UNIT 8 CONTEMPORARY DEBATES ON HUMAN

RIGHTS
Structure
8.1 Introduction
Aims and Objectives
8.2 The Primacy of a Set of Rights
8.2.1 Interdependence between ICCPR and ICESCR

8.3 Universalism and Cultural Relativism

8.4 Minority Rights: Problem of Definition
8.5 Rights of Indigenous Groups
8.6 Disabled or Differently-abled?
8.7 Euthanasia: The Right to Die with Dignity
8.8 Summary
8.9 Terminal Questions
Suggested Readings

8.1 INTRODUCTION
There are many debates in human rights from the time the concept has come into
existence. These debates have, over a period of time, helped in clarifying the concept of
rights, in crystallising its understanding, in lending dynamism to its development, and in
paving the way for demand and recognition of newer kinds of rights. Every prevailing
understanding of rights has been challenged by an alternative view of rights and has
generally enriched the debate about concept of human rights. In this sense, it is important
to bear in mind that there is no single, immutable conception of human rights that can be
held to be true for all times and all climes. However, a general consensus has emerged
at the international level as to what constitutes a set of universal, core human rights that
are taken as inviolable. It also reflects the understanding that human rights are interrelated,
indivisible and are not bound by territoriality. All other set of rights, including the
understanding of the concept of rights itself, has generated debate and disagreement.
While there are many debates in the human rights discourse regarding the nature, primacy,
approach, implementation, recognition and justification of rights, in this Unit we consider
some of the main currents and contents of this debate.
Contemporary debates in human rights does not merely symbolise the divergent views
regarding the various rights; it also symbolises the constant efforts by various groups to
bring forth the need for acknowledging the newer forms of violations and an effective legal
mechanism to contain those violations. Debate about human rights provide a viable
mechanism to justify, universalise the need for protection as also render a sense of
immediacy and responsibility to acknowledge their codification, recognition and, eventually,
their implementation. In fact, the boundaries of debate about ‘contemporary’ human rights
has widened because it symbolises ‘the logics of inclusion’ as opposed to ‘the logics of
exclusion’ of ‘modern’ human rights (Baxi, 2010, p.118). However, all rights do not exist
Contemporary Debates on Human Rights 97

by virtue of state recognition and international codification; human rights can and do exist
even in the face of fierce opposition by state. Human rights are guaranteed by the state
and their codification strengthens the commitment that is required of both the international
community and the state.
There are many debates in human rights that have occupied the centre-stage in the post-
Second World War era. However, in this Unit we will look at some of the major
debates surrounding the primacy of a set of rights, the notion of human rights, the various
areas where debates arose and how these debates have been resolved, accommodated
or circumvented by the various stake holders such as human rights groups, member states
and the international community. The focus in this Unit is on those debates that have
hindered agreement on such fundamental aspects as definition or rights to be accorded to
a group. It has often led to difficulty in the process of standard-setting or codification of
rights. We will also look at the struggle for, and resistance to, recognition by some newer
rights and their claimants. People organise themselves into groups and communities to
articulate their demands and constantly engage in finding newer means to do so. This
entire process of organisation of groups, bringing to the fore newer demands, and, finally,
determining means to achieve the goals, has lent dynamism, ingenuity and creative element
to the evolution of human rights.
Aims and Objectives
This Unit would enable you to understand
 The importance of understanding contemporary debates in human rights;
 How the debates influenced the concept, formulation, codification and implementation
of certain category of rights;
 Major areas of debates in human rights discourse; and
 The differing viewpoints that have been accommodated or circumvented.

