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ISSN No :2231-5063
ORIGINAL ARTICLE
Monthly Multidisciplinary
Research Journal
GoldenResearch
Thoughts
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Hasan Baktir
Mohammad Hailat
English Language and Literature
Dept. of Mathmatical Sciences,
University of South Carolina Aiken, Aiken SC Department, Kayseri
Kamani Perera
29801
Regional Centre For Strategic Studies, Sri
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Lanka
Department of Chemistry, Lahore
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Spiru Haret University, Bucharest
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Spiru Haret University, Bucharest,
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Loredana Bosca
Spiru Haret University, Romania
Anurag Misra
DBS College, Kanpur
Titus Pop
Horia Patrascu
Spiru Haret University, Bucharest,
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Spiru Haret University, Romania
Xiaohua Yang
PhD, USA
Nawab Ali Khan
College of Business Administration
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ASP College Devrukh,Ratnagiri,MS India Ex - VC. Solapur University, Solapur
R. R. Patil
Head Geology Department Solapur
University, Solapur
Rama Bhosale
Prin. and Jt. Director Higher Education,
Panvel
Salve R. N.
Department of Sociology, Shivaji
University, Kolhapur
Govind P. Shinde
Bharati Vidyapeeth School of Distance
Education Center, Navi Mumbai
Chakane Sanjay Dnyaneshwar
Arts, Science & Commerce College,
Indapur, Pune
N.S. Dhaygude
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Jt. Director Higher Education, Pune
K. M. Bhandarkar
Praful Patel College of Education, Gondia
Sonal Singh
Vikram University, Ujjain
Rajendra Shendge
Director, B.C.U.D. Solapur University,
Solapur
R. R. Yalikar
Director Managment Institute, Solapur
Umesh Rajderkar
Head Humanities & Social Science
YCMOU, Nashik
S. R. Pandya
Head Education Dept. Mumbai University,
Mumbai
S.Parvathi Devi
Ph.D.-University of Allahabad
S.KANNAN
Ph.D , Annamalai University,TN
ISSN:-2231-5063
ORIGINAL ARTICLE
GRT
ROLE OF INDIAN JUDICIARY SYSTEM IN
PROTECTING HUMAN RIGHTS
J.L.KALYAN , R.H.WAGHAMODE AND BHAVANA DESAI
Associate Professor, Dept. of Criminology and Forensic Science,
Karnatak Science College, Dharwad.
Teaching Assistant, Dept. of Criminology and Forensic Science,
Karnatak Science College, Dharwad.
Research Scholar, Dept. of Criminology and Forensic Science,
Karnatak Science College, Dharwad.
Abstract:
Human rights are often called Fundamental and Universal. Human freedom
refers primarily to a condition characterized by the absence of coercion or constraint
imposed by another person. It refers to an aspect of conduct within which each man
chooses his own course and is protected from compulsion or restrain. Man has the right
to live. He has the right to bodily integrate and to the means necessary for proper
development of life, particularly food, clothing, shelter, medical care, rest and finally
necessary social services. Hence rights are undeniable and inherent rights of every
individual. The objective of this research paper is to understand the golden thread in the
issue of human rights, namely, the philosophy of human rights and to understands the
judicial activism of the Indian judiciary, in the past four decades, through the
pronouncements of the Supreme Court, referring to the national laws and also
international instruments, thus, protecting and promoting human rights in India.
Further, this paper traces the various steps taken by the social reformers and politicians
prior to and after independence in upholding and protecting human rights, enhancing
dignity of the human being and establishing the fundamental freedoms inherent in
nature.
KEY WORDS:
Human rights, harmony, peace, equality, justice, constitution, inherent rights.
INTRODUCTION
The concept of human rights has its origin in humanism which recognizes the value and dignity of
man and makes him the measure of all things or somehow takes human nature, its limits or its interests as its
theme.
Human rights are universal moral rights. They belong to all human beings and they are not earned,
bought or inherited, but are inherent in human dignity. The term Human Right covers in its ambit those
essential rights defined or undefined which lead and contribute to the balanced development of Human
Individual. The concept of Human Rights represents an attempt to protect the individual from oppression
and injustice. They provide a human standard of achievement for all the people and all the nations.
Therefore, these rights are by nature independent, inalienable and inviolable and hence universal.(Abdul
Rahim, 1990.)
Human rights are available to all irrespective of race, colour, sex, language, religion, birth or any
status. In other words, they are universally applicable to all persons. They are not specifically designed for
Title : ROLE OF INDIAN JUDICIARY SYSTEM IN PROTECTING HUMAN RIGHTS
Source:Golden Research Thoughts [2231-5063] J.L.KALYAN , R.H.WAGHAMODE AND BHAVANA DESAI yr:2013 vol:2 iss:11
the East or West, Hindu or Christian, Sikh or Muslim; it is for all persons. It may be noted that the concept of
human rights in a multi ethnic, multi religious and diversified society has a special significance because the
instances and occasions for violation and suppression of human rights are numerous due to needs of
security, unity and integrity and of law and order.
