ROLE OF JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHT BY - MUNTAZIR NAWAB & SUMBUL FATIMA
ROLE OF
JUDICIARY IN THE PROTECTION AND PROMOTION OF HUMAN RIGHT
AUTHORED BY -
MUNTAZIR NAWAB & SUMBUL FATIMA
Faculty of
Law, Jamia Millia Islamia, New Delhi
Abstract
This research paper
examines the role of the Indian judiciary in protection and promotion of human
rights. The Indian judiciary plays a pivotal role in promoting and protecting
human rights enshrined in the Constitution of India. This paper will explore the
various functions of the judiciary in the protection and promotion of human
rights through its constitutional power, particularly within the scope of
fundamental rights (Article 12-35). The
judiciary is considered as a guardian of civil liberties, which provide a
platform to seek justice. With the development of many judicial mechanisms like
PIL it became easier for people to knock the door of the judiciary and access
justice. However there are many challenges before the judiciary like
overburdened courts that hinder the judiciary in timely disposal of cases.
Keywords: Judiciary, justice, human rights, constitution, fundamental rights,
violations.
I. INTRODUCTION
The state upholds the
social order by making various rules, legislation, statutes without which the
existence of state would be impossible. Numerous proponents of the social
contract theory argued that upholding and defending individual rights is the
primary goal of state formation.. According to Aristotle, the state came into
existence because of the basic necessities of humans, the State is a necessary
condition of a good life.[1] Locke
opined that the end of state is to remove the obstacles that hinder the
development of an individual. Therefore, it can be said that the motive of the
state is to protect the rights of its citizens.[2]
Human rights are a set of
principles concerned with equality and fairness.[3]
Human rights are rights we have simply because we exist as human beings - they
are not granted by any state. These universal rights are inherent to us all,
regardless of nationality, sex, national or ethnic origin, colour, religion,
language, or any other status.[4] They are about living a life free from fear,
harassment or discrimination. In the early times, people had human rights because
of their membership in a group such as family.
Then, in 539 BC, Cyrus the Great, after conquering the city of Babylon,
did something totally unexpected—he freed all slaves to return home. Moreover,
he declared people should choose their own religion. The Cyrus Cylinder, a clay
tablet containing his statements, is the first human rights declaration in
history.[5] At
international level various efforts have been made for the protection of human
rights. The United Nations through its charter represents a significant
advancement in the direction for the promotion as well as protection of human
rights. International bill on human rights has been incorporated in the UN
Charter. The UN Charter contains various provisions for the promotion of human
rights and fundamental freedoms in the Preamble and in various Articles 1,
13(b), 55, 56, 62 (2), 68 and 76(c).[6]
Apart from UN Charter there are four international instruments created under
the auspices of the United Nations known as International Bill of Human Rights,
which include the Universal Declaration of Human Rights 1948, the International
Covenant on Civil and Political Rights 1966, and the International Covenant on
Economic, Social, and Cultural Rights 1966, the Optional Protocol to the
International Covenant on Civil and Political Rights, 1966.[7]
The international human rights regime is continuously growing with the passage
of time, it provides certain accepted legal standards which all the nations
should accept and implement in their domestic laws. The Governments of all the
nations must work to promote the welfare of people by eliminating all forms of
discrimination and provide the right to equality and justice to all.
The judiciary plays a
crucial role in upholding human rights in India, acting as the guardian of the
Constitution and the protector of individual rights. Through various landmark
judgments and interpretations, the judiciary has not only enforced the rights
explicitly mentioned in the Constitution but has also expanded the scope of
these rights to include unenumerated ones, thereby ensuring comprehensive
protection of human dignity.
II.
CONSTITUTIONAL PROVISIONS RELATED TO
HUMANRIGHTS
IN INDIA
Part III of the
Constitution of India contains a long list of fundamental rights. This chapter
of the Constitution of India has very well been described as the Magna Carta of India.[8] In the
case of Maneka Gandhi v. Union of India[9],
The Supreme Court of India speaks about the importance of fundamental
rights “Fundamental rights represents the basic values cherished by the people
of India and they are calculated to protect the dignity of individuals and
create conditions in which every human being can develop his personality to the
fullest extent. The object behind the inclusion of this chapter in the Indian
Constitution is to establish a Government
of law and not of men.[10]
In M. Nagraj v. Union of India[11]
the Supreme Court held that the fundamental rights are not gifts from the
state to citizens but they are basic human rights that every human being
possesses by reason of that they are humans.