8.2 THE PRIMACY OF A SET OF RIGHTS

One of the earliest debates to unfold in the human rights discourse was regarding the
primacy of one set of rights over others. Soon after the end of the Second World War
and the establishment of the United Nations, earnest efforts to promote and protect
human rights resulted in the adoption of the Universal Declaration of Human Rights in
1948 and the two Covenants, namely, the ICCPR and the ICESCR. During this period,
the countries of the western hemisphere- led by the United States- argued that the civil
and political rights were of significance to individual freedom and to his/her protection
against the possible violations by others including the state. It was believed that the
widespread violations of human rights and fundamental freedoms during the Second World
War was a result of absence of recognition of civil-political rights of the individual as
reflected in their evolution in the western liberal-capitalist political thought. This set of
rights eventually came to be known as the first generation rights since they had
chronologically originated earlier than the other set of rights. In the initial years of the
establishment of the United Nations in 1945, the Western and Latin American countries
laid greater emphasis on and paid attention to the codification and protection of the civil-
political rights.
98 Human Rights: Indian Perspective

The economic and social dimension to the concept of human rights was added by the
socialist countries led by the former USSR and the eastern European states. The socialist/
communist ideology emphasised the need for the protection and promotion of the social
and economic rights such as the right to work, social security, health, education, housing,
adequate standard of living among others. The socio-economic rights were predominantly
understood as positive rights that required active involvement of the state in their
implementation. The state not only needed to recognise these rights but was also to be
an important interlocutor in their implementation. Since socio-economic rights require
allocation of resources by the state and policy planning for their implementation, they are
dependent on state support. These came to be known as the second generation rights
since they evolved and attained salience after the civil-political rights. Hence, the
intellectual impetus for the civil-political rights came from the liberal countries who stressed
on their primacy over socio-economic rights. The Communist countries led by the former
USSR emphasised socio-economic rights. Although the use of the term first and second
generation rights respectively was only symptomatic of their chronological development, it
unfortunately formed the core of debate surrounding the primacy of civil-political rights
over the social-economic rights. Besides the chronological origin, the nature, the trajectory
of development and the mechanism of implementation only added to the complexity of the
primacy debate.
The problem of determining the primacy of rights was further complicated by the
emergence of concerns that were of significance to the developing countries, most of
which had suffered colonial rule and exploitation. The developing countries stressed on
such rights as self-determination, right to peace, and right to development which were
seen as both collective rights and third generation rights. In the tussle between the first
and second generation rights for attaining primacy, the third generation rights were
relegated to a background.
8.2.1 The Interdependence between ICCPR and ICESCR
The debate has been finally put to rest and the distinctions between the two sets of rights
have been arguably blurred by the international community by pointing to the fact that the
two sets of rights are interdependent in nature and that fulfilment of one set of rights is
contingent upon effective realisation of other set of rights as well. The 1993 Vienna
Declaration of World Conference on Human Rights and the third general comment by the
Human Rights Committee have reaffirmed the similarities and interdependence between
these rights. The third General Comment states that “[w]hile great emphasis has sometimes
been placed on the difference between the formulations used in this provision [Article 2(1)
of the ICESCR on state obligations] and that contained in the equivalent article 2 of the
International Covenant on Civil and Political Rights, it is not always recognized that there
are also significant similarities” (Vijapur and Savitri, 2010, p. 142). There are some
obligations of Member States, which have to be met almost immediately, contrary to the
assertions of those who argue that the ICESCR requires gradual implementation.
This entire debate reflected the complexity of disagreements over the nature of rights, the
content of rights and the diversity of groups of nations whose interests were involved as
indicated in the introduction in the preceding pages. This debate affected the priority
attached to the implementation of these rights at the domestic level within the countries.

8.3 UNIVERSALISM AND CULTURAL RELATIVISM

The second major debate in human rights discourse has been regarding the approach to
Contemporary Debates on Human Rights 99

