Harish Salve

WHEN WE SPEAK of International Bills of Rights, it has to be in a context.  These bills of rights are a solemn expression of hope by a group of wise people. These bills were born in were signed in 1948; the timing is significant. The United Nations itself is a product of a battle-weary, tired and wizened Europe. Bloodshed that began in the Ottoman Empire with the use of first generation weaponry ended with a nuclear bomb exploded by our friendly United States. It was that bomb that made men sit up, stop fighting and take stock of what we have been doing with each other in the last 50 years. That led to the formulation of the first, the parent, Universal Declaration of Human Rights, but this declaration had a host of signatories and had different significance in different countries.

It evolved through what we called the second generation rights which were the two other declarations of 1966, that came into force in 1976, the cultural and political rights and the economic rights declarations. That led to the evolution of the third generation rights partly through treaties and partly through judge made laws. This is a germ of an idea, and it has to be seen in context. Its context in Eastern Europe is very different from its context in Western Europe. Its context in the United States is sui generis. Some nations believe that rights have been made for themselves and its context in developing countries such as India and experiment with democracy is very different. That is why I say the greatest experiment with a multi-cultural, multi-national, multi-religious billions strong democracy is the context in which I propose to briefly examine these international bills of rights.

The framing of the Indian Constitution is the time when the bill of the Universal Declaration of Human Rights had its first impact. The framing of the Indian Constitution itself is quite an event unto itself, although the history of framing of the Constitution, the debates, is something from which all of us have a lot to learn.  We have had the good fortune of having to read the Constituent Assembly debates and to see the elected representatives, I don’t use the word politicians (in present context, it would degrade them) who framed our Constitution, how they rose above themselves, how they rose above their personal predilection, how they rose above all individual prejudices to say, we must forge instruments which will create unity in this great nation, which will preserve individuality and promote brotherhood.  It’s an education to read those assembly debates.

The spirit in which they debated controversial issues such as minority rights, human rights, the manner in which different ideas were accommodated and the ultimate distill which came out in the present Constitution by itself should be taught I sometime feel, in a para-phrase in schools and colleges in to remind people of the value system by which this democracy was born (not through taking money for asking questions).  The questions they, asked came from their heart not their wallet.

The constitution was framed for a country called India which did not exist prior to an earlier era.  The sub-continent India which became a nation India had certain defining features which were accommodated.  It was a land of culture, it was a land where values, feelings, emotions, religion matter a lot more then mere economic growth.  It was a land of assimilation and of most beautiful stories. The land of assimilation is exemplified the story of the arrival of Persians, whom now we call Parsees.  When they were discriminated at home and they came to our country and landed to the Gujarat coast, the story run, their local King interacted with the Indian King.  He could not speak Gujarati, he could only speak Parsi and the Indian King did not understand a word of Parsi.  So the Indian King, to explain that my state is full and that we have no place, took a glass of milk which was spilling over signaling no place. The Persian King in response, took that glass and added spoon of sugar to indicate will they sweeten the society and he was welcomed with open arms. That is our society, that is our culture, that’s our assimilation.  It was a land of learning, some of the finest Universities of the world were in India.

And it is this India, which the British had totally amalgamated for their own personal reasons.  But they had done a very good job in amalgamating India which has now come together as a Nation State and not as a congregation of nations where occasionally, for pasochial reasons, the princes wage war on each other. It was that which our Constitution set to capture and the most crucial factor in framing such a constitution therefore is balancing of rights which is the heart and soul of our Constitution.  When we set out to balance rights, we have to compartmentalize them in two parts " rights of the citizens against the state, some of which are incapable of compromise in any civil society. The right to life, there is no balance in the right to life.  Every citizen must have a right to life or don’t call yourself a democracy and accommodating different strands of a multi-cultural, multi-ethnic, multi-religious society in a manner that there should be brotherhood, the right to religion, the minority’s right, the rights to reservations and so on.  These were the balanced rights and framing of our Constitution was significantly influenced by the 10th December 1948 Bill of Human Rights.  The text of the preamble of the universal declaration of human rights is one of the best framed documents and it is a document which, I feel, should be read and re-read and its context understood with every phase of human life because it reminds us of certain cardinal values of mankind which were sought to be captured in that document.

I will read that Preamble to you very briefly.  Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. And, the Preamble to the Indian Constitution secured to all citizens, justice, equality, and faternity. The Preamble goes on and the advent of a world in which human being shall enjoy freedom of speech and belief, and freedom from fear and want has been proclaimed as the highest aspirations of the common people. 