Article 14 to 18 of the
Constitution of India guarantees the right to equality to every citizen of
India. Article 14 tells the general principles of equality before law and
prohibits and kind of discrimination between persons. Article 14 embodies the
idea of equality enshrined in Preamble to the constitution of India. Article 15
relates to prohibition of discrimination on the basis of religion, race, caste,
sex and place of birth. Article 16 guarantees equality of opportunity in public
employment. Article 17 abolishes ‘Untouchability’ whereas Article 18 abolishes
title.
Article 19-22 deals with
personal liberty as a basic right. Article 19 includes the right to freedom of
speech and expression, the right to
freedom of assembly, the right to freedom of association or union, the right to
freedom of movement, the right to freedom of residence, freedom of profession,
occupation, trade or business. Article 20 protects against arbitrary arrest and
detention. Article 21 safeguards the right to life and personal liberty.
Article 22 protects against arbitrary or unlawful imprisonment.
Articles 23 and 24 of the
Indian Constitution talk about Right Against Exploitation, dignity and freedom
of a person are inviolable. No one can be forced into labour against their
will. This article also talks about other forms of forced labour and victims of
human trafficking. Every Indian citizen needs to know about their rights
enshrined in the constitution so that they can fight for their rights if
violated Article 25-28 of the Constitution protects the right to freedom of
religion. In 1976, by The Constitution (42nd Amendment) Act, 1976, inserted the
word “secular” in the preamble. In S.R.
Bommai v. Union of India[12]
the Supreme Court held- held that secularism is a basic feature of the
Constitution.[13]
Articles 29 and 30 deal
with the cultural and educational rights of Indian citizens. This fundamental right intends to preserve
the culture of minority groups in India. Indian society is a composite
heterogeneous one and its diversity is one of its strengths. The Constitution
guarantees these rights to minorities so that the diversity of this country is
preserved and provides avenues for all groups including marginalized ones to
protect, preserve, and propagate their culture.
III. RIGHT
TO CONSTITUTIONAL REMEDY (ARTICLE 32)
Dr. Ambedkar said about
Article 32 in the Constitutional Assembly;
“If I was asked to name any particular Article in this
Constitution as the most important, an Article without which this Constitution
would be a nullity -I could not refer to any other Article except this
one(Article 32). It is the very soul of the Constitution and the very heart of
it”[14]
“ubi jus ibi remedium” where there is a right there is a remedy[15]. It is very true that declaration of
fundamental rights is meaningless if there is not effective machinery for
enforcement. For this purpose the makers of the constitution inserted Article
32 which empowered the citizens of India to reach the apex court in case of
violation of any of the fundamental rights mentioned in Part III of The
Constitution of India for the restoration of that right by way of issuing writ.
Article 226 of The Constitution of India empowers the High Courts to issue
writs for the enforcement of fundamental rights.
Article 32(1) guarantees
the right to move to supreme court in case of violation, whereas Article 32(2)
empowers Supreme Court to issue direction, or order or writ. Writ in the nature
of habeas corpus, mandamus, prohibition,
quo-warranto, and certiorari for the enforcement of right
enshrined in Part III of the Constitution of India. The Parliament may by law
authorize any other court to exercise within local territorial limit same as the
power exercised by the Supreme Court under Article 32(2). Writs are public law
remedies. The rights granted to citizens through fundamental rights as outlined
in Part III of the Constitution are a safeguard against state only. The writ
can be issue against whoever comes under the definition of state mentioned in
Article 12 of The Constitution of India
In a recent case Skill Lotto Solutions (P) Ltd. v. Union of
India[16]
the Supreme Court of India held, “Article
32 confers a right to move to the Supreme Court for enforcement of the right
conferred by Part III, which is guaranteed by clause (1) of Article 32 of the
Constitution. Article 32 is an important and integral part of the basic
structure of the Constitution. Article 32 is meant to ensure observance of rule
of law. Article 32 provides for the enforcement of the fundamental rights,
which is most potent weapon.”
However, the Fundamental
Rights are not absolute in nature. They are subjected to many other clauses of
the Constitution of India. The six Fundamental Rights outlined in Article 19
are immediately suspended when a declaration of national emergency is made, in
accordance with Article 358. Article 359 suspends all other Fundamental Rights
enshrined in Part III during the period of emergency. The Parliament by The
44th Amendment Act of 1976 amended Article 359 and restricted it’s scope and
put an exception for Article 20 and Article 21, hence Article 20 and 21 remain
in force even during the emergency.