understanding human rights. The question that arises here is whether there can be a
particular understanding of human rights that can be considered as universal in its nature,
in appeal and independent of its socio-cultural milieu. Since the earliest struggles for and
proclamations of rights as we understand today was witnessed in the countries of Western
Europe, chiefly France and the Great Britain, and the United States of America, it came
to be generally held that the notion of human rights as understood in the western
hemisphere presented a valid template for the entire world. In other words, various human
rights as embodied in the international instruments were of equal and indisputable
relevance to one and all. Paul Sieghart and Jack Donnelly are two of the leading
exponents of this view. They contend that universal human rights transcend geographical
boundaries and are typically designed to be culturally and ideologically neutral. Universal
human rights for all became the slogan and anthem for all countries and people
irrespective of their unique history, culture and tradition.
In contradistinction to this universal notion of human rights, the Oriental and African
societies argued that while the general notion and understanding of human rights can be
universal in nature, relevance of particular rights and their implementation is rooted in the
culture, tradition, religion and social practices. In other words, human rights are culturally
and ideologically specific and not neutral. Abdullah Ahmed An-Na’im (1991), Joanne R.
Bauer and Daniel A. Bell (1999) point to the challenge posed by the cultural relativists
to the universalists. The notion and content of human rights are contingent upon ideological
moorings (liberal or socialist), regional diversity (Western or Eastern), historical experiences
(Northern, developed or Southern, developing), and religious beliefs (Christian, Hindu,
Buddhist or Islamic). This analogy can be further extended to prove that the very
conception of rights and the trajectory of their evolution have been different in traditional
non-western societies where there has been a greater emphasis on the collective notion
of rights rather than the individualistic orientation of human rights. The relativist notion of
rights shifts the very locus of the subject of rights from individual to the collective. While
the UDHR and the two UN Covenants made the individual as the subject of international
human rights law and invested rights in the individual, the collectivist notion often makes
the society/group as both the repository of rights and the site of decision-making.
Violations of rights in one culture may be seen as part of cultural practices and religious
traditions in others. The differing notion of rights as violations or socially sanctioned
cultural practice has rendered debate on rights on the same plane very difficult. Cultural
relativists who contend that rights are culturally specific contest the claim of universality.
For them, the universal element in human rights discourse ‘is the idea or the concern for
human rights and not a particular model of human rights’ (Vijapur, 2010, p.56). Hence,
cultural specificity has to be accorded recognition while formulating and implementing
human rights standards. This debate on universalism and relativism has impacted the
implementation of a myriad of human rights as also the struggle for recognition of newer
rights.

8.4 MINORITY RIGHTS: PROBLEM OF DEFINITION

Any discussion on minority rights is imbued with many intricate and complex issues. It has
been riddled with difficulties in arriving at a universally accepted definition (who is a
minority?), nature of protection to be accorded to the minority groups within the state, the
issue of self-determination, and the nature of rights to be granted – equality versus special
rights and individual versus collective rights - to the minority groups. Both internationally
and within the state, there has been little agreement on the above mentioned aspects. In
100 Human Rights: Indian Perspective

the academic realm, efforts have been made, by Will Kymlicka for instance, to reconcile
the apparent divergent position of equal rights and non-discrimination on the one hand and
a distinct framework of minority protection or collective rights on the other (why minority
protection is needed?). The need for debate on minority is imperative because of the
increasing instances of ethnic and other crises in many parts of the world. One of the
critical reasons for these is due to the fact that there is little scope for minority groups
to participate in decision-making and power sharing within their country. Moreover, any
scheme for accommodating diverse groups or a formal arrangement for power-sharing
largely depends on the kind of relationship the majority and minority groups share, and
vision and aspirations of the people as expressed in such a formal document. Let us now
consider the issues of debate on minority rights.
The first problem encountered by the United Nations in drafting a treaty for minority
protection was the lack of a universally accepted definition of what constitutes a minority.
The Permanent Court of International Justice (PCIJ) defined a minority community in
Graeco-Bulgarian Communities case in 1930 as “a group of persons living in a given
country or locality, having a race, religion, language and traditions of their own and
united... in a sentiment of solidarity, with a view to preserving their traditions, maintaining
their form of worship, ensuring the instruction and upbringing of their children in
accordance with the spirit and traditions of their race and rendering mutual assistance.”
But this definition was not acceptable to many members and therefore, the UN Sub-
Commission appointed Francesco Capotorti as the Special Rapporteur to work on a
definition of minorities. He defined minority as a group that is numerically inferior to the
rest of the population in the state, in a non-dominant position, possessing distinct ethnic,
religious or linguistic characteristics and show, if only implicitly, a sense of solidarity,
towards preserving their culture, traditions, religion or language. While Capotorti’s definition
is academically most widely accepted, none of the above-mentioned two definitions were
acceptable to the members of the UN Sub-Commission. Hence, the 1992 UN Declaration
on Minorities (Declaration on the Rights of Persons Belonging to Ethnic, Religious,
or Linguistic Minorities) was adopted without attempting to define the term minority. The
Framework Convention for the protection of National Minorities (1995) adopted at the
regional level in Europe also failed to define the concept of ‘minority’ (Cited from Vijapur,
2006, p.371).
Provisions regarding protection of minority groups and their rights are scattered in various
international treaties and documents but there is no single comprehensive treaty that
cogently enunciates the rights and protection of minorities. The 1992 UN Declaration on
Minorities is only a declaration and hence is not a binding document. The member states
are not obligated to implement the provisions contained in it. The 1948 UN Convention
on the Prevention and Punishment of Genocide provides for right to physical existence
and protection from genocide but it does not include linguistic minorities. Although this is
a treaty and therefore binding on the member states, it protects only one right of the
minority groups, i.e., the right to exist. The International Convention on the elimination of
All Forms of Racial Discrimination (CERD) protects only racial groups and provides for
‘special measures’ to be granted to racial minorities. Article 27 of the International
Covenant on Civil and Political Rights pertains to minority groups. Thus, it is the only
legally binding provision on minority rights in an international treaty. This article says that
in those ‘States in which ethnic, religious or linguistic minorities exist, persons belonging
to such minorities shall not be denied the right, in community with the other members
of their group, to enjoy their own culture, to profess and practise their own religion, or
Contemporary Debates on Human Rights 101

