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HUMAN RIGHTS

ASSIGNMENT

ON

ROLE OF SUPREME COURT AND HUMAN RIGHTS

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CONTENTS

Introduction Active role of judiciary Barriers Cases Writ jurisdiction of Supreme Court and High Court Rule of Locus Standi vis-à-vis Public Interest Litigation Enabling Provisions Prisoners and Human Rights Rights against Inhuman Treatment of Prisoners Right to Speesy trial Right to Legal Aid Right against Handcuffing Narco Analysis/Polygraph/Brain Mapping Human Rights Courts in India The Superme Court and Human Rights: The Hindu Versatile role of Courts Vanguard role of District Judiciary Conclusion References

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INTRODUCTION

Human Rights – Two simple words but when put together they constitute the very foundation of

our existence. Human Rights are commonly understood as “inalienable fundamental rights to

which a person is inherently entitled simply because she or he is a human being”.

India being a diverse country with its multicultural, multi-ethnic and multi-religious population,

the protection of human rights is the sine qua non for peaceful existence. It is indeed impossible

to give an inclusive definition of Human Rights owing to its vast nature, however, the legislators

have tried their hands in defining Human Rights as “the rights relating to life, liberty, equality

and dignity of the individual guaranteed by the Constitution or embodied in the International

Covenants and enforceable by courts in India” under the Human Rights Act, 1993.

It is implicit from the definition that Human rights are omnipresent in all legislations in our

country and it is the duty of the Judges to read between the lines and enforce these rights for the

betterment of the society. In precise, our judgments should be articulated in such a manner to

accommodate human rights whenever it is required.

Judiciary in every country has an obligation and a Constitutional role to protect Human Rights of

citizens. As per the mandate of the Constitution of India, this function is assigned to the superior

judiciary namely the Supreme Court of India and High courts. The Supreme Court of India is

perhaps one of the most active courts when it comes into the matter of protection of Human

Rights. It has great reputation of independence and credibility. The preamble of the Constitution

of India encapsulates the objectives of the Constitution-makers to build a new Socio-Economic

order where there will be Social, Economic and Political Justice for everyone and equality of

status and opportunity for all. This basic objective of the Constitution mandates every organ of

the state, the executive, the legislature and the judiciary working harmoniously to strive to realize

the objectives concretized in the Fundamental Rights and Directive Principles of State Policy.

The judiciary must therefore adopt a creative and purposive approach in the interpretation of

Fundamental Rights and Directive Principles of State Policy embodied in the Constitution with a

view to advancing Human Rights jurisprudence. The promotion and protection of Human Rights

is depends upon the strong and independent judiciary. The main study here would be given wide

coverage to the functional aspect of the judiciary and see how far the Apex judiciary in India has

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achieved success in discharging the heavy responsibility of safeguarding Human Rights in the

light of our Constitutional mandate. The major contributions of the judiciary to the Human

Rights jurisprudence have been twofold: (1) the substantive expansion of the concept of Human

Rights under Article 21 of the Constitution, and (2) the procedural innovation of Public Interest

Litigation.

ACTIVE ROLE OF JUDICIARY

Of course, all legal rights are human rights but it is unfortunate that all human rights have not

become legal rights as on date. This is because the law follows the action, as a consequence, it is

not possible to codify all probable laws in anticipation for protection of human rights, and this is

when the due procedure of law or the principle of natural justice plays an active role in

protecting the rights of the people when there is no legislation available.

The magnificence of human rights is that it is all pervading; the trick lies in the successful

execution of the same. Fundamentally, the basic motive of all the three wings of the democratic

government, namely, the executive, the legislative, and the Judiciary revolves around the

protection of human rights. They strive together and separately to uphold the human rights of the

people in the country.

The Judiciary with no doubt has played a vital role in protection of Human rights over the

decades. Some of the most unpleasant violation of human rights like Sati, Child Marriage, Honor

Killings, Slavery, Child labour etc., have been abolished wholly owing to widespread awareness

and strict implementation measures taken by the Judiciary.

The status of human rights is fairly high under the Constitution of India which makes provision

for fundamental rights and empowers Supreme Court of India and High Courts to enforce these

rights. Equally important is the fact that India is a signatory to international conventions on

economic, social, cultural, civil and political rights, with certain conditions. These rights are

partly contained in Part III of the Constitution of India including the right to equality in Article

14, right to freedom of speech and expression in Article 19(1)(a), the right to protection of life

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and personal liberty in Article 21 and the right to religious freedom in Article 25 etc. In Part IV

of the Constitution, the Directive Principles of State Policy i.e. the duties of the State or the

socio-economic rights, has been envisaged which are non-justiciable in any court of law but

complementary to the fundamental rights in Part III. It directs the State to apply policies and

principles in the governance of the country so as to enhance the prospects of social and economic

justice. For instance, Article 43 directs the State to secure for workers a living wage, decent

standard of life and social and cultural opportunities. On a different note, the society should be

changed in a positive way by the State, enlighten and place every human being in a society

where their individual rights can be protected as well as upheld.

The Indian judiciary with its widest interpretation in observance of Human Rights has

contributed to the progress of the nation and to the goal of creating India as a vibrant State . The

definition of Human Rights can be found under Section 2(d) of the Protection of Human Rights

Act, 1993 as, “The rights relating to life, liberty, equality and dignity of the individual

guaranteed by the Constitution or embodied in the International Covenants and enforceable

by the Court of India.” So it is evident that Courts have a major role to play in enforcing the

rights.

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BARRIERS

Working towards the protection of human rights ought to be the paramount goal of any Court of

the country. Various barriers came in the workings of Supreme Court which should be aside.

Avoidance of the legal system due to economic reasons or fear.

Excessive number of laws.

Expensive legal procedures.

Inadequate Legal Aid Systems.

Inadequate information about laws, the rights arising out of them and the prevailing

Practices.

Failure of legal systems to provide remedies which are preventive, just, nondiscriminatory

and adequate.

Lack of public participation in reform movements.

PIL is an excellent example to refer to at this moment in which plethora of injustices being dealt

with using the mechanism of PIL. A number of which the Supreme Court has approached in the

last few decades:

lack of access to food.1

deaths due to starvation.2

out-of-turn allotment of government accommodation.3

prohibition of smoking in public places.4

investigation of alleged bribe taking.5

employment of children in hazardous industries.6

rights of children and bonded labours.7

1PUCL v Union of India (2001) (7) SCALE 484; PUCL v Union of India (2004) (5) SCALE 128.2 Kishen Pattnayak v State of Orissa (1989) Supl.(1) S.C.C. 258.3 Shiv Sagar Tiwari v Union of India (1996) 6 S.C.C. 558.

