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HUMAN RIGHTS TRANSFORMED: POSITIVE RIGHTS AND DUTIES
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HUMAN RIGHTS TRANSFORMED:
POSITIVE RIGHTS AND DUTIES[1]
AUTHORED
BY - SAKSHI ANAND
Chapter 1
Introduction:
The concept of human
rights has undergone significant evolution, moving beyond traditional
understandings focused solely on protection from harm. Contemporary discourse
now emphasizes positive rights alongside corresponding duties, recognizing the
interplay between individual freedoms and societal responsibilities.
This transformation
signifies a broader conception of human rights, extending beyond legal
frameworks to encompass social justice and collective well-being. Positive
rights, such as access to education and healthcare, acknowledge the necessity
of active support for individuals to fully participate in society.
Central to this evolution
is the acknowledgment of duties—obligations incumbent upon individuals,
institutions, and governments to uphold the rights of others. This shift
highlights the reciprocal nature of human relationships and underscores the
importance of mutual respect and collaboration.
In an era marked by
persistent inequality and injustice, embracing a framework of positive rights
and duties offers a pathway toward greater inclusivity and equity. By adopting
this holistic approach, we affirm the value of every individual and commit to
the collective pursuit of a fairer and more sustainable future.
The interrelation between
rights and duties constitutes a cornerstone in comprehending the intricate
fabric of societal interactions and individual obligations. Essentially
intertwined, these concepts form a reciprocal bond wherein the assertion of one
invariably entails acknowledgment of the other. This reciprocal nature
underscores the essence of societal harmony, wherein individuals not only
possess certain entitlements but also carry corresponding responsibilities
towards their fellow beings and the collective entity of society. This
equilibrium acts as a fulcrum, ensuring that individual liberties are
harmonized with the broader welfare and interests of the community. Moreover,
the framework of duties serves as a pivotal mechanism for fostering accountability,
compelling individuals, institutions, and governing bodies to remain cognizant
of their obligations in safeguarding rights and fulfilling societal needs. In
instances where the exercise of rights may impinge upon the rights of others or
jeopardize communal well-being, duties provide a necessary framework for
imposing constraints. This intricate web of reciprocal obligations ultimately
underscores the fundamental ethos of human relations, encapsulating notions of
mutual esteem, acknowledgment, and concerted efforts toward the realization of
an egalitarian and just societal order.
1.2. Equality before Law and Equal Protection of Law:
Equality before the law
and equal protection of the law are not just abstract ideals but fundamental
components of legal systems worldwide, enshrined in constitutions, statutes,
and international human rights treaties. These principles are evidenced through
various legal mechanisms and practices aimed at ensuring their application and
enforcement. Firstly, constitutional provisions establish the framework for the
legal system, explicitly stating individuals' rights to fair treatment under
the law. Legislation, on the other hand, often contains clauses that forbid
discrimination and ensure equitable treatment. Legal precedents set by courts
further reinforce these principles, guiding their implementation in specific
cases. Additionally, international human rights agreements recognize equality
before the law and equal protection of the law as essential human rights,
binding states to uphold them. Lastly, enforcement mechanisms such as
independent judiciaries and oversight bodies are pivotal in ensuring compliance
and accountability. Together, these measures substantiate the principles of
equality before the law and equal protection of the law, forming the foundation
of just and impartial legal systems worldwide.
1.3. How rights are being transformed?
Rights are in a constant
state of evolution, shaped by shifts in societal values, technological
progress, and global dynamics. Several key factors contribute to this ongoing
change. Firstly, there is a widening acknowledgment of rights beyond
traditional civil and political liberties to include economic, social, and cultural
rights. This broader perspective reflects a deeper grasp of human dignity,
recognizing that individuals not only need protection from government intrusion
but also access to essential resources like healthcare, education, and decent
living conditions.