to use their own language’ (Article 27 of the ICCPR, emphasis added). Hence it is
apparent that there is no comprehensive treaty for minority protection; what is available
is a splintering of provisions across various treaties and declarations.
The Member States are generally reluctant to accord distinctive group status to minorities
because they fear that this would encourage them to acquire a distinct juridical personality
and stoke their aspiration for self-determination. Many Member States argue that a
collective notion of minorities as a group and its recognition has the potential of leading
to disintegration of the states and hinders the process of nation-building. Hence, the
States have preferred to protect minority rights on an individual basis, as seen in Article
27 of the ICCPR. In order to allay the fears of the states, the Human Rights Committee,
in its General Comment on Article 27, has sought to separate the ‘rights of persons
belonging to minorities on the one hand and the right to self-determination and the right
to equality and non-discrimination on the other’ (Vijapur, 2006, p.377). Regarding the
nature of rights to be granted to minorities, Kymlicka opines that in addition to general
right to equality and non-discrimination that are available to everyone, minorities must be
granted protective measures such as group-specific rights and participatory rights to
accommodate enduring cultural differences. Since this has mostly been an exercise in the
academic realm, there is no uniform application of these suggestions in the world. Different
levels and types of minority protection abound and the debate continues to engage us.

8.5 RIGHTS OF THE INDIGENOUS GROUPS

There are many similarities between the debates and delays surrounding the minority rights
and the rights of the indigenous groups. The member states shared anxieties on such
issues as the definition of the concept of ‘indigenous peoples’, their right to self-
determination, and lastly, the provision regarding the control over natural resources.
Definition, the nature of collective cultural rights and right to self-determination were
contentious issues witnessed in the debate on minority rights as well. It took inordinately
long time for a declaration on the rights of the indigenous groups to come to fruition
owing to disagreements mentioned above.
The earliest effort at recognising the rights of the indigenous peoples by way of a
declaration came in 1982 when following the study conducted by Jose Martinez Cobo,
the Economic and Social Council established a Working Group on Indigenous Populations
(WGIP) in order to: (a) review developments pertaining to human rights of indigenous
populations and (b) elaborate international standards to protect those rights. WGIP took
its second mandate seriously and formulated a draft declaration in 1993 for possible
adoption by the United Nations. However, as a result of a deadlock on some issues, little
headway was made on this front. The Declaration on the Rights of Indigenous Peoples
was finally adopted by the General Assembly on 13 September 2007.
Similar to the Declaration on Minorities, this Declaration too nowhere defines the term
indigenous peoples. There are difficulties in arriving at a common, strict definition that can
subsume the diversity and difference prevailing among the indigenous communities and be
applicable on a universal basis (Errico, 2007, p.746). Hence, the Declaration leaves the
matter open-ended; the indigenous groups can determine their identity based on their
customs and traditions. It can be deduced from the Preamble and other provisions that
indigenous groups are understood as those with a historical continuity relating to land and
societies evolved on that territory. In addition to it, they display distinct features with
regard to their organisation, political and economic institutions, culture, customs and
102 Human Rights: Indian Perspective

