December 10 marks the 70th anniversary of Universal Declaration of Human Rights(UDHR).
The horrific days of Fascism, Holocaust and World Wars showed that human rights persecutions can be perpetuated in a legalised fashion using constitutional means by tyrannical governments. In this backdrop, a formal declaration of inherent and inalienable human rights was felt necessary to act as a check on arbitrary and absolute powers. Quite often, law is a mere reflection of majoritarian will, bereft of ethical content, acting as a tool of oppression to further the interests of those wielding power- this understanding formed one of the foundations of UDHR. This is clear from its preamble, which states "disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind".
In this background UDHR was adopted on December 10,1948,articulating, for the first time, the rights and freedoms to which every human being is entitled.
It affirmed that human rights are inherent in every person and that they are not granted by the State. The declaration made in 1948 influenced the Constitution making process of several countries which took birth in the half of twentieth century out of the colonial yoke, including India. It conveyed the idea that the Constitution of a country should not be a document for consolidating power,but to channelise the use of State's powers for the maximisation of citizens' freedoms and liberties. The Indian Constitution has drawn inspiration from UDHR, and several decisions of Indian Courts extensively refer to UDHR while interpreting fundamental rights. The new jurisprudence of derivative rights or penumbral rights, emanating out of the expanded vision of right to life under Article 21, has its foundation in the ideals expressed in UDHR.
The concepts of equality and non-discrimination may seem a given for us now, due to its oft-repeated invocation. But it took a lot of struggle for the formal recognition of universal applicability of these concepts. There is an article in the UDHR which states "Everyone has the right to recognition everywhere as a person before the law"(Article 6). It may seem a bit poignant that an international document had to 'state the obvious' that every human being has a right of recognition as a person. But, we have the experiences of slavery, racism, untouchability, aparthied etc, where individuals were not granted recognition of full personhood. These practises were sanctioned by formal legal systems, and were carried out by the majority without any sense of remorse, and suffered by most of the victims without any sense of injustice. Therefore, the declarations in UDHR denotes a paradigm shift in mindset, which led to at least disapproval of many of the institutionalized practises of discrimination and hatred, if not their total eradication.
The UDHR starts with a poetic, aspirational statement that "all human beings are born free and equal". The Indian presence in the UDHR drafting team, Hansa Mehta, objected to the initial wordings that "all men are born free and equal". Mehta objected to the assertion that "men" was understood to include women – the widely-accepted idea at that time. She argued that countries could use this wording to restrict the rights of women, rather than expand them. "A simple but – in terms of women’s rights and of minority rights – revolutionary phrase", commented recently Michele Bachelet, UN High Commissioner for Human Rights,lauding the contributions of Mehta in the drafting of UDHR. Gender is a concept that is addressed in almost every clause of the Declaration. For its time, the document was remarkably lacking in sexist language. The document refers to "everyone," "all" or "no one" throughout its 30 Articles.
The 30 Articles laid out in the UDHR seeks to secure a congenial situation for an individual to develop his personhood and attain self-actualization, without arbitrary interferences from powers. It acknowledges the different realms through which personhood is expressed - civil, political, economic, cultural, social. UDHR sowed the seeds for the subsequent International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights.
It is also a futuristic document. It took seven decades for India to formally recognize the concepts of privacy right, freedom to choose sexual orientation and right of personhood of sexual minorities. However, these rights were recognized way back in 1948 itself by UDHR.
"Everyone is entitled to all the freedoms listed in the Universal Declaration "without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." The last words of that sentence – "other status" – have frequently been cited to expand the list of people specifically protected. Not just LGBTI people, but also persons with disabilities – who now have a Convention of their own, adopted in 2006. Elderly people, who may get one as well. Indigenous peoples. Minorities of all sorts. Everyone", comments Bachelet, UN High Commissioner for Human Rights.
Although UDHR has initiated a novel discourse on human rights, several of the concerns its chose to address are still prevalent. Persecution of ethnic and religious minorities continue unabated across the world. The right of asylum for those fleeing persecution, which has been recognized in the Declaration, is yet to find its efficacious realization. Disparities in terms of economic status and access to resources are also widening.
In this backdrop, several critics discard the relevance of UDHR terming it is a utopic document, which has failed to achieve its ideals. It is true that UDHR is idealistic in spirit, which has not been realised in its full sense. But that is not a pointer to the failure of the declaration; rather, its a pointer to the failings of human nature and its inability to purge its brute tendencies. Be that as it may, the fact that persecutions, tortures and discriminations are not carried out with a sense of legality anymore, as it used to be earlier, is by itself, a major civilizational change, for which UDHR has played a major role.