Rights | PSIR Optional for UPSC (Notes) PDF Download

What are Rights?

Rights are legal and moral entitlements that individuals possess, which allow them to enjoy certain privileges and protections from others. Every person is entitled to these rights, which may include freedom of speech, equality before the law, and the right to life, liberty, and property. Rights may also include positive treatment, such as access to education, healthcare, and other basic necessities.

• Rights are an essential part of a democratic society and are often enshrined in national constitutions and international human rights treaties. These rights serve as a check against the power of governments and other organizations, and they protect individuals from discrimination and abuse.
• It is important to note that individual rights must be balanced against the rights of others and the common good of society. For example, freedom of speech does not include the right to incite violence or engage in hate speech. Similarly, property rights must be balanced against the need for public resources such as parks and roads.

Main features of Rights

• Rights exist only in society. These are the products of social living.
• Rights are claims of the individuals for their development in society.
• Rights are recognized by the society as common claims of all the people.
• Rights are rational and moral claims that the people make on their society.
• Since rights are here only in society, these cannot be exercised against the society.
• Rights are to be exercised by the people for their development which really means their development in society by the promotion of social good. 
• Rights can never be exercised against social good.Rights are equally available to all the people.
• The contents of rights keep on changing with the passage of time.
• Rights are not absolute. 
• These always bear limitations deemed essential for maintaining public health, security, order and morality.

Theories of rights

Utilitarianism

• Utilitarianism is an ethical theory that focuses on maximizing overall good or utility. According to this principle, an action is considered just if it produces the greatest amount of good relative to all other possible actions. The consequences of an action are the sole determinants of its justness, making utilitarianism a consequentialist theory.
• In the context of utilitarianism, rights are seen as instrumental and are only acknowledged if they contribute to maximizing utility. Some utilitarians may even oppose the concept of rights altogether. A utilitarian would only respect a right if doing so leads to the greatest overall good. Moreover, if exercising a particular right does not maximize utility, a utilitarian would be obligated to violate that right for the sake of the greater good. Therefore, the point at which exercising a right no longer contributes to maximizing utility is the point at which society can justifiably restrict that right.
• Utilitarianism considers rights as secondary to utility, and they can be limited or violated if doing so would lead to greater overall good. This ethical perspective can be applied to various scenarios and policy-making decisions, where the focus is on maximizing the welfare of society as a whole.

Laski’s Theory of Rights

• Harold Laski, a prominent political scientist and author of around 20 books, developed the theory of rights, which remains a classic representation in many aspects. He defines rights as the essential conditions of social life that enable individuals to reach their fullest potential. According to Laski, rights are deeply intertwined with social life and are a social concept.
• Laski emphasizes the crucial role of the state in recognizing and realizing human rights. He examines the legal theory of the state in the context of rights, arguing that rights entirely depend on the state's institutions and recognition. Without state recognition, an individual cannot claim rights. However, recognition alone is not enough; the state must also implement these rights through laws and institutions.
• A significant aspect of Laski's theory is the functional aspect of rights, which focuses on the relationship between rights and duties. He asserts that rights are correlated with functions, meaning that an individual can only claim rights if they fulfill their duties; otherwise, their claim for rights cannot be entertained. This idea contrasts with the widely-known legal theory of rights. However, it is important to note that rights are now mainly recognized and protected based on political considerations.

In summary, Harold Laski's theory of rights highlights the importance of social life and state recognition in realizing and implementing rights. He also emphasizes the correlation between rights and duties, arguing that individuals can only claim rights when they fulfill their responsibilities. This perspective is particularly relevant for UPSC exams, as it provides a comprehensive understanding of the complex relationship between rights, duties, and the state's role in recognizing and implementing them.

Barker's Theory of Rights

• Similar to Laski's views, Barker's perspective also leans towards liberalism and idealism. He believes that the primary objective of a political organization, such as the state, is to ensure that individuals have ample opportunities for personal development. To achieve this, the state must guarantee and protect the essential conditions, which are referred to as rights. Individual personality development cannot occur automatically or in a hostile environment; it requires favorable conditions that must be ensured by the state through the implementation of laws.
• Barker also emphasizes the moral aspect of rights, stating that while the state's laws help secure rights, the origin of these rights lies within the individual themselves. As moral beings, individuals are determined to develop their moral personality through rights, not intending to cause harm to society. By being morally responsible, individuals strive to contribute positively to the overall welfare of society.