4 Murli Deora v Union of India & Ors. (2001) 8 S.C.C. 765.

5 Vineet Narain v Union of India (1996) 2 S.C.C. 199.6 M.C. Mehta v State of Tamil Nadu AIR 1997 SC 699.7 Narendra Malava v State of Gujarat 2004 (10) SCALE. 12; PUCL v State of Tamil Nadu 2004 (5) SCALE 690.

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extent of the right to strike.8

right to health.9

right to education.10

sexual harassment in the workplace.11

that “the power of preventive detention is a draconian power, justified only in the interest of

public security and order and it is tolerated in a free society only as a necessary evil”.

In Smt. Nilabati Behera @ Lalita Behera v. State of Orissa & Ors.12, the Supreme Court

asserted the jurisdiction of the judiciary as “protector of civil liberties” under the

obligation “to repair damage caused by officers of the State to fundamental rights of the

citizens”, holding the State responsible to pay compensation to the near and dear ones of

a person who has been deprived of life by their wrongful action, reading into Article 21

the “duty of care” which could not be denied to anyone. For this purpose, the court

referred to Article 9 (5) of the International Covenant on Civil and Political Rights, 1966

which lays down that “anyone who has been the victim of unlawful arrest or detention

shall have an enforceable right to compensation”.

In Joginder Kumar v. State of UP and Others13, the court ruled that “the law of arrest is

one of balancing individual rights, liberties and privileges on the one hand and individual

duties, obligations and responsibilities on the other; of weighing and balancing the rights,

liberties of the single individual and those of individuals collectively………”.

8 CPM v Bharat Kumar AIR 1998 SC 184; T.K. Rangarajan v State of Tamil Nadu AIR 2003 SC 3032.9 Parmanand Kataria v Union of India AIR 1989 SC 2039; Paschim Banga Khet Mzdoor Samity v State ofWest Bengal (1996) 4 S.C.C. 37; Kirloskar Bros Ltd v ESIC (1996) 2 S.C.C. 682; Air India Stat. Corp v UnitedLabour Union (1997) 9 S.C.C. 377.10 Mohini Jain v State of Karnataka (1992) 3 S.C.C. 666; Unni Krishnan v State of Andhra Pradesh (1993) 1S.C.C. 645.11 Vishaka v State of Rajasthan AIR 1997 SC 3011; Apparel Export Promotion Council v A.K. ChopraAIR 1999 SC 625.12 (1993) 2 SCC 74613 ( 1994) 4 SCC 260

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In Delhi Domestic Working Women’s Forum v. Union of India & Others14, the Court

asserted that “speedy trial is one of the essential requisites of law” and that expeditious

investigations and trial only could give meaning to the guarantee of “equal protection of

law” under Article 21 of the Constitution.

In People’s Union for Civil Liberties [PUCL] v. Union of India and another15, the dicta

in Article 17 of the International Covenant on Civil and Political Rights, 1966 was treated

as part of the domestic law prohibiting “arbitrary interference with privacy, family, home

or correspondence” and stipulating that everyone has the right to protection of the law

against such intrusions.

In D.K. Basu v. State of West Bengal16, the Court found custodial torture “a naked

violation of human dignity” and ruled that law does not permit the use of third degree

methods or torture on an accused person since “actions of the State must be right, just and

fair, torture for extracting any kind of confession would neither be right nor just nor fair”.

In Vishaka & Ors. v. State of Rajasthan & Ors.,17, Supreme Court said that “gender

equality includes protection from sexual harassment and right to work with dignity,

which is a universally recognized basic human right. The common minimum requirement

of this right has received global acceptance. In the absence of domestic law occupying

the field, to formulate effective measures to check the evil of sexual harassment of

working women at all workplaces, the contents of international conventions and norms

are significant for the purpose of interpretation of the guarantee of gender equality, right

to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and

the safeguards against sexual harassment implicit therein and for the formulation of

guidelines to achieve this purpose…. in the absence of enacted law to provide for the

effective enforcement of the basic human right of gender equality and guarantee against

sexual harassment and abuse, more particularly, guidelines and norms are hereby laid

14 (1995) 1 SCC 1415 AIR 1997 SC 56816 AIR 1997 SC 61017 (1997) 6 SCC 241

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down for strict observance at all workplaces or other institutions, until a legislation is

enacted for the purpose. This is done in exercise of the power available under Article 32

for enforcement of the fundamental rights and it is further emphasized that this would be

treated as the law declared by the Supreme Court under Article 141 of the Constitution.”

The aforesaid cases are only few examples from numerous judgments concerning human

rights.

Playing a pro-active role in the matters involving environment, the judiciary in India has read the

right to life enshrined in Article 21 as inclusive of right to clean environment. It has mandated to

protect and improve the environment as found in a series of legislative enactments and held the

State duty bound to ensure sustainable development where common natural resources were

properties held by the Government in trusteeship for the free and unimpeded use of the general

public as also for the future generation. The Court has consistently expressed concern about

impact of pollution on ecology in present and in future and the obligation of the State to

anticipate, prevent and attach the causes of environmental degradation and the responsibility of

the State to secure the health of the people, improve public health and protect and improve the

environment.

Yes, it is true that Judiciary has done a tremendous job in the past by actively involving in

safeguarding the human rights in process of delivering justice. But the future is far more

challenging with the new social innovations like Surrogacy, Cyber Terrorism, etc..; which

does not have a concrete law as on date and the scope of violation of human rights are far more

severe than anticipated; therefore it is only with due conviction and determination by the

subordinate judicial officers these challenges can be overcome in an orderly manner.

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Writ Jurisdiction of the Supreme Court and the High Courts

The most significant of the Human Rights is the exclusive right to Constitutional remedies under

Articles 32 and 226 of the Constitution of India. Those persons whose rights have been violated

have right to directly approach the High Courts and the Supreme Court for judicial rectification,

redressal of grievances and enforcement of Fundamental Rights. In such a case the courts are

empowered to issue appropriate directions, orders or writs including writs in the nature of

Habeas Corpus, Mandamus, Prohibition, Quo-warranto, and Certiorari. By virtue of Article 32,

the Supreme Court of India has expanded the ambit of Judicial Review to include review of all

those state measures, which either violate the Fundamental Rights or violative of the Basic

Structure of the Constitution. The power of Judicial Review exercised by the Supreme Court is

intended to keep every organ of the state within its limits laid down by the Constitution and the

laws. It is in exercise of the power of Judicial Review that, the Supreme Court has developed the

strategy of Public Interest Litigation. The right to move to the Supreme Court to enforce

Fundamental Rights is itself a Fundamental Right under Article 32 of the Constitution of India.

This remedial Fundamental Right has been described as “the Cornerstone of the Democratic

Edifice” as the protector and guarantor of the Fundamentals Rights. It has been described as an

integral part of the Basic Structure of the Constitution. Whenever, the legislative or the executive

decision result in a breach of Fundamental Right, the jurisdiction of the Supreme Court can be

invoked. Hence the validity of a law can be challenged under Article 32 if it involves a question

of enforcement of any Fundamental Rights.