IV. SOME
OTHER MECHANISMS.
In recent days, there have
been many developments in the role and function of the Judiciary. Judiciary
also evolves many new concept such as the concept of Judicial Review, Judicial
Activism, Public Interest Litigation etc.
Judicial Activism: Meeriam Webster defines judicial activism as “the
practice in the judiciary of protecting or expanding individual rights through
decisions that depart from established precedent or are independent of or in
opposition to supposed constitutional or legislative intent”.[17] It is the
power of the Supreme Court for the protection of an individual's constitutional
rights. In the case of Hussainara Khatoon
(V) v. Home Secy., State of Bihar,[18] the
supreme court using the power of judicial activism held the right to speedy
trial to be a fundamental right guaranteed under Article 21 of the Indian
Constitution. In Sunil Batra v. Delhi
Admn.,[19]
the court held that the writ of Habeas
corpus can not only be issued for releasing the person from illegal arrest
but it can also be issued for the protection of prisoners inside jail. In D.S. Nakara v. Union of India,[20]
the court held that registered societies, NGOs, and voluntary organisations
can also reach court under Article 32 for the enforcement of rights of large
number of pensioners who can not approach the court individually. In M.C. Mehta v. State of Tamil Nadu[21]
the court held that children can not be employed in match factories in the
forefront as the ingredients used in the manufacturing of matches is hazardous
within the definition of Employment of Children Act, 1938. However children can
work for packing process but the work should be done at a distant place. In M.C. Mehta v. Union of India[22]
the Supreme Court ordered the closure of leather tanneries at Jajmau in
Kanpur, polluting the Ganga. In D.K. Basu
v. State of West Bengal,[23] the
Supreme Court issued guidelines to prevent custodial violence, underscores the
judiciary’s role in upholding human dignity even within the confines of state
authority.
Public Interest Litigation (PIL): The traditional rule of locus standi that a petition under
Article 32 can only be filed by the aggrieved party has been completely relaxed
by the Supreme Court of India by giving many judicial decisions. In the Case of
S.P. Gupta & Ors. v. President of
India & Ors.[24](popularly
known as Judges Transfer Case), a 7 judge bench of the Supreme Court of India
established a rule of public interest
litigation and held that any member of the public having sufficient interest
can approach the court for enforcing the right of another person. The phrase
‘Public Law Litigation’ was first used by an American scholar Abram Chayes to
describe the effort of lawyers who seeks social change through decree of court
that reform legal rules or existing laws etc.[25]
Public law litigation concerns not only the parties, representing two sides of
a disagreement but also the public interest. The efforts of Justice P.N.
Bhagwati (17th CJI of India) is very commendable that he introduced the concept
of PIL in Indian Judiciary and he rightly earned the title ‘Father of PIL’.[26] In the
case of M.C. Mehta v. Union of India[27],
the Supreme Court for the first time examined the scope of Public Interest
Litigation in the area of environmental laws.
There have been many
instances where the court using these recently developed mechanisms protects
and promotes human rights. These roles were done by the judiciary under Article
32 for Supreme Court and under Article 226 for High Courts. After the
introduction of these mechanisms the courts now became more capable and has
spread their hand for the protection and promotion of human rights.
V.
JUDICIARY AS THE GUARDIAN OF HUMAN RIGHTS
The court plays an
important role in upholding human rights by interpreting constitutional laws,
conducting judicial review, protecting fundamental rights, adjudicating human
rights cases, and establishing checks and balances within the legal system. The
Supreme Court of India plays a crucial role in protecting human rights through:
·
Interpretation of the Constitution: The Supreme Court interprets the
Constitution whenever required and ensure that the right to citizen is
protected. The judicial review allows the Supreme Court to safeguard
fundamental rights and struck down legislations which are violative of
Constitutional provisions. Under Article 13, 32, 131-136, 143, the Supreme
Court and under Article 226 and 246 the High Court can review any law and therefore,
these courts are known as constitutional courts.
·
Judicial Review: It is the power of the court under
which a government's executive, legislative, or administrative actions are
subject to review by the judiciary. In a judicial review, a court may invalidate
laws, acts, or governmental actions for being unlawful.
·
Writ Jurisdiction: Under Article 32 of the Constitution
of India the court can issue 5 forms of writ for the protection of fundamental
rights given under Part III of the Constitution.