Types of Rights

Natural Rights 

• Many researchers have faith in natural rights. They stated that people inherit several rights from nature. Before they came to live in society and state, they used to live in a state of nature. In it, they appreciated certain natural rights, like the right to life, right to liberty and right to property. Natural rights are parts of human nature and reason. Political theory maintains that an individual enters into society with certain basic rights and that no government can deny these rights. 
•  Even though chance may occasionally prevent good actions from having their normal consequences, so that sometimes cowards fare better than brave men, courage is still objectively better than cowardice. The virtues and actions that contribute to the good life, and the activities intrinsic to the good life, are naturally right.
• The modern idea of natural rights grew out of the ancient and medieval doctrines of natural law, but for other scholars, the concept of natural rights is unreal. Rights are the products of social living. These can be used only in a society. Rights have behind them the recognition of society as common claims for development, and that is why the state protects these rights. John Locke (1632–1704), the most influential political philosophers of the modern period, argued that people have rights, such as the right to life, liberty, and property that have a foundation independent of the laws of any particular society.

Moral Rights 

• Moral Rights are based on human consciousness. They are supported by moral force of human mind. These are based on human sense of goodness and justice. These are not assisted by the force of law. Sense of goodness and public opinion are the sanctions behind moral rights.
• If any person disrupts any moral right, no legal action can be taken against him. The state does not enforce these rights. Its courts do not recognize these rights. Moral Rights include rules of good conduct, courtesy and of moral behaviour. These stand for moral perfection of the people.
• Moral rights were first acknowledged in France and Germany, before they were included in the Berne Convention for the Protection of Literary and Artistic Works in 1928. Canada recognized moral rights in its Copyright Act. The United States became a signatory to the convention in 1989, and incorporated a version of moral rights under its copyright law under Title 17 of the U.S. Code. There are two major moral rights under the U.S. Copyright Act. These are the right of attribution, also called the right of paternity and the right of integrity.

Legal Rights

• Legal rights are those rights which are accepted and enforced by the state. Any defilement of any legal right is punished by law. Law courts of the state enforce legal rights. These rights can be enforced against individuals and also against the government. In this way, legal rights are different from moral rights. Legal rights are equally available to all the citizens. All citizens follow legal rights without any discrimination. They can go to the courts for getting their legal rights enforced.

Contractual Rights

• Contractual rights originated from the practice of promise-keeping. They apply to particular individuals to whom contractual promises have been made. Contractual rights ascend from specific acts of contract making. They normally come into being when the contract is made, and they reflect the contractual duty that another party has acquired at the same time. As a result of a contract, party A has a contractual duty, say, to deliver some good or service to party B, who has a contractual right to the good or service.
• Contractual rights may be upheld by the law, and in that sense can rest upon legal rights, but it is possible to conceive of contracts made outside of a legal framework and to rest purely upon moral principles. However, such contracts are less secure than contracts made within a legal framework, for obvious reasons.

Concept of Human Rights

• Human rights are those moral principles that are fundamental and morally significant and that are upheld by every person because they are a part of that person's inherent moral worth. One of the key facets of human political reality is human rights. It represents the highest moral obligations. Human rights developed from regard for oneself. It is innate to all people, regardless of colour, sex, nationality, ethnicity, language, religion, or other characteristics. It took on a new form as people started thinking for themselves. These rights are universally guaranteed to all people without exception.
• Human rights are protected and supported by international and national laws and treaties. The UDHR was the first international document that spelled out the “basic civil, political, economic, social and cultural rights that all human beings should enjoy.” The declaration was ratified without opposition by the UN General Assembly on December 10, 1948. Under human rights treaties, governments have the prime responsibility for proto shield and promote human rights. However, governments are not solely responsible for ensuring human rights.

Historical origin of human rights

Records indicated that Though modern historians traced “Magna Carta” of 1521 as the historical beginning of human rights, but its real origin goes back to 539 B.C. when Cyrus, the great (king of ancient Persia) conquered the city of Babylon, he freed all slaves to return home and declared people to choose their own religion and even maintained racial equality. The idea of human rights quickly spread from Babylon to many nations especially India, Greece and eventually Rome where the concept of natural law arose in observation of the fact that people tended to follow certain unwritten laws in due course of life. 

