Human Rights Younis-6

1 ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

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”.

"Human rights" are those rights which inhere in every human being by virtue of being a

person. These are nothing but the modern name of what had been traditionally known as

"natural rights" i.e. rights bestowed upon human beings by nature. "Human rights" are based

on mankind's increasing demand for a decent civilized life in which the inherent dignity of

each human being is well respected and protected. Human rights are fundamental to our very

existence without which we cannot live as human beings. The basic human rights constitute

what might be called "sacrosanct rights" from which no derogation can be permitted in a

civilised society. The bare necessities, the minimum and basic requirements which are

essential and unavoidable for a person are the core of human rights concept. Human rights are

universal and cut across all national boundaries and political frontiers.

The preamble to the Universal Declaration of Human Rights states:

"... It is essential if man is not to be compelled to have recourse, as a last resort to rebellion

against tyranny and oppression, that human rights should be protected by the rule of law."

Article 3 of the Universal Declaration of Human Rights adopted by the General Assembly

on 10-12-1948 provides:

"Everyone has a right to life, liberty and security of person."

Section 2(d) of the Protection of Human Rights Act, 1993, lays down:

“‘Human rights' means 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;"

Prof. Louis Henkin of Columbia University in his article "Rights Here and There" Columbia

Law Review, 1582 (1981) explained human rights as:

"... claims which every individual has, or should have, upon the society in which she or he

lives. To call them human rights suggests that they are universal; they are the due of every


human being in every human society. They do not differ with geography or history, culture or

ideology, political or economic system or stage of development. They do not depend on

gender or race, class or 'status'. To call them 'rights' implies that they are claims 'as of right'

not merely appeals to grace, or charity or brotherhood or love; they need not be earned or

deserved. They are more than aspirations or assertions of 'the good' but claims of entitlement

and corresponding obligation in some political order under some applicable law, if only in a

moral order under a moral law.

When used carefully, 'human rights' are not some abstract, inchoate 'good'. The rights are

particular, defined, and familiar, reflecting respect for individual dignity and a substantial

measure of individual autonomy, as well as a common sense of justice and injustice."

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.

Human rights do not mean merely the right to live with humanity but mean the right to live

with dignity. A dignified life is one that is free from social handicaps, prejudices and biases

on the basis of casts, creed or sex. On December 10, 1948 the Universal Declaration of

Human Rights was given as a precious gift to the people of the Globe, affirming that all

people are born equal in dignity, yet till to date, most people of the world to whom this

compelling declaration belongs and for whose empowerment. According to dictionary

'human rights' mean dealing with mankind according to truth and justice. H.J. Laski in 'A

Grammar of Politics' observed that 'rights are those conditions of social life without which no

man can seek, in general to be himself at his best'. Jacques Maritan in 'The Rights of Man'

while dealing with this term has expounded that;


CONCEPT OF HUMAN RIGHTS

The concept of right was first systematically developed in Rome. For Roman jurists, right,

law and justice were inseparable, and the term just was used to refer to them all. Rights were

created by law, and law was an articulation of community's conception of justice. Rights

were subject to several constraints, and restricted depth and scope. During several centuries

of feudalism, the picture was equally complex. Not only the individual but such traditional

communities and groups as the cities guilds and estates were also bearers of rights. National

Human Rights Commission established in 1993 has also contributed a lot in protection of

human rights in India.

The present legal and judicial system of India owes its origin mainly to two hundred years

British rule in the Indian Sub-Continent although some elements of it are remnants of Pre-

British period tracing back to Hindu and Muslim administration. It passed through various

stages and has been gradually developed as a continuous historical process. The process of

evolution has been partly indigenous and partly foreign and the legal and judicial system of

the present day emanates from a mixed system which has structure, legal principles and

concepts modeled on both Indo-Mughal and English law.

THE ROLE OF JUDICIARY IN PROTECTION OF HUMAN RIGHTS

The constitutional law starts and gets into motion only when though a constitutional right is

ascertained but the authorities refuse to recognise it. It is at that stage that the cause enters the

portals of the courts. The Constitution being the suprema lex, every institution created under

the Constitution is expected to respect its command and no organ or instrumentality of the

Government, not President, not the Prime Minister not Parliament, not the policeman in

uniform, not even the Judge, can ignore it. Its words are law which every State

instrumentality must respect and enforce. The courts are in the scheme of the Constitution

guardians of the Constitution, though not the only guardians, and upon them rests the

responsibility to check unconstitutional behaviour and enforce the constitutional mandate.

Every instrumentality under the Constitution is charged with similar duties and obligations,

courts are just the last resort. Under the Constitution, judicial institutions have a role to play

not only for resolving inter se disputes but also to act as a balancing mechanism between the

conflicting pulls and pressures operating in a society. Courts of law are the products of the

Constitution and the instrumentalities for fulfilling the ideals of the State enshrined therein


according to the language of the law. Evolving new juristic principles for the development

and growth of law is an accepted role of the judiciary in almost all the countries.

The function of the higher courts in this country has not been limited to exploring what the

Constitution-makers meant when they wrote those words but also to develop and adapt the

law so as to meet the challenges of contemporary problems of the society and respond to the

needs of the society. The Constitution cannot be a living and dynamic instrument if it lives in

the past only and does not address the present and the future. This exercise of jurisdiction by

the courts in India has been criticised by some as "judicial activism" indulged by non-elected

Judges who upset the decisions of the elected representatives of the people. They would like

the courts to confine themselves to what the Constitution-makers actually or literally meant

when the Constitution was drafted. But is it possible to say that the word or expression must

mean the same thing at all times regardless of changing times and situations? After another

fifty years will the Judges still be carrying out the exercise of digging out what meaning was

assigned to a word a century back! That may be in my opinion the surest way to kill the

Constitution and be wedded to the status quo. The world changes - should not the judiciary

try to make the Constitution work in changed circumstances?

The judiciary (also known as the judicial system or judicature) is the system of courts which

interprets and applies the law in the name of the sovereign or state. The judiciary also

provides a mechanism for the resolution of disputes. Under the doctrine of the separation of

powers, the judiciary generally does not make law (that is, in a plenary fashion, which is the

responsibility of the legislature) or enforce law (which is the responsibility of the executive),

but rather interprets law and applies it to the facts of each case.

Prof. H. J. Laski told, "Certainly no man can over-estimate importance of the mechanisms

Of justice".1

This branch of government is often tasked with ensuring equal justice under law. It usually

consists of a court of final appeal (called the "supreme court" or "constitutional court"),

together with lower courts.

The term "judiciary" is also used to refer collectively to the personnel, such as judges,

magistrates and other adj0udicators, who form the core of a judiciary (sometimes referred to

as a "bench"), as well as the staffs who keep the systems running smoothly.