The Right to Constitutional remedy under Article 32 can be suspended as provided under

Articles 32(4), 358 and 359 during the period of promulgation emergency. Accordingly, in case

of violation of Fundamental Rights, the petitioner under Article 32 for enforcement of such right

cannot be moved during the period of emergency. However, as soon as the order ceases to be

operative, the infringement of rights made either by the legislative enactment or by executive

action can be challenged by a citizen in a court of law and the same may have to be tried on

merits, on the basis that the rights alleged to have been infringed were in operation even during

the pendency of the presidential proclamation of emergency. If, at the expiration of the

presidential order, the parliament passes any legislation to protect the executive action taken

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during the pendency of the presidential order and afford indemnity to the execution in that

behalf, the validity and effect of such legislation may have to be carefully scrutinized.

Under Article 226 of the Constitution of India, the High Courts have concurrent jurisdiction with

the Supreme Court in the matter granting relief in cases of violation of the Fundamental Rights,

though the High Court’s exercise jurisdiction in case of any other rights also. The Supreme Court

observed that where the High Court dismissed a writ petition under Article 226 after hearing the

matter on merits, a subsequent petition in the Supreme Court under Article 32 on the same facts

and for the same relief filed by the same parties will be barred by the rule of Res judicata. The

binding character of the judgment of the court of competent jurisdiction is in essence, a part of

the rule of law on which, the administration of justice is founded1. Thus the judgment of the

High Court under Article 226 passed after hearing the parties on merits must bind the parties till

set aside in the appeal as provided by the Constitution and cannot be permitted to be avoided by

a petition under Article 32.

Article 226 contemplates that notwithstanding anything in Article 32, every High Court shall

have power, throughout the territorial limits in relation to which it exercises jurisdiction to issue

to any person or authority including the appropriate cases, any government, within those

territories, direction, orders or writs in the nature of Habeas Corpus, Mandamus, Prohibition,

Quo-warranto and Certiorari or any of them for the enforcement of Fundamental Rights

conferred by part-III and for “any other purpose”. Hence, the jurisdiction of a High Court is not

limited to the protection of the Fundamental Rights but also of the other legal rights as is clear

from the words “any other purpose”. The concurrent jurisdiction conferred on High Courts under

Article 226 does not imply that a person who alleges the violation of Fundamental Rights must

first approach the High Court, and he can approach the Supreme Court directly. This was held in

the very first case Ramesh Thapper v. State of Madras.18 But in P.N. Kumar v. Municipal

Corporation of Delhi19 the Supreme Court expressed the view that a citizen should first go to the

High Court and if not satisfied, he should approach the Supreme Court. Innumerable instances of

Human Rights violation were brought before the Supreme Court as well as the High Courts.

Supreme Court as the Apex Court devised new tools and innovative methods to give effective

redressal.

18 AIR 1950 SC 12419 AIR 1989 SC 1285

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Rule of Locus Standi vis-à-vis Public Interest Litigation

The traditional rule is that the rights to move the Supreme Court is only available to those whose

Fundamental Rights are infringed. A person who is not interested in the subject matter of the

order has no Locus Standi to invoke the jurisdiction of the court. But the Supreme Court has now

considerably liberalized the above rule of Locus Standi. The court now permits the “public

spirited persons to file a writ petition for the enforcement of Constitutional and statutory rights of

any other person or a class, if that person or a class is unable to invoke the jurisdiction of the

High Court due to poverty or any social and economic disability. The widening of the traditional

rule of Locus Standi and the invention of Public Interest Litigation by the Supreme Court was a

significant phase in the enforcement of Human Rights.

In S.P. Gupta v. Union of India and others,20 the seven member bench of the Supreme Court

held that any member of the public having “sufficient interest” can approach the court for

enforcing the Constitutional or legal rights of those, who cannot go to the court because of their

poverty or other disabilities. A person need not come to the court personally or through a lawyer.

He can simply write a letter directly to the court complaining his sufferings. Speaking for the

majority Bhagwathi, J. said that any member of the public can approach the court for redressal

where, a specific legal injury has been caused to a determinate class or group of persons when

such a class or person are unable to come to the court because of poverty, disability or a socially

or economically disadvantageous position. In the instant case, the court upheld the right of

lawyers to be heard on matters affecting the judiciary. By this judgment Public Interest Litigation

became a potent weapon for the enforcement of “public duties” where executed inaction or

misdeed resulted in public inquiry.

While expanding the scope of the “Locus Standi”, Bhagwathi, J. expressed a note of caution and

observed “but we must be careful to see that the member of the public, who approaches the court

in case of this kind, is acting bonafide and not for personal gain or private profit or political

motivation or other consideration. The court must not allow its process to be abused by

politicians and other”. Hence the court was aware that this liberal rule of Locus Standi might be

20 AIR 1982 SC 149

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misused by vested interests. As a result of this broad view of Locus Standi permitting Public

Interest Litigation or Social Action Litigation, the Supreme Court of India has considerably

widened the scope of Article 32 of the Constitution. The Supreme Court has jurisdiction to give

an appropriate remedy to the aggrieved persons in various situations. Protection of pavement and

slum dwellers of Bombay, improvement of conditions in jails, payment of Minimum Wages,

protection against Atrocities on Women, Bihar blinding case, Flesh trade in protective home of

Agra, Abolition of Bonded Labourers, Protection of Environment and Ecology are the instances

where the court has issued appropriate writs, orders and direction on the basis of Public Interest

Litigation.

The strategy of Public Interest Litigation has been evolved by this court with a view to bringing

justice within the easy reach of the poor and disadvantaged sections of the community.21

In Peoples Union for Democratic Rights v. Union of India,22 the Supreme Court held

that Public Interest Litigation is brought before the court the court not for purpose of

enforcing the right of one individual against another as happened in the case of ordinary

litigation, but it is intended to promote and vindicate public interest which demands that

violations of Constitutional or legal rights of large number of people who are poor,

ignorant or in a socially or economically disadvantageous position should not go

unnoticed and unredressed.

