Human Rights Younis-6

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 PreBritish 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.
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 3
AIR 1981 SC 487 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 ones 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 caseIt 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 5
AIR 1981 SC 746 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 7 8
AIR 1983 SC 378 AIR 1983 SC 1086 (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.
10
PIL is an excellent example to refer to at this moment. During our lifetime weve 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
PUCL v Union of India (2001) (7) SCALE 484; PUCL v Union of India (2004) (5) SCALE 128. Kishen Pattnayak v State of Orissa (1989) Supl. (1) S.C.C. 258. Shiv Sagar Tiwari v Union of India (1996) 6 S.C.C. 558 Murli Deora v Union of India & Ors. (2001) 8 S.C.C. 765. Vineet Narain v Union of India (1996) 2 S.C.C. 199. M.C. Mehta v State of Tamil Nadu AIR 1997 SC 699 Narendra Malava v State of Gujarat 2004 (10) SCALE. 12; PUCL v State of Tamil Nadu 2004 (5) SCALE 690 CPM v Bharat Kumar AIR 1998 SC 184; T.K. Rangarajan v State of Tamil Nadu AIR 2003 SC 3032 Parmanand Kataria v Union of India AIR 1989 SC 2039; Paschim Banga Khet Mzdoor Samity v State of West
10 11 12 13 14 15 16 17
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
11
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 22 23 24
(1980) 3 SCC 526) (1995) 3 SCC 743 (1980) 4 SCC 531 ( 1993) 2 SCC 746
12
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 Womens 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 Peoples 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.29Supreme 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 26 27 28 29
( 1994) 4 SCC 260 ( 1995) 1 SCC 14 AIR 1997 SC 568 AIR 1997 SC 610 (1997) 6 SCC 241
13
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 31 32
(1993 4 SCC 111) (1996) 4 SCC 37 2003(10) SCALE 967
14
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 conflicti ng 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.
15
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
16
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 individuals 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 selfprotection 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
17
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 35 36
(1976) 2 SCC 521 1967 SCR (2) 762 AIR 1954 SC 92
18
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 INDIAN AND RIGHTS 1. 2. 3. 4. 5. 6. 7. 8. Forced labour Equality before law Prohibition of discrimination Equality of opportunity to public service Freedom of speech and expression Right for peaceful assembly Right to freedom of association Article 8(3) Article 14(1) Article 26 Article 25(C) Article 19(1) & (2) Article 21 Article 22(2) Article 23 Article 14 Article 15 Article 16(1) Article 19(1)(a) Article 19(1)(b) Article 19(1)(c) Article 19(1)(d) & POLITICAL CONSTITUTION
Right to move freely within the territory of Article 12(1)
19
a state 9. Protection in respect of conviction of Article 15(1) offences 10. Protection punishment 11. Not to be compelled to testify against Article 14(3)(g) himself 12. 13. 14. 15. Right to life and liberty Right to child education Protection against arrest and detention Freedom of conscience and religion Article 6(1) & 9(1) Article 26(1) Article 9(2)(3) & (4) Article 18(1) from prosecution and Article 14(7)
(e) Article 21(1)
Article 21(2)
Article 21(3)
Article 21 Article 21A Article 22 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
20
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 dont 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 womens development all are just vague or merely a showcase discussions. These are simply window shopping of development. Court in various cases as Vishakhas 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 38
1985 SCR (3) 844 Vishaka Vs. State of Rajasthan (1997) 6 SCC 253 39 Air lndia Vs. Nargeesh Mirza AIR 1981 SC 1829 40 AIR 2000 SC 988
21
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?
22
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
23
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 thatCrime 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
24
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.
25
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 INDIAN
DECLARATION CONSTITUTION 1. 2. 3. 4. 5. 6. 7. Equality before law Prohibition of discrimination Equality of opportunity Freedom of speech and expression Freedom of peaceful assembly Right to form associations or unions Article 7 Article 7 Article 20(2) Article 19 Article 20(1) Article 23(4) Article 14 Article 15(1) Article 16(1) Article 19(1)(a) Article 19(1)(b) Article 19(1)(c) Article 19(1)(d)
Freedom of movement within the Article 13(1) border
8.
Protection in respect of conviction for Article 11(2) offences
Article 20(1)
9. 10. 11. 12. 13.
Protection of life and personal liberty
Article 3
Article 21 Article 23 Article 25(1) Article 32 Article 22
Protection of slavery and forced labour Article 4 Freedom of conscience and religion Remedy for enforcement of rights Right against arbitrary arrest and detention Article 18 Article 8 Article 9
14.
Right to social security
Article 22
Article 29(1)
26
Economic, Social and Cultural Rights in the Universal Declaration of Human Rights and in the Indian ConstitutionNO. NAME OF RIGHTS UNIVERSAL DECLARATION 1. Right to work, to just and favourable Article 23 (1) conditions of work 2. 3. Right to equal pay for equal work Right to education Article 23 (2) Article 26 (1) Article 39 (d) Article 21 (A), 41,45 & 51A(k) 4. Right to just and favourable Article 23 (3) Article 43 INDIAN CONSTITUTION Article 41
remuneration 5. 6. Right to rest and leisure Article 24 Article 23 (1) Article 39(a) & Article 47 Article 28 Article 38
Right of everyone to a standard of Article 25 (1) living adequate for him and his family
7.
Right to a proper social order
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 42
AIR 1980 SC 470 (2000) 2 SCC 465
27
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
28
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
29
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.
30
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
31
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.Gopalans 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
32
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 Gandhis case, through Public Interest Litigation have unfolded the true nature and scope of Article 21. In this thesis, an attempt is made to analyse the new dimensions given by the Supreme Court to Article 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 lockup36. 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.
33
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
34
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 nonavailability 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
35
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
36
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 Thirdgeneration 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.
37
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.

Human Rights Younis-6

Încărcat de

Informații document

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Human Rights Younis-6

Încărcat de

Drepturi de autor:

Formate disponibile

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

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

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

AIR 1981 SC 487 AIR 1950 SC 27

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

AIR 1981 SC 746 AIR 1981 SC 928

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

AIR 1983 SC 378 AIR 1983 SC 1086 (1989)4 SCC 286

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

AIR 1979 SC 1360

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

(1993 4 SCC 111) (1996) 4 SCC 37 2003(10) SCALE 967

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

(1964) 1 SCR 332

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

(1976) 2 SCC 521 1967 SCR (2) 762 AIR 1954 SC 92

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

Right to move freely within the territory of Article 12(1)

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

(e) Article 21(1)

Article 21 Article 21A Article 22 Article 25

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

Freedom of movement within the Article 13(1) border

Protection in respect of conviction for Article 11(2) offences

9. 10. 11. 12. 13.

Protection of life and personal liberty

Article 21 Article 23 Article 25(1) Article 32 Article 22

Right to social security

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

Right to a proper social order

AIR 1980 SC 470 (2000) 2 SCC 465

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

1954 CriLJ 1672

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

AIR 1988 SC 1531

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHTS

S-ar putea să vă placă și