language, in addition to sharing a common experience of marginalisation and discrimination

deeply rooted in their historical experiences. Although they may or may not be a
numerical minority, they most often form a non-dominant section of society which makes
their issues akin to those of the minorities and equally exposes them to vulnerability and
discrimination.
In order to address the anxieties of the member states regarding the right to self-
determination, the Preambular paragraph says that it should be ‘exercised in accordance
with international law, the UN Charter and that this right should not be seen as
encouraging any action which would dismember or impair totally or in part, the territorial
integrity or political unity of sovereign and independent States’ (provision in the Declaration,
cited in Errico, 2007, pp.757-758). The indigenous groups have identified rights similar to
the minority groups such as cultural distinctiveness, the religious, linguistic, collective rights
and the possession or control over natural resources. The cultural rights that are collective
in nature, and relevant to both indigenous groups and minorities, are considered to be
important to stem the tide of ethnic violence The declaration aims to provide those
‘minimum standards’ necessary for the survival, dignity and well-being of the indigenous
populations.

8.6 DISABLED OR DIFFERENTLY-ABLED?

This group has been the most neglected group in the human rights discourse. Owing to
a lack of definition and differing levels of protection and empowerment accorded to them
in various countries across the globe, this was one area where agreement or even a
common level of understanding was difficult to achieve. A binding treaty devoted to the
rights of the disabled persons was long overdue since it was felt that disability was the
missing link in the human rights framework with no mention of it in any of the core
treaties, except the CRC.
The debate surrounding the rights of the disabled persons has been multi-layered in that
it concerned firstly, the approach towards understanding disability (medical model or social
model), secondly, the terminology to be used for persons with such needs (impaired,
handicapped, challenged, disabled, or differently-abled) and, lastly, the kind of rights and
level of protection to be accorded to them. In the last instance, the debate over rights
of the disabled persons got enmeshed in the development discourse. The international
community had to initiate a process of reconciling these divergent aspects of disability
rights before drafting a binding treaty on the subject. There are two models of
understanding of disability. Traditionally, persons with disability are seen as ‘objects of
pity’, charity, ‘as a burden on their societies and families’, and as persons requiring
treatment to cure and restore ‘normalcy’. Disability is perceived as a ‘personal tragedy’
and disabled persons ‘either passively come to terms with a condition’ or bravely
overcome their ‘limitations by great mental or physical effort’ (Kayess and French, 2008,
p.5). This model of understanding disability is known as the medical model that was the
prevailing notion until a different approach was proposed in the late-twentieth century. The
medical model believes that the problems of, and solutions to, disability are largely
situated within the body of individuals – as internal conditions – without any external
causes or contribution by the society.
As opposed to the medical model, the social model of disability situated the experience
of disability in the external social conditions – as a systemic disadvantage and social
oppression. Disabled persons are often excluded and segregated by the society since their
Contemporary Debates on Human Rights 103