1 Grammar of Politics, By H.J. Laski,, 1937, P- 541 publication 2007


Of the three organs of Government, the judiciary has become a vanguard of human rights in

India. It performs this function mainly by innovative interpretation and application of the

human rights provisions of the Constitution. The Supreme Court of India has in the case Ajay

Hasia v. Khalid Mujib2 music declared that it has a special responsibility, "to enlarge the

range and meaning of the? fundamental rights and to advance the human rights

jurisprudence."

As has already been pointed out the Supreme Court of India and the State High Courts have

broad powers under the Constitution to enforce the fundamental rights and they have liberally

interpreted these powers. The major contributions of the judiciary to the human rights

jurisprudence have been two-fold: (a) the substantive expansion of the concept of human

rights under Article 21 of the Constitution, and (b) the procedural innovation of Public

Interest Litigation.

Expansion of Article 21

Article 21 reads as follows, protection of life and personal liberty - "No person shall be

deprived of his life or personal liberty except according to the procedure established by law."

The expansion of Article 21 of the Constitution has taken place in two respects:

a) The expression "the procedure established by law" received a new interpretation not

intended by the founding fathers of the Constitution. In 1950, the very first year of the

Constitution, the Supreme Court in the case A.K. Gopalan v. State of Madras3 reflecting on

the intentions of the Constitution-makers, held that "procedure established by law" only

meant that a procedure had to be set by law enacted by a Legislature. This phrase was

deliberately used in Article 21 in preference to the American "Due Process" clause. Tiree

decades later, in Maneka Gandhi v. Union of India case, the Supreme Court noted that "the

Supreme Court rejected its earlier interpretation and holds that the procedure contemplated

under Article 21 is a right, just and fair procedure, not an arbitrary or oppressive procedure.

The procedure, which is reasonable and fair, must now be in conformity with the test of

article 14 - "in effect it has become a Due Process." There is no doubt that the experience of

National Emergency (1975-1977) prompted the court to go all out for vindication of human

rights. Since then every case of infringement of rights by the Legislature has undergone

2 AIR 1981 SC 487

3 AIR 1950 SC 27


judicial scrutiny in terms of the new interpretation laid down in the Maneka Gandhi's case.

Further, this approach has led to procedural due process innovations such as the right to claim

legal aid for the poor and the right to expeditious trial.

b) The judiciary interprets 'the right to life and personal liberty" to encompass all basic

conditions for a life with dignity and liberty. Such an approach allows it to come down

heavily on the system of administration of criminal justice and law enforcement. It also

brings into the fold of Article 21 all those directive principles of state policy that are essential

for a "life with dignity."

Thus, the judiciary has interpreted "Life" to include the right to possession of each organ of

one’s body and a prohibition of torture or inhuman or degrading treatment by Police. In the

Francis Coralie Mullin v. The Administrator, Union territory of Delhi4 case, the

Supreme Court held that "life" couldn't be restricted to mere animal existence, or physical

survival. The right to life means the right to live with dignity and all that goes with it - the

basic necessities of life such as adequate nutrition, clothing, shelter and facilities for reading,

writing and expressing oneself.

Many of the Article 21 cases that came before the High Courts and the Supreme Court often

reveled "a shocking state of affairs and portray a complete lack of concern for human values "

The Hussainara Khatoon v Home Secretary, Bihar case-

It has been held by the Supreme Court that though speedy trial is not specifically enumerated

as a fundamental right, it is implicit in the broad sweep and content of Article 21, which deals

with the 'right to life and liberty'. Justice Bhagwati held "if a person is deprived of his liberty

under a procedure which is not 'reasonable', 'fair' or 'just', it would fall foul of Article 21.

There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably

expeditious trial, is an integral and essential part of the fundamental right to life and liberty

enshrined in Article 21. It was also held by the Supreme Court that 'detention in jail for a

period longer than what they would have been sentenced for, if convicted, is illegal as being a

violation of their fundamental right under Article 21 of the Constitution.

Deoraj Khatri v. State of Bihar case5 raised the case of Police brutality in which 80

suspected criminals were brutally blinded during Police investigation (Bhagalpur Blinding

4 AIR 1981 SC 746

5 AIR 1981 SC 928


case). The Supreme Court condemned it as a "barbaric act and a crime against mankind." In

Sheela Barse v. The State of Maharashtra6 case, the Court was confronted with the

custodial violence against women and it laid down certain guidelines against torture and ill

treatment of women in Police custody and jails.

The Supreme Court has also read into Article 21 a righto monetary compensation for

deprivations of the right to life and liberty suffered at the hands of the State. This was

highlighted in the Rudal Shah v. State of Bihar7 case. The emergence of the right to

compensation has nullified one of the reservations made India in its instrument of accession

to the human rights Covenants, which stated that the Indian law did not recognize such a right

in the event of right deprivation.

The health problems of workers in the asbestos industry led the Supreme Court in the case

Paramanand Katra v. Union of India8 to rule that the right to life and liberty under Article

21 also encompasses the right of the workers to health arid medical aid.5' The right to life has

been held to include the right to receive instant medical aid in case of injury and the right of a

child to receive free education up to the age of fourteen.

The little drops of humanism which jointly make humanity a cherished desire of mankind has

seemingly dried up when the perpetrators of the crime had burnt alive helpless woman and

innocent children. Was their fault that they were born in the houses of persons belonging to a

particular community? If it is assuming alarming proportions, now a days, all around it is

merely on account of the devilish devices adopted by those at the helm of affairs who

proclaim from roof tops to be the defenders of democracy and protectors of people' rights and

yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle

personal scores, feigning ignorance of what happens and pretending to be peace loving

puritans and saviours of citizens' rights". The court laid down the following guidelines till

legislative measures are taken: the Police personnel carrying out the arrest and handling the

interrogation of the arrestee should bear accurate, visible and clear identification and name

tags with their designations.

6 AIR 1983 SC 378

7 AIR 1983 SC 1086

8 (1989)4 SCC 286


HUMAN RIGHTS IN INDIA

In the Preamble to the United Nations Charter, the peoples of the United Nations declare their

determination "to save succeeding generation from the scourge of war, reaffirm faith

fundamental human rights, and to promote social progress and better standards of life in

larger freedom." In India National Human Rights Commission was constituted in October

1993 under the "Human Rights Ordinance of 28th September, 1993, which was soon after

enacted as the Protection of Human Rights Act, 1993, (No. 10 of 1994) (hereinafter referred

to as 'the Act'). It is a fully autonomous body; its autonomy derived out of the method of

appointment of the members, there fixity of tenure, and statutory guarantees, thereto, the

status they have been accorded; the manner in which the staff responsible to the Commission

would be appointed and would conduct themselves; as also the autonomy it enjoys in terms

of its financial powers.

A. 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.

As I have mentioned earlier, 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 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, have 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.