Let’s just spent a minute on this. Disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind.  If you are talking of World War-I or World War-II, could this be applied to certain recent events, I think it could.  Acts of Terrorism, whether they be by a misguided section of society who feels their rights can be vindicated by slaying innocent people or by economic powers who want to re-shape society to conform to their own notions?  Barbarous acts are barbarous acts, slaying innocent people is a barbarous act, doesn’t’ matter why?  And the human conscience should be outraged by all such acts.  This barbarity should never ever be justified, there is no question of saying `Well you know because " We have learnt our lesson.  You all know one-man’s terrorist is another man’s freedom fighter.  You defend terrorism by saying `I think it is a wrong thing but"  and those who justified invasion of a nation also say `We know it’s a wrong thing but" there should be no `but’ in this.  There are certain things, which cannot be accommodated in the human world.

The third Preamble is whereas it is essential if man is not to be compelled to have any reason, as a last resort, to rebellion against tyrannous operation and that human rights should be protected. And then come the three magic words for us lawyers, the Rule of Law. The Rule of Law lies at the heart of the Indian Constitution and the recognition of the Rue of Law was the most important contribution of the Universal Declaration of Human Rights. What is the Rule of Law? The Rule of Law as we constitutional lawyer understand is a rule of the system and not of man--king’s, sovereign’s, dictator’s rule as per his/her free will in a Democracy. In a Society ordained by justice, there are to be a set of rules by which society is to be governed which we call laws and society has to be governed in accordance to these rules and not by whimsicality of individual leaders and that is what our Constitution captures.

 We have seen over the centuries the importance of the Rule of Law. Sometime when we see a kind of leadership and a kind of license democracy, we sometimes feel it would be better to have a Napoleon and a dictatorship than to have the present system and in this feeling lies the seed of an error. Bad governance, of which we have plenty today, is the seed of destruction of democracy because as a result the common man feels I would rather have a good king than these elected representatives who govern in this fashion.  But that is against the Rule of Law.

The Rule of Law contemplates governance in accordance with norms. The Rule of Law contemplates systems institutions, checks and balances and we picked up this law and made our Constitution around it. We first of all created a quasi federal structure -- the Union Government and a State. It is extremely important in a country like India to have a structure of the kind we created how (we have destroyed it because we have abused our Constitution). But what was created in a theory was a recognition of the fact that for this sub-continent to become a cohesive nation state, to become a country which it never was before. There has to be national debate, there has to be a national agenda. We must first of all become Indian and then for facility of governance, we must have decentralization, so Government was broken down into State Government, Municipal Governments, Panchayats and so on. We have failed the system and the system has not failed us; that is why 50 years from our Constitution we are so many Tamilians, so many Maharashtrians, so many Gujaratis, very few Indians. In fact my late Guru Mr. Palkiwala used to say, we should stop celebrating 15th August as Independence Day. You have had independence long enough. Nobody threatens our boundaries, nobody dare threaten our boundaries.  We should now celebrate it as Dependence Day. How we depend on each other?

 When you sit down to eat today, do you even think for a minute where the vegetables has come from, where the meat has come from, where the rice has come from, where your dal has come from? How we depend on each other. Your dinner plate symbolizes India. If one state has drought, the other has floods. If we link out our waters together, everybody has enough. That’s how we must depend on each other but unfortunately states fight over distribution of water and we are left with the situation where there is more than enough water for India but there are floods in the one state and drought in the other and everybody suffers. That was the first thing our Constitution created.

 The second thing our Constitution created was Rules of Governance. It created a set of rights, which constituted part three of our Constitution, which we call our fundamental rights and which capture most of the human rights which were declared were declared in the 48 Resolution. It also set out what was called Directive Principles. The Directive Principles of State Policy as they were called were meant to constitutionally guide our elected government on how to govern this great nation. It created institutions, it created an independent judiciary and recognizing one of the basic principles of governance in the Universal Declaration. It created a judiciary expressly empowered to enforce Fundamental Rights. In fact that is why you called our Supreme Court the ‘Apex Court.’ It was at that time inaccurate description of the Supreme Court. An Apex Court merely signifies the Court at the top of the structure. Our Supreme Court is a lot more. Our Supreme Court is the custodian of the Fundamental Rights and the right to move the Supreme Court for enforcement of these rights is itself a Fundamental Right and this was a recognition of the Universal Declaration.  There is not one single legal system, believe me, in the World in which the right to move the higher court of the land is a fundamental right. That’s what our constitution created. It created three institutions, independent of each other--the Civil Service, the elected representatives through the houses of Parliament and the houses of legislature and the judiciary as checks and safe-guards on each other.