impairment is seen as a deviation from the norm rather than as a diversity of human
existence. This model makes a distinction between impairment and disability. While
impairment is internal and physical in nature, disability is socially induced due to
environmental barriers and social structures of discrimination. Discrimination based on
impairment creates physical and social barriers, structures, and practices that impede full
participation of disabled persons in society. The need for rights of the persons with
disability stems from the fact that formal equality, available in human rights treaties, is
difference-blind in that it requires that everyone be treated same and thus strengthens the
existing patterns of social disadvantage.
The Convention on the Rights of Persons with Disabilities (CRPD) was finally adopted by
the General Assembly on 13 December 2006 after a long deliberation and it entered into
force in 2008. The Convention avoided any definition of disability owing to opposition
from member states and the other actors in negotiations. In fact, the Preamble to the
Convention states that disability is an evolving concept and results from attitudinal and
environmental barriers. However, Article 1 includes long-term impairment, as against short-
term or episodic impairment, as the criteria to determine persons with disability. This
convention is firmly based on the social model and eschews any reference to prevention
or treatment of impairment. It represents a ‘paradigm shift’ away from a social welfare
approach to a rights-based approach to disability. The latter approach views persons with
disability as direct bearers of rights, ‘able to claim those rights as active members of
society’ (Kayess and French, 2008, p.3), rather than as passive recipients of welfare.
Hence the first source of debate has been conclusively resolved. Regarding the second
source of contention on terminology, the Convention is open-ended. Although the term
disability appears in the title of the treaty, the member states are allowed to adopt and
use phrases that they prefer.
Insofar as the kind of rights and their protection in the Convention is concerned, the
demand for the rights of the disabled was couched in terms of social development and
linked to the Millennium Development Goals (2000). It was argued that since disabled
persons constituted a disproportionately large part of the world’s poorest of the poor, any
effort at the eradication of poverty and global development had to address their concerns
and needs. It does not create any new rights or entitlements; rather it phrases the existing
human rights provisions in a manner that addresses the needs of the disabled persons.

8.7 EUTHANASIA: THE RIGHT TO DIE WITH DIGNITY

This has been one of the most debated issues across the world in recent times,
particularly in the last one decade. The debate extends to both ends of the spectrum as
to whether euthanasia can be legalised. Those who argue in favour or against this right
have deployed strong arguments on the subject centred on medical and ethical questions,
legal positions and religious considerations. The adoption of legislation permitting euthanasia
in the Netherlands and Belgium in the early years of the new millennium (2002) raised
renewed interest in the subject. While some have attempted to analyse the implications of
legalising euthanasia in the light of individual choices, others have indicated towards the
inherent dangers of slippery slope.
Laws prohibiting active euthanasia are usually justified in terms of right to life because it
amounts to taking of life by a private person and the state is obligated to protect its
citizens from such intentional killing. However, euthanasia occasioned by an act of
omission usually escapes criminal liability. The problem has been compounded by the fact
104 Human Rights: Indian Perspective

that there is no single way of effecting euthanasia. It can be achieved by various measures
each of which has a subtle difference in the extent to which the patient is assisted by
others in mercy killing. In medical terminology subtle differences are recognised on two
bases: the ways in which euthanasia is carried out and the circumstances in which it is
effected taking into consideration the nature of the consent of the patient or lack of it.
Since there can be myriad forms of effecting death and the circumstances that occasion
such decisions, uncertainties of definitions abound. However, it is widely agreed that
euthanasia involves at the very minimum, two things: a quiet, painless death and an
intentional act to occasion that death by artificial means. It is the means and circumstances
that are open to debate and disagreement. Any useful “discussion of euthanasia must
accept the... fact that it involves some form of killing” or hastening death (Mason and
Smith, 1999, p.414).
Medical and ethical support for euthanasia usually emanates from such arguments as
‘individual autonomy’, ‘death with dignity’ and, more emphatically, ‘best interest of the
patient’. It is argued that sometimes one has to act against strictly moral or ethical
injunctions, which may be justified in medical terms and in the ‘best interest of the
patient’. They are based on the belief that a patient has a right to autonomy and self-
determination. This right can be extended to matters of choice of time, circumstances and
the way in which death must occur. Ronald Dworkin, while advocating relaxation in law
says, “[m]aking someone die in a way that others approve, but [patient] believes a
horrifying contradiction of his life, is a devastating, odious form of tyranny” (Cited in
Keown, 2002 pp.52-53). However, opponents of autonomy argument contend that it is
difficult to ascertain if a given decision is truly autonomous. Several extraneous conditions
determine the exercise of autonomy like loneliness and depression. Moreover, autonomy
must be exercised in accordance with sound moral principles. Just as freedom comes with
responsibility, autonomy must entail moral restraint. The law provides “scant support for
an absolutist understanding of autonomy” (Keown, 2002, p.61).
Peter Singer says the opposition to euthanasia comes from two sources: traditional
Christians in view of their religious beliefs, and secular opposition which argues that
clinical depression and intense pain can be alleviated with psychiatric help and palliative
care. According to Singer, treatment of clinical depression and the use of palliative care
can be part of the procedural safeguards to be included in any law on euthanasia but they
cannot form a basis of banning it. For him, a middle path would be to allow euthanasia
with stricter guidelines so as to restore dignity in death (Singer, 2002, p.16).
It is essential to highlight here the dangers of legalising euthanasia. A law permitting
voluntary and physician assisted euthanasia is opposed basically on three grounds. Firstly,
it may at times lead to paternalistic decision that amplifies risks of abuse. Secondly, that
such a law cannot be checked from misuse to increasingly include possible circumstances
to initiate death. Assuming that the moral basis of law can be sustained, it will still present
serious practical difficulties in controlling its slide. Finally, it is argued that if one legal
exception is made, it may embolden the other aspirants of assisted suicide to seek legal
option and open the ‘floodgates’ of litigation.
One may add here that most advocates of euthanasia, on their part, are cautious while
supporting its legalisation. The Supreme Court of India, in Aruna Shanbaug judgment, has
allowed High Courts to henceforth pass orders on plea filed by near relatives for passive
euthanasia of terminally-ill patients after seeking expert opinion of medical panel. It has
also recommended decriminalisation of attempt to suicide (section 309 of IPC). However,
Contemporary Debates on Human Rights 105

