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“The Law is for the Protection of the Weak rather than the Strong.”
Erle.J. [1793-1880]
After the World War II, the United Nations Organization was
established in 1945. India achieved the Independence in 1947. The UNO
passed the Universal Declaration of Human Rights (UDHR) in 1948.
[2]In those times, Dr. Babasaheb Ambedkar was engaged in the
monumental task of drafting the classic Constitution of India. He
added all the Human Rights in our Constitution. Some of the basic
Human Rights are provided in Art. 19 as the Fundamental Rights while
a number of them are included in the Part IV of the Constitution i.e. the
Directive Principles of State Policies.[3] Accordingly the Union and the
State Governments have enacted upon a number of Constitutional
Directions and have achieved the ideals as enshrined under the
Constitution of India. Let us ha have a bird’s eye’s view upon the role of
Supreme Court in protecting the Human Rights in India. Our Father of
the Constitution Dr. Babasaheb Ambedkar has already given us the all
basic Human Rights in the Articles 14 to 27 of the Constitution of India
for which the people of other countries had to struggle for a long time.
When Dr. Ambedkar was planning to write and compile the Historic
Document, the United Nations Organization promulgated the Universal
Declaration of Human Rights in 1948. Dr. Ambedkar immediately
incorporated them even by adding and simplifying them in our
Constitution in such a nice blending way that the Fundamental Rights
and the Human Rights have approximately become one and the same
in India. The Protection of the Human rights in India is an issue
complicated by the country's large size, its tremendous diversity, its
status as a developing country and a sovereign, secular,democratic
republic.
Rights are those conditions of social life without which man cannot be
at his best. They are essential for the full development and expression
of his personality. A right is a claim recognized by society and
enforced by the state. Rights are the external conditions necessary for
the greatest possible development of the capabilities of an individual.
D.D. Basu defines human rights as “those minimum rights, which every
individual must have against the State or other public authority by
virtue of his being a member of human family, irrespective of any other
consideration.”.[5]
The Hon. Mr. Justice V. R. Krishna lyer writes:-[6]
Since law was not separated from religion it is obvious that, Hindu
Philosophy spoke of “righteousness” in terms of law and law interims
of righteousness. Certain virtues were necessary for good life. In fact
‘Sadacharas – behavior or usages of good men furnished a criterion fro
asserting nature of approved conduct. They were also treated as one
of the sources of law, Hindu sages thus propounded the following
freedoms and virtues.[10]
1) Freedom from Violence (Ahimsa)
2) Freedom from Want (Asatya)
3) Freedom from Exploitation (Aparigraha)
4) Freedom from Violation or Dishonor (Avyabhichara)
Hindus believes that soul is immortal and there is a chain of birth and
rebirth, and attaining salvation breaks the chain, Birth in human form
is an opportunity for an individual to liberate himself from the bondage
of birth and rebirth, till one attains Moksha.
d) Sources of Modern Human Rights [11]
1) The Universal Declaration of Human Rights.
2) The International Covenant, on civil and Political Rights.
3) The International Covenant on Economic, Social and Cultural
Rights
4) The Constitution of India.
5) The Protection of Human Rights Act, 19993.
6) The decisions and judgments of the Supreme Court and State
High Courts.
7) Annual Reports and Orders of the National Human Rights
Commission.
The Nations and the people of the world the U.D.H.R. , With the hope
that human rights abuse like the genocide of six million Jews by the
Nazis would never happen again. The U.D.H.R. stated the basic hopes
and aspirations that are common to all humanity living in the
developed and developing communities.
th
The U.D.H.R. accepted by the General Assembly on 10 December
1948, constituted a historical event on the first magnitude. It’s a
beacon call to all the states to respect some of the basic rights. It
enumerates the political civil, economic, social and cultural rights of
man, It defines various human rights in thirty articles It is a manifesto
of man’s
inalienable rights and fundamental freedom. It is the first document of
an ethical sort that organized humanity has ever adopted and precisely
at a moment when man’s power over nature became vastly increased
of scientific discoveries and when it was essential to decide to what
constructive ends these powers should be put.
In its Thirty Articles the U.D.H.R. sets forth man’s inalienable rights in
civil, personal economic, social and cultural fields. Its special
character lies in the combination of the classical rights. i.e. the civil,
and political rights, with modern rights, i. e. social and economic rights
of the individual. The universal Declaration as already stated sets forth
a wide range of right, including rights relating to political participation,
individual liberty, and social welfare. In order to give greater
specificity to the principles established by the Universal Declaration
and to provide an instrument which individual states could ratify, the
United Nations proceeded to develop a Covenant on Human Rights.
