Truly, the supremacy of law dharma prevailed with the aid of law.

A weak Charmakara prevailed over the strong officers of the king and

the king himself. These were the ancient ideals of the rulers who

ruled to do justice to their subjects.

3.3:8 - Right to Practice Any Religion

It is not very sure whether everybody believes in GOD or not. It

is matter in respect of which there were absolute freedom for every

individual whatever that may be for those who believed in GOD, had

to liberty to believe in any GOD by any name and to follow any

religion of their choice and to adopt any method of worship. Though

basically everyone among Hindus believed that GOD is one, and on

account of the aforesaid liberal approach, several names were given

to GOD.

Indian constitution recognizes freedom of conscience and

propagation of religion, subject to public order, morality and health

and to other provisions of this part all persons are equally entitled to

freedom of conscience and their right to freely profess, practice and

propagate religion-Article 25-constition of India. There is similar

provision in Article 18 of the declaration of Human Rights. Thus

secularism enjoys place of pride in the construction of our

constitution.

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3.3:9-Special rights of Women in Ancient India.

The word Human Rights directly gives an idea that they are rights

of human beings. Thus they are applicable to men and women equally

the right to equally for all is applicable to men and women both. The

ancient thinkers considered that having due regard and special

attributes of womanhood they require special protection and

provisions in law they perhaps thought so because they thought

women were vulnerable to attack by male with evil intentions. It is

matter of common knowledge and concerns those offences against

women by men as been a problem throughout human history. Even

now in the present era we boast of modern civilization and scientific

advancement on one hand and on the other hand we have increasing

rate of offences against women. Men behave in inhuman manner

against women. In particular the sexual assort and harassment against

women is the most heinous act. Such acts ruin the whole life of

women. The law enforcing agency such as the police and the court

come into picture only after a women suffers and in reparable injury

and consequently they are not adequate to protect the rights of

women.

The Ancient Thinkers considered the right to be protected was of

utmost important of women they perhaps tried to find solution to the

problems of physically abused against women by propagating the

right to be protected. They probably thought that the best method to

protect womanhood was to create a feeling of respect for women in

the mind of every individual this they sort by moral education right

from the inception and at all level of education.

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This right became the most cherish value of life from times in

memorial in India. Men were trained to not to consider women as an

objects of mere physical pleasure but to regard them as divine

treasure for family life. In view of the right of motherhood assigned

to women by nature women must be considered as symbol of intense

love and affection and of sacrifice the ancient Indian philosophy goes

further to extent of calling mother as a GOD incarnate (mata

pratyaksha devata)

Apart from creating the value of respect for womanhood, there

have been special provisions for protecting several Human Rights of

women, in view of the disabilities and vulnerability of women for

attack by men, Rules of Dharma created an obligation on the part of

the women at every age and provides protection to women. The rule

of Dharma which made it the duty of male members of the family to

afford protection women needs. Ancient India also had a concept as

follows:

“A Father is under an obligation to protect her during childhood,

the husband on her getting married and her sons when she grows

old”. At no stage we observe that a woman has been let free. She has

always been looked upon as a liability or a burden as a result of such

ideals being put forth. A British author Kerry Brown has stated in her

book27

the real meaning of the controversial verse in Manusmriti as

under:

In Hinduism, A woman is looked after not because she is inferior

or incapable, but on the contrary because she is treasured. A woman

27- “Seeds of Modern Public Law in Ancient Indian Jurisprudence”By J. Rama Jois at P.196

127

is considered as pride and power of society. Ancient Hindus believed

that woman should not be left unprotected just as a crown jewels

should not be guarded unprotected. They did not believe in placing

extra burden of living on women who already had large number of

responsibilities in social life. Women were considered as transmitter

of culture to her children due to the role she had to play, in childbirth,

child care, and domestic well being and spiritual and religious growth

of the family.

The importance of the role of women seemed to be correctly

identified by British woman in the above verse of Manusmriti.

