BA and Venkatesh Sundaram

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In a startling opinion a bench of the Supreme Court observed “only law-abiding citizens can claim fundamental rights’’ according to a news item in the May 25, 2022, online edition of the Times of India.  Although this observation was made in the case challenging an anti-gangster law of Maharashtra, it reflects a very dangerous attitude which needs to be countered.

The first and most important notion is that a human right, according to modern definition, is something which can neither be given nor taken away by the government or any other authority. It is something that a human being enjoys merely because she or he happens to be a human being.

The notion that kings and governments have powers to confer human rights on human beings is totally outdated and wrong, as is the notorious “divine right of kings”.  Nevertheless, the powers that be and the courts and majesties continue to insist that it is they who confer rights on people! It is they who are allowed to decide as to which section of the population may enjoy which rights!

Human rights are not given or “bestowed” by this or that economic or political power (including governments), this or that social or cultural institution. They are not “granted” to people even by judiciaries.  In fact, though some fundamental human rights are listed out and mentioned in the constitutions of several countries, are also not awarded to people by virtue of the fact that they are spelt out in a countrys constitution. Indeed, if they can be enshrined in a constitution, they can also be taken out by specified authorities who can amend the constitution (parliament acting with a certain majority for instance).

Another aspect is that human rights are not static – given once and for all. They do in fact represent a definite stage in the development of a society. For instance, universal suffrage – the right of all citizens to stand for office and to vote – did not exist in slave-owning or feudal times but is generally felt to be a basic right today.

There are several other problems with the captioned statement of the learned judges. Laws are made by governments, and individuals having consciences can justifiably conclude that certain laws are just or unjust. The right to conscience indeed is another important modern human right, one that is inalienable. We have all heard of Mohandas Karamchand Gandhi and the Dandi March where he intentionally broke the law of the land (a colonial law in this case) and was arrested. Will their Ladyships and Lordships who pronounced the judgement in question in May 2022 opine that Mohandas Karamchand Gandhi had lost his human rights merely because he intentionally broke a law which his conscience told him was unjust?

Even today, there are many laws and ordinances in the country which are widely believed to be draconian, and it is within the rights of the people to oppose them.  The recent directive of the Supreme Court of India keeping the provision Sec 124 A of the IPC “in abeyance” clearly indicates that merely because something was enacted into a law, it cannot be said to be sacrosanct for all time. It may, in fact be outdated and violative of fundamental rights – which is what a bench of the Supreme Court ruled on sedition (Sec 124A of IPC) just a few weeks ago. There are a host of laws – UAPA, Armed Forces Special Powers Act to name only two – which are quite unjust and need to be repealed. How can citizens of a democratic country be deprived of their basic human rights merely because they rightfully oppose such laws?

Furthermore, the very manner in which legislation is carried out with hardly any participation of the masses of the people indicates a deeper malaise. The Central Government had to withdraw three agricultural laws which they steamrolled through parliament on the basis of their brute majority, in the face of united and relentless struggle of the farmers. Would their Ladyships and Lordships opine that those who opposed the agricultural laws would not be able to enjoy their fundamental rights as long as the legislation remained in force?

In light of what is manifestly a contestable opinion, it is important that all legal minds and those interested in the rights of the people of the country immediately challenge this opinion.  An enlightened discussion around this theme would go a long way towards the liberation of the people of India and in ensuring their fundamental rights in practice, rather than being a mere curiosity in the pages of the Constitution of India. There is a need to enforce the modern definitions of rights, instead of justifying the status quo. All progressive minded individuals and organisations fighting for the people of India should unite and carry out such a discussion and work towards ensuring the human rights of all sections of the people in our beloved country.

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