·
Public Interest
Litigation (PIL): The court entertain pleas filed by anyone other than
interested parties when the matter is of public importance. By virtue of this
mechanism the voice of marginalised groups who are incapable of knocking the
door of justice reaches the apex court of India and hence their right is
protected.
·
Landmark Judgments: From time to time the apex court
gives landmark judgement for the protection and promotion of fundamental
rights. This judgement is applicable throughout the territory of India by
virtue of Article 141 of the Constitution of India.
·
Protection of Vulnerable Groups: The court also protects the interest
of the minorities, children, women, transgenders etc. When their right is at
stake the court interferes and protects their right. National Legal Services Authority v. Union of India,[28]: This was a
landmark decision where the apex court legally recognised “third
gender”/transgender persons for the first time and discussed “gender identity”
at length. The Court recognised that third gender persons were entitled to
fundamental rights under the Constitution and under International law.[29] Recently the Kolkata High Court
ordered 1% reservation for transgender persons in public employment.[30]
·
Environmental Protection: In the case of M.C. Mehta & Anr. vs Union Of India & Ors[31], the Supreme
Court held that the right to clean environment is a fundamental right
guaranteed by Article 21 of the Indian Constitution.
·
Constitutional Values: The Supreme Court can examine the
action taken by both state and centre government, and if they are found
violative of constitutional values, the Supreme Court can declare it
unconstitutional. The Supreme Court keeps the values of the Constitution at
supreme priority. In K.Gopalan v/s State
of Madras,[32] the court upheld that it is the
constitution that is supreme and a statute law to be valid, must in all cases
be in conformity with the constitutional requirements
VI.
LANDMARK JUDICIAL DECISIONS ON HUMAN RIGHTS.
The Constitution of India
evolves from time to time to achieve the mentioned goal and hence popularly
known as living documents. This special feature of our constitution makes it
distinct from the constitution of any other county. The Supreme Court of India
is considered as the guardian of the Constitution. From time to time, to uphold
the constitutional values, the judiciary comes with landmark judgement. Many
times the judiciary to protect the rights of individual which are enshrined in
the Constitution of India, basically natural rights, they came at the
fore-front and deliver remarkable judgement which not only protects the rights
of individual, it also set a precedent which is to be followed in case of
violation of the same nature. Below some such judgements are of this nature.
Maneka Gandhi vs. Union
of India[33]:
In order to
balance the rights of individuals with public interest and the goal of the
state to achieve any comprehensive solution, the Supreme Court of India came up
with a new concept of ‘golden triangle’, to understand what a successful democracy
requires. Golden triangle constitutes Article 14, 19, and 21 of the
constitution of India. Article 14 guarantees equality and equal protection of
law. This treats citizens and non-citizen alike. Article 19 guarantees ‘freedom
of speech and expression’ except for some reasonable restrictions mentioned in
the same Article for maintaining public order, health and morality. This
promotes the healthy functioning of democracy. Article 21 guarantees ‘right to
life and personal liberty’. No one shall be deprived of their life except
according to the procedure established by law. The main component of this
Article is life, liberty and dignity. The harmonious coexistence of these is
necessary for the purpose of maintaining the position of equilibrium.
Vishaka vs. State of Rajasthan[34]: The Supreme Court in this laid down a
elaborate guideline to deal with the fear of sexual violence at work place. The
apex court observe that sexual violence is a gender centeric offence due to
deep-rooted inequality in our society and also deprieves a women of his life,
liberty and dignity, which is a clear cut violation of fundamental right
guaranteed by Article 14 & 21 of the constitution of India. After 14 years
of this judgment the Parliament of India passed the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal)
Act, 2013.
National Legal Services Authority v. Union of India[35]:
In this case the
court declared that Hijras, Eunuchs are to be treated as the “third gender” and
come within the scope of Indian Constitution thus are fully entitled to the
rights guaranteed therein. Article 14 guarantees equality to “any person” which
means man, woman, and third gender. They are equal in terms of employment,
health care, education, and civil rights. Discrimination on grounds of sexual
orientation is violation of Article 14.
VII.
CHALLENGES
There are several
challenges faced by the judiciary which result in inefficient and ineffective
in the functioning. The Indian judiciary faces a big hindrance in the
performance of its function in the form of judicial delays. It is due to
overburden of pending cases, insufficient infrastructure, deficient judicial
resources and an unfavourable ratio of judges to population. These all result
in prolonged waiting time for pending cases. According to The Hindu, there are
62 thousand pending cases in various High Courts which are more than 30 years
old.[36] Out of
which Allahabad High Court has the largest number of pending cases. At the end
of the 2023, there are 80,221 cases pending in the Supreme Court.[37] As of
now, the judge - population ratio in the country is approximately 21 Judges per
million population.[38] In order
to ensure justice and safeguard the entitlements of individuals, it is crucial
that stakeholders, comprising the judiciary, legal professionals, and the
government should act jointly to tackle these problems.
