NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

LAW OF JURISPRUDENCE

Semester VII

Postmodernism and right of individual: analysis of fundamental rights

SUBMITTED BY: SUBMITTED TO:

SIDDHANT BARMATE
ROLL 2017BALLB112 Assistant prof. Ranjan kumar

Post modernist view of human rights.

The European culture is historically a product of biblical idea of human nature; humans are
created in the image of God, but are not gods, humans can reason but not beyond a point, from
where only divine revelation can take them on the right path, the path leading to the Kingdom of
Heaven. Despite these short comings, because humans are an imperfect image of God, they do
possess certain intrinsic dignity which comes with certain inherent rights as a package deal. And
that classical-biblical view was the foundation of the theory of natural rights of the mankind.
Modernists parted company with this medieval outlook on life. For the modernist, man was a
purely rational animal which did need truth, but this truth, according to him, could be crafted
independent of divine revelation, solely through reason. In the modern view, self was
autonomous. By autonomous was meant that individual self was the ultimate existence of the self
and the community of individuals i.e., society, was an ultimate self surviving unit which was all
powerful over it members. The idea was that reason being a universal and common faculty of
human race, all rational people will come to same rational conclusions and thus if human race
can effectively use its faculty of reason, it can live in peace and harmony. This idealist view was
completely shattered in the brutalities of the Second World War which lead to the revival of
idealism of Classical period andthe re-emergence of inherent, eternal and universal natural rights
in the shape of Human Rights.

However, in the decades following the end of the Second World War emerged what is now
known as the “Postmodern” world view. According to postmodern view, not only is there no
ultimate truth to be discovered, there is absolutely no concept of universal reason even. In fact
there is no objective reality. And since there is no objective criterion to be used as a bench mark,
there exists no universal reality; all reality is relative. In other words, every human concept is a
social construct and every human thought has contextual meaning. 13 Thus although origins of
Human Rights was in the natural law concept of universal rights inherent identically in every
human being, their actual effective globalization is the result of their getting local.14 Getting
embedded in each social context according to its needs and sensitivities is the actual triumph of
Human Rights today.

Fundamental Rights
'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It
guarantees civil liberties such that all Indians can lead their lives in peace and harmony as
citizens of India. These include individual rights common to most liberal democracies, such as
equality before law, freedom of speech and expression, freedom of association and peaceful
assembly, freedom to practice religion, and the right to constitutional remedies for the protection
of civil rights by means of writs such as habeas corpus. Violations of these rights result in
punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. The
Fundamental Rights are defined as basic human freedoms which every Indian citizen has the
right to enjoy for a proper and harmonious development of personality. These rights universally
apply to all citizens, irrespective of race, place of birth, religion, caste, creed, color or Gender.
They are enforceable by the courts, subject to certain restrictions. The Rights have their origins
in many sources, including England's Bill of Rights, the United States Bill of Rights and France's
Declaration of the Rights of Man.

The Seven fundamental rights recognised by the constitution are :

1) Right to equality, including equality before law, prohibition of discrimination on grounds of

religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment,
abolition of untouchability and abolition of titles.

2) Right to freedom which includes speech and expression, assembly, association or union or
cooperatives, movement, residence, and right to practice any profession or occupation (some of
these rights are subject to security of the State, friendly relations with foreign countries, public
order, decency or morality), right to life and liberty, right to education, protection in respect to
conviction in offences and protection against arrest and detention in certain cases.

3) Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in
human beings;
4) Right to freedom of religion, including freedom of conscience and free profession, practice,
and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and
freedom from religious instructions in certain educational institutes.

5) Cultural and Educational rights preserving Right of any section of citizens to conserve their
culture, language or script, and right of minorities to establish and administer educational
institutions of their choice.

6) Right to constitutional remedies for enforcement of Fundamental Rights.

7) Right to education which ensures that children up to the age of 14 get education. It can also be
free of cost.

Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-
independence social practices. Specifically, they have also been used to abolish untouchability
and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth.
They also forbid trafficking of human beings and forced labour. They also protect cultural and
educational rights of ethnic and religious minorities by allowing them to preserve their languages
and also establish and administer their own education institutions.

Right to property was originally a fundamental right, but is now a legal right.