• There the concept of “natural law” arose, in observation of the fact that people tended to follow certain unwritten laws in the course of life, and Roman law was based on rational ideas derived from the nature of things.
• Documents asserting individual rights, such as the Magna Carta (1215), the Petition of Right (1628), the US Constitution (1787), the French Declaration of the Rights of Man and of the Citizen (1789), and the US Bill of Rights (1791) are the written precursors to many of today’s human rights documents.
• Another breakthrough in the development of human rights was the Petition of Right, produced in 1628 by the English Parliament and sent to Charles I as a statement of civil liberties. Rejection by Parliament to finance the king’s unpopular foreign policy had caused his government to exact forced loans and to quarter troops in subjects’ houses as an economy measure.
• In 1864, sixteen European countries and several American states attended a conference in Geneva, at the invitation of the Swiss Federal Council, on the initiative of the Geneva Committee. The diplomatic conference was held to adopt a convention for the treatment of wounded soldiers in combat. The main ideologies laid down in the Convention and maintained by the later Geneva Conventions provided for the obligation to extend care without discrimination to wounded and sick military personnel and respect for and marking of medical personnel transports and equipment with the distinctive sign of the red cross on a white background.
• By 1948, the United Nation’s new Human Rights Commission had attracted global attention. Under the dynamic headship of Eleanor Roosevelt, President Franklin Roosevelt’s widow, a human rights winner in her own right and the United States delegate to the UN, the Commission set out to draft the document that became the Universal Declaration of Human Rights. Roosevelt, credited with its motivation, referred to the Declaration as the international Magna Carta for all mankind.

In nut shell, The written inventor to the modern human rights documents are the English Bill of Rights (1689), the American Declaration of Independence (1776), the French Declaration of the Rights of Man and Citizen (1789), the first Ten Amendments of the Constitution of the United States (Bill of Rights 1791) and the Universal Declaration of Human Rights of UN (1948).

Characteristics of human rights

Human rights are deliberated on an individual due to the very nature of his existence. They are innate in all individuals irrespective of their caste, creed, religion, sex and nationality. Human rights are conferred to an individual even after his death. The different rituals in different religions bear testimony to this fact.

• Human rights are needed to maintain the moral, physical, social and spiritual welfare of an individual. Human rights are also essential as they provide suitable conditions for material and moral upliftment of the people.
• To treat another individual with dignity regardless of the fact that the person is a male or female, rich or poor is concerned with human dignity.
• Human rights are irrevocable as they cannot be taken away by any power or authority because these rights originate with the social nature of man in the society of human beings and they belong to a person simply because he is a human being. As such human rights have similarities to moral rights.
• Man is a social animal and he lives in a civic society, which always put certain limitations on the enjoyment of his rights and freedoms. Human rights as such are those limited powers or claims, which are contributory to the common good and which are recognized and guaranteed by the State, through its laws to the individuals. As such each right has certain limitations.
• Human rights are not stationary, they are dynamic. Human rights go on expanding with socio-eco-cultural and political developments within the State. Judges have to construe laws in such ways as are in tune with the changed social values.Human rights are not stationary, they are dynamic. Human rights go on expanding with socio-eco-cultural and political developments within the State. Judges have to construe laws in such ways as are in tune with the changed social values.
• Human rights infer that every individual has legitimate claims upon his or her society for certain freedom and benefits. So human rights limit the state’s power. These may be in the form of negative restrictions, on the powers of the State, from violating the inalienable freedoms of the individuals, or in the nature of demands on the State, i.e. positive obligations of the State.

Principles of Human Rights

• Universality
• Inviolable
• Inalienable
• Indivisible
• Interdependent
• Inter-related
• Non-discriminatory

Positive Rights: Positive rights, initially proposed in 1979 by the Czech jurist Karel Vasak, may include other civil and political rights such as police protection of person and property and the right to counsel, as well as economic, social and cultural rights such as food, housing, public education, employment, national security, military, health care, social security, internet access, and a minimum standard of living.

Negative Rights: Negative rights are an absolute right whose slightest violation breaks this right. Right not be tortured. Duty bearer has to refrain.

Human rights in India: Human rights are vital for all round development of individuals. The Constitution of India makes provisions for basic rights also known as Fundamental Rights for its citizens as well as for aliens. The Supreme Court of India is the guarantor of the rights according to the Constitution. The court takes into account fundamental duties while interpreting the constitutional right. In Indian constitution, Rights are classified mainly in three broad categories:
(a) Civil 
(b) Political 
(c) Economic and Social.
Fundamental Rights in India recognize certain civil rights. Certain Political and Economic and Social rights are recognized by other provisions in the Constitution. The Supreme Court of India recognizes Fundamental Right as “natural right”

In Indian constitution, the Fundamental Rights are defined as the basic human rights of all citizens. These rights are defined in Part III of the Constitution regardless of race, place of birth, religion, caste, creed or sex.