VIII.
CONCLUSION
The state's primary responsibility
is to promote and protect the rights of the citizens, which is derived from the
social contract theory. The universality of human rights means that every
individual has a right and these rights should be guaranteed in the national
constitutions and the international systems such as the United Nations
Declaration. In India, the protecting role is vested in the judiciary which
interprets the provisions of the Constitution and passes progressive statutes
in favour of preserving human dignity and equal rights. The Courts protect the
Fundamental Right and transform with the society, through the provisions of
judicial review, writ jurisdiction and Public Interest Litigation among others.
These developments strengthen the role of the judiciary in protection of human
rights which is consistent with the rationale that the Constitution is dynamic
and modifies itself where necessary to dispense equity to all its subjects
especially the vulnerables. It is through these interventions that the
judiciary promotes the values of liberty, equality and justice enshrined in the
Constitution.
[1] Dr. S.R. Myneni, Political
Science 26 (Allahabad Law Agency, Allahabad, 2023).
[2] Ibid
[3]‘An Introduction to Human Rights’ (Humanrights.gov.au2024)
accessed 13 November 2024
[5] ‘Background , History of Universal Declaration of
Human Rights : Youth for Human Rights Video’ (Youth for Human Rights2019)
accessed 13 November 2024
[6] S. K. Kapoor, International
Law & Human Rights 800(Central Law Agency, Allahabad, 17th edition
2009).
[7] Id. at 817.
[8]‘Constitutional Law of India - Chapter 6 - Fundamental
Rights’ (Manupatra.com2024)
accessed 13 November 2024
[9] AIR 1978 SC 597
[10] Dr. J.N. Pandey, Constitutional
Law of India 59 (Central Law Agency, Prayagraj, 2023).
[11] AIR 2007 SC 71
[12](1994) 3 SCC 1
[13] S.R. Bommai v. Union of India, (1994) 3 SCC 1 at para
184.
[14] Constitutional
Assembly Debate, Volume VII at 953
[15] ‘Ubi Jus Ibi Remedium’ (Oxford Reference2024)
accessed 13 November 2024
[16] (2021) 15 SCC 667
[17]‘Merriam-Webster Dictionary’ (Merriam-webster.com2024)
accessed 13 November
2024
[18] (1980) 1 SCC 108
[19] (1978) 4 SCC 494
[20] (1983) 1 SCC 304
[21] AIR 1991 SC 417
[22] 1987 4 SCC 463
[23] (1997) 1 SCC 41
[24] AIR 1982 SC 149
[25] Abram Chaves, 'The role of the judge in 'Public law
Litigation', 89 Harvard Law Review 1281
(May 1976)
[26]Katarki AV, ‘Justice P.N. Bhagwati: A Active, Activist
and Astute Judge Sorely Missed in These Dire Times – the Leaflet’ (The Leaflet – An independent platform for
cutting-edge, progressive, legal, and political opinion.21 December 2023)
[27] AIR 1987 SC 1086
[28] (2014) 5 SCC 438
[29]Menon S, ‘The Transgender Community to Be Formally
Recognised as the Third Sex and Also to Avail the Benefits Of...’ (Livelaw.in15 April 2014)
[30]Singh R, ‘Calcutta High Court Orders 1 per Cent
Reservation for Transgender Persons in Public Employment’ (Bar and Bench - Indian Legal news18 June 2024)
accessed 13 November 2024
[31](1986) 2 SCC 176
[32] AIR 1950 SC 27
[33] (1978) 1 SCC 248
[34] (1997) 6 SCC 241
[35] (2014) 5 SCC 438
[36]PTI, ‘Nearly 62,000 of Cases Pending in High Courts
Are over 30 Years Old’ (The Hindu7
September 2024)
accessed 13 November 2024
[37]‘80,221 Cases Pending in the Supreme Court in January
2024 - Supreme Court Observer’ (Supreme
Court Observer23 May 2024)
[38]According to answer given by Shri Arjun Ram Meghwal,
Minister of Law And Justice in Parliament on 9th FEBRUARY, 2024