Faculty of Law,

Jamia Millia Islamia

Human Rights

Topic:

Indian Judiciary and Human Rights

Name: Kamlesh Rai

Sem.: 5th (3rd Year)

Roll no. 21

Guided By: Noor Jahan Momin

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Introduction

Human rights refer to "the basic rights and freedoms to which all humans are entitled.

Examples of rights and freedoms which are often thought of as human rights include

civil and political rights, such as the right to life and liberty, freedom of expression,

and equality before the law; and social, cultural and economic rights, including the

right to participate in culture, the right to work, and the right to education. India after

independence also provides fundamental rights to its citizens including some

Directive Principles of State Policy for their development and to lead a civilized life.

The preamble of the Constitution clearly describes the values of justice, equality,

secularism and cultural pluralism to make a stable democratic society and polity.

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 conceptualized to be certain rights that are inherent

or occur naturally to individuals as human beings, having existed even in the ‘state of

nature’ before the development of societies and emergence of the state. As widely

recognized, the State cannot be accepted as the fundamental source of these rights.

They inhere in individuals by virtue of their birth as a human itself. The State is

accepted and understood merely as a recognizer, guarantor and protector of these

rights. The State, as its concept exists today, cannot act to the detriment of the

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inherent rights of an individual, or for that matter, the collective conscience of

individuals as a community or a society.

Legal status of Human Rights in India

India has had a history of its own, in-so-far human rights of its inhabitants are

concerned. Ruled by despotic rulers/kings and emperors, its public, probably was

never aware of the concept of human rights. While European and other western

countries got a taste of real time concept of human rights with the advent of Magna

Carta era, the concept of human rights remained alien, or at the most, so intermittent

that the people of India would have never bothered to think of their existence with

certain rights by the virtue of their being born as humans. s. The colonial rule in India

gave much impetus to recognition of certain rights. The struggle for independence

was marked with uprisings for individual and societal rights. There was mass

awakening and recognition of rights that were inherent to human existence. The end

of World War II was a turning point in the history of struggle for human rights

worldwide and the world community rose to the occasion by endeavouring hard for

recognition of human rights that would have universal application.

There are three major specific courses of human rights discourse in the Indian context

Civil and Political Rights

Rights of the Marginalized (such as women, Dalits and Adivasis) and

Economic, Social and Cultural Rights.

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Civil and Political Rights 1

The late 60s and early 70s is known as the years of various movements and political

formations due to the growing disappointment with the state. During that period most

of the civil and political rights were suspended. Almost all the political opponents,

activists and critique of the government were imprisoned. It was the period when

every civil and political rights guaranteed by the constitution to the citizens were

violated by the state. The emergency is marked out by a black spot in the history of

democracy in India. Custodial violence, arbitrary detention and police atrocities etc

caused the serious violation of human rights against the citizens of India. In the last

20 years, the movement for civil and political rights has become much more lucid and

extensive. It has developed beyond a set of urban middle-class liberal intellectuals to

a wide and diverse socio-political base. Therefore, the condition of civil and political

rights in India has been in a very haphazard situation. No doubt the constitution

provides safeguards of basic rights of every citizens of India; the real picture shows a

different story.

1 Sastry TSN, “India and Human Rights” (New Delhi, Publishing House Company, 2005)

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Rights of the Marginalized2

The civil and political rights as discussed above focused largely on the rights of

individual, but the mid-70s witnessed a new development of human rights discourse

in India, which was based on group rights, collective rights and people rights for the

economic, social and political empowerment of the marginalized groups, like women,

Dalits, and Adivasis (Tribals). The women’s movement emerged in the 1970s. The

women's movement not only presented a critique of the Indian patriarchy, casteism

and feudalism, it also endorsed a new awareness of women's rights. Though the

movement initially emerged as a largely urban movement, but now it has developed

as one of the most articulated and widespread movements in India, with new

campaigns for political participation of women and their rights. It is partly the

pressure from these women’s movements that the 73rd and 74th constitutional

amendments provided 33% reservation for women in local self-government

institutions in India.