B. Barriers

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

of the country. I sense some barriers which I believe are to be set 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. During our lifetime we’ve seen

plethora of injustices being dealt with using the mechanism of PIL. I can vividly recollect a

few for which the Supreme Court has been approached in the last few decades:

lack of access to food,9

deaths due to starvation,10

out-of-turn allotment of government accommodation,11

prohibition of smoking in public places,12

investigation of alleged bribe taking,13

employment of children in hazardous industries,14

rights of children and bonded labours,15

extent of the right to strike,16

right to health,17

right to education,18

sexual harassment in the workplace,19

The Supreme Court in Hussainara Khatoon and others vs. Home Secretary State of

Bihar20

expressed anguish at the “travesty of justice” on account of under-trial prisoners

spending extended time in custody due to unrealistically excessive conditions of bail imposed

9 PUCL v Union of India (2001) (7) SCALE 484; PUCL v Union of India (2004) (5) SCALE 128.

10 Kishen Pattnayak v State of Orissa (1989) Supl. (1) S.C.C. 258.

11 Shiv Sagar Tiwari v Union of India (1996) 6 S.C.C. 558

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

13 Vineet Narain v Union of India (1996) 2 S.C.C. 199.

14 M.C. Mehta v State of Tamil Nadu AIR 1997 SC 699

15 Narendra Malava v State of Gujarat 2004 (10) SCALE. 12; PUCL v State of Tamil Nadu 2004 (5) SCALE 690

16 CPM v Bharat Kumar AIR 1998 SC 184; T.K. Rangarajan v State of Tamil Nadu AIR 2003 SC 3032

17 Parmanand Kataria v Union of India AIR 1989 SC 2039; Paschim Banga Khet Mzdoor Samity v State of West

Bengal (1996) 4 S.C.C. 37; Kirloskar Bros Ltd v ESIC (1996) 2 S.C.C. 682; Air India Stat. Corp v United Labour

Union (1997) 9 S.C.C. 377.

18 Mohini Jain v State of Karnataka (1992) 3 S.C.C. 666; Unni Krishnan v State of Andhra Pradesh (1993) 1 SCC

645.

19 Vishaka v State of Rajasthan AIR 1997 SC 3011; Apparel Export Promotion Council v A.K. Chopra AIR 1999 SC

625.

20 AIR 1979 SC 1360


by the magistracy or the police and issued requisite corrective guidelines, holding that “the

procedure established by law” for depriving a person of life or personal liberty (Article 21)

also should be “reasonable, fair and just”.

In Prem Shankar Shukla vs. Delhi Administration21

the Supreme Court found the practice

of using handcuffs and fetters on prisoners violating the guarantee of basic human dignity,

which is part of the constitutional culture in India and thus not standing the test of equality

before law (Article 14), fundamental freedoms (Article 19) and the right to life and personal

liberty (Article 21). It observed that “to bind a man hand-and-foot’, fetter his limbs with

hoops of steel; shuffle him along in the streets, and to stand him for hours in the courts, is to

torture him, defile his dignity, vulgarise society, and foul the soul of our constitutional

culture”. Strongly denouncing handcuffing of prisoners as a matter of routine, the Supreme

Court said that to “manacle a man is more than to mortify him, it is to dehumanize him, and

therefore to violate his personhood….” The rule thus laid down was reiterated in the case of

Citizens for Democracy v s. State of Assam & Ors22

.

In Icchu Devi Choraria vs. Union of India23

the court declared that personal liberty is a

most precious possession and that life without it would not be worth living. Terming it as its

duty to uphold the right to personal liberty, the court condemned detention of suspects

without trial observing 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 vs. State of Orissa & Ors.24

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

21

(1980) 3 SCC 526)

22 (1995) 3 SCC 743

23 (1980) 4 SCC 531

24 ( 1993) 2 SCC 746


who has been the victim of unlawful arrest or detention shall have an enforceable right to

compensation”.

In Joginder Kumar vs. State of UP and Others25

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………”.

In Delhi Domestic Working Women’s Forum vs. Union of India & Others26

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] vs. Union of India and another27

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 vs. State of West Bengal28

, 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. Vs. State of Rajasthan & Ors.29

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

25

( 1994) 4 SCC 260

26 ( 1995) 1 SCC 14

27 AIR 1997 SC 568

28 AIR 1997 SC 610

29 (1997) 6 SCC 241


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 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.”

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

definitely created a positive implication.

I can say with pride that 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.

State of A.P. and others.30

For instance, the decision in Paschim Banga Khet Mazdoor Samity & Ors v s. State

of West Bengal & Anr.31

Delineates the right to emergency medical care for accident

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

The orders in PUCL vs. Union of India32

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

30

(1993 4 SCC 111)

31 (1996) 4 SCC 37

32 2003(10) SCALE 967


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 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.


D. Vanguard Role of District judiciary:

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.

THE CONSTITUTIONAL AND INSTITUTIONAL FRAMEWORK OF HUMAN

RIGHTS IN INDIA

To be true and thankfully Indian constitution is a document rich in human right

jurisprudence. The preamble concisely sets out the quintessence of human rights, which

represents the aspirations of the people who have established the constitution. Democracy,

secularism, liberty and equality as they appear in the preamble are considered as the basic

features of Indian constitution. The preamble of Indian constitution aimed at the protection

and promotion of human rights of each and every individual. Many of the human rights and

freedoms provided by Universal Declaration on Human Rights, 1948 and International

Covenant on Civil and Political Rights, 1966 are envisaged under chapter III and IV i.e.

Fundamental Rights and Directive Principles of State Policy of Indian Constitution.

The latest judicial trend reveals that Indian courts are quite enthusiastic in using the law as a

tool of social revolution and to serve the larger social interest. Chief Justice Bhagwati has


rightly observed that courts should be guided by the paramount object and purpose for which

the constitution has been enacted. Law must be treated as a tool of social reform and social

transformation for creating a new social order where human rights of each and every

individual can be enforced with a possibility of grater common good.

The very first and basic human right of an individual is right to life and life with dignity is

part and parcel of this right. Life with dignity is the necessary epitome of right to life which

helps in development of an individual’s personality and true realization of human rights.

The court in Kharak Singh vs. State of U.P33

defined the meaning of ‘LIFE’ as something

more than mere animal existence. Life in real sense means life with dignity and of such

nature which may afford an individual the opportunities to get desired heights as per his

capabilities. Life with dignity goes with many other things which are the basic necessities of

life such as adequate nutrition, clothing, shelter over heads and facilities to read write and

express or simply to say education. Moving ahead right to shelter is also one of the principal

right that constitute the entire spectrum of Human right jurisprudence. The term ‘Shelter’

should not be confined to the meaning: roof and four walls, which it obviously is. It should be

taken on a different arena and must include all social, economic and political shelter. If we

talk about social shelter it means that every class of society which is vulnerable for its self-

protection must be given by the rest of society members. Parental care for every child as was

held a human right of every child in Laxmi Kant vs. Union of India11 case. It was also held

in this case that parental care is an inherent right of every child and must be given preference

over any other concern. A child becomes a man and he becomes the mind, hand and body of

a country, so it is not only in the interest of child but also in the collective interest of a

country that its children should be given living, fooding, education and other required

necessities. Every effort should be made to abolish child labour which presents the worst

picture of a country claming to be rich in protection of human rights. The problem is not a

new one for us and therefore our constitution framers under Article 15(3), 24, 45, 47 made

provisions for securing the interest of children.