Moreover, the principle of
intersectionality has become increasingly important in discussions about
rights. This concept recognizes that individuals can face discrimination based
on a combination of factors such as race, gender, sexuality, disability, or
socioeconomic status. As a result, there is a growing need for a more nuanced
approach to rights advocacy and policy-making, ensuring that rights protections
are comprehensive and equitable for all groups in society.
The rise of digital
technologies has introduced new challenges and opportunities for rights
protection. Issues like privacy, data protection, and access to information
have become central concerns as people engage more extensively in online
activities. It is essential to ensure that technological advancements do not
infringe upon fundamental freedoms, leading to discussions about internet
censorship, surveillance, and the ethical use of artificial intelligence.
Additionally, the urgent
global challenges posed by environmental degradation and climate change have
led to increased recognition of environmental rights. These encompass the right
to a healthy environment, access to clean air and water, and participation in
environmental decision-making. Incorporating environmental rights into legal
frameworks and international agreements is crucial for effectively addressing
sustainability challenges.
Lastly, globalization and
migration have emphasized the importance of protecting migrant rights and the
rights of marginalized populations. As people move across borders seeking
opportunities or safety, it is vital to ensure their rights are upheld regardless
of their immigration status. Efforts to combat human trafficking, address
forced displacement, and protect refugee rights are integral to global human
rights agendas.
The evolution of rights
reflects society's evolving understanding of justice, equality, and human
dignity. As new challenges emerge and societal norms evolve, the concept of
rights continues to adapt, expanding to address emerging issues and
guaranteeing that all individuals have access to the protections and
opportunities they deserve in an ever-changing world.
Chapter 2
2.1. What are generation rights?
"Generation
rights," also referred to as "generational rights," involve
rights that are specific to different age groups or generations within society.
These rights acknowledge the distinct needs, vulnerabilities, and interests of
various cohorts, underscoring the importance of tailored protections and
opportunities. For instance, children's rights encompass access to education,
healthcare, and safeguards against exploitation. Youth rights focus on
empowerment, including access to education, employment, and freedom of
expression. Rights for the elderly aim to maintain dignity and well-being,
covering access to healthcare, social security, and measures against age
discrimination. Environmental rights for future generations prioritize
sustainability and responsible resource management. Lastly, intergenerational
equity emphasizes fairness across generations, ensuring that actions taken
today do not compromise the rights of future generations. In summary,
generation rights are crucial for promoting social justice, solidarity, and
sustainable development across all age groups within society.
2.2. Generation rights:
1. First Generation Rights (Civil and Political Rights):
These rights aim to
protect individual freedoms from government intrusion, encompassing liberties
such as freedom of speech, religion, assembly, and the right to a fair trial. Originating
during the Enlightenment period, they were enshrined in foundational documents
like the Bill of Rights in the United States and the French Declaration of the
Rights of Man and of the Citizen.
2. Second Generation Rights (Social, Economic, and Cultural
Rights):
These rights address
economic and social disparities, striving to ensure fair access to resources
and opportunities for all members of society. They include rights such as
education, healthcare, social security, housing, and decent working conditions.
These rights gained prominence after World War II with the adoption of the
Universal Declaration of Human Rights and subsequent treaties, aiming to
address post-war reconstruction efforts and social welfare needs.
3. Third Generation Rights (Collective Rights):
Third generation rights
focus on the rights of groups, communities, and peoples, rather than just
individuals. They include issues such as environmental protection, peace, and
self-determination. Emerging in response to globalization, they underscore the
importance of addressing shared concerns and ensuring the well-being of entire
communities and future generations.
4. Fourth Generation Rights (Digital Rights):
Fourth generation rights
relate to technology and the internet, addressing concerns like privacy, data
protection, freedom of expression online, and access to information. These
rights are increasingly relevant in today's digital age, responding to challenges
and opportunities posed by advancements in technology and the internet.
5. Fifth Generation Rights (Environmental Rights):
Fifth generation rights
emphasize the protection of the environment for current and future generations.
They include rights like access to a clean environment, clean air and water,
and protection of biodiversity. These rights have gained prominence due to
escalating environmental challenges, such as climate change, pollution, and
habitat destruction, highlighting the need for responsible environmental
stewardship and consideration of future generations.