2Satapathy, Bishnu, “Human Rights of Marginalized Groups: Dalits, Adivasis, Women,

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Economic, Social and Cultural Rights3

The unequivocal focus on Economic, Social and Cultural (ESC) Rights is

comparatively new when compared to civil and political rights or group rights.

However, over a period of time there has been an extensive realisation of the

limitations about these micro-level development projects and poverty eradication

programmes. The active judiciary has also served for the development of the scope of

fundamental rights which resulted into the integration of economic and social rights in

its arena. It expanded the scope of Article 21 of the Indian Constitution which

guarantees the Right to Life and suggests that the right to life means the right to live

with dignity, and that the right to live with dignity includes the right to livelihood,

right to education and right to health.

3Ajit (ed) “Social Justice and the Constitution (Shimla: Indian Institute of Advanced
Studies”, 1997)

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Role of Judiciary enforcing Human rights

The Indian judiciary occupies a unique place in Indian democratic set up. As an

interpreter of the Constitution, the Indian judiciary is an independent organ of state

and contains the power to strike down executive, quasi-judicial and legislative actions

as unconstitutional. 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, Honour Killings,

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

awareness and strict implementation measures taken by the Judiciary.

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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 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 Constitution would be nullity – I would

not refer to any other article except this one.

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CHILD LABOUR AND RIGHT TO EDUCATION

Education is critical for economic and social development. It is crucial for building

human capabilities and for opening opportunities. The importance of education was

fully recognised by classical economist and social scientist such as Adam Smith, John

Stuart Mill, Schultz, Becker and Amartya Sen. Alfred Marshall in the Principles of

Economics observed.

The Unnikrishnan JP vs. State of Andhra Pradesh4

is the example of declaratory orders, in which the court held that the right to

education is implicit in and flows from the right to life guaranteed under Article 21 of

the constitution, which includes that a child who is a citizen of India has the

fundamental right to free education up to the age of 14 years. After nine years of this

jurisdiction, the nineteenth constitutional amendment act came into force as a

response providing Article 21 A which entitles free education to every child between

ages of 6- 14 years.

In Goodricke Group Ltd v Centre of West Bengal5

The Court held that it would be for the Centre and State/Union Territories to raise

necessary resources to achieve the goal of providing free education. Recently Article

21-A has been inserted in the India Act, 2002 which provides that the state shall

provide free and compulsory education to all children of the age of six to fourteen

years in such manner as the state may, by law, determine.

4 Unnikrishnan J.P vs State of Andhra Pradesh, 1993, (1) SCC. 645.

5 123 CTR 516..

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The abolition of child labour must be preceded by the introduction of compulsory

education since compulsory education and child labour laws are interlinked. Article

24 of the Constitution bars employment of child below the age of 14 years.6 Article 45

is supplementary to Article 24 for if the child is not to be employed below the age of

14 years he must be kept occupied in some educational institution.7

Peoples Union for Democratic Rights v. Union of India8

Also known as the Asiad Workers case. The Supreme Court held that though the

Employment of Children Act, 1938 did not include the construction work on projects

because the construction industry was not a process specified in the Schedule to the

Act, yet, such construction was a hazardous occupation and under Art.24 children

under 14 could not be employed in a hazardous occupation.

Court in Salal Hydro Project v. Jammu and Kashmir9 wherein the Court reiterated

the above stand. The Court maintained that child labour is an economic problem. Poor

parents seek to argument their meagre income through employment of their children.

So, a total prohibition of child labour in any form may not be socially feasible in the

prevailing socio-economic environment.

6 Article 24: No Child below the age of fourteen years shall be employed to work in any
factory or mine or engaged in any other hazardous employment.

7 Article 45 of the Indian Constitution: State shall endeavour to provide, within period of
ten years from the commencement of this Constitution, for free and compulsory education
for all children until they complete the age of 14 years

8 AIR 1982 SC 1473

9 AIR 1987 SC 177.

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The Bandhua Mukti Morcha Case10 is the example of Mandatory orders by court.