HUMAN RIGHTS- INDIAN CONTEXT
The history of India in relation to human rights began with Raja Ram Mohan Roy, a great
visionary; who led India or rather transformed India from feudalism to modernity. He brought in modern
thoughts and ideas and made critical inquiries into Hinduism through sources like the Vedas, Upanishads.
Rituals like Sati and Child Marriage, which existed since time immemorial and patronized, and violence
against women in the name of religion were discouraged and done away with. He advocated for equal rights
of women including widow remarriage and women's right to property. He also advocated for civil liberties
and freedom of press, which ultimately led him to fight the press regulations imposed by the British from
time to time. (M.C.Mehta, 2001)
His work was carried forward by a great social reformer, Ishwar Chnadra Vidyasagar from Bengal
in the 19th century who was an ardent activist for women's rights and played a leading role in promoting
education of girls.
Besides, human rights being promoted by various other activists like Mahadev Govinda Ranade,
Mahatma Jotiba Phule, Swami Dayanan Saraswati and Swami Vivekananda and
Sri Narayana Guru, the modern concept of human rights came into limelight in the 20th century
when the Indian National Congress under the leadership of Mahatma Gandhi took up a mass movement and
social reforms for the preservation of and promotion of human rights in the freedom struggle for India's
independence. The movement led by Mahatma Gandhi took up issues like abolition of untouchability, right
of Harijans to enter temples, etc., which are even today regarded as milestones in the protection, promotion
and preservation of human rights in India. The tasks undertaken by Raja Ram Mohan Roy and subsequently
by other activists gave rise to enactment of the Sati (Prevention) Act, 1987 under which glorification of Sati
is strictly prohibited and that act has been declared to be an offence.
PROVISIONS IN INDIAN CONSTITUTION
The Indian Constitution as a matter of pride provides for comprehensive framework to safeguard
human rights giving special emphasis more on the rights of religious, cultural and linguistic minorities. The
judiciary has been vested with special responsibility to protect human rights and the Supreme Court as a
sacred trust has accepted the protection of minorities.
The Constitution of India for fundamental rights and Directive Principles, in Chapter III and
Chapter IV respectively, so as to bring in peace and happiness among the citizens. Some of the fundamental
rights as enshrined in the Constitution of India are:
a)Equality before Law,
b)Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth,
c)Equality of opportunity in matters of public employment,
d)Abolition of untouchability,
e)Freedom of speech and expression,
f)Protection of life and personal liberty,
g)Right against exploitation,
h)Right to freedom religion,
i)Cultural and educational rights, and
j)Right to constitutional remedies.
The above mentioned fundamental rights have been given so much importance that infringement
of the rights would confer right to move the highest court of the land, i.e., the Supreme Court by way of
appropriate proceedings for enforcement of the same. The Supreme
Court has been vested with the power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quowarranto and certiorari whichever may be appropriate
for the enforcement of any of the fundamental rights guaranteed under the Constitution of India. Besides,
the Parliament has been vested with powers to empower any other court to exercise within the local limits of
its jurisdiction all or any of the powers exercisable by the Supreme Court as detailed above. The
Constitution of India further provides that a person whose rights have been violated has the rights to directly
Golden Research Thoughts Volume 2 Issue 11 May 2013
approach the High Courts and the Supreme Court for judicial rectification, redressal of grievances and
enforcement of fundamental rights under Articles 32 and 226. By virtue of these provisions the Supreme
Court of India has expanded the ambit of judicial review to include review of all those State measures which
either violate the fundamental rights or violate the basic structure of the Constitution. There are ample
powers conferred by Article 32 read with Article 142 of the Constitution to make orders which have the
effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders as
provided in Article 144 of the Constitution.
Article 21 providing Right to Life and Personal Liberty has been interpreted so liberally that it
covers in its ambit a variety of rights that go to constitute personal liberty of man. Life does not mean mere
animal existence. It is the human dignity that gives substance to human rights and therefore, Right to Life
includes all those rights that make human life worth living. The Right to Personal Liberty is one of the most
important human rights and liberty of an individual is threatened the most when he is arrested.
JUDICIAL ACTIVISM
The Supreme Court has laid down the following guidelines till legislative measures are taken. The
advice 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. This portrays of all such police
personnel who handle interrogation of the arrestee must be recorded in a register. The arrestee should, if so
request on his/her body must be recorded at the time.