most importantly, Aruna Shanbaug continues to live (passive euthanasia was not allowed
in her case) because of the strident stand taken by the KEM Hospital staff who have
been caring for her since 1973. Each case will have to be brought before the High Court.
Most countries are reluctant to make euthanasia legal and it remains a widely debated
issue.

8.8 SUMMARY
In the preceding pages we have looked at some of the important debates that have had
a bearing on the human rights discourse. The debates highlighted here are neither
exhaustive nor conclusive. They merely represent some of the current tidings. It is
pertinent to note that the efforts of the international community to resolve contending
positions and tread a common ground have been successful in some cases and attempts
to seek solutions have proved to be evasive in others. In all, there are three levels of
recognition of rights and resolution of contending issues that are evident in this discussion.
Firstly, the international community has been successful in smoothening out the differences
and codifying the norms and standards; this is clearly reflected in the established principle
that rights are interconnected and that no set of rights can claim primacy over others.
Secondly, some rights have been standardised and codified without clearly resolving the
contentious issues. In a sense, the international community has attempted to circumvent the
disagreements focussing instead on standardisation of norms and rights in treaties or
declarations. Issues related to minorities, indigenous groups and disabled groups fall under
this category where there is no definition to be found in the documents pertaining to these
groups nor is there any final consensus on the nature of rights or their implementation.
These two questions have been left open-ended. Thirdly, debate and disagreements have
proved to be inconclusive as in the case of universalist versus relativist approach to human
rights and the right to die with dignity. No common ground exists on these two issues yet.

8.9 TERMINAL QUESTIONS

1. Discuss the debate on the primacy of a set of rights and how it has been resolved
at the international level.
2. What are the difficulties experienced in reconciling the claims of universalism and
cultural relativism in human rights discourse?
3. In what way do you think the problems and debates of the minorities and indigenous
groups are similar? Elucidate.
4. Highlight the paradigm shift that has occurred in understanding disability.
5. After considering the various arguments in favour or against euthanasia, do you think
that it can be recognised as a human right? Give reasons.

SUGGESTED READINGS
Baxi, Upendra., “Two Notions of Human Rights: ‘Modern’ and ‘Contemporary’” in
Shashi Motilal and Bijayalaxmi Nanda, ed., Understanding Social Inequality: Concerns
of Human Rights, Gender and Environment, Macmillan, New Delhi, 2010, pp. 116-
130.
106 Human Rights: Indian Perspective

Errico, Stefania., ‘The Draft UN Declaration on the Rights of Indigenous Peoples: An

Overview’, Human Rights Law Review, Vol. 7, no. 4, October-December, 2007, pp.
741-755.
Kayess, Rosemary, and French, Phillip., ‘Out of Darkness into Light? Introducing the
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