 Unfortunately, this is an event of the 70’s, the Emergency of 1975, when we completely destroyed the independence of civil service. In the 60’s, the Minister did not have the courage to call a Secretary and say ‘pass an order like this’. He would say `Sorry Sir, that is against the law’. Today, I doubt if you will find very many civil servants of that kind of moral timber and that is what we intended when we framed the constitution.  Article 3, which recognizes the right to life became our Article 21. Article 7 which talks of equality before the law and absence of discrimination became our Article 14. Article 8, which I have just mentioned which said effective remedy by competent national tribunals was raised higher than what Article 8 contemplated as Fundamental Right to move the highest court of the land. Equality and fair public hearing, freedom of movement, right to nationality, freedom of thought, conscience and religion, freedom of expression of opinion, freedom of assembly. All this was captured in our Constitution. This is what we called the first generation right. Then came the covenant of civil and political rights.

 The civil and political rights took off from the Universal Declaration of Human Rights and sought to go one step further and accept certain basic rules by which everyone could enjoy civil and political rights as well as economic, social and cultural rights. The rights which were captured first were the political rights, that the people should have a right to self determination. We have seen with our neighbour, the problem of lack of self-determination. This right acknowledges and accepts that a bad elected government is preferable to an excellent dictatorship because in the long run people have a right to govern themselves. If we have an undesirable set of people in our legislature today it is because we have put them there. Why are they there because we people vote not on credentials. These people are there because we people do not vote for those whom we feel capable of good governance.

In countries like Africa, which are even today being ruthlessly exploited by corrupt dictatorships in league with large multinationals, this right is critical. This covenant went on further and recognized and this has been very important for what I am next going to tell you -- the rights against torture, the rights against degrading punishment, the right to liberty, to security of the person, and the right against arbitrary arrest or detention.  We signed this but did nothing further and that is where comes in the role of the Supreme Court. We also signed the covenant of economic and cultural rights, which is yet the spin of these two. But having signed this, no institutions, no systems were set in place to ensure against this and it was left to the Supreme Court of India to then make these into reality. The evolution of our law in the Supreme Court has been deeply and positively influenced by these covenants and the occasions where we have refused to recognise the significance of these covenants is also important to bear in mind. The most important constitutional case in the world was a case which our Supreme Court decided in 1973 by which we said the power of amending the Constitution cannot be used to change the basic structure of the Constitution. One of the steps in the reasoning of the Chief Justice who was part of the majority of seven was (he quoted from the Universal Declaration of Human Rights) to say that our constitution has been framed to recognise these rights and if these constitutional rights can be amended then how could we say that these rights are inalienable. He drew inspirations from the fact that the Universal Declaration called these rights inalienable and said therefore even by a brute majority Parliament cannot touch the basic structure and over the years this has been used to stifle any event attempt to deal with equality rights and I dare say anybody who tries to amend the right to life, the right to liberty or the right of minorities will fail because that would be touching the basic structure of the Indian constitution.