2.3. Transfer of rights in form of duty of state:
In India, the transmission
of rights commonly translates into the state's obligation to uphold and
safeguard the fundamental rights outlined in the Constitution. These
fundamental rights cover a wide range of liberties, including civil freedoms
like equality, freedom of speech and religion, and the right to life and
personal liberty. The state is mandated by the Constitution to ensure the
protection of these rights, which entails various duties such as enacting and
enforcing laws, establishing institutions to safeguard rights, and providing
mechanisms for citizens to seek redressal in case of rights violations.
For instance, the right to
equality encompasses the state's responsibility to enact laws and policies that
foster equality and prevent discrimination based on factors like religion,
race, caste, sex, or place of birth. Similarly, the right to life and personal
liberty mandates the state to safeguard individuals from arbitrary arrest or
detention and ensure access to a fair judicial process.
Moreover, India's
judiciary, particularly the Supreme Court and High Courts, assumes a pivotal
role in upholding fundamental rights. They have the authority to enforce these
rights through various legal avenues, serving as custodians of the Constitution
and possessing the power to nullify laws or government actions that contravene
fundamental rights.
The transfer of rights
manifests through the state's duty to uphold, protect, and fulfill the
fundamental rights guaranteed by the Constitution. This duty underscores the
state's commitment to safeguarding the well-being and dignity of its citizens
and forms a fundamental aspect of the country's democratic framework.
Chapter 3
3.1. Right to Surrogacy in India:
The legal framework
surrounding the right to surrogacy in India has undergone significant changes
in recent years. Initially, India became known for commercial surrogacy due to
its relatively relaxed laws and lower costs compared to other countries. However,
concerns about the potential exploitation of surrogates and ethical dilemmas
prompted the enactment of stricter regulations.
In 2015, the Indian
government implemented the Surrogacy (Regulation) Act to govern surrogacy
arrangements and curb the commercialization of the practice. This legislation
prohibited commercial surrogacy and allowed only altruistic surrogacy, where
surrogates carry a child for intended parents without financial compensation
beyond medical expenses and insurance.
Additionally, the Act set
eligibility criteria for intending parents, including a requirement to be
married for at least five years, have no biological children, and suffer from
infertility or specific medical conditions. It also mandated the establishment
of national and state surrogacy boards to oversee surrogacy arrangements and
ensure compliance with the law.
The Surrogacy (Regulation)
Act, 2015, aimed to safeguard the rights and well-being of surrogate mothers,
prevent the commercialization of surrogacy, and promote ethical practices in
assisted reproductive technologies. However, its implementation has encountered
challenges, and ongoing discussions have questioned its effectiveness and
addressed its provisions.
In 2019, the Indian
government introduced the Surrogacy (Regulation) Bill, 2019, which sought to
further regulate surrogacy arrangements and address existing loopholes and
concerns. This bill proposed expanding eligibility for altruistic surrogacy to
include heterosexual married couples, single women, and widows, while upholding
the ban on commercial surrogacy.
The right to surrogacy in
India is governed by stringent regulations aimed at safeguarding the interests
of all parties involved, including surrogate mothers, intended parents, and
children born through surrogacy. The evolving legal landscape reflects ongoing
efforts to balance ethical considerations and complexities surrounding assisted
reproductive technologies with the rights and welfare of individuals engaged in
surrogacy agreements.
3.2. Right to Surrogacy in India:
1. Baby Manji Yamada Case[2]
This internationally
recognized case involved a Japanese couple who engaged an Indian surrogate.
However, complications arose as the couple divorced before the child's birth,
leading to a legal dispute over the child's citizenship and custody. This case
raised complex legal and ethical issues concerning surrogacy, citizenship, and
the child's rights, highlighting the necessity for clear legal frameworks to
address such situations.
