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Speech of Shri Soli Sorabjee, Attorney General of India

Delivered in the National Seminar on 13.5.02

 10^th December 1948 witnessed the proclamation of the Universal Declaration of Human Rights. It was regarded as a landmark event in the march of human rights Mrs. Eleamer Roosevelt who was the moving spirit behind the Universal Declaration called it the Magna Carta of Mankind. The present global human rights scene brings home the cynic's taunt that the Universal Declaration of Human Rights is a painful reminder of the universal violation of human rights.

Of late there has been extensive discussion of human rights in our country in view of the tragic and shocking state of affairs in Gujarat. Let us get back to basics and undertake what is all about .

The fundamental immaculate premise of human rights is that a human being is not mere mass and molecules but there is a spiritual spark in every individual irrespective of race, religion, creed, caste, color, language, sex or status. The rationale of human rights is that human personality is invaluable. It is not expendable. The human rights flow from the common humanity and the inherent dignity of every human being and the equal and inalienable rights of all members of the human family. It is a fallacy to regard a Bill of Rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any Constitution by reason of the fact that they are members of the human race. A Bill of Rights does not 'confer' fundamental human rights. It confirms their existence and accords them protection. Its purpose is to place them beyond the reach of majorities and government officials"

Conventional thinking in international law before the second world war was that an individual is merely an object of the law of nations. An individual human being was not regarded as a subject of international law. The general accepted position was that no sovereign state may inquire into the manner in which another sovereign rules. If he treats his subjects with severity no foreign state can require the other State to follow a wiser and juster course. The consequence of this doctrine was that what a sovereign state did to its citizens was its own affair and it was none of the business of the other states or the international community to interfere.

It is incredible, but true, that the British government refused to register any protest about the atrocities perpetrated against German citizens under the Nazi regime on the ground that it was against the rules of international law for one sovereign state to complain about the treatment meted out to the nationals of another sovereign state by its government. The reason it that absolute state sovereignty and domestic jurisdiction of the states in their internal affairs were the ruling domain of the day.

There has been a revolutionary change in this thinking. The old dogmas of state sovereignty and domestic jurisdiction of the states in their internal affairs were the ruling dogmas of the day.

There has been a revolutionary change in this thinking. The old dogmas of state sovereignty and domestic jurisdiction have suffered a severe dent. If there is a systematic and consistent pattern of gross violation of human rights in a country which is officially or demonstrably state sponsored, that becomes a legitimate concern of the international community. There should not be undue resentment of criticism of the state of human rights in our country by international NGOs and foreign governments. It their reports and criticism are factually incorrect or misleading or grossly exaggerated, as they well may be,  a fitting response would be to rebut them with facts and figures. Resentment of criticism per se gives a wrong message and inadvertently gives credence to false and exaggerated charges, and provides propaganda ammunition to countries hostile to us.

Another basic aspect which is not fully appreciated is that in essence minority rights are linked with human rights and protection of the rights of minorities is an essential most of the protection of human rights. Article 27 of the ICCPR 1966 expressly guarantees rights of members of the minority communities.

Special provisions for minorities have been a cause of tension and friction between the majority and minority communities in several countries, including ours. The main reason is a total misunderstanding of the underlying rationale of these special provisions, which are erroneously looked upon as granting favours or pampering the minorities. What is not realised is that these special measures are not privileges or favours doled out to the minorities but are rooted in the principle of equality and are essential to ensure genuine de facto equality. It must be remembered that protection of minorities is the hallmark of a civilised national. According to Gandhiji the test of a civilised nation is the treatment accorded to its minorities. I shudder to apply that test to Gujarat, the land of the Father of the Nation.

It is necessary that majority communities should be aware of and be sensitive to the rights and customs of the minority communities. In their turn the minority communities should also respect national legislation and the customs and traditions of the majority community in the State in which they reside. Guarantee of minority rights does not confer a licence to the minorities to flout the laws of the State in which they are residing.

Another important development in the field of international law of human rights is the Vienna Declaration of 1993. It explicitly recognises that "all human rights are universal, indivisible interdependent and interrelated". this has put to rest the controversy regarding the superiority of one set of rights, namely civil and political, over the other viz. Economic, social and cultural. 

An interesting and encouraging recent development in international law has been the recognition of responsibility of the state for its inaction which results in violation of human rights. Human rights can be violated as much by positive action of the State as by its deliberate inaction. The principle of State responsibility has been extended to cases where the state allows private persons or groups to act freely and violate with impunity the guaranteed rights. The emerging principle is that a state is responsible for human rights violations occurring on account of its inaction and also for human rights violations occurring on account of its inaction and also for human rights violations committed even by non-state actors residing within its jurisdiction.

Another remarkable development which I would like to mention is this principle of state accountability which was laid down by the Inter- American Court established under the American Convention of Human Rights in Its judgment (dated 21^st July 1989) in Velasquez Rodriguez case. In that case, the question which arose was whether the state of Honduras was liable to pay damages or compensation for the involuntary disappearance of Manfredo Velasuez., The court ruled as follows :

"That state is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the state apparatus acts in such a way that the violation goes unpunished, and the victim's full  enjoyment of such rights in not restored as soon as possible, the state has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction".

The Court declared that it is a principle of international law that every violation of an international obligation which results in harm creates as duty to make adequate reparation and compensation. The principle laid down in the context of international obligation can be well applied to the constitutional obligation of a state.

Constitutional guarantees and laws for the protection of human rights, including minority rights, are certainly necessary. Judicial pronouncements are very helpful. But in order to translate this rhetoric and guarantee of human rights into reality what is essential if the correct mindset, our tradition of tolerance and catholicity of outlook.

The urgent need of the hour is to remove the sense of insecurity and helplessness which has gripped members of the minority community in Gujarat, to bridge the deep divide, to restore trust and confidence. Punishment of the guilty and those who are openly spreading religious hatred would be the requisite step in that direction. Above all it is essential to  generate confidence of the people and make sincere efforts to redeem the future without raking up the past, and indulging in   recriminations and attempts to derive political mileage. This is the national duty of every fair minded citizen. The National Human Rights Commission (NHRC) and the Rajasthan Human Rights Commission should spare no efforts in that direction.

Let us realize the vision of Gurudev of regarding as our own all the inhabitants of our great land from whose shore none has been or shall be turned away.

I have no doubt that with goodwill and dedication and sincere effort, we shall overcome the present crises and fulfill that vision and be able to say with pride ,

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