Human Rights and Indian Judiciary

- Essay Written by Ravikiran Shukre.

Dr. A P J Abdul has said that, “Excellence is a continuous process, not an accident.”
I think this quote perfectly suits our Indian Judiciary because, after independence, India has
played a significant role in protecting Human Rights.

Human rights can be defined as those rights which are inherent in nature and without
which we cannot live as ‘Human Beings’. Our Constitution of India expressively deals and
analyse the role of judiciary and the role of judicial activism aimed at the protection of these
rights. After all, the utmost value of Human Life is best represented in the recognising these
rights, and fully enabling people to enjoy and exercise these rights to the extent that preserves
their humanity and respects their politeness. Life would be meaningless if people are not able
to practise their natural rights. Moreover, life would be intolerable if people were not unable to
enjoy security in their community. Legal system plays an active role in protection of these
rights.

Human Rights are the basic rights, it is for all as it is universal and inalienable. These
rights are not conferred by the law, but by the virtue of humanity. Human rights is not a new
concept it can be audited from the Vedas, Manusmriti, Arthashastra and other scriptures which
address human rights such as documents like Magna Carta (1215), French Declaration of
Rights of Man and of Citizens (1789), United States Bill of Rights (1791) asserted various
individual rights. In 20th century, after the Second World War was ended, United Nations came
into existence in 1945, 3 years’ later in 1948 Universal Declaration of Human Rights (UDHR)
presented the world with 30 articles which awarded the first recognition to the Human Rights
Universally. These Human Rights are the freedom and basic rights that belongs to every person
in the world. This document presented in 1948 i.e. Universal Declaration of Human Rights
(UDHR) provides and also well-defined Human Rights to whole world. We are all equally
radiated to our Human Rights without any discrimination.

Human Rights are conceptualised to be certain rights that are inherent or occur naturally
individuals as human beings, having existed even in ‘State of Nature’ as explained by the
Thomas Hobbes, John Locke in ‘The Leviathan’ and ‘Two Treaties of Government’
respectively. They have explained that how human beings existed in ‘State of Nature’ before
the development of societies and emergence of the “State”. They have explained that how
people come together and gave certain rights to another group of people so that to form a
“Civilised State”. But, as widely recognised, the state cannot be accepted as a fundamental
source of these rights. They inhere in individuals by virtue of their birth as a human itself. The
State is accepted and understood merely as a recognizer, guarantor and protector of these rights.
The State, as its concept exist today, cannot act to harm of the inherent rights of people or for
that matter joint conscience of people as a community or society.

These Human Rights are recognised by as a legal rights, constitutional rights,

fundamental rights etc. depending upon their assimilation in statutes or the constitution of the
nation. If we look at history, Universal Declaration of Human Rights (UDHR) recognising the
human rights at global level and provides in its Article 1 that, “All human beings are born free
and equal in dignity and rights. They are endowed with reason and conscience and should act
towards one another in a spirit of brotherhood”.

India, a largest democratic country is also a signatory of the UDHR. UDHR safeguard
civil, economic, cultural, political and social rights. Indian constitution shield human rights
from threat in the form of guaranteed fundamental rights. These rights cannot be amended as
they are part of the basic structure of the Constitution of India as explained in the landmark
case of Kesavananda Bharati v. State of Kerala1. Part III and Part IV of the Indian Constitution
put an obligation on state to protect Human Rights although Part III is enforceable [as per the
Article 32 of the Constitution of India] and Part IV is not [as per the Article 37 of the
Constitution of India]. The preamble of the constitution also talks about the protection of the
dignity of an individual enunciating, “FRATERNITY assuring the dignity of an individual and
the unity and integrity of a nation”. Constitution of India directs the State to make actions for
Human Rights protection.

India has had a history of its own, in-so-far human rights of its inhabitants are
concerned. Ruled by tyrannical rulers/kings and emperors, people, was never aware of the
concept of Human Rights. This was an irony faced by Indians but on the other hand, if we look
at European and other Western Countries; they have realized the importance of the concept of
Human Rights because of the advent of the Magna Carta. This concept of Human Rights was
like an alien to WE Indians because, at first, we never thought of it or we didn’t dare to bother
ourselves with the concepts like this. And then, the struggle for independence was obvious with
revolts for the individual and social rights. There was mass awakening of and recognition of
rights that were inherent to human existence. The end of World War II was a turning point for
the world; because people were understanding the importance of the Human Rights and
struggle for Human Rights was noticed worldwide in the history.