In Bandhu Mukti Morcha v. Union of India,23 the Apex Court held that the power of the

Supreme Court under Article 32 includes the power to appoint Commission for making

enquiry into facts relating to the violation of Fundamental Rights. The Apex Court further

held that Public Interest Litigation through a letter should be permitted, but expressed the

view that, in entertaining such petitions, the court must be cautious so that, it might not

be abused. The court suggested that all such letters must be addressed to the entire court

and not a particular judge and secondly it should be entertained only after proper

verification of materials supplied by the petitioner. This is known as epistolary

jurisdiction.21 Bihar Legal Support Society vs. Chief Justice of India (1986) 4 SCC 76722 AIR 1982 SC 147323 AIR 1984 SC 803

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The advent of Public Interest Litigation (here in after referred to as PIL) is one of the key

components of the approach of “Judicial Activism” that is attributed to the higher judiciary in

India. The verdict of Bhagwati, J. in M.C.Mehta v. Union of India,24 opened the doors of the

Apex Court of India for the oppressed, the exploited and the down – trodden in the villages of

India or in urban slums. The poor in India can seek enforcement of their Fundamental Rights

from the Supreme Court by writing a letter to any judge of the court even without the support of

an Affidavit. The court has brought legal aid to the door steps of millions of Indians which the

executive has not been able to do despite that, a lot of money is being spent on new legal aid

schemes operating at the central and state level.

The Supreme Court of India in Narmada Bachao Andolan v. Union of India25 held that Public

Interest Litigation was an invention essentially to safeguard and protect the Human Rights of

those people who were unable to protect themselves.

ENABLING PROVISION

The right to enforce the Human Rights provided in the Constitution of India is protected through

enabling provisions. Article 226 of the Constitution empowers High Courts to issue directions,

orders or writs in the nature of Habeas Corpus, Quo Warranto, Mandamus, Certiorari,

Prohibition for the enforcement of fundamental rights as well as any other legal rights. Article

32, itself a Fundamental Right, invests the Supreme Court with the power of judicial review for

the enforcement of fundamental rights with the power to issue directions, orders and writs as

well.

It is worth mentioning that Dr. Ambedkar who in course of his speech referred to draft Article 25

corresponding to the present Article 32, in the Constituent Assembly, said, “if I was asked to

name any particular article in the Constitution as the most important-an article without which

this Constitution would be nullity – I would not refer to any other article except this one. It is

the very soul of the Constitution and very heart of it and I am glad that the House, has realized

24 AIR 1987 SC 108725 (2000) 4 SCJ 261

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the importance”. During the debates in the Constituent Assembly Alladi Krishnaswami Aiyar

also remarked, “The future evolution of the Indian Constitution will thus

depend to a large extent upon the work of the Supreme Court and the direction given to it by the

Court, while its function may be one of interpreting the Constitution….it cannot in the discharge

of its duties afford to ignore the social, economic and political tendencies of the time which

furnish the necessary background”. And these predictions have come true. Any aggrieved person

could have direct access to superior Courts for obtaining quick relief against the state for

violation of any fundamental right. In addition to the above provisions, Article 142 enables the

Supreme Court to make such orders as are necessary to do complete justice in the cause; Article

141 provides that the law declared by the Supreme Court shall be binding on all; and Article 144

obliges all authorities to act in the aid of the Supreme Court.

PRISONERS AND THE HUMAN RIGHTS

The Supreme Court of India in the recent past has been very vigilant against encroachments upon

the Human Rights of the prisoners. In this area an attempt is made to explain the some of the

provisions of the rights of prisoners under the International and National arenas and also as

interpreted by the Supreme Court of India by invoking the Fundamental Rights. Article 21 of the

Constitution of India provides that “No person shall be deprived of his life and Personal Liberty

except according to procedure established by law”. The rights to life and Personal Liberty are the

back bone of the Human Rights in India. Through its positive approach and Activism, the Indian

judiciary has served as an institution for providing effective remedy against the violations of

Human Rights.

By giving a liberal and comprehensive meaning to “life and personal liberty,” the courts have

formulated and have established plethora of rights. The court gave a very narrow and concrete

meaning to the Fundamental Rights enshrined in Article 21. In A.K.Gopalan Case,26 the court

had taken the view that each Article dealt with separate rights and there was no relation with

each other i.e. they were mutually exclusive. But this view has been held to be wrong in Maneka

Gandhi case,27 and held that they are not mutually exclusive but form a single scheme in the

26 A.K. Gopalan vs. State of Madras A.I.R 1950 SC P.2727 Maneka Gandhi vs. Union of India A.I.R 1978 SC P.597

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Constitution, that they are all parts of an integrated scheme in the Constitution. In the instant

case, the court stated that “the ambit of Personal Liberty by Article 21 of the Constitution is wide

and comprehensive. It embraces both substantive rights to Personal Liberty and the procedure

prescribed for their deprivation” and also opined that the procedures prescribed by law must be

fair, just and reasonable.

In the following cases namely Maneka Gandhi,28 Sunil Batra (I),29 M.H.Hoskot,30 and

Hussainara Khatoon,31 the Supreme Court has taken the view that the provisions of part III

should be given widest possible interpretation. Every activity which facilitates the exercise of the

named Fundamental Right may be considered integrated part of the Article 21 of the

Constitution. It has been held that right to legal aid, speedy trail, right to have interview with

friend, relative and lawyer, protection to prisoners in jail from degrading, inhuman, and

barbarous treatment, right to travel abroad, right live with human dignity, right to livelihood, etc.

though specifically not mentioned are Fundamental Rights under Article 21 of the Constitution.

One of the most powerful dimensions that arose through Public Interest Litigation is the Human

Rights of the prisoners. The Supreme Court of India has considerably widened the scope of

Article 21 and has held that its protection will be available for safeguarding the fundamental

rights of the prisoners and for effecting prison reforms. The Supreme Court by its progressive

interpretation made Article 21, which guarantees the Right to Life and personal liberty, the

reservoir of prisoner’s rights. Under the seventh schedule of the Constitution of the India, the

prison administration, police and law and order are to be administered by the respective states.

The states have generally given low priority to prison administration. In fact, some of the

decisions of the Supreme Court on prison administration have served as eye–openers for the

administrators and directed the states to modernize prison administration.

The Human Rights saviour Supreme Court has protected the prisoners from all types of torture.

Judiciary has taken a lead to widen the ambit of Right to Life and personal liberty. The host of

decisions of the Supreme Court on Article 21 of the Constitution after Maneka Gandhis case,

through Public Interest Litigation have unfolded the true nature and scope of Article 21. In this

thesis, an attempt is made to analyse the new dimensions given by the Supreme Court to Article

28 Maneka Gandhi vs. Union of India AIR 1978 SC P.59729 Sunil Batra (I) vs. Delhi administration AIR 1978 SC 167530 M.H.Hoskot vs. State of Maharashtra AIR 1978 SC 154831 Hussainara Khatoons NO. I vs. Home Secretary, State of Bihar AIR 1979 SC 1360

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21 through Public Interest Litigation to safeguard the fundamental freedom of the individuals

who are indigent, illiterate and ignorant. Public Interest Litigation became a focal point to set the

judicial process in motion for the protection of the residuary rights of the prisoners.

