Introduction

We, as individuals, groups and classes, require liberty and freedom for exercising our choices w.r.t. skills, business or place of residence, to move freely in the country choose our representative in a free and fair election. Liberty and freedom are also required for self-realization and development of our faculties and capacities of expression, speech, belief, opinion, etc. It is needed for self-mastery through protection of life and personal liberty and freedom to pursue our moral, ethical and intellectual ends with dignity and without exploitation or oppression.

Rights, as claims of individuals, groups and classes, are made against either the society or the state. For example, a society may recognize the right of a member to choose his/her partner in marriage without consideration of birth or gender, or may recognize the right to choose from only a particular group (caste, religion, ethnicity) or gender. To sustain or enforce the limits of rights, which it recognizes, society may employ various social, moral, religious and cultural mechanisms of control. However, society does not have the means of legal and coercive enforcements, such as laws, courts, police and prisons for enforcing rights. This would be possible only if the agency, which has the means of legal and coercive enforcements, recognizes the claims of individuals, groups and classes. This agency is the State. Further, it is possible that certain claims of individuals/groups/classes, which are necessary for self-development, dignity and for exercising choices, are not recognized by the society due to historical and ideological biases or dominance of a few in social set-up or gender bias. This requires the State to correct it by expanding the scope of rights. Most of all, the State must recognize a set of rights to define limitations on its authority and obligation of the citizens. There is a significant difference between the rights recognized by the society and the State. In case of clash between the rights recognized and permitted by the society with the one recognized by the State, the latter prevails. This is due to the legal sanction behind the rights provided by the State. Rights are a corpus of recognized and guaranteed conditions provided by the State for enjoying liberty by individuals/groups. As such, rights properly called are claims of individuals and groups recognized by the State.

Besides the claims of individuals, the State recognizes the claims of minority, cultural, ethnic, religious and linguistic groups, and various classes. Recognition and protection of the rights of groups and minorities in society are required to maintain peace, harmony, order and mutual co-existence in a multicultural society. Moreover, such recognition could also be in appreciation of culturally specific values.

Supporters of multiculturalism and cultural relativism advocate equal/fair opportunity to all groups for participation in the affairs of the State and recognition of relative significance and value of groups in society and their protection. Pluralists argue that the rights of the groups in society should be recognized and protected. This is because these groups have corporate personality and are as important as the State. J. S. Mill advocated freedom of the individual and minority against the overwhelming dominance of the opinion of the majority in society. This, he felt, would be required in the interest of moral and self-development of the individual. The rights of different classes, such as the bourgeoisie were the rallying point for the English and the French revolutions and of the working class for the Communist revolutions across the world.

The Constitution of India recognizes a set of rights and liberties of religious and cultural groups along with that of the individuals. Constitution of India on Fundamental Rights is a charter of not only individual rights and liberties but also that of the cultural and religious groups.

Rights could be claims of individuals or groups or classes against the state, the society or a group. It must be recognized and enforced by the state. Right to vote, right to freedom of speech, expression, etc. and right to information are claimed against the state. Rights provided under Article 17 of the Constitution of India relating to ‘abolition of untouchability’ is a right of social groups against the society. It removes social disabilities based on birth in terms of castes. Similarly, prohibition of forced labour or child labour are rights against the society.

If rights are claims of individuals and groups recognized by the State, then what are the grounds upon which these claims are based? A variety of grounds such as moral, legal, natural, human, historical, social welfare, etc. have been suggested as basis of rights. Primarily, claims of individuals to be recognized as rights should be such that they are generally applicable. In other words, claims should not amount to privileges for some. However, there could be claims of minorities and under privileged groups that are to be recognized as rights.

Historically, the concept of rights has stood for ‘privileges as in the rights of the nobility, the right of the clergy, and, of course, the divine rights of the kings’.¹ And also for the rights of the slave owners, the privileged classes. But in contemporary parlance, rights are basis of relationship between the State and the individual. This relationship is reflected in the concept of citizenship. Citizenship is a legally defined identity of a member of the State. It is based on the principle that individual members of the state are equal before the state, irrespective of their social, cultural, religious, linguistic or ethnic backgrounds. The state confers rights upon the citizens as individuals; it can also engage differently with different groups of citizens and confer on them separate rights, e.g. minority rights. To confer separate rights to different groups is to subscribe to principles of positive discrimination, social justice, multiculturalism or cultural relativism. Thus, discussion on rights includes grounds of rights and associated political obligations; which of the rights should be possessed by whom and which group(s); what are the principles of distribution of rights amongst the members and groups; what are the grounds and defence of human rights; and how are rights related to liberty on the one hand and justice on the other.

A group of contemporary writers such as Michael Sandel, Alasdair MacIntyre, Charles Taylor, Michael Walzer and others have taken a position that each individual develops an identity, talent, pursuits in life as a member of community only. They are critical of the libertarian position, which treats the individual as autonomous rational and moral agent. These writers are known as communitarians, because they seek to root the identity and choice of the individual in the life and identity of the community. They apprehend that if individuals are allowed to realize their rights as autonomous rational and moral agents, as libertarian advocates, there could be social and moral disasters. In a sense, communitarian position amounts to the argument that rights of the individuals should be recognized as part of a community and not as autonomous choosers.

However, there is problem in the communitarian position of recognizing rights of individuals merely as part of a community. By virtue of the fact that communitarian position suggests that the individual ‘discovers’ personal identity as community, it limits the choice about beliefs, associations and attitudes. Amartya Sen in his The Argumentative Indian, pointing to the dangerous implications communitarian position can result in, says, ‘Many of us still have vivid memories of what happened in the pre-partition riots in India just preceding independence in 1947, when the broadly tolerant subcontinentals of January rapidly and unquestionably became the ruthless Hindus or fierce Muslims of June. The carnage that followed had much to do with the alleged ‘discovery’ of one’s ‘true’ identity, unhampered by reasoned humanity.’² While the debate on whether right of the individual should be recognized as part of the community or as an autonomous chooser is still on, we are faced with another tension.

The tension between universal standards of rights of human beings and those, which are culture-specific, have been a matter of intense debate. Internationally, the debate has revolved around the arguments and counter-arguments over the primacy to be given to the rights based on individualism or culturally specific values. The Western countries term many of the non-Western countries as violators of human rights. On the other hand, countries such as China and others have argued that there should not be judgement on upholding or violating human rights, as they are culturally specific. Many groups and activists have even tried to equate the issue of caste discrimination in India as ‘racialism’ and have raised it to the United Nation forums recently, while the Constitution of India has already addressed the issue. Another example is the debate in India on the need for a Uniform Civil Code. The Personal Laws, defining the civil rights and obligations of members of certain religious communities, particularly, the Christians and the Muslims, have been attacked by many, arguing that it should not exist in India, which has a secular constitution. Someone who champions the rights of individuals (liberal position) can argue that there should be a uniform civil code defining the rights and obligations of each individual irrespective of their membership of different communities. This is because relationship of each individual with the Indian State must be defined uniformly as citizen and not as members of religion, caste or linguistic groups. But others may also be right in arguing that culturally and religiously specific rights of the people should be protected (cultural relativist position). In their view, the Indian State may be right in relating itself with different members differently.