INTRODUCTION

Human rights today occupy the top slot in priority, nationally and internationally, over other
issues relating to mankind. Unfortunately, its observance leaves much to be desired. With a
growing tendency of the legislature and executive to be apathetic towards human rights, the very
survival of mankind is under threat. Large scale human rights violations take place right under
the nose of the government. At times the State itself is a perpetuator of this crime. Under such
circumstance the role of judiciary in protecting human rights of children become crucial and
important. Judiciary in India has been able to restore the human rights to the people. But even the
judiciary has been found wanting at times while dealing with these issues.

Initially the attitude of judiciary in India was conservative. It gave priority to fundamental rights
over the directive principles. However, with the passage of time, it is to be found that there was a
definite shift in the attitude of the judiciary towards the socio-economic political and cultural
rights of the individual and groups.

Long back in a historic case, Justice Chandrachud stated, “…it is really the poor, starved and
mindless millions who need the courts protection for securing to themselves the enjoyment of
human rights. In the absence of explicit mandate, the court should abstain from striking down a
constitutional amendment which makes an endeavor ‘to wipe out tear from every eye”.1

The change in the attitude of the Judiciary also gets reflected in the remarks of Justice Bhagwati
who observed, “the Directive Principles enjoyed a very high place in the constitutional Scheme
and it is only in the framework of socio-economic structure in Directive Principles that the
Fundamental Right are intended to operate, for it is only then that they can become meaningful
and significant for the millions of our poor people who do not even have seen necessities of life
and are living below the poverty line or level.”2

It would not be wrong to say that the Constitution makers did envisage a big role for the
judiciary. They probably apprehended that Legislature and Executive may fail at times in its duty
to uphold the human rights of the individual. Thus, Apex Court was established at the apex of the
judicial system as the final interpreter and guardian of the Constitution and of the fundamental
human rights of the people. In the course of its functioning for over forty-five years, it had many
opportunities to expand its Scope of operation through its power of interpretation. It would not
be overstating that that judiciary has played a crucial and central role in protecting human rights.

A large number of cases decided in the last two decades go to show that judiciary is working
relentlessly towards the goal of achieving “all humans’ rights for all”. The judiciary in India
plays a vital role in protecting human rights. Its role can be studied from the following three
perspectives: First, as the protector and guardian of these rights, Second, as the interpreter of
these rights and third, to integrate directive principles with fundamental rights. As the interpreter
of fundamental rights, judiciary has covered the entire gamut of human rights. It is still
attempting to further this cause through its power of interpretation. This, in fact, could be termed
as exercise in judicial creativity.

1
Keshavananda Bharati v. State of kerala, (1973) 4 S.C.C. 225.
2
Minerva Mills Ltd. Vs Union of India, A.I.R. 1980 S.C. 1789.

2|Page
 HUMAN RIGHTS AND THE INDIAN CONSTITUTION

The Constitution of the Republic of India which came into force on 26th January 1950 with 395
Articles and 8 Schedules is one of the most elaborate fundamental laws ever adopted. The
Preamble to the Constitution declares India to be a Sovereign, Socialist, Secular and Democratic
Republic. India was a signatory to the Universal Declaration of Human Rights. A number of
fundamental rights guaranteed to the individuals in Part III of the Indian Constitution are similar
to the provisions of the Universal Declaration of Human Rights.

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.3 In a case, the point involved was whether a right incorporated in the Covenant on Civil
and Political Rights, which is not recognized in the Indian Constitution, shall be available to the

3
Keshavananda Bharati v. State of kerala, (1973) 4 S.C.C. 225.

3|Page
individuals in India.4 Justice Krishna Iyer 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 India. 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 India has been strongly influenced by the Declaration. The
Supreme Court also observed in a case that the Declaration has the international recognition as
the Moral Code of Conduct having been adopted by the General Assembly of the United
Nations.5 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.

India ratified the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights on March 27, 1979.

ROLE OF JUDICIARY IN PROTECTION OF HUMAN RIGHTS

 GUARDIAN: THE PROTECTIVE ROLE:

Constitution makers clearly lay down that it is the paramount duty of the judiciary to act as a
protector of human rights and guard it against any kind of infringement. That is why the
fundamental rights have been made justiciable so that the courts can intervene in its
protection against any violation, be it from the State or any individual. It puts certain
limitations and restrictions on government’s action. The court has adopted the stance that it
acts as the ‘sentinel on the qui, vis-à-vis fundamental rights. Even the Constitution has
emphasized this role of the judiciary through Article 32(1) which says, that “the Apex Court
shall have power to issue directions or orders or writs, including in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certioraris, whichever may be appropriate,
for the enforcement of any of the rights conferred by this article.” Moreover, an individual

4
Jolly George Varghese v. Bank of Cochin, 1980 S.C.R. (2) 913.
5
Chairman Railway Board v. Chandrima Das, (2000) 2 S.C.C. 465.