Judicial conscience recognized that Human Rights of the prisoners because of its reformistic

approach and belief that convicts are also human beings and that the purpose of imprisonment is

to reform them rather than to make them hardened criminals. Regarding the treatment of

prisoners, Article 5 of the Universal Declaration of Human Rights, 1948 says “No one shall be

subjected to torture or cruel treatment, in human or degrading treatment or punishment”. While

Article 6 of the Universal Declaration of Human Rights, 1948 contemplates that “everyone has

the right to recognition everywhere as a person before law”. Article 10(1) of the International

Covenant on Civil and Political Rights lay down that “All persons deprived of their liberty shall

be treated with humanity and with respect for the inherent dignity of the human person”. The

Supreme Court of India has developed Human Rights jurisprudence for the preservation and

protection of prisoner’s Right to Human Dignity. The concern of the Apex judiciary is evident

from the various cardinal judicial decisions. The decision of the Supreme Court in Sunil Batra

was a watershed in the development of prison jurisprudence in India.

RIGHTS AGAINST INHUMAN TREATMENT OF PRISONERS

Human Rights are part and parcel of Human Dignity. The Supreme Court of India in various

cases has taken a serious note of the inhuman treatment on prisoners and has issued appropriate

directions to prison and police authorities for safeguarding the rights of the prisoners and persons

in police lock–up. The Supreme Court read the right against torture into Articles 14 and 19 of the

Constitution. The court observed that “the treatment of a human being which offends human

dignity, imposes avoidable torture and reduces the man to the level of a beast would certainly be

arbitrary and can be questioned under Article 14”.

In the Raghubir Singh v. State of Bihar, the Supreme Court expressed its anguish over police

torture by upholding the life sentence awarded to a police officer responsible for the death of a

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suspect due to torture in a police lock – up. In Kishore Singh v. State of Rajasthan the Supreme

Court held that the use of third degree method by police is violative of Article 21.

The decision of the Supreme Court in the case of D.K. Basu is noteworthy. While dealing the

case, the court specifically concentrated on the problem of custodial torture and issued a number

of directions to eradicate this evil, for better protection and promotion of Human Rights. In the

instant case the Supreme Court defined torture and analyzed its implications.

Right to have Interview with Friends, Relatives and Lawyers

The horizon of Human Rights is expanding. Prisoner’s rights have been recognized not only to

protect them from physical discomfort or torture in person, but also to save them from mental

torture. The Right to Life and Personal Liberty enshrined in Article 21 cannot be restricted to

mere animal existence. It means something much more than just physical survival. The right to

have interview with the members of one’s family and friends is clearly part of the Personal

Liberty embodied in Article 21. Article 22 (I) of the Constitution directs that no person who is

arrested shall be denied the right to consult and to be defended by a legal practitioner of his

choice. This legal right is also available in the code of criminal procedure under section 30441.

The court has held that from the time of arrest, this right accrues to the arrested person and he

has the right of choice of a lawyer. In a series of cases the Supreme Court of India considered the

scope of the right of the prisoners or detainees to have interviews with family members, friends

and counsel.

In Dharmbir v. State of U.P, the court directed the state Government to allow family members to

visit the prisoners and for the prisoners, at least once a year, to visit their families, under guarded

conditions.

In Hussainara Khatoon v. Home Secretary, Bihar,32 the Supreme Court has held that it is the

Constitutional right of every accused person who is unable to engage a lawyer and secure legal

services on account of reasons such as poverty, indigence or incommunicado situation, to have

32Sheela Barse vs. State of Maharashtra, (1983) 2 SCC 96

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free legal services provided to him by the state and the state is under Constitutional duty to

provide a lawyer to such person if the needs of justice so require. If free legal services are not

provided the trial itself may be vitiated as contravening the Article 21.

In Sheela Barse v. State of Maharashtra, the court held that interviews of the prisoners become

necessary as otherwise the correct information may not be collected but such access has got to be

controlled and regulated. In Jogindar Kumar v. State of U.P, the court opined that the horizon of

Human Rights is expanding and at the same time, the crime rate is also increasing and the court

has been receiving complaints about violation of Human Rights because of indiscriminate

arrests. The court observed that there is the right to have someone informed.

RIGHT TO SPEEDY TRIAL

The speedy trial of offences is one of the basic objectives of the criminal justice delivery system.

Once the cognizance of the accusation is taken by the court then the trial has to be conducted

expeditiously so as to punish the guilty and to absolve the innocent. Everyone is presumed to be

innocent until the guilty is proved. So, the quality or innocence of the accused has to be

determined as quickly as possible. It is therefore, incumbent on the court to see that no guilty

person escapes, it is still more its duty to see that justice is not delayed and the accused persons

are not indefinitely harassed. It is pertinent to mention that “delay in trail by itself constitute

denial of justice” which is said to be “justice delayed is justice denied”. It is absolutely necessary

that the persons accused of offences should be speedily tried so that in cases where the bail is

refused, the accused persons have not to remain in jail longer than is absolutely necessary. The

right to speedy trial has become a universally recognized human right.

The main procedure for investigation and trial of an offence with regard to speedy trial is

contained in the code of criminal procedure. The right to speedy trial is contained under section

309 of Cr.PC. If the provisions of Cr.PC are followed in their letter and spirit, then there would

be no question of any grievance. But, these provisions are not properly implemented in their

spirit. It is necessary that the Constitutional guarantee of speedy trial emanating from Article 21

should be properly reflected in the provisions of the code. For this purpose in A.R.Antulay v.

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R.S. Nayak, the Supreme Court has laid down following propositions which will go a long way

to protect the Human Rights of the prisoners. In the instant case the Apex Court held that the

right to speedy trial flowing from Article 21 of the Constitution is available to accused at all

stages like investigation, inquiry, trial, appeal, revision and retrial.

RIGHT TO LEGAL AID

Though, the Constitution of India does not expressly provide the Right to Legal Aid, but the

judiciary has shown its favour towards poor prisoners because of their poverty and is not in a

position to engage the lawyer of their own choice. The 42nd Amendment Act, 1976 has included

Free Legal Aid as one of the Directive Principles of State Policy under Article 39A in the

Constitution. This is the most important and direct Article of the Constitution which speaks of

Free Legal Aid. Though, this Article finds place in part-IV of the Constitution as one of the

Directive Principle of State Policy and though this Article is not enforceable by courts, the

principle laid down there in are fundamental in the governance of the country. Article 37 of the

Constitution casts a duty on the state to apply these principles in making laws. While Article 38

imposes a duty on the state to promote the welfare of the people by securing and protecting as

effectively as it many a social order in which justice, social, economic and political, shall inform

all the institutions of the national life. The parliament has enacted Legal Services Authorities

Act, 1987 under which legal Aid is guaranteed and various state governments had established

legal Aid and Advice Board and framed schemes for Free Legal Aid and incidental matter to

give effect to the Constitutional mandate of Article 39-A. Under the Indian Human Rights

jurisprudence, Legal Aid is of wider amplitude and it is not only available in criminal cases but

also in civil, revenue and administrative cases.