United Nations Declaration of Human Rights on Dec. 10, 1948 was the outcome of this
worldwide struggle and India has become one pioneering countries of the world to have made
a commitment to respect and protect these human rights that are provided in this declaration.
Therefore, India widely accepted Human Rights as Fundamental Rights in the Constitution of
India. The Constitution of India shows the testament of the people of India to protect and
promote the fundamental freedoms and rights of all human beings.

The right to life, liberty, equality, dignity are the most important fundamental human
rights that need to be fiercely guarded by the court, whether it be the Hon’ble Supreme Court,
the Hon’ble High Courts or other lower judiciary. Under Article 32 of the Constitution, people
can approach the Supreme Court in order to avail the rights guaranteed under Part III and
Article 13 empowers the Supreme Court to declare any law void if it encroaches upon the Part
III by way of two doctrines namely, (I) Doctrine of Eclipse, (II) Doctrine of Severability. These
two doctrines have been accepted by our constitution for the protection of the fundamental
human rights. Article 32 (3) provides that legislature by law can empower any other court to

1
1973 (4) SCC 225
protect these rights. But the generally accepted perspective is that the lower judiciary have no
role to play in protection of fundamental rights or human rights. A good number of judges of
lower judiciary decline to disagree from the example, that only Supreme Court and High Courts
are constitutional Courts and the role and authority to protect or safeguard the fundamental
rights, or alternatively the human rights, limited to these constitutional Courts. The judges of
lower judiciary feel reserved about visualising their constitutional status, and many a times
they fail to develop the vision that they have a duty to fulfil towards the constitution, which is
to protect and preserve the constitutional, fundamental, human or legal rights of human beings.
Not only Supreme Court but High Courts of various States across India also protect
fundamental and legal rights of people under Article 226 by way of writs mentioned therein as
same in article 32 i.e Habeau Corpus, Mandamus, Certiorary, Prohibition and Quo-Warranto.

As already explained above, Article 32 (3) provides that legislature by law can
empower any other court to protect these rights. In compliance of this, parliament has ordained
the Protection of Human Rights Act, 1993 this Act provides, “Human Rights” means the rights
relating to life, liberty, dignity and equality guaranteed by the Constitution or embodied in the
International Covenant and enforceable by courts in India2. The Act also directs to establish
NHRC (National Human Rights Commission), SHRC (State Human Rights Commission) and
HRC (Human Rights Courts). Section 3 of Protection of Human Rights Act, 1993 put an
obligation to establish NHRC in compliance with which central govt. has constituted NHRC
in 1993. This commission is obliged to protect and promote human rights. Protection of Human
Rights Act, 1993 also provides composition, function and the procedure of NHRC. NHRC play
a crucial role in protection of Human Rights and keeping the faith of common man in Criminal
Justice System. National Human Rights Commission and Supreme Court can complimentarily
protect and promote Human Rights. A national Commission can give recommendations to
various authorities3.

In 1993 the commission has issued the guidelines regarding custodial death to the all-
state govt. that in case of such incident, commission must be informed within 24 hours aand
this will be followed by the post-mortem reports, Magisterial Inquest reports of the post mortem
etc.4 Section 36 (2) put some limitations on NHRC but Supreme Court in case of Paramjit
Kaur V. State of Punjab5 construed this statutory provision that when the Supreme Court by
exercising its power under article 32 refer the matter of infringement of Human Rights to the
commission than section 36 (2) cannot restrict commission to act in accordance with the order
of Supreme Court. Supreme Court said that commission will be sui generis body to carry out
the functions referred by Suprme Court and this body is not circumscribed by any sort of
conditions. In this case, Supreme Court observed that no statutory can curtail the Supreme
Court to exercise its power and there is no reason that why this commission cannot comply
with the orders of Supreme Court i.e. to look into matter of violation of Human Rights.

