DEFINITION OF HUMAN RIGHTS: A CRITICAL ANALYSIS

Abstract

Human rights are a demand for recognition and respect for certain rights recognized as human rights by several international instruments like Universal Declaration of Human Rights, International Covenants on Civil and Political Rights etc. but the concept of human rights changes domestically as per the position of sovereign states. The constitutional approaches to incorporating international law often refer to ‘monist’ and ‘dualist’ theories concerning the relationship between international law and national law. Monist theories imagine a unitary world legal system in which national and international law have ‘comparable, equivalent, or identical subjects, sources, and substantive contents.’ For example, the Dutch Constitution of 1983 under Art.93 provides for monist approach. Dualist theories distinguish between the system or public order of international law and of national law. Each has ‘its own distinguishable subjects, distinguishable structures and processes of authority, and distinguishable substantive content’. For example, in the United Kingdom, there is no specific definition of human rights but the incorporation of human rights is by bringing a law in the United Kingdom law and giving the instrument enforceability by bringing a law in the territory. The Human Rights Act, 1998 gives effect to the European Convention on Human Rights in United Kingdom a charter or bill of rights for the first time. The Act does not set out a new list of rights: rather, it lists the Convention rights to which its provisions are to apply and provides for them to be given domestic effect.  Section 6 of the said Act just provides its binding effect on public authorities but the convention has not been given a legal status, only the rights have been enlisted as provided under the Convention for the purpose of the said Act. There are several conventions and covenants according to which the contracting parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the conventions and covenants. India, a sovereign state is no different to others and follows the dualist approach and so the concept of human rights in India is not the same as provided under the international instruments together. Human rights in India are defined under Section 2 (1) (d) of the Protection of Human Rights Act, 1993(hereinafter referred as the “1993 act”).