In Madhav Hayawadan Rao Hosket v. State of Maharashtra, a three judges bench

(V.R.Krishna Iyer, D.A.Desai and O.Chinnappa Reddy, JJ) of the Supreme Court reading

Articles 21 and 39-A, along with Article 142 and section 304 of Cr.PC together declared that the

Government was under duty to provide legal services to the accused persons.

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RIGHTS AGAINST HAND CUFFING

In Prem Shanker v. Delhi Administration, the Supreme Court added yet another projectile in its

armoury to be used against the war for prison reform and prisoner’s rights. In the instant case the

question raised was whether hand–cuffing is constitutionally valid or not? The Supreme Court

discussed in depth the hand cuffing jurisprudence. It is the case placed before the court by way of

Public Interest Litigation urging the court to pronounce upon the Constitution validity of the

“hand cuffing culture” in the light of Article 21 of the Constitution. In the instant case, the court

banned the routine hand cuffing of a prisoners as a Constitutional mandate and declared the

distinction between classes of prisoner as obsolete. The court also opined that “hand cuffing is

prima-facie inhuman and, therefore, unreasonable, is over harsh and at the first flush, arbitrary.

Absent fair procedure and objective monitoring to inflict “irons” is to resort to Zoological

strategies repugnant to Article 21 of the Constitution”.

NARCO ANALYSIS/POLYGRAPH/BRAIN MAPPING

In Selvi v. State of Karnataka, (2010), the Supreme Court has declared Narcoanalysis,

Polygraph test and Brain Mapping unconstitutional and violative of human rights. This decision

is quite unfavourable to various investigation authorities as it will be a hindrance to furtherance

of investigation and many alleged criminals will escape conviction with this new position. But

the apex court further said that a person can only be subjected to such tests when he/she assents

to them. The result of tests will not be admissible as evidence in the court but can only be used

for furtherance of investigation. With advancement in technology coupled with neurology,

Narcoanalysis, Polygraph test and Brain mapping emerged as favourite tools of investigation

agencies around the world for eliciting truth from the accused. But eventually voices of dissent

were heard from human rights organizations and people subjected to such tests. They were

labelled as atrocity to human mind and breach of right to privacy of an individual. The Supreme

Court accepted that the tests in question are violative of Article 20 (3), which lays down that a

person cannot be forced to give evidence against himself. Court also directed the investigation

agencies that the directives by National Human Rights Commission should be adhered to strictly

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while conducting the tests. These tests were put to use in many cases previously, Arushi Talwar

murder Case, Nithari killings Case, Abdul Telagi Case, Abu Salem Case, Pragya Thakur (Bomb

blast Case) etc. being ones which generated lot of public interest.

HUMAN RIGHTS COURTS IN INDIA

One of the objects of the Protection of Human Rights Act, 1993 as stated in the preamble of the

Act, is the establishment of human rights courts at district level. The creation of Human Rights

Courts at the district level has a great potential to protect and realize human rights at the

grassroots.

The Protection of Human Rights Act, 1993 provides for establishment Human Rights Courts for

the purpose of providing speedy trial of offences arising out of violation of human rights. It

provides that the state Government may, with the concurrence of the Chief Justice of the High

Court, by notification, specify for each district a Court of Sessions to be a Human Rights Court

to try the said offences. The object of establishment of such Courts at district level is to ensure

speedy disposal of cases relating to offences arising out of violation of human rights.

The Act refers to the offences arising out of violations of human rights. But it does not define or

explain the meaning of "offences arising out of violations of human rights". It is vague. The Act

dose not give any clear indication or clarification as to what type of offences actually are to be

tried by the Human Rights Courts. No efforts are made by the Central Government in this

direction. Unless the offence is not defined the courts cannot take cognizance of the offences and

try them. Till then the Human Rights Courts will remain only for namesake.

Even if "offences arising out of violations of human rights" are defined and clarified or

classified, another problem arises in the working of the Human Rights courts in India. The

problem is who can take cognizance of the offences. What the Act says is in each district, one

Sessions Court has to be specified for trying "offences arising out of human rights violation". It

is silent about taking of cognizance of the offence. The Prevention of Corruption Act, 1988 is

another law, which provides for appointment of a Sessions Judge in each district as Special

P a g e | 23

Judge to try the offence under the said Act. Provision has been made in section 5 of the

Prevention of Corruption Act, 1988 empowering the Special Judge to take cognizance of the

offences under the said Act. In the Protection of Human Rights Act, 1993 it is not so.

Sessions Court of the district concerned is considered as the Human Rights Court. Under the

Criminal Procedure Code, 1973 a Sessions Judge cannot take cognizance of the offence. He can

only try the cases committed to him by the magistrate under Section 193 of the Cr.P.C.

Similar problem had arisen in working of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 in the beginning. The Special Judges used to take

cognizance of the offences. In Potluri Purna Chandra Prabhakara Rao V. State of A.P., 2002(1)

Criminal Court cases 150, Ujjagar singh & others V. State of Haryana & another, 2003(1)

Criminal Court Cases 406 and some other cases it was held that the Special Court (Court of

Session) does not get jurisdiction to try the offence under the Act without committal by the

Magistrate. The Supreme Court also held same view in Moly & another V. State of Kerala,

2004(2) Criminal Court Cases 514. Consequently the trial of all the cases under the Prevention of

Atrocities Act was stopped and all the cases were sent to the Courts of jurisdictional Magistrates.

Thereafter the respective Magistrates took cognizance of the cases and committed them to the

Special Courts. The Special Courts started trying the cases after they were committed to them.

The Act was later amended giving the Special Courts the power to take cognizance of the

offences under Act.

The situation in respect of the Human Rights courts under the Protection of Human Rights Act,

1993 is not different.

Apart from the above, the Special Courts will face yet another question whether provisions of

Section 197 of Cr.P.C. are applicable for taking cognizance of the offences under the Protection

of Human Rights Act, 1993. In most of the cases of violation of human rights it is the police and

other public officers who will be accused. The offence relate to commission or omission of the

public servants in discharge of their duties. Definitely the accused facing the trial under the Act

raise the objection. There are plethora of precedents in favour of dispensing with the

applicability of Section 197 of Cr.P.C. on the ground that such acts (like the ones which result in

violation of human rights) do not come within the purview of the duties of public servants. But

P a g e | 24

there is scope for speculation as long as there is no specific provision in the Act dispensing with

the applicability of Section 197 of Cr.P.C.

The object of establishment of such Courts at district level is to ensure speedy disposal of cases

relating to offences arising out of violation of human rights. Unless the lawmakers take note of

the above anomalies and remove them by proper amendments the aim for which provisions are

made for establishment of special courts will not be achieved.