In this case the court pronounced that the non-enforcement of welfare legislation like

the Minimum Wages Act, 1948 and the Bonded Labour (Abolition) Act, 1976 would

equivalent to denial of the right to live with human dignity enshrined under Article 21

of the Constitution.

JUVENILE JUSTICE

The Juvenile Justice (Care and Protection) Act, 200011 is enacted as human rights

legislation and it is now in force in all State uniformly, repealing the entire Children’s

Act enacted by states individually. This legislation deals with the two types of

juveniles. “Juvenile in conflict with law” as defined under Section 2(1) and child in

need of care and protection as defined under Section 2 (d). A juvenile or a child as

defined under Section 2 (k) is a person who has not attained the age of 18 years.

In Sheela Barse v. Union of India12

Sheela Barse, a dedicated social worker took up the case of helpless children below

age of 16 illegally detained in jails. She petitioned for the release of such young

children from jails, production of information as to the existence of juvenile courts,

homes and schools and for a direction that the District judges should visit jails or sub-

jails within their jurisdiction to ensure children are properly looked after when in

custody. The Court observed that children in jail are entitled to special treatment.

Children are national assets and they should be treated with special care.

10 Bandhua Mukti Morcha vs Union of India, 1984, 3 SCC, 161.

11Juvenile Justice (Care and Protection) Act was enacted in 2000 by repealing the Juvenile
Justice Act 1986.

12 1986 3 SCC 596.

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SEXUAL EXPLOITATION OF CHILDREN

In Vishal Jeet v. Union of India13 Supreme Court in this case deals with some

seminal questions relating to the sexual exploitation of children. Here it has been

observed that it is highly deplorable and heart rending to note that many poverty

stricken children and girls in the prime age of youth are taken to the ‘flesh market’

and forcibly pushed into “flesh trade” which is being carried on in utter violation of

all cannons of morality, decency and dignity of mankind

Gaurav Jain v. Union of India,14 The Supreme Court held that the children of the

prostitutes have the right to equality of opportunity, dignity, care, protection and

rehabilitation so as to be part of the mainstream of social life without any pre-stigma

attached on them. The Court directed for the constitution of a committee to formulate

a scheme for the rehabilitation of such children and child prostitutes and for its

implementation.

Interpretation of human rights by judiciary

The courts have been making judicial intervention in cases concerning violation of

human rights as an ongoing judicial process. Decisions on such matters as the right to

protection against solitary confinement as in Sunil Batra v. Delhi Administration15

13 AIR 1990 SC 1413

14 AIR 1997 SC 3051.

15 (1978) 4 SCC 494

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(1978) the right not to be held in fetters as in Charles Sobraj case (1978) the right

against handcuffing as in T. Vatheeswaran case 16 (1983) the right against custodial

violence as in Nilabati Behera case (1993) or the rights of the arrestee as in D.K. Basu

case (1997) or right of the female employees not to be sexually harassed at the place

of work as in the case of Vishaka v. State of Rajasthan17 (1997) are just a few

pointers in that directions. In M.H Haskot V. State of Maharashtra18 (1978) the

Supreme Court held that right to free legal Aid is a fundamental right. Further The

Supreme Court in Hussainara Khatoon a nd others vs. Home Secretary State of

Bihar19 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 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”. Further while considering while considering the plight of the undertrials in Jail,

speedy trial was held to be an integral part of the right to life and liberty contained in

Article 21 of the constitution of India.

16 (1983) 2 SCC 68

17 (1997) 6 SCC 241

18 A.I.R. 1978 SC 1548

19 AIR 1979 SC 1360

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CONCLUSION

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. Consequently, 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.

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Bibliography

1. Kapoor, S.K, “International Law and Human Rights”, 20th edition 2016.

2. Agrawal,H.O, “International Law and Human rights”, 20th edition 2014.

3. Khanna, D.P, “Reforming human Rights”, 1st edition 2001.

4. Upadhya Archana, yasin Adil-ul-yasin, “Human Rights”, 1st edition2000.

5. Dannelly Jack, “Universal Human Rights in Theory and Practice”, 2nd

edition, 2005.

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