2. Jan Balaz v. Anand Municipality[3]
In this case, the Gujarat
High Court addressed the legality of commercial surrogacy in India. The
petitioner contested the legality of a surrogacy agreement, arguing it violated
Indian laws prohibiting commercial surrogacy. The court's ruling shed light on
regulatory gaps in surrogacy laws, emphasizing the requirement for
comprehensive legislation governing surrogacy arrangements within India.
3. Baby M Case (In Re Baby M)[4]
Though not specific to
India, this influential case in the United States dealt with surrogacy and
parental rights. It involved a surrogate mother who refused to give up custody
of the child she carried, sparking a prolonged legal battle over parental rights
and the validity of surrogacy contracts. This case prompted significant legal
and ethical debates surrounding the rights of surrogate mothers, intended
parents, and the welfare of the child.
3.3. What rights Surrogates have?
1. Right to Informed
Consent: Surrogates have the right to receive comprehensive information about
the surrogacy process, including potential risks, medical procedures, and legal
implications. They should be able to make informed decisions about participating
in surrogacy arrangements freely and without coercion.
2. Right to Medical Care
and Support: Surrogates are entitled to appropriate medical care and support
throughout the surrogacy journey, including prenatal care, assistance during
labor and delivery, and access to healthcare professionals who prioritize their
well-being.
3. Right to Privacy and
Confidentiality: Surrogates have the right to privacy regarding their personal
information and medical history. Confidentiality should be maintained
throughout the surrogacy process, and any sharing of sensitive information
should be with the surrogate's consent.
4. Right to Legal
Representation: Surrogates have the right to legal representation to ensure
that their rights and interests are safeguarded in surrogacy agreements. Legal
counsel can assist surrogates in understanding their rights, negotiating fair
terms, and navigating legal complexities.
5. Right to Financial
Compensation and Support: Surrogates have the right to fair and reasonable
financial compensation for their time, effort, and associated expenses during
the surrogacy process. Compensation should be negotiated transparently and in compliance
with relevant laws and ethical standards.
6. Right to Respect and
Dignity: Surrogates are entitled to be treated with respect, dignity, and
compassion throughout the surrogacy journey. They should not face
discrimination, coercion, or exploitation based on their decision to become a
surrogate.
7. Right to Withdrawal:
Surrogates have the right to withdraw from the surrogacy arrangement at any
stage before the pregnancy is established, as long as it aligns with the terms
of the surrogacy agreement and applicable laws. They should not be pressured to
continue with the surrogacy against their will.
3.4. Specific rights concerning science and technology:
1. Right to Education: It ensures
compulsory and free education for children aged 6 to 14.[5]
This provision guarantees access to quality education, including science and
technology learning, crucial for fostering scientific literacy and nurturing
future innovators.
2. Right to Information: It
empowers citizens to access information held by public authorities.[6]
This law enhances transparency in governmental decisions, including those
concerning science and technology policies, research funding, and public
projects.
3. Right to Health:
Although not explicitly stated in the Constitution, the Supreme Court has
interpreted Article 21's right to life to include the right to health. This
encompasses access to healthcare services, medical advancements, and
treatments.
4. Intellectual Property
Rights: India's intellectual property laws safeguard innovators' rights,
including patents, copyrights, and trademarks. These laws encourage innovation
and knowledge dissemination while ensuring accessibility to essential
technologies.
5. Data Protection and
Privacy: The Personal Data Protection Bill aims to regulate personal data
collection, processing, and sharing, thereby safeguarding individuals' privacy
rights, crucial in today's digital age.
6. Environmental
Protection: India's environmental laws, such as the Environment Protection Act
of 1986, mitigate the adverse effects of technological development. They
empower the government to protect and improve the environment.
7. Freedom of Expression
and Scientific Inquiry: Under Article 19 of the Constitution, freedom of speech
and expression includes the liberty to engage in scientific inquiry and
discourse. This freedom fosters scientific progress, innovation, and the exchange
of ideas.