Significance and characteristics

The fundamental rights were included in the constitution because they were considered essential
for the development of the personality of every individual and to preserve human dignity. The
writers of the constitution regarded democracy of no avail if civil liberties, like freedom of
speech and religion were not recognized and protected by the State. According to them,
"democracy" is, in essence, a government by opinion and therefore, the means of formulating
public opinion should be secured to the people of a democratic nation. For this purpose, the
constitution guaranteed to all the citizens of India the freedom of speech and expression and
various other freedoms in the form of the fundamental rights.

All people, irrespective of race, religion, caste or sex, have been given the right to move the
Supreme Court and the High Courts for the enforcement of their fundamental rights. It is not
necessary that the aggrieved party has to be the one to do so. Poverty stricken people may not
have the means to do so and therefore, in the public interest, anyone can commence litigation in
the court on their behalf. This is known as "Public interest litigation". In some cases, High Court
judges have acted on their own on the basis of newspaper reports.

These fundamental rights help not only in protection but also the prevention of gross violations
of human rights. They emphasize on the fundamental unity of India by guaranteeing to all
citizens the access and use of the same facilities, irrespective of background. Some fundamental
rights apply for persons of any nationality whereas others are available only to the citizens of
India. The right to life and personal liberty is available to all people and so is the right to freedom
of religion. On the other hand, freedoms of speech and expression and freedom to reside and
settle in any part of the country are reserved to citizens alone, including non-resident Indian
citizens. The right to equality in matters of public employment cannot be conferred to overseas
citizens of India.

Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights
are enforceable against individuals. For instance, the Constitution abolishes untouchability and
also prohibits begar. These provisions act as a check both on state action as well as the action of
private individuals. However, these rights are not absolute or uncontrolled and are subject to
reasonable restrictions as necessary for the protection of general welfare. They can also be
selectively curtailed. The Supreme Court has ruled that all provisions of the Constitution,
including fundamental rights can be amended. However, the Parliament cannot alter the basic
structure of the constitution. Features such as secularism and democracy fall under this category.
Since the fundamental rights can only be altered by a constitutional amendment, their inclusion
is a check not only on the executive branch, but also on the Parliament and state legislatures.

A state of national emergency has an adverse effect on these rights. Under such a state, the rights
conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain suspended.
Hence, in such a situation, the legislature may make laws which go against the rights given in
Article 19. Also, the President may by order suspend the right to move court for the enforcement
of other rights as well.

Up

Post innovator perspective on common liberties.

The European culture is verifiably a result of scriptural thought of human instinct; people are
made in the picture of God, however are not divine beings, people can reason but rather not past
a point, from where just awesome disclosure can take them on the correct way, the way
prompting the Realm of Paradise. Regardless of these inadequacies, since people are a blemished
picture of God, they do have certain characteristic respect which accompanies certain inborn
rights as a bundle bargain. What's more, that old style scriptural view was the establishment of
the hypothesis of common privileges of the humanity. Innovators left this archaic point of view.
For the innovator, man was a simply normal creature which required truth, however this fact, as
indicated by him, could be made free of perfect disclosure, exclusively through explanation. In
the advanced view, self was self-sufficient. Via self-sufficient was implied that singular self was
simply a definitive presence of the and the network of people i.e., society, was an extreme self
enduring unit which was almighty over it individuals. The thought was that reason being a
general and regular staff of human race, all balanced individuals will reach same judicious
resolutions and along these lines if human race can viably utilize its workforce of reason, it can
live in harmony and congruity. This dreamer see was totally broken in the brutalities of the
Subsequent World War which lead to the restoration of vision of Traditional period andthe
reappearance of inalienable, everlasting and widespread common rights looking like Basic
freedoms.

Notwithstanding, in the many years following the finish of the Subsequent Universal War
developed what is currently known as the "Postmodern" world view. As indicated by postmodern
view, not exclusively is there no extreme truth to be found, there is positively no understanding
of general explanation even. Actually there is no goal reality. Also, since there is no target
measure to be utilized as a seat mark, there exists no general reality; all the truth is relative. As
such, every human idea is a social build and each human idea has logical importance. 13 Hence
despite the fact that inceptions of Basic liberties was in the common law idea of widespread
rights inalienable indistinguishably in each person, their genuine powerful globalization is the
aftereffect of their getting local.14 Getting inserted in every social setting as indicated by its
needs and sensitivities is the real victory of Basic freedoms today.