2
Section 2 (d) of Protection of Human Rights Act, 1993
3
Section 18 (3) of Protection of Human Rights Act, 1993
4
http://nhrc.nic.in/press-release/nhrc-issues-fresh-guidelines-regarding-intimation-custodial-death
5
AIR 1999 SC 340
 In case of D. K. Basu v. State of West Bengal6 the court asked why there is no State
Human Rights Commissions in various states even after 2 decades of enactments of Protection
of Human Rights Act, 1993. Justice T. S. Thakur and Justice R. Bhanumati directed the State
govt. to constitute State Human Rights Commissions and Human Rights Courts.

There have been landmark cases in the history of fundamental rights and their
protection in India. Cases like Kesavananda Bharati v. State of Kerala7, this case was heard by
the ever largest constitutional bench of 13 judges. In this, court has gifted us the Doctrine of
Basic Structure. The court held that this principle is inviolable and accordingly the court
outlined that power to amend is not bottomless but limited. This case overruled the Golaknath
Case8 and court said that parliament Act will be counted ultra-vires if it tries to rewrites the
whole constitution in the light of its powers under article 368 of the constitution. This view
protects the Human Rights fundamentally.

There is a case like ADM Jabalpur v. Shivkant Shukla9 which is darkspot in the Indian
Judicial history, in this case, four out of five judges held that all the fundamental rights will
remain suspended during emergency period. Justice H. R. Khanna gave dissenting opinion and
gave a separate judgment which paved way for the rule that State cannot deprive anyone of the
Right to life and Personal Liberty without due process of law. Another promising case in the
history of Indian Judiciary was Maneka Gandhi v. Union of India10 this case gave wider
interpretation to the word “Personal Liberty” requisites of article 14, 19 must be fulfilled as
article 14, 19 and 21 are interconnected and there exist a golden triangle between them.
Supreme Court in this case has held that by word “Life” something more is expected than mere
animal existence. Right to life includes more than a physical existence.

Along with the Constitution, Code of Criminal Procedure, 1973 also provides wide
powers to police so that it becomes imperative that a mechanism for safeguarding human rights
recognised by the Constitution. Supreme Court in case of Citizen for Democracy v. State of
Assam11 has held that, when a person is arrested without warrant, the police may handcuff the
accused only if it is satisfied on the basis of guidelines issued that it is necessary to do so, and
he may do so only till accused is taken to the police station. Any use of fetters thereafter can
only be under the orders of Magistrate.

There is protection provided to accused persons through remand procedure because

article 21 provides Right to Life and Personal Liberty, which can be curtailed only by procedure
established by law. Such procedure must ensure that the human right shall be protected. In case
any offence is committed and accused person is likely to extend beyond 24 hours, police are
mandated to request the magistrate for grant of remand of such accused in police or judicial
custody in terms of sec. 167 of CRPC.

6
(2015) 8 SCC 744
7
1973 (4) SCC 225
8
I.C. Golaknath and Ors. v. State of Punjab, 1967 SCR (2) 762
9
(1976) 2 SCC 521
10
1978 SCR (2) 621
11
(1995) 3 SCC 743
 We have heard that “Bail is a rule and jail is an exception” it’s because every arrested
person has a right to seek bail. If arrest is for a bailable offence, then it becomes an absolute
right to be released under sec. 436 of CRPC subject to satisfaction of the conditions provided
there. But on the other hand, sec. 437 which relates to non-bailable offence provides release on
bail subject to very strict and stringent statutory conditions.

Another important aspect of the CRPC is protection through discharge proceedings.

There are provisions such as sec.227, 239, 245 and 258. It may be emphasized that mechanical
framing of charge by the court may amount to violation of human right of innocent person
therefore, it is very important that, while conducting the proceedings of framing of charge
against an accused person, court should try to take into account the material presented by way
of charge-sheet and the other documents upon which the prosecution will rely upon.

The scope of a Court to protect human rights is of wide amplitude. It is not limited
merely to case of accused person. It is also not limited to a court exercising criminal
jurisdiction, but to every Court of law. A Court must try to ensure protection of rights of every
person appearing before it, be it an accused person, a witness, a complainant, a plaintiff, a
defendant or whatever form of litigant. It can be stated that Supreme Court exercised its power
of interpretation so well that widened the scope of rights which made it more quick for everyone
to enjoy their rights. In India, the judiciary is not superior but as we have Constitutionalism
which invokes that Judiciary is independent and all the bodies have to comply with order of
Supreme Court for the welfare state.