The 'inspection means' must be signed by both the arrestee and the police officer affecting the
arrest and its copy provided to the arrestee. The arrestee should be subjected to medical examination by
attained doctor every 48 hours during his detention in custody by doctor on the panel of approved doctors
appointed by The Director, Health Services of The
concerned State. (R.C. Agarwal, 2001). And also lay down that Right to Free Legal Aid is as much
a fundamental right as the right to live.
Much of the concern of Human Rights activism has been on the victims of Police atrocities
committed in the name of law and order. Supreme Court while deciding such cases has not only condemned
Police atrocities but has gone on to provide compensation to the victims of Police atrocities. In the case of
Khatri vs. Bihar popularly known as Bhagalpur Blinding case, the Supreme Court imposed a liability upon
the State to pay compensation to the victims for violation of their personal liberties under Article 21 of the
Constitution.
In the case of Peoples Union of Civil Liberties vs. Union of India the Supreme Court came down
heavily on State sponsored killings. Similarly, in the case of D.K.Basu vs. State of West Bengal, death in
police custody was regarded as worst and the most heinous crime. It may be noted that the significance of
judgments given by the Supreme Court are far wider than the punishments meted out to a few people.
RIGHTS TO WOMEN UNDER THE CONSTITUTION
a) Article 25 of the Constitution of India allows every citizen to enjoy freedom of conscience and
the right to profess, practice and propagate any religion. This right has been guaranteed under the
Constitution and it is not open to any authority to restrict or prohibit any of these rights.
The two principals facets of rights of women namely, the problem of equality with men and
trafficking and other undesirable practices and atrocities against women have been given due importance
both by the legislature and the judiciary. In the context of Indian society women have not been give equal
rights with man like equal pay for equal work, equality of opportunity, equality before law, political
equality etc. Though a number of laws exist on these subjects, implementation of these laws has left much to
be desired. We have today Acts like the Indecent Representation of Women (Prohibition) Act, 1986 to check
obscenity and Suppression of Immoral Traffic in Women and Girls Act, 1956 to prevent and protect women
and girls from flesh trade.
Women's right to health is not only protected by Indian laws but by international human rights
laws also. 'Health' as per definition given in the Constitution of the World Health Organization is a state of
complete physical, mental and social well-being and not merely the absence of disease or infirmity.
International human rights treaties say about women, health and equity. Concerning private actions like
sexual harassment at work places and institutions which arise in the absence of law or due to lack of
effective supervision by the employer, a set of stern guidelines have been framed by the Supreme Court in
Vishaka vs. State of Rajasthan.
Procedural or due process norms have helped women in ensuring fairness in the process of arrest,
interrogation, custodial detention and detention in protective homes.
Golden Research Thoughts Volume 2 Issue 11 May 2013
The requirement of female police officer to arrest and search women, the need to arrest and interrogate
women only during day hours, separation of female prisoners from male prisoners and fair conditions in
protective homes to maintain the dignity of women have been insisted upon in many a number of cases
decided by the Supreme Court.
b) Uniform Civil Code: The Constitution of India provides for a uniform civil code. This has, however, been
a very controversial and highly emotive issue and the basic necessity of such code is to maintain gender
equality without discrimination or distinction in the name of religion. The Muslim minorities have been
against such civil code and it reached a flash point in the year 1985 in the famous case of Shah Banu where
the Supreme Court urged the necessity of a uniform civil code. In this context it may be mentioned that most
of the courts in India have stressed the need and urged the early implementation of Article 44 of the
Constitution.
In 1995, the Supreme Court once again came up with issue of uniform civil code when one of its
respected judges ruled that the Government take immediate steps to implement Article 44, which created
controversy and emotions of a minority community.
c) Educational Rights of Minorities: Articles 29 and 30 of the Constitution guarantee some
specific and unspecific rights to religious and linguistic minorities. The right to establish and administer an
educational institution is one of the rights guaranteed to minorities.
PRINCIPLES OF STATE POLICY
The Directive Principles as enshrined in the Constitution of India caters to the welfare and
development rights of its citizens. These principles besides others include equal justice and free legal aid,
right to work, education and public assistance in cases like unemployment, old age, sickness and
disablement, provision for just and humane conditions of work, right to wages, free and compulsory
education for children till they complete the age of 14, promotion of education and economic interests of
Schedule Castes, Scheduled Tribes and other weaker sections of the society. Most of these rights are more
or less a direction to the State so that the citizens enjoy a dignified life.
Article 17 of the Constitution of India provides for abolition of untouchability and protection of
civil rights. The thrust of this Article is to liberate the society from blind and ritualistic adherence and
traditional beliefs, which lost all legal or moral bases. It seeks to establish new ideal for society-equality to
Dalits, absence of disabilities, restrictions or prohibitions on ground of caste or religion, availability of
opportunities and a sense of being a participant in the mainstream of national life.