The original concept was a single covenant covering all the rights set
forth in the Universal Declaration.
Secondly, many new States emerged at that time and all joined the
process, which slowed down the negotiations.
Thirdly, delay was also due to differences between declaration and a
binding covenant.
Some states wanted it to be only a Declaration a formal announcement
or statement.
But States wanted a clear legal obligation with legal consequences.
1978- SC rules in Menaka Gandhi v. Union of India that the right to life
under Article 21 of the Constitution cannot be suspended even in an
emergency.
1978-Jammu and Kashmir Public Safety Act, 1978 1984-Operation Blue
Star Badly handled the Sikh difficulties and their problems The Indian
Military entered the sacred Golden Temple. A massacre took place in
which even some of the saints and priests too assassinated, Gross
Violation of human rights. Assassination of Mrs. Indira Gandhi and
ufortunate Anti- Sikh Riots, a blot over Indian Democracy, Innocent
Sikh brothers killed. 2006 Extrajudicial disappearances in Punjab by
the police
1985-86-The Shah Bano case, where the Supreme Court perceived the
Muslim lady's entitlement to upkeep upon separation, sparkles
dissents from Muslim ministry. To
invalidate the choice of the Supreme Court, the Rajiv Gandhi
government established The Muslim Women (Protection of Rights on
Divorce) Act 1986 1987-Hashimpura slaughter amid shared uproars in
Meerut.
The Asian Centre for Human Rights estimated that from 2002 to 2008,
over four individuals for every day kicked the bucket while in police
care, with "hundreds" of those passing’s being because of police
utilization of torment. As indicated by a report composed by the
Institute of Correctional Administration in Punjab, up to half of cops in
the nation have utilized physical or mental misuse on detainees.
Occurrences of torment, for example, through an absence of
sanitation, space, or water have been recorded in West Bengal also,
Sexual Violence [14]
About 53./.of the children have been subjected to some form of sexual
However, it took two years to record the first cases under the law and
there are huge gaps in its implementation with the conviction rate under
the act being only 2.4%. The Supreme Court of India has given
Forced Labour[15]
Child labour[16]
India has the largest number of child laborers’ under the age of 14 in
the world with an estimated 12.6 million children engaged in hazardous
occupations. The Supreme Court of India has given important
guidelines for eliminating the child labor in the landmark decision in M
C Mehta v State of Tamil Nadu. Here in this case Mr Mehta brought to
the notice of the court the plightful condition of the children of tender
age in the Fire Industry of Shivkashi and other parts of the State
The 1984 Anti-Sikh Riots was a four-day time frame amid which Sikhs
were slaughtered by individuals from the common centrist Congress
Party of India; a few assessments express that more than 2,000 were
killed. Different occurrences incorporate the 1987Hashimpura
slaughter amid common uproars in Meerut, 1992 Bombay Riots.
2002 Gujarat riots [19]
The 2002 Gujarat violence —in the latter, more than 100 Muslims were
killed 2,500 people were injured non-fatally, and 223 more were
reported missing. Other sources estimate that up to 2,000 Muslims
died. There were instances of rape, children being burned alive, and
widespread looting and destruction of property. The Chief Minister at
that time, Narendra Modi, has been accused of initiating and
condoning the violence, as have police and government officials who
allegedly directed the rioters and gave lists of Muslim-owned
properties to them. The reason for the attack considered by some a
Muslim mob attack on a train full of Hindu pilgrims in the Godhra Train
Burning, where 58 Hindus were killed. Some commentators, however,
hold the view that the attacks had been planned, were well
orchestrated, and that the attack on the train was a "staged trigger"
for what was actually premeditated violence.
For the main half-century of autonomy, media control by the state was
the significant limitation on press opportunity. Indira Gandhi broadly
expressed in 1975 that All India Radio is "a Government organ, it will
remain a Government organ..." With the liberalization beginning in the
1990s, private control of media has blossomed, prompting expanding
freedom and more prominent examination of government. Associations
like Tehelka and NDTV have been especially persuasive, e.g. in
realizing the abdication of capable Haryana priest Venod Sharma. Also,
laws like Prasar Bharati act went as of late contribute fundamentally
to lessening the control of the press by the legislature.
