24 First Generation Rights

Dr. Aneesh V. Pillai

TABLE OF CONTENTS

1. Learning Outcomes

2. Introduction

3. Types of First Generation Rights

   • Right tolife

   • Right against slavery, torture, degrading or inhuman punishments

   • Right against arbitrary arrest and detention

   • Right to privacy

   • Freedom of religion

   • Right to fair trial, presumed to be innocent etc.

   • Freedom of speech and expression

4. Characteristics of first generation rights

5. Summary

Learning outcomes

The students are given an opportunity to examine the characteristics of civil and political rights. At the end of the discussion, they will be able to find out which are civil and political rights, which are socio-economic and cultural rights from among given rights.

Introduction

While discussing the Group Rights which are otherwise called third generation rights, it is essential to find out the characteristics of first generation rights, and second generation. First generation rights are those rights which are otherwise called civil and political rights. These are said to be civil and political right because they pertain to the civil and political life of the people- and not economic rights. They are called first generation rights because, they are generated first. Socio economic on the other hand, are those rights the realisation of which requires investment of money, and which requires active action from the part of the State. In the case of civil and political rights, however, the State is not required to do anything, but to refrain from doing something. But there are strong arguments against this bifurcation, that, in socio-economic rights also, sometimes States have to refrain from doing something (for example in the case of forming trade union), and that even in the case of realisation of civil and political right, there is a need to spend money- for building infra structure like Courts, expenses for conducting elections etc.)1. They also argue that the distinction is politically motivated as result of cold war between the west and the east. While the west gave emphasis on civil and political rights, the east pressed on socio economic rights. As a result , out of UDHR, which makes no distinction between civil and political rights and socio-economic right, two distinct Covenants were born.

However, there is also a possibility for arguing in favour of this distinction. Firstly, right to form trade union is not an independent right from right to work- which is a socio-economic right. Secondly it is true that for establishing Court and for conducting election, expense is required. But, it is not for realisation of individual rights. It is a general expenditure for ever, which is not recurring as in the case of right to food, clothing or housing. So, these expenses are not to be incurred as a part of a realisation of a person’s civil and political right. At the same time, if a person asks for enforcement of his socio economic right, the expenditure that is incurred for building the Court alone is not enough for realisation of his right- if he is not given a right, and if the Court feels that he should be given that right, a new expenditure is to be spent for him. Likewise, if the State has no economic capacity, none of the socio-economic rights can be realised. But, with minimum facilities, the State can allow civil and political rights. Thus, there is always a distinction between socio-economic rights and civil and political rights.

This distinction is possible from another angle also. Civil and political rights cannot be given by the State- they are inherent- naturally given. A person has it by birth, and he knows how to exercise it. So what he needs is only a non-interference from the State. This is not the case with socio-economic rights. They have to be given by the State, because there can be persons without it. These distinctions can be made clear only with the help of the list of civil and political rights given in the various Conventions and by analysing their nature and content.

1.  Types of First Generation Rights

The following are the civil and political rights given in the UDHR , and ICCPR

1. Right to life , and personal liberty (UDHR, Article 3, ICCPR, Article 6)
2. Right against torture, and cruel, inhuman or degrading punishment (UDHR, Article 5, ICCPR, Article7)
3. Right to recognition (UDHR Article 6)
4. Right to equality
5. Right to effective remedy
6. Right against arbitrary arrest, detention or exile
7. Right to fair and public hearing
8. Right to be presumed innocent
9. Right to privacy
10. Freedom of movement and residence (UDHR, Article
11. Right to asylum
12. Right to nationality
13. Right to marry and found a family
14. Right to property (this is there only in UDHR and not in ICCPR)
15. Freedom of thought, conscience and religion
16. Freedom of speech and expression
17. Freedom of assembly and association
18. Right to take part in the government of his country

These are rights which are individualistic in nature, and the State need not do anything positively as there is nothing to achieve. This is clear from the wording of these rights in the UDHR. These rights are thus examined in detail with the help of the provisions in UDHR, ICCPR, ECHR, African Charter, and American Convention.

Right to life

Everyone has the right to life, liberty and security of persons. (UDHR).

Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. (ECHR).Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.(ICCPR).

Every person has the right to have his life respected. This right shall be protected by law and in general, from the moment of conception. No shall be arbitrarily deprived of his life. ( American Convention on Human Rights).

Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. (African Charter on Human Rights).

When a person is not to be deprived of his right to life, it means that the State should not take away his life. But, when it is said that right to life shall be protected by law, it means that a person’s responsibility with the State and that State shall positively help a person whenever his life is in danger. This means that right to life takes in its sweep all the socio-economic rights like right to health, food, adequate standard of living, and in a wider sense rights like right to education also.

However, States do not go for such a stretch of the right. It is confined to the State’s responsibility to help a person in the case of eminent danger to his life. This means that the State has only the responsibility to refrain from taking away the lives of the people- the State cannot give life-that is inherent. State can only protect it. State need not spend money for it, as it is not always necessary to protect a person from danger as a part of protection of right to life. The most important component of right to life is death penalty as death penalty is a process through which a person’s right to life can be curtailed. So, as a part of right to life- always the guidelines on how to award death penalty is also given in most of these Conventions2.

Right against slavery , torture, and cruel, inhuman and degrading punishment or treatment.

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. (UDHR).

http://www.un.org/en/documents/udhr/ – atop

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. No one shall be held in servitude. No one shall be required to perform forced or compulsory labour. (ICCPR).

Right against arbitrary arrest and detention

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. (ICCPR, Article 9)

Right to Privacy

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks. ( ICCPR, Article 17)

Freedom of religion

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Right to public trial, presumed to be innocent etc.

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
4. To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
   • To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
   • To be tried without undue delay;
   • To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
   • To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
   • To have the free assistance of an interpreter if he cannot understand or speak the language used in court;
   • Not to be compelled to testify against himself or to confess guilt.
5. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
6. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
7. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
8. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Freedom of speech and expression

1. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
2. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
   • For respect of the rights or reputations of others;
   • For the protection of national security or of public order (ordre public), or of public health or morals.

Characteristics of civil and political rights

These provisions very clearly show that these rights are individualistic in nature, and that they do not require spending of money by the State. They are inherent naturally given gifts. State cannot give them. So, the State cannot take them away also. What is expected of the State is to not to interfere with the exercise of the right, except for protection of the interests of others, or for keeping peace and tranquillity in the society. Take the case of right to life- it cannot be given by the State. But the State can take it away, by way of giving capital punishment. So, while taking it away, the State has to ensure that it is done with a greater purpose to be served, and that the society demands it. That is why capital punishment is given in rarest of rare cases in India. Thus, what is done in the case of right to life is, that the State need not give life. Take other rights like –right to privacy, freedom of religion, right to be presumed innocent, right against arbitrary arrest and detention –these rights do not require the support of the State for their realisation. But, what is required is the State’s minimum support to do something, or not to interfere with the exercise of the right. Also, the realisation of these rights does not require money.

Contrast to this, the socio economic rights involve expenditure from the State. Also, without the State’s help, or anybody’s help, these rights cannot be realised. Let us now move to the discussion on socio economic rights.

Summary

http://www.un.org/en/documents/udhr/ – atop

In this module we understood the first generation rights, types of first generation rights inter-alia the right to life, right against slavery, torture and cruel inhuman and degrading punishment or treatment.

Right against arbitrary arrest and detention, right to privacy, freedom of religion, right to public trial and freedom of speech and expression including characteristics of civil and political rights.

Reference

• http://www.un.org/en/documents/udhr/-atop