 Post-Emergency, the Indian Supreme Court, speaking from its own judgment in Shivkant Shukla, where it failed to recognize the basic human rights against arbitrary arrest and detention and where it said ‘we have not signed this covenant, so how do we prevent arbitrary arrest’. The Supreme Court was shame faced that it had led down this nation.  In 1977 took a complete turn and the change in the Supreme Court has been one of the most dramatic developments of Constitutional Law not just in this country but in the World. Of course it still deals with commercial cases and important other cases but our court suddenly said that ‘we are not going to be like the old court, hide-bound and formal and not in substance; we are now duty bound to reach out and deal with injustice to the common Indian and it started in 1979-1980, first with Justice Krishna Iyyer who, in his judgement, struck down the old Colonial Law by which you could be put into a debtors prison if you did not pay your debts.  He relied on the Universal Declaration of Human Rights, according to which this provision is unconstitutional because it runs counter to the declaration of the rights. In 1981, a lady arrested under the Preventive Detention Law on some very serious charges moved Supreme Court and the Court said prisoners have rights; it relied on the declarations, the ‘48 declarations,’ the 66 declaration and spelt out virtually a manual which the government should have done in the first place. The Supreme Court spelt out a manual of protection of how prisoners have to be treated, how they have to be fed, how they have to be looked after, how they have to be housed? What are the rules, which must govern parole. These rights focus upon the children and the children’s rights, especially abandoned children, orphaned children, poor children, the future of the nation. Once again it was left to the Supreme Court in the 1987 in Sheela Balphase case to develop the law, to make rules on how children are to be treated, how adoption is to be done, what are the rights of the children, arrested for crime, children pushed into crime, how they are to be dealt with and so on.  The famous case, one of the most landmark judgment of this, the Neerawati Mehra case, which relied on the covenant on civil and political rights to say that a person who has been denied the right to life is entitled to compensation and for that compensation he doesn’t have to file a suit against the government; the public law remedies it. Moving the Supreme Court directly, as a fundamental right, he can claim compensation for violation of the right to liberty. The Supreme Court also relied in other cases on these covenants and laid down principles on which arrests have to be affected. How a person is to be arrested?  What are the safeguards to be followed?  How he is to be treated in arrest? It came down very hard to deal with the problem of interrogation and custodial deaths, a common problem with our Indian police. The wire tap case in 1997, where the Court said that for wire tap you have severe conditions and strict safeguards based on these.

In a very interesting term the court used the third convention, the cultural and economic rights convention, to balance the minority rights to the rights of workers.  It was a very interesting case of Christian Medical College and what we argued in Supreme Court was that the industrial law, which provides a veto and you can compel an educational institution to take back a dismissed worker ran counter to Article 30 as interpreted by Supreme Court saying that there must be independence in the administration of minority institutions and the Supreme Court used this covenants to say that these covenants recognize both sets of rights, it recognizes the rights of minority, it recognizes the rights of workers and we balanced the two and said ‘yes, the industrial law will apply with the exception that while for non-minority industries and non-minority institutions, you have the right to compel them to take people back, for minority institutions that veto is not available.’

The most important third generation development what we call the third generation rights is the gender justice right because these are not captured in any of the covenants directly. These have been evolved in some of the latest covenants and in our country through judge-made law. The most important third generation right has been directed to environment and this I describe most important for two reasons.

It recognizes that none of the other rights would make any sense if we do not have a healthy environment. What use is the right to liberty to a man who is sick and dying.  What children rights, when all our children suffer from Asthma because the air is polluted. What use of our right to freedom of religion if you have glass of water that is contaminated and makes you sick?  Our survival, our existence, our well being comes first and then follow all these rights and that is secured by the right to environment.  The right to public health, which is the single most important in every religion the first prayer you make to God is for me good health in different words.  Every religion you first pray for good health, the single most wealth, which I want. Environment law is found in each of our scriptures. There are passages in the Bible, in the Quran, in the Gita, in the ancient Vedas about environment protection. The Red Indians of America are among the very strong environment communities in the world. How particular were the Persians about environment! So, it’s not something new, we have only re-discovered its importance. We got lost somewhere in our race for industrial growth, and we have re-discovered the importance of our environment. This is the most important right that has been culled in the way it was established in our country. In 1972, we have the Stockholm Declaration to which India was a party, followed by the 1992-93 Declaration of Rio where we recognized the critical principle of sustainable development. At that time all nations including United States subscribed to the idea of sustainable development. Sustainable development means a development in which you grow without compromising your ecology and it is possible. And there were two sub-rules of sustainable development, which were evolved and which were recognized as critical by the world not just us. The first was what was called the ‘precautionary principle’ that means do not do something unless you are sure it is benign. You do not stop something which was not proved to be harmful, you only did that which you were sure was not harmful and in the second, and this was, mind you, international covenant.

In the second was the polluter pays, the person who damages the environment must bear its consequences whether this be a person, an institution, an organisation or a nation. Our Supreme Court has enforced it in the last 15 years and to good effect. On a personal note, I may tell you, I have had the privilege of being associated in the case in which the CNG was enforced on this city.  I was assisting the Court and when I became Solicitor General, I took permission of the Government and continued to assist the court. At that time the Supreme Court said if you do not now, by the cut off date, bring in CNG, we will shut the traffic down, if necessary. The Chief Minister of the State wrote to the Prime Minister saying I should be removed from the Office but she was saying that this was letting the city down. The Supreme Court did not relent, the city has now much thinner air, thanks to CNG. As a post-script I may add a year later she went to New York and received an award for implementing CNG in Delhi. Thanks God for that because after that this city has been environment friendly.