THE SUPREME COURT & HUMAN RIGHTS: BY THE HINDU33

The reputation of the Indian judiciary in international human rights circles is usually quite sound.

It is seen as having pioneered public interest litigation and as having contributed significantly to

33 Wednesday, December 06, 2000

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the growth of human rights jurisprudence in crucial areas including criminal procedure,

environment and economic, social and cultural rights.

Thus, the judgment in Olga Tellis vs. State of Bombay is often cited on United Nations human

rights fora and in academic publications as evidence of the court's activist role in the area of

economic, social and cultural rights. Indeed, it is not too much to claim that the Supreme Court is

seen as one of the most influential expounders of human rights, especially in this area.

Therefore, its recent decision in the Narmada case raises serious questions about the extent to

which this well-deserved reputation may be tarnished. If implemented, the decision is likely to

lead to a massive displacement of more than 2,00,000 people in the Narmada valley, thus earning

the infamous distinction of being perhaps the largest court-sanctioned, forced eviction in history.

In addition, the displacement will violate various human rights of the people of the Narmada

valley including their right to housing, shelter, livelihood and cultural cohesion as a community.

Further, the decision may also run foul of the international legal norm against collective/mass

population transfers against the people's will, and given that a very large percentage of the

affected are also tribals and Dalits, this `development cleansing' may well be seen as ethnic

cleansing in disguise. The reality is that no member of the upper castes or the middle/upper

classes needs to fear the loss of his home and entire community due to a development project in

India.

Had the judgment been a carefully circumscribed one that focussed on the issues raised by the

petitioners the court might have avoided giving the impression that it was taking sides openly in

a bitter ideological conflict over the nature and meaning of development, and the place of costly

infrastructure projects such as dams in it. Instead, it launched into the most partisan defence of

dams, defying the overwhelming evidence that is globally available against the feasibility of

large dams. The sense one gets from reading the judgment in the Narmada case is that for the

court, the issue seems to have become one of developmental nationalism, the importance of

modernisation and the ability of India to catch up with the West.

This stance has also been reflected in the comments by the Union Home Minister, Mr. L. K.

Advani, in the aftermath of the judgment, that those who criticise projects such as Narmada are

foreign agents. Besides the fact that such attitudes have the potential to generate dangerous

P a g e | 26

consequences for those who advocate peaceful criticism, the court itself seems to have really

stepped over the line from the legal to political terrain.

More importantly, the court seems to have abandoned its established role as the protector of the

human rights of the most vulnerable in Indian society. Here was perhaps one of the most

significant peaceful human rights movements in post-Independence India and the court's decision

has sent the signal that peaceful protests are not taken seriously anymore in the country. Indeed,

its previous activism in the area of economic and social rights or rights of detainees arose partly

from the recognition that the court must do its part to alleviate the most oppressive conditions of

existence for the population before they turn to extreme measures. By abandoning this crucial

position, the court has shown itself to be against human rights.

This anti-human rights position would not have been surprising 20 years ago when courts around

the world were generally more reluctant to entertain human rights challenges to development

projects. But it simply bucks contemporary global trends and standards.

For example, the judgment in the Narmada case can be usefully contrasted with a recent verdict

of the South African Constitutional Court - Government of R.S.A vs. Grootboom - given on

October 4, 2000. The question involved the enforcement of the right to housing and shelter under

the South African Constitution, for a group of children and adults living in appalling

circumstances in informal settlements, whose homes were forcibly removed and who then had to

settle in desperation on a sports field and in a community hall nearby.

In a unanimous decision, the court held that the Constitution obliged the state to act positively to

ameliorate the plight of the hundreds of thousands of people living in deplorable conditions

throughout the country. It must provide access to housing, health-care, sufficient food and water

and social security to those unable to support themselves and their dependants. The court

stressed that all rights in the Bill of Rights were inter-related and mutually supporting. It said the

question was whether the measures taken by the state to realise the rights afforded by the

Constitution were reasonable. To be reasonable, the court pointed out, the measures could not

leave out of account the degree and extent of the denial of the right they endeavoured to realise,

and those whose needs were the most urgent and whose ability to enjoy all rights was most in

peril must not be ignored. Importantly, ``if the measures, though statistically successful, fail to

P a g e | 27

make provision for responding to the needs of those most desperate, they may not pass the test of

reasonableness''.

Judging by this yardstick, the Indian Supreme Court's decision in the Narmada case appears to

fall far short of international human rights norms. Numerous other examples can be provided

from around the world and they clearly show that several countries take their responsibility to

protect human rights very seriously - particularly economic, social and cultural rights which are

of critical importance to the survival of vast impoverished and oppressed populations in non-

Western countries.The Indian Supreme Court, by going against this trend, has shown that it is

losing touch with human rights. If the goal of the court in this judgment was to defend the

possibility of India attaining modernisation and equality with the West, that is hardly likely to

come about by showing the world that we are becoming less civilised.

VERSATILE ROLE OF COURTS

The Indian judiciary with its widest interpretation in observance of Human Rights has

contributed to the progress of the nation and to the goal of creating India as a vibrant State. The

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intervention by the courts for issues involving the economic, social and cultural rights definitely

created a positive implication.

Some very important developments have occurred wholly due to the initial efforts

taken by the Judiciary, like

Many of the recent changes in law and policy relating to education in general, and

primary education in particular, are owed to the decision in Unnikrishnan P.J v. S ate of

A.P. and others (1993 4 SCC 111)

For instance, the decision in Paschim Banga KhetMazdoor Samity & Ors v. State of

West Bengal & Anr . (1996) 4 SCC 37 delineates the right to emergency medical care for

accident victims as forming a core minimum of the right to health.

The orders in P UCL v. Union of India 2 003(10) SCALE 967 underscore the right of

access for those below the poverty line to food supplies as forming the bare non-

derogable minimum that is essential to preserve human dignity.

PIL cases concerning environmental issues have enabled the Court to develop and apply

the ‘polluter pays principle’, the precautionary principles, and the principle of restitution.

The role of court is diverse in nature, sometimes it is required to become the arbitrator too. The

PIL case brought before the Supreme Court in 1994 by the Narmada Bachao Andolan (NBA), a

mass-based organization representing those affected by the large-scale project involving the

construction of over 3,000 large and small dams across the Narmada river flowing through

Madhya Pradesh, Maharashtra and Gujarat, provided the site for a contest of what the Court

perceived as competing public interests: the right of the inhabitants of the water-starved regions

of Gujarat and Rajasthan to water for drinking and irrigation on the one hand and the rights to

shelter and livelihood of over 41,000 families comprising tribals, small farmers, and fishing

communities facing displacement on the other.

