ASSESSING THE APPLICABILITY OF THE DOCTRINE OF PARENS PATRIAE IN LIGHT OF THE MOHD. SALIM v. STATE OF UTTARAKHANDOctober 4, 2018
In Conversation with Mr. Sanjay Vashishtha – Criminal Law Policy and ReformsOctober 17, 2018
Human history is a long saga of the tussle between the powerful and others aspiring for power. Constant confrontation marks this truth of life on earth. Sometimes explicit and sometimes implicit, this confrontation invariably sees the defeat of the weak by the powerful. While the victorious celebrate, the defeated are abject in loss and humiliation. And whenever matters and actions contravene basic principles of decency, and the spirit of live-and-let-live, one sees it as the violation of human rights.
In today’s world of post-truth, Brexit, and ‘me-first’, there is a violation of human rights by the minute somewhere or the other in the world. Despite the spirit of democracy with its emphasis on liberty, equality, fraternity, the spirit of faiths that man is created equal, and the horrific consequences of two World Wars and numerous other conflagrations, mankind still has a long distance to go in terms of assuring and dealing out the dignity of human rights to those who have faced the wretched consequences of disparity, neglect, humiliation, and sometimes even unjustified punishment. In 1948, the Universal Declaration of Human Rights was drafted in response to the death and destruction the world witnessed after the Second World War. Just when the world thought that aftermath of the war taught their political leaders a lesson or two about human rights, people faced a new kind violence in the post-industrial and post feudal societies. Seldom does a day go by without a piece in the media about ongoing human right abuses
On paper, there are legal guarantees protecting individuals and groups against actions and omissions that interfere with fundamental freedoms, entitlements and human dignity. These legal guarantees, however, don’t reflect the reality on the ground. Women remain as an oppressed class in nearly all countries of the world. Slavery has been abolished on paper, yet does it exist in practice. According to United Nations more than 40 million people are a prey to modern slavery. The implementation of human rights becomes an arduous complex issue as the application of human rights largely depends on power relations, lack of political will, unequal distribution of resources and the societal norms and values. Although certain rights are included in the legal framework, with a view to attach the element of sanction in case of abuse of those rights, it is pertinent to recognize that both the framing and implementation of law is a human construction. Subjects of a legal system are more or less directly responsible for the successful implementation of law. Each of the six major human rights treaties has been ratified by more than 150 countries, even then a great number of them remain aversive to human rights. This raises the pertinent questions as to how much human rights cause has actually influenced the behaviour of government and are human rights really universal in nature?
The idea of Universality of Human Rights is gaining unanimity world over but, it is also facing fierce opposition mostly from critiques in the east. The crux of their argument is the universal rights is a western concept that ignores the diverse political, cultural and economic realities. This raises question like, ‘can the values of consumerist societies be the same of those who have nothing to consume?’ or ‘to what extent can socio-cultural patterns and traditional norms be dismissed to uphold universal human rights? Is stopping parents from slapping their children, upholding the children’s rights or violating that of their parents? Some societies see universal rights as an unnecessary intrusion with intension of imposing western values on them. Critiques site examples of Iraq and Libya and say that this concept is a merely a cover for western intervention in the affairs of the developing nations. How to uphold the agenda of ‘global development’ in such a scenario. In other worlds, what can be said in defence of universal human rights.
First of all it should be taken in to account that societies of the world are no longer in their pristine, post-colonial and non-western form. They are now not only a product of colonialism but also globalisation and interstate exchange. Secondly, we must understand that culture is not sacrosanct. That means societies are constantly evolving by responding to internal and external stimuli. They outgrow and reject certain norms. Moreover, historically a number of developing countries like India, China, Chile, Lebanon, Cuba etc. have played an active and influential role in drafting the Universal Declaration of Human Rights. Yet, critiques argue that developing countries cannot afford human rights since the task of nation building, economic development and consolidation of state structure are their priorities. Let us take the example of India and China which explain why this argument is invalid in the long run. China has shown an impressive economic and infrastructural growth since 1950s when it was in the same position as India. India on the other is developing on much slower pace than China. This might make the Chinese model look more efficient. However, this will not be the case if it encounters a major dissent or protest from the people. This will be a major setback in case of an over throw of regime. In India the development, despite it slow place due oppositions is democratic. It is important that when a change to be brought everyone should be brought along and the system should provide a space for dissent. This ensures a more stable and secure development.
The most difficult problem with implementation of human rights is that the concept itself has been made hopelessly ambiguous. The ambiguity allows various governments to rationalise their politically motivated actions. This ambiguity is not a result of careless drafting but of the deliberate attempt to overburden the conventions and treaties with numerous poorly defined obligations. People in most countries are formally entitled to diverse international human rights almost anything you might think is worth protecting- privacy, employment, social security etc. As a result the sheer quantity and variety of rights, which protect virtually all forms of legitimate human interests, can provide no guidance to governments. Taking into account the resource constraints such as limited budgets, ensuring one human right might prevent a government from providing access to another. For example, in most countries torture is not a part of official policy. In India, local police often use torture because the system believes that it is an effective way to maintain order or to solve crimes in face of limited resources. If the government decides to eliminate torture, it would need to establish non corrupt and well-paid investigatory units to monitor the police. The government would also need to fire its police forces and increase the salaries of the replacements. It would probably need to overhaul the judiciary as well, possibly the entire political system. Such a government might reasonably argue that it should use its limited resources in a way more likely to help people – building schools and medical clinics, for example. If this argument is reasonable, then it is a problem for human rights law, which does not recognise any such excuse for failing to prevent torture.
Governments around the world use the term human rights to make radically different and conflicting arguments from how countries should actually behave, thereby, frustrating the very purpose of protection of human rights. China asserts the right to development to justify why it gives priority to economic and industrial growth over civil and political rights. Many countries cite the right to security to justify inhumane law enforcement methods.
Consequently it can be said though the goals of human rights are idealistic but the means to attain them have been flawed. The activities and actions we will engage in the present will have long term effects on the human development for the global future generations. In the era of globalizations, interconnectivity and interdependence is pervading the fabric of the way of life of the entire world community. Government policies, justice delivery system and legislations will have profound effects on the future of global development. As the theory puts up universality of human rights, the practice should reflect bottom-up approach towards development and protection of human rights.
ABOUT THE AUTHOR:
Ahmad Ammar is in his third year at Faculty of Law, Jamia Millia Islamia where he is pursuing B.A.LLB(Hons). His interest lies in international human rights law and public policy. He aims to advance the cause of human rights and socio-economic justice by harnessing skill in legal research.