Justice Subba Rao rightly observed that social justice must begin with children unless the

tender plant is properly nourished. It has a little chance of growing into a strong and useful

tree. So first priority in the scale of social justice should be given to the children and they

must be preferential owner of human right of shelter. Fundamental rights differ from ordinary

33

(1964) 1 SCR 332


rights in the sense that the former are inviolable. No law, ordinance, custom, usage, or

administrative order can abridge or take them away. Any law, which is violative of any of the

fundamental right, is void. In ADM Jabalpur v. Shivakant Shukla34

, justice Beg observed-

"The object of making certain general aspects of rights fundamental is to guarantee them

against illegal invasion of these rights by executive, legislative, or judicial organ of the

State." Earlier, Chief Justice Subba Rao in Golak Nath v. State of Punjab35

had rightly

observed, "Fundamental rights are the modern name for what have been traditionally known

as natural rights,"

The Supreme Court of lndia recognises these fundamental rights as 'Natural Rights' or

'Human Rights'. While referring to the fundamental rights contained in Part Ill of the

Constitution, Sikri the then Chief Justice of the Supreme Court, in keshavananda Bharati v.

State of Kerala," observed, "I am unable to hold these provisions to show that rights are not

natural or inalienable rights. As a matter of fact lndia was a party to the Universal Declaration

of human Rights . . . and that Declaration describes some fundamental rights as inalienable."

The Chief Justice Patanjali Shastri in State of West Bengal v. Subodh Gopal36

, referred to

fundamental rights as those great and basic rights, which are recognised and guaranteed as

the natural rights inherent in the status of a citizen of a free country.

Article 14 of the Indian Constitution proclaims the general right of all persons to equality

before the law, while Article 15 prohibits the State from discriminating against any citizen on

grounds of religion, race, caste, sex or place of birth, and prohibits any restriction on any

citizen's access to any public place, including wells and tanks. Equality of opportunity for all

citizens in matters of public employment is guaranteed under Article 6. Article 17 abolishes

untouchability and makes its practice an offence punishable under law. Both Articles 15 and

16 enable the State to make special provisions for the advancement of socially and

educationally backward classes, for such castes and tribes as recognized in the Constitution

(known as the Scheduled Castes and Scheduled Tribes) require very special treatment for

their advancement. Article 18 abolishes all non-military or non-academic titles.

34

(1976) 2 SCC 521 35

1967 SCR (2) 762

36 AIR 1954 SC 92


The right to freedom guaranteed to all citizens under Article 19 encompasses the right to

freedom of speech and expression, the right to assemble peaceably without arms, the right to

form associations or unions, the right to move freely throughout the territory of India, the

right of residence, and the right to practice any profession, or to carry on any occupation,

trade or business. The protection of a person in respect of conviction of offences under

Article 20 includes protection against ex post facto criminal laws, the principle of autre fois

convict and the right against self-incrimination. Article 21, the core of all fundamental rights

provisions in the in the Indian Constitution, ordains: "No person shall be deprived of his life

or personal liberty except according to procedure established by law."

Article 21A was added to the Constitution by the Eighty Sixth Constitutional Amendment

Act 2002. Article 21A proclaims "the State shall provide free and compulsory education t3 all

children of the age of six to fourteen years in such manner as the State may, by law,

determine." The rights of a person, arrested and detained by the State authorities, are

provided in Article 22. These include the, right to be informed of the grounds of arrest, the

right to legal advice and the right to be produced before a magistrate within 24 hours of arrest

(except where one is arrested under a preventive detention law). The right against

exploitation includes prohibition of trafficking in human beings and forced labour (Article

23), and prohibition of employment of children below 14 years of age "to work in any factory

or mine or in any other hazardous employment.

Different Articles of the International Covenant on Civil and Political Rights and the

Indian Constitution.

NO. FUNDAMENTAL RIGHTS COVENANTS ON CIVIL

AND POLITICAL

RIGHTS

INDIAN

CONSTITUTION

1. Forced labour Article 8(3) Article 23

2. Equality before law Article 14(1) Article 14

3. Prohibition of discrimination Article 26 Article 15

4. Equality of opportunity to public service Article 25(C) Article 16(1)

5. Freedom of speech and expression Article 19(1) & (2) Article 19(1)(a)

6. Right for peaceful assembly Article 21 Article 19(1)(b)

7. Right to freedom of association Article 22(2) Article 19(1)(c)

8. Right to move freely within the territory of Article 12(1) Article 19(1)(d) &


a state (e)

9. Protection in respect of conviction of

offences

Article 15(1) Article 21(1)

10. Protection from prosecution and

punishment


11. Not to be compelled to testify against

himself

Article 14(3)(g) Article 21(3)

12. Right to life and liberty Article 6(1) & 9(1) Article 21

13. Right to child education Article 26(1) Article 21A

14. Protection against arrest and detention Article 9(2)(3) & (4) Article 22

15. Freedom of conscience and religion Article 18(1) Article 25

ROLE OF JUDICIARY IN PROTECTING CONSTITUTIONAL HUMAN RIGHTS

The Constitution is a supreme law of the country and the Supreme Court of India is the

guardian of the Constitution. The human rights which are granted by the constitution are

enforceable by the Supreme Court in following ways:

Scopes in Constitutional Provisions: The Indian Constitution has provided the Supreme

Court with sufficient authority to protect human rights. The Constitution is the ultimate

guarantee for its involvement in human rights issues. This authority can be meaningful if the

Supreme Court can apply it in different human rights situations. Some of those situations

have been described above. It is true that the Constitution of India is modern with adequate

guidelines for human rights protection. It incorporates all the important rights from the

Universal Declaration of Human Rights (UDHR) in and Part III. Moreover, the rights that are

declared under Fundamental Rights are judicially enforceable. The Constitution provides that,

"the right to move the (High Court Division) in accordance with [clause (1)] of Article 102,

for the enforcement of the rights conferred by this Part [Fundamental Rights] is guaranteed."

The writ jurisdiction of the Supreme Court provides the ultimate scope for it to guarantee the

human rights provisions for all citizens. The Constitution provides the writ jurisdiction to the

'person aggrieved’. Pursuant to Article 102 it is possible to enforce the fundamental rights of

the aggrieved person. The Constitution provides the Supreme Court with review jurisdiction.