Central Rights

'Part III - Central Rights' is a sanction of rights contained in the Constitution of India. It ensures
common freedoms with the end goal that everything Indians can lead their lives in harmony and
amicability as residents of India. These incorporate individual rights basic to most liberal vote
based systems, for example, uniformity under the watchful eye of law, the right to speak freely
of discourse and articulation, opportunity of affiliation and tranquil gathering, opportunity to
rehearse religion, and the privilege to sacred solutions for the assurance of social equality by
methods for writs, for example, habeas corpus. Infringement of these rights bring about
disciplines as recommended in the Indian Corrective Code, subject to tact of the legal executive.
The Essential Rights are characterized as fundamental human opportunities which each Indian
resident has the privilege to appreciate for a legitimate and agreeable advancement of character.
These rights generally apply to all residents, regardless of race, spot of birth, religion, position,
doctrine, shading or Sex. They are enforceable by the courts, subject to specific limitations. The
Rights have their starting points in numerous sources, including Britain's Bill of Rights, the US
Bill of Rights and France's Revelation of the Privileges of Man.

The Seven principal rights perceived by the constitution are :

1) Right to uniformity, including correspondence under the watchful eye of law, preclusion of
segregation on grounds of religion, race, rank, sex or spot of birth, and equity of chance in issues
of business, annulment of distance and cancelation of titles.

2) Right to opportunity which incorporates discourse and articulation, get together, affiliation or
association or cooperatives, development, habitation, and option to rehearse any calling or
occupation (a portion of these rights are dependent upon security of the State, well disposed
relations with outside nations, public request, tolerability or ethical quality), right to life and
liberty, right to training, assurance in regard to conviction in offenses and insurance against
capture and detainment in specific cases.

3) Directly against abuse, restricting all types of constrained work, kid work and traffic in
individuals;
4) Right to opportunity of religion, including opportunity of heart and free calling, practice, and
engendering of religion, opportunity to oversee strict issues, opportunity from certain charges
and opportunity from strict guidelines in certain instructive organizations.

5) Social and Instructive rights saving Right of any segment of residents to monitor their way of
life, language or content, and right of minorities to build up and direct instructive establishments
of their decision.

6) Right to protected solutions for implementation of Major Rights.

7) Right to instruction which guarantees that youngsters up to the age of 14 get training. It can
likewise be liberated from cost.

Key rights for Indians have additionally been pointed toward toppling the imbalances of pre-
freedom social practices. In particular, they have likewise been utilized to cancel distance and
thus forbid separation on the grounds of religion, race, station, sex, or spot of birth. They
likewise restrict dealing of individuals and constrained work. They additionally ensure social and
instructive privileges of ethnic and strict minorities by permitting them to protect their dialects
and furthermore set up and oversee their own training organizations.

Right to property was initially a basic right, however is presently a legitimate right.

Hugeness and attributes

The crucial rights were remembered for the constitution since they were viewed as basic for the
advancement of the character of each person and to protect human poise. The essayists of the
constitution respected popular government of little consequence if common freedoms, similar to
the right to speak freely of discourse and religion were not perceived and secured by the State.
As indicated by them, "vote based system" is, basically, an administration by supposition and
along these lines, the methods for planning general feeling ought to be made sure about to the
individuals of a popularity based country. For this reason, the constitution ensured to all the
residents of India the ability to speak freely and articulation and different opportunities as the
major rights.

All individuals, independent of race, religion, standing or sex, have been given the option to
move the High Court and the High Courts for the authorization of their basic rights. It isn't vital
that the bothered party must be the one to do as such. Neediness stricken individuals might not
have the way to do as such and subsequently, in the public intrigue, anybody can start suit in the
court for their benefit. This is known as "Public intrigue suit". Now and again, High Court judges
have followed up on their own based on paper reports.

These essential rights help in assurance as well as the counteraction of gross infringement of
common liberties. They stress on the central solidarity of India by ensuring to all residents the
entrance and utilization of similar offices, independent of foundation. Some crucial rights apply
for people of any ethnicity while others are accessible just to the residents of India. The privilege
to life and individual freedom is accessible to all individuals as is the privilege to opportunity of
religion. Then again, abilities to speak freely and articulation and opportunity to live and get
comfortable any aspect of the nation are saved to residents alone, including non-occupant Indian
residents. The privilege to correspondence in issues of public work can't be presented to abroad
residents of India.