Again if I quote my late guru Mr Parthiwala, he had a very interesting saying that as a human being we always do the right things; the trouble is that we do it after exploring all other options and that is what we see happening today. The country which was at the forefront of these conventions, the Untied States of America, is backing off from all environmental conventions. The basic Rio declaration has led to sub-declaration, the biosphere declaration in which we all agree to preserve a biosphere.  It led to the ozone emission declaration what is called the Kyoto-protocols and what happens to Kyoto-protocols. It was meant to reduce carbon emission, which damages ozone.  America at one stage suggested because they produce far more of CFC, the gas which you use in sprays and which damages ozone, they produced more than what they needed and it goes into air-conditioning.  So they suggested that India should not manufacture any and we should buy CFC from them.  Countries like India said no we have all agreed to have a ceiling on our emission, as long as we are within that ceiling, we are entitled to make our own.  Americas way about that ceiling and had to reduce it ozone emission so it was left with CFC factories which are manufacturing CFC. America has now backed off from the Kyoto-Protocol and said ‘Hell with all of you’. In the matter of environment, the globe is one. Emissions from America will damage ozone over Asia.  It is not confined, you don’t cause damage when you fell our forests, the effect is felt in Middle East because when the God created our planted, He did not draw these lines which we humans have drawn. So this third generation right has been the most significant development and contribution of this International Bill of Rights.

I would like to conclude by saying that over the years, the importance of rights changes; and as I started by saying, all these rights have to be examined in the context not in generality. In certain countries today, the right to life and the right against arbitrary arrest is critical. We take it for granted in India. Of course, there are few aberrations everywhere but we take it as granted in India. Ask people in Iraq of the right to life and right against arbitrary arrest, and I am sure they have a different view on that. Let us consider it in our Indian context. In our Indian context, the two most important third generations, which we have to now recognize, are the two eco-rights – ecology and economic growth. I have dealt sufficiently with the rights to ecology, let me dwell on the economic growth. This is a right, which requires balancing among a lot of other items.  The interaction between the right to ecology and the right to economic growth is now an accepted reality after all the sociological research, which has gone into it. Poverty is the single biggest pollutant. How do you expect people to have good sanitation when they do not have money to feed themselves? A person who desperately needs wood and cannot afford to buy alternate fuel will go and damage your forest. Where there is no water, people will dig and draw water from wherever they can irrespective of its consequences.  So, poverty is the single, obstruction to these rights. The right to economic growth will now require us to balance certain other social and political rights. People abroad tell me, that the world is bullish on India. Everybody wants to come and invest in India but what scares people about India are the two faces of India.  One is the face of a nation sustaining 7% plus economic growth for two years, of a nation with relative peace and prosperity, of a nation with the finest stock of educated English speaking people committed to democracy, a nation that wants to grow and which presents exciting opportunities. The other face of India is the face of a nation where 20 people are burnt today and 30 people are burnt tomorrow, in which the regional debate is threatening to overtake the national debate, a nation in which our Prime Minister, our Finance Minister and our Dy. Chairman of our Planning Commission are three of the world’s finest economists. Dr Manmohan Singh is one of the most respected economist, Montek Ahluwalia is one of the most respected economist of the world but if you run through the list of their colleagues in the Parliament, it has so many of them who are only familiar with the Indian Penal Code. These are the two faces of India. We have to do away with the second phase.

The time has come, we have to rise above ourselves. We have to burry fractured issues, issues of religion, issues of caste; they have no place in modern India. Those rights are now for granted and believe me with economic growth, a lot of these problems will go away.  Let’s take the problem of reservations. The problem of reservation in government jobs is so important because the government jobs are so important.  With resurgence in private sector, 10 years from now, if you have great economic growth, government jobs will not be lucrative. Government will not be the single most exciting employer, then who cares for reservations. Equitable economic growth will bring its own answer.  Today we are having inequitable economic growth, it takes time for wealth to permeate but wealth will permeate only when we do away with divisive issues and this is the most important lesson we have to learn from these covenants from this paradigm of Rule of Law.  Let us now restore our institutions; let us bring back the Rule of Law. Let us bury our divisive issues and support our institutions and show to the world that Indians have one face -- a face of happy, multi-cultural, multi-ethnic democracy, which believes in God, whatever your God may be, which believes in values and which believes in the Rule of Law.g

The lecture was held at India International Centre, New Delhi on January 8, 2006)

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