This is a provision that virtually enables the Supreme Court to act against the decisions of the

lower courts that are not, in comparison with the Supreme Court, independent and are


influenced by the executive. This may occur in relation to issues where the lower courts are

not functioning proper and therefore it has created public dissatisfaction and mistrust.

The second vulnerable class of society is women. Though the women in present time have

come out from the boundaries of their houses and have better understanding of their rights

but the ratio is very low. Most of the women are still locked within the four walls. They still

face an unequal and degraded treatment. In Mohammad Ahamad vs. Shah Bano37

Case it

was held that “Large segment of the society have been traditionally subjected to unjust

treatment. Women are one of such segment.” Women are still an easy prey to dowry deaths

and violence of men which is the gross violation of their human rights. In every aspect of life

whether it may be emotional, economic, educational, social women are subject to

discriminatory treatment in majority. Even in sexual activities which needs equal

participation of male and female women don’t have any freedom; they are used by men as a

machine to satisfy their sexual desire without paying any heed to requirements and

limitations of a lady. They are subjected to sexual exploitation at every place whether it may

be an educational institute, government enterprise or a corporate firm, instances of their

exploitation within the boundaries of their own houses by wicked fellows, neighbours, far or

near relatives or sometimes by their own husbands or fathers are also very common. When

we talk of women’s development all are just vague or merely a showcase discussions. These

are simply window shopping of development. Court in various cases as Vishakha’s case38

,

Nargeesh Mirza case39

, Chandrimadas vs. Chairman Railway Board40

etc. has made

efforts for creating equality for women to save their human rights but still the cases of gross

violation of human rights of women such as Guddi case where she was compelled to marry

with her father in law are coming regularly which shows that we are still lacking in protection

of human rights of women. There must be a common effort by the society to raise the

standard of women. For this the first thing which is required is change of mentality. We must

treat them human same as men are. Only then an inner feel of equality may come and human

rights of female who is the essential part of carrying out the circle of life may be secured.

Role of Judiciary in Protecting Universal Human Rights: The judiciary of India,

particularly its superior tier, comprising the Supreme Court, has been seen as the most

responsible organ of the State to ensure rule of law and justice. There is also a growing

37

1985 SCR (3) 844 38

Vishaka Vs. State of Rajasthan (1997) 6 SCC 253 39

Air lndia Vs. Nargeesh Mirza AIR 1981 SC 1829 40

AIR 2000 SC 988


expectation that the judiciary, in administering justice, should not confine itself to municipal

laws only, but should examine competent issues in the light of universal norms and principles

of human rights and freedoms. This expectation has been advanced by the pronouncement of

the Appellate Division of the Supreme Court that, ―national Courts should not straightway

ignore the international obligations, which a country undertakes. If the domestic laws are not

clear enough or there is nothing therein, the national courts should draw upon the principles

incorporated in the international instruments.

The Role of Judges in Protecting Human Rights: The concept of judicial independence

requires that judges be free from any interference in the exercise of their judicial powers.

Each judge must be independent from external influences that may seek to reduce his or her

objectivity and impartiality. This requires independence both from the other branches of

government, and from any other influences that may affect the capacity of a judge to decide a

case strictly on the basis of its legal merits. It also requires independence from other judges

involved in decision making, although the systems of appellate and judicial review

necessarily impinge on a judge's independence of action. An impartial assessment of the facts

and objective application of the law are essential for legal independence.

Judicial independence encompasses both institutional and individual aspects. As an

institution, the judiciary must be respected as a distinct, separate and independent branch of

government. At the same time, within the judiciary, individual judges must have the

substantive freedom necessary to perform their duties in an independent and impartial

manner, beyond any improper or undisclosed influence and pressure.

Our judiciary is not totally independent because impartial judicial appointments are not

happening due to the political interest in the judiciary that is causing serious damage to the

human rights protection performance of the Supreme Court. There is practice of appointment

of the Chief Justice by considering political benefits and doing so, seniority has overlooked

by the governing authority in certain cases. Obviously fair appointment is a prime condition

for the active judiciary and also for the honesty of judges. Neutral appointment of judges is

one aspect of impartiality. It requires political willingness and legal direction for no

deviation. In the case of India this impartiality is often transgressed by the Government

because of their political interest.

HOW JUDICIARY CAN HELP IN CHANGING THIS RHETORIC IN REALITY?


“If one were to ask to name a significant single factor which could make the delivery of

justice, just and meaningful, the answer would be; a sensitised judiciary; a judiciary which

views the circumstances and situation in a holistic manner” ~Justice R.C. Lahoti

Judges do not make laws, nor should they ever endeavour to usurp this prerogative of the

legislature. Justice is only a concept, an expectation, when it is confined to statute books, it

becomes a reality in the hands of a truly sensitised and role conscious judge. A judge at the

outset must understand that not all law is justice. Justice is rather a complex phenomenon

which involves existence of progressive and equitable laws, their effective enforcement and

progressive interpretation. Innate sense of justice and injustice which every individual

possesses, is best served by remedying specific incidences of injustices one finds, rather than

getting involve in the quest of a perfectly just societies, if that was ever possible. Judiciary

becomes the last resort of a litigant who seeks justice. A judge is widely perceived to be

impartial, and Indian Judiciary is one of the judiciaries in the world which enjoys the

reputation of being highly justice sensitive. Leaders of Indian Judiciary have stood time and

again for the rights of Women, however this approach has been individual, what is required is

to make the whole institution gender-justice-sensitive. We cannot but agree with the opinion

that a judge while administering the laws, if deprived of requisite sensitivity may frustrate the

objectives sought to be achieved by the best of the laws.

NHRC (National Human Right Commission) v State of Gujarat (2009)

The State has a definite role to play in protecting the witnesses, to start with at least in

sensitive cases involving those in power, who have political patronage and could wield

muscle and money power, to avert trial getting tainted and derailed and truth becoming a

casualty. As a protector of its citizens it has to ensure that during a trial in the court the

witness could safely depose the truth without any fear of being haunted by those against

whom he had deposed. Every State has a constitutional obligation and duty to protect the life

and liberty of its citizens. That is the fundamental requirement for observance of the rule of

law. There cannot be any deviation from this requirement because of any extraneous factors

like caste, creed, religion, political belief or ideology. Every State is supposed to know these

fundamental requirements and this needs no retaliation (sic repetition). We can only say this

with regard to the criticism levelled against the State of Gujarat. Some legislative enactments

like the Terrorist and Disruptive Activities (Prevention) Act, 1987 have taken note of the

reluctance shown by witnesses to depose against people with muscle power, money power or


political power which has become the order of the day. If ultimately the truth is to be arrived

at, the eyes and ears of justice have to be protected so that the interests of justice do not get

incapacitated in the sense of making the proceedings before the courts mere mock trials as are

usually seen in movies. In this Supreme Court held that if people are being killed in the name

of religion then those who are killing these innocent people not less than terrorist.