Principal rights fundamentally shield people from any discretionary state activities, yet a few
rights are enforceable against people. For example, the Constitution annuls distance and
furthermore prohibits begar. These arrangements go about as a check both on state activity just
as the activity of private people. In any case, these rights are not supreme or uncontrolled and are
dependent upon sensible limitations as essential for the assurance of general government
assistance. They can likewise be specifically diminished. The High Court has decided that all
arrangements of the Constitution, including crucial rights can be changed. Notwithstanding, the
Parliament can't modify the essential structure of the constitution. Highlights, for example,
secularism and majority rules system fall under this class. Since the essential rights must be
modified by a protected revision, their incorporation is a check on the presidential branch, yet
additionally on the Parliament and state assemblies.

A condition of public crisis adversy affects these rights. Under such an express, the rights
presented by Article 19 (abilities to speak freely, get together and development, and so forth)
stay suspended. Subsequently, in such a circumstance, the council may make laws which conflict
with the rights given in Article 19. Additionally, the President may by request suspend the option
to move court for the requirement of different rights also.

Basic investigation

The central rights have been reexamined for some reasons. Political gatherings have requested
that the option to work, the privilege to financial help with instance of joblessness, mature age,
and comparative rights be revered as sacred assurances to address issues of destitution and
monetary weakness, however these arrangements have been cherished in the Order Standards of
state strategy. The privilege to opportunity and individual freedom has various restricting
provisions, and in this way have been condemned for neglecting to check the authorizing of
forces regularly esteemed "unnecessary". There is likewise the arrangement of preventive
confinement and suspension of key rights in the midst of Crisis. The arrangements of acts like
the Upkeep of Inside Security Act (MISA) and the Public Security Act (NSA) are a methods for
countering the key rights, since they authorize unreasonable forces with the point of battling
inner and cross-fringe psychological oppression and political savagery, without shields for social
equality. The expressions "security of State", "public request" and "ethical quality" are of wide
ramifications. Individuals of substitute sexuality is condemned in India with jail term as long as
10 years. The importance of expressions like "sensible limitations" and "the enthusiasm of public
request" have not been unequivocally expressed in the constitution, and this vagueness prompts
superfluous prosecutor .The opportunity to amass peacably and without arms is worked out,
however at times, these gatherings are separated by the police using non-lethal techniques.

"Opportunity of press" has not been remembered for the privilege to opportunity, which is
important for planning popular sentiment and to make opportunity of articulation greater
legitimate.Employment of kid work in dangerous occupation conditions has been diminished,
however their business even in non-perilous positions, including their common work as
homegrown assistance disregards the soul and goals of the constitution. More than 16.5 million
kids are utilized and working in India. India was positioned 88 out of 159 out of 2005, as
indicated by how much debasement is seen to exist among public authorities and legislators
around the world. The privilege to fairness in issues with respect to public work will not be
presented to Abroad residents of India, as indicated by the Citizenship (Change) Bill'', 2003.

Conclusion

Postmodernism is a general and wide-going term which is applied to writing, craftsmanship,

reasoning, engineering, fiction, and social and abstract analysis, among others. Postmodernism is
to a great extent a response to the accepted sureness of logical, or target, endeavors to clarify
reality. Basically, it originates from an acknowledgment that the truth isn't just reflected in
human comprehension of it, but instead, is developed as the psyche attempts to comprehend its
own specific and individual reality.

Therefore, postmodernism is profoundly incredulous of clarifications which guarantee to be

substantial for all gatherings, societies, conventions, or races, and rather centers around the
general certainties of every individual. In the postmodern comprehension, understanding is
everything; reality just appears through our translations of what the world way to us exclusively.
Postmodernism depends on solid experience over conceptual standards, knowing consistently
that the result of one's own experience will essentially be questionable and relative, as opposed to
certain and universal.Postmodernism is "post" since it is prevents the presence from getting any
extreme standards, and it does not have the idealism of there being a logical, philosophical, or
strict truth which will clarify everything for everyone - a trait of the alleged "current" mind. The
issue with Postmodernism is that it leaves us without total establishments for deciding total facts
about how we should think and live shrewdly on earth. We can envision practically anything as
being valid (human creative mind is interminable) which is the way our reality is (and has been
for a huge number of years).This opportunity to envision anything as 'relative truth' is another
critical motivation behind why postmodernism has been generally grasped. Each culture, religion
and differing bunch on the planet can guarantee that their facts are similarly as legitimate as any
other individual's This has prompted theconcept of 'resistance'. All in all postmodernism and
innovation are to some degree interweaved and it's as a general rule hard to draw unmistakable
line between the two speculations with the exception of the way that the later developed from the
previous.