Chapter 4
4.1. Human rights and Environmental issues:
Human rights within
environmental realms involve protecting basic freedoms amidst concerns about
ecological conservation and sustainability. These rights emphasize the crucial
connection between a healthy environment and fundamental human entitlements like
the right to life, health, clean water, food, and unpolluted surroundings.
Ensuring people have access to a safe environment, free from contamination and
hazards, is essential. Similarly, it's vital to provide clean water,
sanitation, and nutritious food to maintain dignity and prevent waterborne
diseases. Environmental degradation, such as deforestation and climate change,
can profoundly affect food security and livelihoods, necessitating safeguarding
the right to food security. Moreover, addressing environmental pollution is
crucial for public health and access to healthcare. Recognizing the rights of
indigenous peoples and local communities to their lands and resources is also
vital, preserving their culture and traditional ways of life. Ultimately, human
rights within environmental issues advocate for holistic approaches that
prioritize both environmental preservation and safeguarding fundamental human
rights.
4.2. What protective rights are there?
Protective rights constitute
a wide array of legal and moral principles geared towards shielding individuals
and communities from various forms of harm, exploitation, discrimination, and
mistreatment. These rights serve as vital safeguards to ensure that every
individual is treated with dignity, fairness, and reverence. At their core lies
the right to life, ensuring individuals are free from unjust deprivation of
life, including acts like extrajudicial killings and genocide. Additionally,
there's the right to personal security, safeguarding individuals from physical
harm, torture, and cruel treatment. The right to liberty and security further
guarantees protection against arbitrary arrest or detention without proper
legal procedures. Furthermore, protective rights encompass the right to
privacy, freedom from discrimination, and freedom from slavery and forced
labor. These rights ensure equitable treatment, opportunities, and security for
all individuals, irrespective of their race, ethnicity, gender, religion, or
other attributes. Moreover, they entail freedoms such as freedom of expression
and opinion, freedom of assembly and association, and the right to education
and health, essential for nurturing societies where individuals can live
autonomously with dignity while contributing positively to the collective
welfare. Ultimately, protective rights serve as the bedrock of human rights
frameworks globally, fostering environments where human dignity is revered,
social justice prevails, and individuals can thrive harmoniously.
4.3. Duties of citizens:
Citizens are entrusted
with a variety of duties crucial for societal well-being. Among these is the
imperative to adhere to the legal framework, ensuring community order and
stability. Additionally, citizens are required to contribute financially
through tax payment, sustaining government operations and public services.
Engaging in democratic processes, including voting and civic involvement,
serves to fortify democratic principles and ensure governance aligns with
public sentiment. Furthermore, citizens are obligated to honor the rights and
dignity of all individuals, irrespective of differences. This encompasses
defending the nation, preserving the environment, and advocating for social
equity. Ultimately, these duties underscore the interdependent relationship
between individuals and society, emphasizing active participation, ethical
behavior, and collective accountability in fostering a flourishing and fair
community.
4.4. Article 21 concerning Environmental issues:
Article 21 of the Indian
Constitution[7],
originally focused on the right to life and personal liberty, has been broadly
interpreted by the judiciary to encompass environmental concerns. While not
explicitly mentioning environmental rights, the courts have recognized that a
clean and healthy environment is essential for the enjoyment of life and
liberty. Consequently, Article 21 has been invoked in various environmental
cases, addressing issues like pollution and industrial activities that threaten
environmental health. Judicial rulings have emphasized that environmental
degradation directly impacts individuals' quality of life, thus violating their
right to life. As a result, courts have mandated measures to enforce
environmental laws, restrict polluting industries, and promote sustainable development
practices. Additionally, the judiciary has stressed public participation and
access to environmental information, recognizing these as integral to ensuring
transparency and accountability in environmental decision-making. In summary,
while Article 21 doesn't explicitly mention environmental rights, its
interpretation by the judiciary has been instrumental in advancing
environmental protection and sustainability in India.
1.
M.C. Mehta v. Union of India[8]
This significant legal
battle centered on the pollution of the Ganges River caused by industrial and
municipal waste discharge. The Supreme Court ruled that the right to a clean
environment is an essential part of the right to life enshrined in Article 21.
