The Essence of Civil Liberties

Justice Anand Presented the Annual Tarkunde Memorial Lecture on HUMANISM: THE ESSENCE OF CIVIL LIBERTIES.
Below are some of the excerpts from the lecture.

The basic concept of civil liberties is the upholding of the dignity and worth of the individual, which is the essence of human rights. Man is born free and there is constant struggle to break the shackles, when in bondage. This perception led to renaming the Indian Mutiny of 1857 as the First War of Indian Independence. The Civil War of America was a similar response. Civil liberties in South Asia present a mixed picture. It is dismal where democracy is either not real, or is in the nascent stage, even if not absent in form.

The aftermath of 9/11 with the frenzy of war against terrorism has global impact. It is greater where the civil liberties were already not sacrosanct and the institutional protection was weak. Strength of the polity to overcome the impact determines the current state of civil liberties. Democracy is the best form of polity for protection of civil liberties; human rights are at the core of constitutional governance. India has the lead in this venture, thanks to the large number of human rights activists in all spheres, and the country ethos. Tarkunde and his ilk have made a large contribution.

Civil liberties are a potent tool for empowerment of the people through human development. India with its vast human resources has a great potential. It is already emerging as a super power threatening even the lead status of USA, because of the intellectual capital and its vast resource of knowledge makers in this century of knowledge. The linkage between human rights and human development is recognized, as they share a common vision and serve a common purpose. They in turn depend on the quality of governance, that is, democracy. Synthesis of all three concepts in the polity is essential to achieve the aim.

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It is a fallacy to think that there is any conflict between human rights and national security. The coexistence of human dignity and national security in the Preamble to the Constitution of India is sufficient to dispel this impression. It is only in the event of a possible conflict that there has to be priority, and then too the non-derogable rights remain sacrosanct while the other rights become subservient only to the extent necessary in the larger interests.

Even after 9/11, in the UN Security Council Resolution 1373 of 28 September 2001, the States were called upon inter alia to take appropriate measures for combating terrorism in conformity with relevant provisions of national and international law, including standards of human rights. In the same context, Mary Robinson, the UN Commissioner for Human Rights said:

There should be three guiding principles for the world community: the need to eliminate discrimination and build a just and tolerant world; the cooperation by all States against terrorism, without using such cooperation as a pretext to infringe human rights; and a strengthened commitment to the rule of law, and also,

What must never be forgotten is that human rights are no hindrance to the promotion of peace and security. Rather they are essential element of any strategy to defeat terrorism.

The UN General Assembly emphasized in this context, that States must adopt measures in accordance with the UN Charter and the relevant provisions of the international law, including international standards of human rights. Gandhiji had this in mind when he said: Peace does not come out of a clash of arms, but out of justice lived and done.

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Humanitarian principles govern also the remedy for human rights violations. According to Prof. Van Boven principles, the only appropriate response to victims of gross violations of human rights is one of reparation, which encompasses access to justice, and reparation for harm suffered. The four main forms of reparation are: restitution, compensation, rehabilitation, and guarantee of non-repetition. Duty to prosecute perpetrators is included in reparation. Impunity is in conflict with this principle. The NHRC applied this principle in recommending the obligatory State response to the victims of the Gujarat carnage in the year 2002. A lot remains to be done in that behalf.

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The Complete lecture may be viewed at The PUCL site.