4|Page
 has been conferred by virtue of Article 32 to move the court whenever he feels that his rights
have been traversed upon. The fundamental rights are intended not only to protect individuals
rights but they are based on high public policy. Liberty of the individual and the protection
of his fundamental rights are the very essence of the democratic way of life adopted by the
Constitution and it is the privilege and the duty of this court to uphold those rights.6

Clearly asserting its role as protector, the Apex Court has stated that, “This court is thus
constituted the protector and guarantor of the fundamental rights, and it cannot, consistently
with the responsibility so laid up on it, refuse to entertain applications, seeking protection
against infringement of such rights”7

In playing the role as protector of human rights, the judiciary has taken a fourfold path:

1) It has declared laws unconstitutional which have infringed upon our fundamental rights.
In a famous case, the Apex court did reinforce its role as a protector, i.e. as that of a
‘sentinel on the qui vive.’8
2) The second path taken by the Apex Court is in the form of prohibiting an individual from
giving up his fundamental rights. Basheshar Nath vs. income Tax Commissioner9 the
Court decided against the doctrine of waiver in a case. 9 It asserted that the fundamental
rights are mandatory on the State and that no citizen can by his will or act relieve the
State of its obligation imposed on it by virtue of these fundamental rights, Thus by
establishing the doctrine of non-waiver of fundamental rights, the Apex Court has further
strengthened the concept of human right in the society.
3) The third path taken by the Apex Court in playing its role as a protector is, by sitting over
judgment on the aspect of amenability of fundamental rights. It was a long journey from
Shankari Prasad case to the Minerva Mills case, and in course of that period the Apex
Court has finally come to the opinion that the fundamental rights can be amended but
subject to the doctrine that the basic or fundamental features of the Constitution cannot be

6
Daryao vs. State of Uttar Pradesh, A.I.R. 1961 S.C. 1457.
7
Romesh Thapper vs. State of Madras, A.I.R. 1950 S.C. 124.
8
State of Madras vs. V.G. Row, A.I.R. 1952 S.C. 196.
9
Basheshar Nath vs. income Tax Commissioner, A.I.R. 1958 S.C.

5|Page
 amended.10 The doctrine of the basic features was reiterated in many cases 11 firmly
establishing it in the Indian jurisprudence.
4) Fourthly, the Apex Court by spelling out these judgments firmly laid down the pre-
position that judicial review is a basic feature of the constitution. In fact, the very survival
and protection of human rights is dependent on this doctrine of judicial review.

 POWER OF INTERPRETATION:

Judicial Activism or judicial creativity is made possible because of the Apex Court’s creative
or innovative use of its power of interpretation. Justice Bhagwati has correctly observed,
“The Apex Court is the ‘ultimate interpreter’ of the Constitution. It is for this court to uphold
the constitutional values and to enforce the constitutional limitations. That is the essence of
the rule of law.”12 In another case the Apex Court stated, “This court while acting as a
sentinel on the qui vive to protect fundamental rights guaranteed to the citizens of the country
must try to strike a just balance between the fundamental rights and the larger and broader
interests of society.”13

In these observations the judiciary is clearly spelling out its changing role and widening
perspective. In fact, in the same case Pathuma vs. State of kerala the court asserted that while
interpreting the Constitution, “the judicial approach should be dynamic rather than static,
pragmatic and not pedantic and elastic rather than rigid.” In one of the landmark cases,
dealing with the issue of human rights, the judiciary displayed its utmost judicial creativity.
The court opined, “The attempt of the court should be to expand the reach and ambit of the
fundamental rights rather than to attenuate their meaning and content by a process of judicial
construction.”14

 PROTECTION OF LIFE: RE-INCARNATION OF ARTICLE 21

10
Keshavananda Bharati vs. State of Kerala, A.I.R. 1975 S.C. 1461.
11
Indira Nehru Gandhi vs. Raj narain, A.I.R. 1975 S.C. 2299, Minerva Mills Ltd. vs. Union of India, A.I.R. 1980
S.C. 1789.
12
State of Rajasthsan vs. Union of India, A.I.R. 1977 S.C. 1361 at 1413.
13
Pathumma vs State of Kerala, A.I.R. 1978 S.C. 771.
14
Menaka Gandhi vs. Union of India, A.I.R. 1978 S.C. 597.