Changing times has witnessed a sharp change in the desired role

played by the women. In 20th

and 21st century, there is no field which

has been tried by women. We have competent women in various

professions, avocations, business, political rulers, bureaucrats,

technocrats, advocates and designer. But the fact remains that the

responsibility of women as a mother to transmit the culture to her

children and make them good citizens has not decreased but has

increased. Material gains enhance greater chances of moral

degradation and therefore it is the role of the mother which needs to

be expanded like and umbrella in the present hostile environment. An

atrocity on women observes the steep rise in the graphical

presentation. Obscenity is spreading like a wild fire, through film,

television shows magazines and commercials. These and similar such

activities tantamount to clear violation of dignity of woman

ultimately her rights as a human being.

Protection is offered to women for the reason that women are

vulnerable. But the rules of dharma and rajdharma indicated that it

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was always duty of men to protect the person and property of women.

The ancient law of India indicates these ideals as follows:

1. An exception to women’s property from law of adverse

possession was made inapplicable in respect of property belonging to

women, state and temple. No plea of adverse possession is tenable in

respect of property belonging to state and temple.

2. Death sentence for rape of women in custody: Capital

sentence should be imposed for offence of rape committed against a

women arrested by an officer of the state.

3.3:10 -Right to social security:

All individuals do not have the resources and means to lead a

happy life. Many individuals suffer from poverty, deprivation of

education or earning capacity, physical or mental deformity, diseases,

old age, loss of earning member of the family etc. With all these

miseries of life there is one right of an individual and that is the basic

Right to be Happy. This in fact is one of the primary right of an

individual. If we examine it closely we find that this basic right paves

the way towards the Human Right to Happiness. This Right is sought

to be protected by creating a duty in individuals on whom they

depend. A verse of Mahabharata states that it is duty of individuals to

maintain his dependents and that is Dharma.

It is a noteworthy fact that duty to share wealth and the duty to

maintain ones dependents are also the rules of dharma. This perhaps

is the best form of social security provided in Indian civilization and

culture without throwing any burden on the state. This duty emerged

from basic two values of life namely selflessness and sacrifice.

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Swami Vivekananda declared that these are our national values in the

following words:

‘The national ideals of India are renunciation and service.

Intensify her in those channels and the rest will take care of itself.’28

It is a matter of pride that in Indian civilization this duty or pious

obligation is discharged in an exemplary manner. An earning member

never thought of himself, his wife and children alone and considered

others as a burden. It has always been an idea to consider that it is his

sacred duty to maintain aged parents, unemployed or minor brothers

and sisters, widowed sister if any or any other member of the family

or those members who are physically or mentally handicapped. He

provided shelter, food, clothing, medicine, education and all required

necessities and never considered others as burden.

In the wake of modernization, this wholesome arrangement is

replaced by a purely selfish attitude of individuals under the influence

of modern civilization. This feeling of selfishness took over the minds

of the people and social life of India. The provision on this aspect in

the Universal Declaration of Human Rights in Article 22 reads

thus……

‘Everyone as a member of society has a right to social security

and is entitled to realization, through national effort and international

cooperation and in accordance with the organization and resources of

each state of the economic, social and cultural rights, indispensible

for his dignity and the full development of his personality.’

28- Swami Vivekananda in India and her problems in P. 10

130

Thus the Right to Social Security is a basic Human Right and it is

recognized in Ancient Indian Culture. It holds good in the Bharatiya

concept and passes on its values to the entire humanity. The special

feature in ancient India was that instead of throwing the entire burden

of social security on the ‘The State’ it was the responsibility to be

borne by the earning member of the family.

3.3:11 -Duty to provide food to Domestic Servant:

The Indian values which always propagated the concept of

sharing also had a provision that if there is any shortage of food while

distributing the food to the guests then the householder may stint

(reduce the share) to himself, his wife and children but by no means

would reduce the share of the servant in the food.

Right to Human Treatment in Custody and in Prison:

Protection of Human Rights of a person who has been

apprehended by public servants for offences has also a very

exemplary reference in ancient Indian literature. An officer who

obstructed the basic rights of prisoners in their daily routine such as

sleeping, sitting, eating, etc. was liable to be punished.