HUMAN RIGHTS AND OTHER LAWS
1.The Protection of Human Rights Acts, 1993
The Act provides for the constitution of a National Human Rights Commission, State Human
Rights Commissions in States and Human Rights Courts for better protection of human rights and for
matters connected therewith or incidental thereto. The commission shall perform all or any of the following
functions:
a)Inquire, on a petition presented to it by a victim or any person on his behalf, into any complaint of
i)Violation of human rights or abatement
ii)Negligence in the prevention of such violation, by a public servant.
b)Intervene in any proceedings involving any allegation of violation of human rights pending before a court
with the approval of such court.
c)Visit, under intimation to the State Government, any jail or any other institution under the control of the
State Government, where persons are detained or lodged for purpose of treatment, reformation or
protection to study the living conditions of the inmates and make recommendations thereon;
d)Review the safeguards provided by or under the Constitution or any law for the time being in force for the
protection of human rights and recommended measures for their effective implementation;
e)Spread human rights literacy among various sections of society and promote awareness of the safeguards
available for the protection of these rights through publications, the media, seminars and other available
means;
f)Encourage the efforts of non-governmental organizations and institutions working in the field of human
rights;
The Commission shall, while inquiring into complaints under this Act, have all the powers of a
civil court trying a suit under the Code of Civil Procedure, 1908 and shall be deemed to be a civil court when
any offence as described in Sections 175, 178, 179, 180 or Section 228 of the Indian Penal Code is
committed in the view or the presence of the Commission shall be deemed to be a judicial proceedings
within the meanings of Sections 193 and 228, and for the purpose of Section 196 of the IPC, the
Commission shall be deemed to be a civil court for all purpose of Section 195 and Chapter XXVI of the
Code of Criminal Procedure, 1973.
2. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
This Act is to prevent the commission of offences of atrocities against the members of the
Scheduled Castes and the Scheduled Tribes and to provide for special courts for the trial of such offences.
By exercising inherent powers, the courts are empowered to compound offences under S.C. and S.T.
(Prevention of Atrocities) Act, 1989 and Protections of Civil Rights Act, 1955. The Act provides for
imprisonment for a term not less than six months but which may be extended to five years and with fine in
the following cases:
Whoever, not being a member of Scheduled Caste or a Scheduled Tribe:
a)Forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat any inedible or obnoxious
substance;
b)Forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe or
parades him naked or with panted face or body or commits any similar act which is derogatory to human
dignity;
c)Wrongfully occupies or cultivates any land owned by, or allotted, or notified by any component authority
to be allotted to, a member of a Scheduled Caste or Scheduled Tribe or gets the land allotted to him
transferred.
d)Gives any false information to any public servant and thereby causes such public servant to use his lawful
power to the injury or annoyance of a member of a S.C. or S.T;
e)Intentionally insults with intent to humiliate a member of a S.C. or S.T. in any place within public view;
f)Assaults or uses force on any woman belonging to a S.C. or a S.T. with intent to dishonor or outrage her
modesty;
g)Being in position to dominate the wall of a woman belonging to a S.C. or a S.T. and uses that position to
exploit her sexually to which she would not have otherwise agreed;
h)Forces or causes a member of a S.C. or S.T. to leave his house, village or other place of residence.
Further the following offences are also punishable under the Act:
Whoever not being a member of S.C. or S.T.
a)Gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will
thereby cause, any member of a S.C. or a S.T. to be convicted of any offence which is capital by the law for
the time being in force shall be punished with imprisonment for life with fine and if an innocent member of a
S.C. or a S.T. be convicted and executed in consequences of such false and fabricated evidence, the person
who gives or fabricates such false evidence, shall be punished with death;
b)Gives or fabricates false evidence intending to cause, or knowing it to be likely that he will thereby cause,
any member of a S.C. or a S.T. to be convicted of an offence which is not capital but punishable with
imprisonment for a term which shall not be less than six months but which may extend to seven years or
more and with fine;
c)A public servant who commits any offence under this section shall be punishable with imprisonment for a
term which shall not be less than one year but which may extend to the punishment provided for that
offence.
For the purpose of providing for speedy trial, the State Government shall, with the concurrence of
the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court
of Session to be a Special Court to try the offences under this Act. For every Special Court, the State
Government shall by notification in the Official Gazette, specify a Public Prosecutor or appoint an advocate
who has been in practice as an advocate for not less than seven years, as a Special Public Prosecutor for the
purpose of conducting cases in that Court.
The various aspects and facets of human rights have been enshrined in the Constitution of India,
which can be claimed as the largest written laws of the world. The Supreme Court has adopted an activist
approach in dealing with matters for the protection of human rights over the years involving judicial
techniques like PILs and SILs. Further the Supreme Court in disposing of various cases of human rights;
have relied upon major International Human Rights Instruments like Universal Declaration of Human
rights, International Covenant on Economic, Social and Cultural Rights, International covenant on Civil
and Political Rights.
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