In its decision in 2000, the Court was unanimous that the Sardar Sarovar Project (SSP) did not

require re-examination either on the ground of its cost-effectiveness or in regard to the aspect of

seismic activity. The area of justifiability was confined to the rehabilitation of those displaced by

this Project. By a majority of two to one, the Court struck out the plea that the SSP had violated

the fundamental rights of the tribals because it expected that: ‘At the rehabilitation sites they will

P a g e | 29

have more, and better, amenities than those enjoyed in their tribal hamlets. The gradual

assimilation in the mainstream of society will lead to betterment and progress’.

The Court acknowledged that in deciding to construct the dam ‘conflicting rights had to be

considered. If for one set of people namely those of Gujarat, there was only one solution, namely

construction of a dam, the same would have an adverse effect on another set of people whose

houses and agriculture would be submerged in water’. However, ‘when a decision is taken by the

Government after due consideration and full application of mind, the court is not to sit in appeal

over such decision’. Even while it was aware that displacement of the tribal population ‘would

undoubtedly disconnect them from the past, culture, custom and traditions’, the Court explained

it away on the utilitarian logic that such displacement ‘becomes necessary to harvest a river for

the larger good’.

Henceforth, it is no doubt that in 21st century the courts ranging from the subordinate courts to

the highest court of the country requires the judges to play an active role in resolving the issue.

The adversarial legal system is changing more towards the inquisitorial legal system, due to the

complexity of the issues involved. For example, in a hypothetical situation, if the issue of cyber

terrorism is brought before the court of law, is it possible for the Judges to decide the matter like

any other regular criminal cases. The reply would definitely be in negative, owing to the reason it

might result in gross violation of rights. I stated this example to demonstrate that law is not

mathematics; rather a logical conclusion arrived in the light of the substantive law. Hence, it

requires immense knowledge and active participation of the judges for the justice to be

delivered.

VANGUARD ROLE OF DISTRICT JUDICIARY

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The District judiciary renders an active role in dispense of justice, they have a massive duty to

protect the constitutional rights of the citizens. Barring few limitations, the District Judicial

Officers are in charge of all matters including application and interpretation of constitutional

provisions like Articles 14, 19, 21 etc.

It is after the appreciation of work done by the District judicial officers, that the legislators

enacted the Human rights Act, 1993. One of the main objectives of the Human Rights Act, 1993

is to establish the Human Rights Courts at every district level. Section 30 of the Act enables the

State Government to specify for each district, a Court of Sessions to be a Human Rights Court

after the due concurrence with the Chief Justice of the

respective High Courts.

The motive behind the provision is to provide speedy trial of offences arising out of violation of

human rights. The creation of Human Rights Courts at the district level has a great potential to

protect and realize human rights at the grassroots level.

On 9th September 2011, the West Bengal government was the first to set up Human Rights’

Courts in all 19 districts of the State to ensure speedy disposal of cases concerning human rights.

These courts functions from the district headquarters and it is under the District Sessions Judge.

Separate public prosecutors are being appointed in each District Human Rights Court, as

provided by the section 31 of the Protection of Human Rights Act, 1993. More and more Session

Courts must be specified as the Human Rights Courts for achieving the full benefits from the act.

CONCLUSION

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In the present era, the human rights refer to more than mere existence with dignity. The

International Institute of Human Rights in Strasbourg divides the human rights into three

generations. First-generation human rights are fundamentally civil and political in nature, as

well as strongly individualistic in nature; the Second-generation human rights are basically

economic, social and cultural in nature, they guarantee different members of the citizenry with

equal conditions and treatment; the Third-generation human rights refers to the right to self-

determination and right to development.

As a consequence with the expansion of scope of human rights, the ambit of safeguarding the

rights also increases, as a result, the judiciary should toil more to prevent the violation of human

rights. Judiciary is the only organ which can translate these rights into reality; which is not

possible without the help of the judicial officers of the respective courts.

The Indian judiciary is playing a role incomparable in the history of judiciaries of the world. It

must, therefore, prove itself worthy of the trust and confidence which the public reposes in it.

The judiciary must not limit its activity to the traditional role of deciding dispute between two

parties, but must also contribute to the progress of the nation and creation of a social order where

all citizens are provided with the basic economic necessities of a civilized life, viz. employment,

housing, medical care, education etc. as this alone will win for it the respect of the people of the

country.

The right to enforce Human Rights as provided under the Constitution of India is

Constitutionally protected. Article 226 empowers the High Courts to issue writs for enforcement

of such rights. Similarly Article 32 of the Constitution gives the same powers to the Supreme

Court. A new approach has emerged in the form of Public Interest Litigation (PIL) with the

objective to bring justice within the reach of the poor and the disadvantageous section of the

society. In the recent past the judges of the High Courts and the Supreme Court have from time

to time given far reaching and innovative judgements to protect the Human Rights. Public

Interest Litigation has heralded a new era of Human Rights promotion and protection in India.

The greatest contribution of Public Interest Litigation has been to enhance the accountability of

the Governments towards the Human Rights of the poor. Public Interest Litigation has

undoubtedly produced astonishing results which were unthinkable two decades ago. Public

Interest Litigation has rendered a signal service in the areas of Prisoner‟s Rights, development of

compensatory jurisprudence for Human Rights violation, Environmental protection, Bonded

P a g e | 32

labour eradication and prohibition of Child Labour and many others. A review of the decisions of

the Indian Judiciary regarding the protection of Human Rights indicates that the judiciary has

been playing a role of saviour in situations where the executive and legislature have failed to

address the problems of the people. The Supreme Court has come forward to take corrective

measures and provide necessary directions to the executive and legislature,. However while

taking note of the contributions of judiciary one must not forget that the judicial pronouncements

ca not be a protective umbrella for inefficiency and laxity of executive and legislature. It is the

foremost duty of the society and all its organs to provide justice and correct institutional and

human errors affecting basic needs, dignity and liberty of human beings. Fortunately India has

pro-active judiciary. It can thus be aspired that in the times ahead, people‟s right to live, as a true

human beings will further be strengthened.

From the perusal of the above contribution it is evident that the Indian Judiciary has been very

sensitive and alive to the protection of the Human Rights of the people. It has, through judicial

activism forged new tools and devised new remedies for the purpose of vindicating the most

precious of the precious Human Right to Life and Personal Liberty.

REFRENCES

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BOOKS

INTERNATIONAL LAW AND HUMAN RIGHTS- DR S K KAPOOR –

13TH EDITION

HUMAN RIGHTS- ABDUR RAHIM P. VIJAPUR – 1ST EDITION 2010

HUMAN RIGHTS – DR H.O. AGARWAL 17TH EDITION

Websites

www.indiankanoon.org

www.manupatra.com

www.scconline.com

www.legalserviceindia.com

www.jstor.com

www.thehindu.com