On catching wind of this request, the two Judges and the Advocate
made separate petitions to the High Court under Art. 226 battling that
the determination went by the Assembly added up to hatred of Court,
that it was completely without Jurisdiction, that it ought to be put
aside and that by a between time arrange its usage ought to be sat
tight. On these petitions the Full Bench of the High Court passed a
request controlling the Speaker of the Assembly from issuing the
warrant in compatibility of the bearing of the Assembly and from
securing execution of the warrant if as of now issued. At the point
when the episode achieved this stage, the President of India chose to
practice his energy to make a reference to the Supreme Court under
Art. 143(1).The following questions was formulated and referred the to
the Supreme Court for its opinion:
1) Was it competent for the High Court to entertain and deal with the
petition of Mr. K challenging the legality of the sentence imposed by
the Assembly?
2) By Acting on such petition and releasing the petitioner, was the High
Court guilty of contempt of the legislature ?
3) Could the Assembly direct for production of the Judges of the High
Court before it in custody or to call for their explanation for its
contempt ?
4) Was the Full Bench of the High Court competent to entertain and deal
with the petitions of the two Judges and to pass an interim order
restraining the Speaker?
1) It was competent for the High Court to entertain and deal with the
petition of K, challenging the legality of the sentence of imprisonment
imposed upon him by the Legislative Assembly for its contempt and for
infringememt of privileges, and to pass orders releasing K on bail
disposal of his said petition.
Two questions become important here, (i) how do persons know that a
a code or sketch, plan model etc is potentially useful to the enemy or
affects the security and interests of India and (ii) does it matter
whether they know or not? Dealing with the second issue first, all hints
point to a position of law that disregards the need for an accused to
have knowledge. I argue this on the basis of the two primary offences,
Sections 3 and 5. Section 3 was mentioned above, and sub-section (2)
therein supports my claims. It allows a conviction simply on the basis
of the ‘conduct or known character’ of the accused and allows the
court to dispense with a need to specifically prove that the person had
some prejudicial purpose. Not only does this go against the basic
tenets of treating character evidence but in a unique manner
disregards both actus reus and mens rea requirements.
Since nobody but the State knows whether something was secret, and
holding secrets is an offence, what stops the State from deciding
something is secretafter it goes public? Take an example. A journalist,
X, gets his hands on a non-public pending legislative bill potentially
legalising marijuana and makes it public. The Police arrest X,
suspecting him of having secret information, and ask the Government
whether such non-public legislative bills form information of the kinds
barred by the OSA.
The Kerala Bar Hotels V State Of Kerala Recently, the Supreme Court
delivered another distinctly underwhelming judgment, in The Kerala
Bar Hotels Association & Anr. v. State of Kerala & Ors. This judgment is
disappointing not so much for its outcome, but because of a glaring
omission.
From 1984 to 1994, the state of Punjab in northern India was engaged
in a power struggle between the militant secessionist Khalistan
movement and Indian security forces. The Indian government
responded to the escalating Punjab insurgencyby launching Operation
Blue Star in 1984, storming the Harmandir Sahib, or Golden Temple
complex in Amritsar—the center of Sikh religious and spiritual life,
where some militant groups had retreated. The Operation was
controversial and resulted in death of hundreds of civilians, militants
and soldiers. After Sikh bodyguards assassinated Prime Minister Indira
Gandhi, further violence ensued.
The aftermath of these events were felt for more than a decade.
According to a Human Rights Watch report, state security forces
adopted “increasingly brutal methods to stem the insurgency,
including arbitrary arrests, torture, prolonged detention without trial,
disappearances and summary killings of civilians and suspected
militants”. Militant organizations responded with increased violence
aimed at civilians, state security forces, and Sikh political leaders
deemed to be negotiating with the government. Let us see the areas
upon which the Supreme Court of India has to work for protection of
human rights
The Supreme Court of India has strongly resented over the riots
against the innocent Sikhs after 31-10-1984. The Court has orderd to
file charge sheets against the wrongdoors. A Charge-Sheet is filed
against an influential political personality from New Delhi. The Court
wants to award compensation to the victims of the riots. Some cases
are still pending.
8.12 RIGHT TO LIFE LIBERT UNDER ARTICLE 21
Each individual has the natural right to life. This privilege should be
ensured by law.
Nobody might be subjectively denied of his life.