Naroda Patiya Judgment (2012)

It was held in this case that-

“Crime can never be justification of crime in civilised and law abiding society where

constitutional and human rights of others are to be respected as much as the personal

religion of an individual is to be respected. No citizen of this country can ever forget that

he lives in the country which is wedded to secularism as one of its prime features.”

While dealing with the factual submissions of the accused and of the learned advocates for

the defence on the genesis of this communal riot to be Godhra train carnage it needs to be

held that, communal riots are cancer for our very cherished constitutional value of

secularism.

RULE OF LAW AND ARMED FORCE SPECIAL POWER ACT

The strength of any country claiming itself as “democratic” lies in upholding the supremacy

of the judiciary and primacy of the rule of law. AFSPA, much maligned law, is a piece that

stands out because of its misuse and because of the provisions that give the security forces

powers that go against the basic principles of rule of law. There is no doubt that the armed

forces operate in difficult and trying circumstances in the areas afflicted by internal armed

conflicts. It is in these situations that the supremacy of the judiciary and the primacy of the

rule of law need to be upheld. However, if the law enforcement personnel stoop to the same

level as the non-State actors and perpetrate the same unlawful acts, there will be no difference

between the law enforcement personnel and the non-State actors whom the government calls

“terrorists”.

There is no doubt that a large number of armed opposition groups operate in Manipur and

elsewhere in the North East and that they have been responsible for gross human rights

abuses. Yet, unlawful law enforcement only begets contempt for the rule of law and

contributes to a vicious cycle of violence. The unusual form of demonstrations by some


members of the Meira Paibis who stripped themselves in front of the Kangla Fort on 15 July

2004 was an act of desperation to protest against the systematic denial of access to justice

even for unlawful, intentional, arbitrary, summary and extrajudicial deprivation of the right to

life. The third preamble paragraph of the Universal Declaration of Human Rights - “Whereas

it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion

against tyranny and oppression, that human rights should be protected by the rule of law” - is

prophetic about such situations.

Two Supreme Court judges said the Armed Forces (Special Powers) Act (AFSPA) — which

makes the Central government's sanction mandatory for prosecution — ought not to cover

cases in which crimes such as murder or rape were committed. “You go to a place in exercise

of AFSPA, you commit rape, you commit murder, and then where is the question of

sanction?” Justices B.S. Chauhan and Swatanter Kumar said.

Thirty-one of the cases in which sanction was denied relate to rape, culpable homicide or

murder. The others involve a wide variety of crimes, ranging from criminal trespass to illegal

confinement. In not a single case, The Hindu found, had sanction been granted.

Not a few of the cases in which sanction was denied involve victims unconnected with terror.

In 1991, for example, the police established that an unidentified body floating in the Dal Lake

was that of Muhammad Ayub Bhatt, a Batwara resident with no record of involvement in

terror.

National human right commission from the very beginning advocating that AFSPA must go,

but because Supreme Court has declared it constitutional so it is now ball fall into the central

government court.


INDIA AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

India was a signatory to the Universal Declaration of Human Rights. A number of

fundamental rights guaranteed ta the individuals in Part Ill of the lndian Constitution are

similar to the provisions of the Universal Declaration of Human Rights. The following chart

makes it very clear.

NO. NAME OF RIGHTS UNIVERSAL

DECLARATION

INDIAN

CONSTITUTION

1. Equality before law Article 7 Article 14

2. Prohibition of discrimination Article 7 Article 15(1)

3. Equality of opportunity Article 20(2) Article 16(1)

4. Freedom of speech and expression Article 19 Article 19(1)(a)

5. Freedom of peaceful assembly Article 20(1) Article 19(1)(b)

6. Right to form associations or unions Article 23(4) Article 19(1)(c)

7. Freedom of movement within the

border

Article 13(1) Article 19(1)(d)

8. Protection in respect of conviction for

offences


9. Protection of life and personal liberty Article 3 Article 21

10. Protection of slavery and forced labour Article 4 Article 23

11. Freedom of conscience and religion Article 18 Article 25(1)

12. Remedy for enforcement of rights Article 8 Article 32

13. Right against arbitrary arrest

and detention

Article 9 Article 22

14. Right to social security Article 22 Article 29(1)


Economic, Social and Cultural Rights in the Universal Declaration of Human Rights

and in the Indian Constitution-

NO. NAME OF RIGHTS UNIVERSAL

DECLARATION

INDIAN

CONSTITUTION

1. Right to work, to just and favourable

conditions of work

Article 23 (1) Article 41

2. Right to equal pay for equal work Article 23 (2) Article 39 (d)

3. Right to education Article 26 (1) Article 21 (A), 41,45

& 51A(k)

4. Right to just and favourable

remuneration

Article 23 (3) Article 43

5. Right to rest and leisure Article 24 Article 23 (1)

6. Right of everyone to a standard of

living adequate for him and his family

Article 25 (1) Article 39(a) &

Article 47

7. Right to a proper social order Article 28 Article 38

In Keshavananda Bharati v. State of Kerala the Supreme Court observed,

"The Universal Declaration of Human Rights may not be a legally binding instrument but': it

shows how India understood the nature of human rights at the time the Constitution was

adopted."

In the case of Jolly George Varghese v. Bank of Cochin41

the point involved was whether a

right incorporated in the Covenant on Civil and Political Rights, which is not recognised in

the lndian Constitution, shall be available to the individuals in lndia. Justice Krishna lyer

reiterated dualism and asserted that the positive commitment of the State Parties ignites

legislative action at home but does not automatically make the Covenant an enforceable part

of the 'Corpus Juris' in lndia. Thus, although the Supreme Court has stated that the Universal

Declaration cannot create a binding set of rules and that even international treaties may at

best inform judicial institutions and inspire legislative action. Constitutional interpretation in

lndia has been strongly influenced by the Declaration. In the judgment given in the

Chairman, Railway Board and others v. Mrs. Chandrima42

as, the Supreme Court

41

AIR 1980 SC 470

42 (2000) 2 SCC 465


observed that the Declaration has the international recognition as the Moral Code of Conduct

having been adopted by the General Assembly of the United Nations. The applicability of the

Universal Declaration of Human Rights and principles thereof may have to be read, if need

be, into the domestic jurisprudence. In a number of cases the Declaration has been referred to

in the decisions of the Supreme Court and State High Courts.

lndia ratified the International Covenant on Civil and Political Rights and the International

Covenant on Economic, Social and Cultural Rights on March 27, 1979. The Optional

Protocol to the International Covenant on Civil and Political Rights, 1989, however, was not

ratified by lndia.