It ordered the closure of polluting industries and instructed the government to
take steps to restore the river's health.
2. Vellore Citizens Welfare Forum v. Union of India[9]
This case focused on
pollution in the Palar River due to industrial discharge in Tamil Nadu. The
Supreme Court reiterated the right to a clean environment as part of Article
21. It mandated that industries comply with pollution control regulations and
compensate for environmental harm.
3. Indian Council for
Enviro-Legal Action v. Union of India[10]
Addressing vehicular
pollution in Delhi, this case emphasized the government's duty to ensure a
pollution-free environment under Article 21. The court directed the use of
compressed natural gas (CNG) as a cleaner fuel and the establishment of
pollution control centers.
4. T.N. Godavarman Thirumulpad v. Union of India[11]
Concerning forest and
wildlife protection in the Nilgiris region, this case stressed environmental
conservation under Article 21. It called for the removal of encroachers from
forest land, implementation of conservation measures, and appointment of special
officers for oversight.
5. Subhash Kumar v. State of Bihar[12]
In this instance, the
Supreme Court affirmed that Article 21 encompasses the right to live in an
environment free from pollution. It ordered the closure of tanneries operating
without pollution control measures in Bihar and compensation for
pollution-related health issues.
Chapter 5
Conclusion and suggestion:
In summary, the shift
towards recognizing positive rights alongside corresponding duties represents a
significant advancement in contemporary legal and ethical discourse. While
traditional human rights frameworks emphasized freedoms from government intervention,
the acknowledgment of positive rights underscores the importance of advancing
individual well-being and societal welfare. By addressing systemic inequalities
through rights to education, healthcare, and housing, positive rights
contribute to fostering a more inclusive and equitable society.
Moreover, the inclusion of
corresponding duties complements the assertion of positive rights by
underlining individual and collective responsibilities towards realizing these
rights. Duties such as respecting others' rights, contributing to the common good,
and preserving the environment are crucial for promoting social cohesion,
justice, and sustainable development. Integrating duties into human rights
discourse promotes a more balanced approach, emphasizing the reciprocal
relationship between rights and responsibilities.
Looking ahead, it is
imperative to raise awareness and understanding of positive rights and
associated duties among policymakers, stakeholders, and the public. Education
and advocacy efforts can play a pivotal role in fostering a culture of
rights-awareness and civic engagement, encouraging individuals to fulfill their
duties towards themselves and others. Additionally, governments and
international bodies should prioritize implementing policies and initiatives
aimed at realizing positive rights, ensuring equitable access to essential
services and resources for all members of society.
Furthermore, legal
mechanisms and accountability frameworks need to be reinforced to effectively
enforce both rights and duties. This involves establishing robust monitoring
mechanisms, enhancing access to justice, and holding duty-bearers accountable
for upholding their obligations towards positive rights. By embracing a
rights-based approach that integrates both rights and duties, societies can
make strides towards achieving a more just, equitable, and sustainable world
for everyone.
[1] SAKSHI ANAND, LLM, Chanakya National Law University.
[2] AIR 2009 SUPREME COURT 84, 2008 AIR SCW 6964
[3] Appeal No 11364 of 2009.
[4] 537 A. 2d 1227, 109 N.J. 396 (N.J. 02/03/1988).
[7] Indian Kanoon; https://indiankanoon.org/doc/1199182/.
[8]
M.C. Mehta And Anr vs
Union Of India & Ors on 20 December 1986, AIR 1086, 1987 SCR (1) 819.
[9] 1996 5 SCR 241, ILDC 443 (IN 1996),
1996 5 SCC 647, 1996 AIR 2715, JT 1996, 375, 28th August 1996.
[10] 1996 AIR 1446, 1996 SCC (3) 212.
Article Information
HUMAN RIGHTS TRANSFORMED: POSITIVE RIGHTS AND DUTIES
Authors: SAKSHI ANAND
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/07
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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