The privilege to life is the vital right that an individual has the privilege
not to be murdered by another person. The concept of a privilege to
life is vital to discusses on the issues of fetus removal, the death
penalty, killing, self protection and war. As per numerous human rights
activists, capital punishment disregards this privilege. The United
Nations has approached states holding capital punishment to build up
a ban on the death penalty with a perspective to its abrogation. States
which don't do as such face extensive good and political weight. The
Constitution of India recognizes the Right to life as a Fundamental
Right under Art.21.It’s sphere has been much widened by the Supreme
Court of India and now this right includes rights related to Shelter,
Good Health, Environment, and Privacy. Rights to get benefits as per
the principles of newly emerging Victimology-etc
In spite of this, the quantity of slaves today is higher than any time
ever, staying as high as 12 million] to 27 million, Most are obligation
slaves, to a great extent in South Asia, who are under obligation
subjugation brought about by loan specialists, here and there
notwithstanding for eras. Human trafficking is essentially to prostitute
ladies and kids into sex commercial ventures. In India the Father of the
Constitution Dr B R Ambedkar has prompted the legal to be strict over
this spoiled practice.
In Romesh Thappar Vs. State Of Madras (A.I.R 1950 S.C 124) [Art.16]
The then Government of Madras[Now roughly Tamil Nadu] imposed a
ban upon the entry and circulation of English weekly called “cross
Road” in that State. This order was made in exercise of the power
under the Madras Maintenance of public order Act, 1949. The petitioner
was the printer, publisher and Editor of that weekly. Making his
application for a write of prohibition and certiorari to the Supreme
Court, he contended that the order contravened his fundamental right
of freedom of speech and expression guaranteed under Art.19 (1) (a) of
the Constitution. Under Art,19(2) as it stood before the First
Amendment, restrictions could be imposed by law which were passed
in the interest of security of the State. It was the contention of the
petitioner that public order and security of the State were different
things. The Madras Act, which was directed towards the maintenance
of the public order, was not an Act passed in the interest of the
security of the State. Therefore, the Madras Act, when it sought to
impose restrictions on his freedom of speech and expression, was
inconsistent with Art. 19 (1) (a) and Art. 19 (2).
The contention of the petitioner was upheld by the Supreme Court, and
the order of the Madras Government was quashed. This was one of the
decisions which led to the passing of the Constitution (First
Amendment) Act, 1951, which amendment Art. 19(2) and some other
Articles of Constitution.
8.17 FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION [32]
Flexibility of thought, still, small voice and religion are firmly related
rights that secure the opportunity of an individual or group, out in the
open or private, to think and unreservedly hold scrupulous convictions
and to show religion or faith in instructing, practice, love, and
recognition; the idea is by and large perceived likewise to incorporate
the flexibility to change religion or not to take after any religion. The
flexibility to leave or end enrollment in a religion or religious gathering
—in religious terms called
"dereliction"— is additionally a crucial piece of religious opportunity,
secured by Article 18 of the Universal Declaration of Human Rights.
The Court however held that the right to travel abroad is part of
personal liberty guaranteed by art 21 of the Constitution. Hence any
"law" ( as term used in art 21) affecting personal liberty would have o
satisfy the tests of Art. 14 and Art 19. Moreover, this right to go abroad
could not be curtailed without giving a reasonable opportunity to the
person concerned to show cause why his or her passport should not be
impounded.
The Attorney- General ,however, made a Statement to the Court that
the Government would consider any representation that may be made
by Mrs. Maneka Gandhi in respect of impounding of her passport and
deal with her representation expeditiously in accordance with law. In
view of this Statement the majority of the Judges felt that it was not
necessary formally interfere with the impugned order of the
Government, and therefore ,the writ petition was disposed of without
passing any order thereon. However Court stuck a note of warning
against the passport authority in the following terms.
The Supreme Court also specifically over ruled the majority view
expressed in Gopalan's case ( considered earlier ) and held that Art. 21
is controlled by Art. 19. So if a law prescribes a procedure for depriving
a person of his personal liberty, even if it does not infringe Art 21, it
can still b challenged o ground that it is violative of Art 19.
8.19 FREEDOM OF TRADE AND PROFESSION[34]
In Kirloskar Bros V Esi Corporation [1996.2 Scc. 682] In this case the
Supreme Court of India declared that the Right to Life includesthe
Right to Health. These rights are available not only against State but
also against private industries.
8.22. INFORMATION AND COMMUNICATION TECHNOLOGIES
8.24 CONCLUSION
In the conclusion we can firmly say that the Supreme Court of India
has done a landmark task of the Golden Interpretation of the
Protection of Human Rights. The Court has really expanded the sphere
of the human rights so that a common citizen may get the fruits of the
liberal democracy. The researcher thinks that there is still much need
to propagate the human right education.
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