DIRECTIVE PRINCIPLES OF STATE POLICY AND HUMAN RIGHTS

Judicially non-enforceable rights in Part IV of the Constitution are chiefly those of economic

and social character. However, Article 37 makes it clear that their judicial non-enforceability

does not weaken the duty of the State to apply them in making laws, since they are

nevertheless fundamental in the governance of the county. Additionally, the innovative

jurisprudence of the Supreme Court has now read into Article 21 (the right to life and

personal liberty) many of these principles and made them enforceable.

The duties of the State encompass securing a social order with justice, social, economic and

political, striving to minimize and eliminate all inequalities (Article 38), securing for "the

citizens, men and women equally" the right to an adequate means of livelihood (Article 39

(a)), distribution of ownership and (control of community resources to sub serve the common

good (Article 3S(b)), prevention of concentration of wealth and means of production t2 the

common detriment (Article 39(c)), securing equal pay for equal work for both men and

women (Article 39(d)), preventing abuse of labour, including child labour (Article 39(e)),

ensuring of child development (Article 39(f)), ensuring of equal justice and free legal aid

(Article 39A), organisation of village democracies (Article 40), provision of the right to

work, education and public assistance in case of unemployment, old age sickness and

disability (Article 41), provision of humane conditions of work (Article 42), living wage and

a decent standard of life (Article 43), securing participation of workers in the management of

industries (Article 43A), provision of a uniform civil code for the whole country (Article 44),

provision for early child care and education to children below the age of six years. The State

shall endeavor to provide early childhood care and education for all children until they

complete the age of six years (Article 45), promotion of educational and economic interest of


the weaker sections of the people and their protection from injustice and all forms of

exploitation (Article 46), raising the standard of living, improving the level of nutrition and

public health and prohibition of intoxicating drinks and of drugs (Article 47), scientific

reorganization of animal husbandry and agriculture (Article 48) conservation of environment,

forests and wildlife (Article 48A), protection of monuments and things of artistic or historical

importance (Article 19), separation of judiciary from the executive (Article 50) and

promotion of international peace and security (Article 51 ).

FUNDAMENTAL DUTIES AND HUMAN RIGHTS

Part IV (A) of the Constitution embodies the Eleven Fundamental Duties of every Indian

citizen (Article 51-A). These are: the duties to respect the Constitution and its institutions, to

live by the noble ideals of the freedom struggle, to protect the sovereignty and integrity of

India, to defend the country, to promote communal harmony, to renounce practices

derogatory to the dignity of women, to preserve the cultural heritage, to protect and improve

the natural environment, to have compassion for living creatures, to develop the scientific

temper, to safeguard public property and abjure violence and to strive towards excellence in

all spheres of individual and collective activity. The Eighty sixth Constitutional Amendment

2002 inserted a new clause (k) in Article 51(A) instructing "a parent or guardian to provide

opportunities for education to his child or as the case may be, ward between the ages of 6 and

14 years."

It would appear that parts Ill, IV and IV (a) of the Constitution heavily depend upon the

judiciary for their interpretation and application. The various 'reasonable restrictions' clauses

in Part Ill, Article 21, and the seldom-used Part IV-A have given the judiciary ample scope

for the Judicial Review of administrative and legislative action. Indeed, Article 21 has

allowed it to act as catalyst in prodding the State to implement the directive principles in so

far as they directly bear upon "life and personal liberty."

NATIONAL HUMAN RIGHT COMMISSION

To monitor the implementation of the Constitutional objectives for the welfare of the weaker

sections of the nation, the Central Government has appointed a National C: omission for

Minorities, a National Commission for Scheduled Castes and Scheduled Tribes and a

National Commission for Women. The National Human Rights Commission (N.H.R.C.)

came into being in 1993 by virtue of the Protection of Human Rights Act. N.H.R.C. has


become an agency to reckon with, and has carved out a place for itself in the mosaic of Indian

national institutions for implementation of human rights. The freedom of the Press has been

monitored chiefly by the Press council of India since 1979.

PUBLIC INTEREST LITIGATION AND HUMAN RIGHTS

Public Interest Litigation - an expansion of class action under the common law - is a

procedural innovation, which the Indian judiciary has by now fairly perfected on the basis of

a concept borrowed from the United States. The rule of '1ocus stand? normally dictates that

he who approaches the court must prove his legal standing vis-a-vis the claim he seeks to

vindicate, usually in terms of a legal right or a legal obligation violated by the

defendant1resl)ondent causing thereby some injury or damage to him for which law provides

a remedy. On the other hand, the public interest litigation is based on the principle that:

We cannot write off the weaker victims of injustices; the court's door when they knock shall

open ... How can a bonded labourer working in a stone quarry ever know of moving the

Supreme Court? asks Justice Krishna lyer, a redoubtable public interest activist judge of the

Supreme Court of the seventies. He explains that public interest litigation, chiefly, in the

realm of public law assists 'all people concerned with governmental lawlessness, negligence

of the administration, environmental pollution, public health, product safety, consumer

protection and social exploitation being served by professionals like lawyers and public

interest lobbies working for 'reform of decision-making processes in Government and

outside, affecting the public at large'. Public Interest Law offers new challenges and

opportunities for the committed lawyers and social groups to serve the unequal segments of

society better. This sensitive development is part of democracy (of the disabled) and of the

movement to vindicate social justice through professions for the people. As a result, 'judges

with a vision have new universes to behold, and mansions of people's justice to build.'

MEDIA AND HUMAN RIGHTS

The Information Media is an important arm of any modern democratic polity through which

the people exercise their freedom of information. The freedom of information, the democratic

right to know, is crucial in making all other human rights effective and providing an

important safeguard for the enjoyment of all those rights. Traditionally, the vehicle of public

information was the Press. Today it is called the media, which include the press, the radio, the

television and the internet.


The "Fourth Estate" plays a crucial role in a large democracy like India where about 1500

different types of newspapers are circulated.

Disposing of a case of contempt of court against the editors of two newspapers, the Supreme

Court remarked:

“It is the duty of a true and responsible journalist to provide the people with accurate and

impartial presentation of news and his views after dispassionate evaluation of facts and

information received by him and to be published as a news item. The editor of a newspaper

or a journal, the court said, has a greater responsibility to guard against untruthful news and

its publication. If the newspaper publishes what is improper, mischievously false or illegal

and abuses its liberty, it must be punished by a court of law. While a free and healthy press is

indispensable to the functioning of a true democrat)', the court said, "the freedom of the press

is subject to reasonable restraint.”