6|Page
 It is in the realm of protection of life of individuals, that judiciary in India has played a
decisively positive role. Down the road, it is to be found that the attitude of Apex Court has
undergone a sea change from its earlier position with regard to the Right to Life under Article
21. As far back as 1950, the judiciary took a very static, mechanical and literal view of
Article 21.15 Article 21 clearly says that “No person shall be deprived of his life or personal
liberty except according to procedure established by law.” Apparently, Article 21 is
negatively worded wherein it is prohibiting the State from depriving any individual of his life
and liberty except according to the procedure established by law. It is always to be kept in
mind that; it also has a large positive connotation which later on came out in the Apex Court
decisions. The Gopalan case is a much-criticized decision in which the court interpreted
Article 21 and asserted that ‘procedure established by law’ meant any procedure passed by
any legislature or a competent body could deprive a person of his personal life and liberty
through this procedure. The court also asserted that all fundamental rights are independent of
each other and that Article 19 and Article 21 need not be read together.

It was gladdening to note that the views of the judiciary underwent a revolutionary change
after the Emergency. It seems after undergoing the rigors of Emergency the judiciary also
effected a change in its attitude. After the Emergency in 1976, the Maneka Gandhi vs. union
of India16 which has become a landmark case in the history of jurisprudence, the changed role
of judiciary from a very narrow perspective to a very broad perspective with its expanding
horizons of interpretations, could be traced. The post-Maneka Gandhi era saw many changes,
one of them being the transformation from “according to procedure established by law” “due
process of law”. Describing its own changing role, the judiciary in A.R. Antulay vs. R.S.
Naik17 observed that, “Article 21 got unshackled from the restrictive meaning placed upon it
in meaning placed upon it in Gopalan. It came to acquire a force and vitality hitherto
unimagined. A burst of creative decisions of this court, fast on the heels of Maneka Gandhi,
gave a new meaning to the Article and expanded its content and connotation.”

The post-Maneka Gandhi era finds a largely transformed judiciary in terms of social
sensitivity. Contemporary constitutional jurisprudence is flexible enough to take the

15
A.K.Gopalan vs. State of Madras, A.I.R. 1950 S.C. 27.
16
Menaka Gandhi vs. Union of India, A.I.R. 1978 S.C. 597.
17
A.R. Antulay vs. R.S. Naik, A.I.R. 1992 S.C. 701.

7|Page
 challenges posed by the dynamic society which is still economically underdeveloped if we
may say so and socially backward.

ROLE OF SUPREME COURT IN LIGHT OF CASE LAWS

The judiciary was to be an arm of the social revolution upholding the equality that Indians had
longed for. The SC of India in the following landmark judgements played a decisive role in
upholding the human rights of vulnerable groups, particularly children.

 Judicial Response in Trafficking, Exploitation and Sexual Abuse:

In a case, the petitioner filed a Public Interest Litigation seeking appropriate directions from the
Union of India for the improvement, protection and rehabilitation of the children of prostitutes. 18
Bombay High Court took a suo motu notice after a newspaper article published that minor girls
are illegally confined, sexually assaulted and forced to be prostitutes. The SC reacted very
strongly against the High Court decision of reducing the sentence of rape convict for ten years
imprisonment to three years on the ground of the accused himself being a young person.19

18
Gaurav Jain v. Union of India, A.I.R. 1997 S.C. 3021.
19
The Public at Large vs. State Maharashtra, 1997 (4) Bom. C.P. 17.

8|Page
  Judicial Response in other Matter of Protection of Humans Rights of Children:

The judiciary in India has shown its deep concern for the human rights of these children. In
People’s Union for Democratic Rights vs. Union of India 20, the SC observed: Construction work
is clearly a hazardous occupation and it is absolutely essential that the employment of children
under the age of 14 years must be prohibited in every type of construction work… This is a
constitutional prohibition which even if not followed up by appropriate legislation, must operate
proprio vigore.

