Human Rights are Fundamental Rights Justice H Suresh, Sabrang Publications.
That ignorance of law is not an excuse is one of the basic principles of legal adjudication. However, the practicability of such a principle in a country like India with millions of illiterate people is doubtful. When it comes to human rights such ignorance can only facilitate infringement of human rights by the State as well as private actors. This situation puts the legal literate under an obligation to be the defender of human rights. This obligation should not be confined only to courtrooms but in all possible foras .
Justice Suresh’s work Fundamental Rights as Human Rights is an endeavour to fulfil such an obligation. It is a collection of 12 lectures to students in the PG Diploma Course in Human Rights, in the University of Mumbai. The common theme of these lectures “ was to explain the need to understand human rights, which alone can give real meaning to the study of fundamental rights”.
These lectures deal with different aspects of human rights law. The introductory lecture puts the concept of human rights in its historic and international setting. The second deals with the theme of the book i.e. fundamental rights as human rights.
Justice Suresh puts forward his basic argument i.e. a human rights approach to fundamental rights alone can bring meaning to the fundamental rights.
Even though such an argument is not new, what makes it important is the timing of such articulation. The recent Supreme Court ruling on the denial of right to strike is only a signal of things to come. A human rights approach would have resulted in a very different decision. Thus the theme of the book is relevant to the present times.
The human rights approach to fundamental rights brings another issue of international obligation and its enforcement at the domestic level. The author states that “ the rights have been identified and recognised in the UDHR and the State has an obligation to take measures towards the realisation of rights”.
Thus the author makes two points very clear: Firstly, the articles of UDHR constitute customary international law and therefore states are under an obligation to implement at the domestic level. Secondly, the State has an obligation to carry out an international obligation.Such an implementation can be carried out by any of the three organs of the state viz. executive, legislature and judiciary. However, Justice Suresh does not elaborate the nature of international obligation created by the UDHR, ICCPR and ICESCR. Further, there is little discussion on international human rights law. All these years various human rights’ monitoring bodies especially the Committee on Civil and Political Rights and the Committee on Economic, Social and Cultural Rights elaborated the nature of obligation and content of important rights thorough the general comments.
The book provides only four pages to deal with its main theme i.e. fundamental rights as human rights. This lack of discourse forces the author to relay on an expansion of Article 21 and other Supreme Court decisions to establish the justifiability of economic, social and cultural rights. An elaboration of the theme would have led the reader to conclude that, since India is a party to the Covenant on International, Social and Cultural Rights (ICESCR), the state has an obligation to enforce these rights.
The book has two exclusive chapters on Economic, Social and Cultural rights. The author discusses some of the economic, social and cultural rights like right to food, right to health, right to livelihood in an earlier chapter under the right to life. However, he does not answer one important question i.e. whether the rights guaranteed under the International Covenant on Economic, Social and Cultural rights are enforceable as independent rights or can be enforceable only under the elaborateframe work of Article 21.
The lectures also deal with the right to equality, right top personal freedom, right to religion, right to life and liberty, right to fair trial in the context of TADA, POTA, MCOCA. There is a list of Annexures, which contain important international human rights documents, relevant provisions of the constitution of India and a Supreme Court Decision. These lectures give a panoramic view of various human rights recognised by international human rights law as well as by the Supreme Court through its decisions.
While dealing with each of the issues, the author refers to the relevant international human rights law documents and the corresponding constitutional provisions and Supreme Court decisions. This scheme of presentation helps the reader to understand human rights in its international setting.
The simple and jargon free language ensures easy reading. This book develops an urge in the reader to explore the ever-growing boundaries of human rights jurisprudence. Finally, the comprehensiveness of the book also deserves appreciation.
M S Gopakumar, October – November 2003, Combat Law,