Some other Measures of Protection of Human Rights under Indian Law

1. The Protection of Civil Rights Act, 1955

2. Suppression of lmmori3l Traffic in Women and Girls Act, 1956

3. Maternity Benefit Act, '1961

4. Dowry Prohibition Act, 1961

5. Equal Remuneration Act, 1976

6. Bonded Labour (Abolition) Act, 1976

7. Employment of Children Act, 1938 (Amended in 1985)

8. The Child Labour (Prohibition and Regulation) Act, 1986

9. Juvenile Justice Act, 1986

10. Indecent Representation of Women (Prohibition) Act, 1986

11. Sati (Prevention) Act, ' 987

12. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,

1989

13. The National Commission for Women Act, 1990

14. The National Commission for Minorities Act, 1992

15. The National Commission for Safari Karamcharis Act, 1993

16. The National Commission for Backward Classes Act, 1993

17. The Mental Health Act, 1993


18. The Persons with Disabilities (Equal opportunities, Protection of Rights and

Full Participation) Act, 1995

RIGHT AGAINST INHUMAN TREATMENT OF PRISIONERS AND JUDICIARY

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 is 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‟s Case,

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 case21 and held that they are not mutually exclusive but form a

single scheme in the 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, Sunil Batra (I), M.H.Hoskot and

Hussainara Khatoon25, 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 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

Gandhi’s 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 21 through Public Interest Litigation to safeguard the fundamental

freedom of the individuals who are indigent, illiterate and ignorant.

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”.

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–up36. 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 Bihar37, 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 suspect due to torture in a police lock – up.


In Kishore Singh VS. State of Rajasthan43

the Supreme Court held that the use of third

degree method by police is violative of Article 21. The court also directed the Government to

take necessary steps to educate the police so as to inculcate a respect for the human person. In

the instant case the Supreme Court brought home the deep concern for Human Rights by

observing against police cruelty in the following words: “Nothing is more cowardly and

unconscionable than a person in police custody being beaten up and nothing inflicts a deeper

wound on our Constitutional culture that a state official running berserk regardless of Human

Rights.”

It is pertinent to mention that the custodial death is perhaps one of the worst crimes in

civilized society governed by the rule of law. The court promptly ruled that the inhuman

treatment meted to the accused in police custody is the gross and blatant violation of Human

Rights. In the absence of any legislative or executive guidelines the court has undertaken an

activist role and ruled in plethora of cases and one such case is D.K.Basu vs. State of West

Bengal.

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. In United States

of America, the speedy trail is one of the Constitutionally guaranteed rights. In India, the

right to speedy trail is not specifically enumerated as one of the Fundamental Rights in the

Constitution since 1978; there have been sea - saw changes in the judicial interpretation of

the Constitutional provisions. In Maneka Gandhi vs. Union of India57, the Supreme Court

43

1954 CriLJ 1672


has widened the concept of life and Personal Liberty under Article 21 of the Constitution. In

this case, the court established that the law and procedure contemplated by Article 21 must

answer the test of reasonableness in order to be in conformity with Articles 14 and 19. It also

establishes that the procedure established by law within the meaning of Article 21 must be

right, just and fair but not arbitrary, fanciful or oppressive.

However, 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.PC44

. 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 vs. R.S.Nayak45

the Supreme Court has laid down following

propositions which will go a long way to protect the Human Rights of the prisoners. The

concerns underlying the right to speedy trial from the point of view of the accused are:

a. The period of remand and pre – conviction detention should be as short as possible. In

other words, the accused shall not be subjected to unnecessary or unduly long detention point

of his conviction.

b. The worry, anxiety, expense and disturbance to his vocation and peace resulting from an

unduly prolonged investigation, in query or trial shall be minimal; and.

c. Undue delay may result in impairment of the ability of the accused to defend himself

whether on account of death, disappearance or non–availability of witnesses or otherwise.

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. The court said that the accused cannot be denied the right to

speedy trial merely on the ground that he had failed to demand a speedy trial.

44

Section 309 (1) of Cr.PC contemplates “In every inquiry or trial the proceedings shall be held as expeditiously

as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued

from day to day until all the witnesses in attendance have been examined, unless the court finds that the

adjournment of the same beyond the following day to be necessary for reasons to be recorded.

45 AIR 1988 SC 1531


From the above cases and principles of the Supreme Court, it can be concluded that the right

to speedy trial is implicit under Article 21 of the Constitution. In the words of justice

Bhagwathi that it is the Constitutional obligation of the state to provide a procedure which

would ensure speedy trial to the accused. The state cannot be permitted to deny the

Constitutional rights of speedy trial to the accused on the ground that the state has no

adequate financial resources to incur the necessary expenditure needed for improving the

administrative and judicial apparatus with a view to ensuring speed trial.

CONCLUSION

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.

The Indian Constitution is a document rich in human rights jurisprudence. This is an

elaborate charter on human rights ever framed by any State in the world. Part III of the Indian

Constitution may be characterized as the 'Magna Carta' of India. The Judiciary in India

plays a significant role in protecting human rights. The Indian Courts have now become the

courts of the poor and the struggling masses and left open their portals to the poor, the

ignorant, the illiterates, the downtrodden, the have-nots, the handicapped and the half-hungry,

half-naked countrymen.

The Indian Judiciary has acted in the protection and promotion of Human Rights contained in

the Constitution and the Civil and Political Rights Covenants and Economic, Social and

Cultural Rights Covenants and Universal Declaration of Human Rights of the United

Nations. The punch of law requires more propensity and effect. The working of judicial

system particularly, the criminal justice system has collapsed. It is marred by delays and

dying under its own weight due to mounting pendency of cases. The whole judicial system

requires to be reformed. The successive cries of the persons who matter in the affairs of

judiciary for remedial measures have fallen on deaf ears.

Number of courts be increased manifold to clear the mounting arrears of pending cases and to

improve the quality of justice. Judicial Officers, their supporting staff, prosecutors and

lawyers be sensitized to the protection of human rights by imparting training. Free Legal Aid


Services be made more effective so as to reach the needy and poor. Public interest litigation

by public spirited persons for genuine public causes be encouraged to voice and address the

grievances of the public at large and the poor in particular.

To conclude, the suggestions and recommendations enumerated above are not the exhaustive.

Many other have been suggested throughout the study. There may be many more. "Every day

we see how discredited human rights and United Nations itself would be, in the eyes of the

world, if the declarations, covenants, charters, conventions and treaties that we draft in order

to protect Human Rights remained theoretical or were constantly violated. Human Rights

should therefore, be covered by effective mechanisms and procedures to guarantee and

protect them and to provide sanction". Undoubtedly several efforts have been made and

suggested in the direction of better protection of human rights at different for as in India. The

National Human Rights Commission has underlined the need for including principles of

human rights in training programme of police and Paramilitary personnel to protect the

sacred rights of citizens.

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 story of Human Rights is thus the story of human wrongs. God divided the light from the

darkness and the water from the land. But man divided his fellow man into those who were

considered to possess none and thus came the conclusion that all men had certain rights not

because of any worldly status or position but by virtue of being human being of we can say

that a man has certain inherent rights to save himself from discrimination on the basis of race,

caste, religion, economic or social status etc. known as human rights.

Documents

Human Rights Younis-6