The SC while keeping the interest of the children, as also the constitutional mandate in view held
that employment connected with manufacturing process in the match factory is not to be given to
children. They can, however, be employed in packing process and the packing must be done in
area away from the place of manufacture. The Court also directed that at least 60% of the
prescribed minimum wage, for adult employee doing the same job, to be given to child in view
of special adaptability of child’s tender hand to such work. Keeping in view the basic human
rights of the children, the Court directed that all such children should be provided with facilities
for recreation and medical attention and that they should be provided basic diet during the
working period.21

The SC laid down a law 22 governing the inter-country adoption. In other words, the SC filled the
vacuum created by the absence of any parliamentary legislation in regard to the uniform adoption
law. The SC took cognizance of the possible impact of Bhopal gas leak become symptomatic in
future. The Court directed union of India to obtain appropriate medical group insurance cover to
take care of compensation for such prospective victims. The Court also ordered the premium to
be paid from settlement fund.23

 RIGHT TO EDUCATION:

Today, education is perhaps the most important function of the State and the Local
Governments. It is the very foundation of good citizenship. It helps in promoting and
understanding various human rights. Today, it is a principal instrument in awakening the
20
People’s Union for Democratic Rights vs. Union of India, (1997) 1 S.C.C. 301.
21
M.C. Mehta vs. State of Tamil Nadu, A.I.R. 1991 S.C. 417.
22
Indian Constitution 1950, Art. 141.
23
Union Carbide Corpn. Vs. Union of India, A.I.R. 1992 S.C. 218 311.

9|Page
 child to cultural values, in preparing him for later professional training, and in helping him to
adjust normally to his environment.24

Article 45 of the Constitution expected the State to provide free and compulsory education
for all children until they attained the age of fourteen years. But this mandate of the
Constitution has remained mostly a dead letter and millions of children are denied basic
human right to education. The judiciary in India has shown its deep concern for providing
free and compulsory education to all children below the age of fourteen years.

Recently, the Court observed that education occupies a sacred place within Constitution and
culture and Article 21A of the Constitution support that. 25 In Labourers Working on Salal
Hydro Project vs. State of J&k, the SC considered the root cause of the problem that why
most of the children do not go to Schools or why most of the parents do not send their
children to Schools.

CONCLUSION

A review of the decisions of the Indian Judiciary regarding the protection of Human Rights
indicates that the judiciary has been playing a role of savior in situations where the executive and
legislature have failed to address the problems of the people. The Supreme Court has come
forward to take corrective measures and provide necessary directions to the executive and
legislature. However, while taking note of the contributions of judiciary one must not forget that
the judicial pronouncements cannot be a protective umbrella for inefficiency and laxity of
executive and legislature. It is the foremost duty of the society and all its organs to provide
justice and correct institutional and human errors affecting basic needs, dignity and liberty of
human beings. Fortunately, India has pro-active judiciary. It can thus be aspired that in the times
ahead, people’s right to live, as a true human being will further be strengthened.

From the perusal of the above contribution it is evident that the Indian Judiciary has been very
sensitive and alive to the protection of the Human Rights of the people. It has, through judicial

24
Brown vs. Board of Education, 98 L Ed. 873
25
Krishnagiri District Private vs. State of Tamil Nadu, W.P. No. 3051 of 2010.

10 | P a g e
activism forged new tools and devised new remedies for the purpose of vindicating the most
precious of the precious Human Right to Life and Personal Liberty.

BIBLIOGRAPHY

BOOKS:

 The Idea of Justice by Amartya Sen.

ONLINE SOURCES:

 http://docs.manupatra.in/newsline/articles/Upload/82F6F397-6AE0-4253-940E-
58C9B0BDEC32.%20Amartish%20Kaur__Human%20Rights.pdf
 http://shodhganga.inflibnet.ac.in/bitstream/10603/102509/9/09_chapter%2003.pdf
 http://shodhganga.inflibnet.ac.in/bitstream/10603/57391/11/11_chapter%205.pdf
 http://www.lawyersclubindia.com/articles/HUMAN-RIGHTS-JUDICIAL-ACTIVISM-
THE-INDIAN-EXPERIENCE-2974.asp

11 | P a g e
 http://assets.vmou.ac.in/HR03.pdf
 https://www.scribd.com/doc/55699817/Role-of-Indian-Judiciary-in-Protection-of-
Human-Rights-By-Waseem-Firoz
 https://www.ucl.ac.uk/constitution-unit/research/judiciary-human-rights

12 | P a g e