JAMIA MILLIA ISLAMIA

Human Rights, Refugee Law, and

International Humanitarian Law -2

TOPIC: - “Protection of Human

Rights in India”

SUBMITTED TO: - PROF. Dr. Noorjahan Ma’am

SUBMITTED BY: - SANYAM MISHRA

BALLB (HONS) (Regular)

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INTRODUCTION-:

The State maintains the framework of social order by implementation of various laws
without which well-ordered social life would not be possible. Various philosophers of social
contract theory are of the view that object of the creation of state is to maintain and protect
the rights of individuals. According to Aristotle, State came into existence out of base
necessities of life and continues for the sake of good life.1 Prof. Laski expressed that State is
known by the rights it maintains.2 Similarly Locke was of the view that end of state is to
remove the obstacles that hinder the development of an individual.3Thus, the existence of
the state is recognized with the protection of rights and liberties of individual which is the
main object of state.

Protection of the dignity of an individual is essential for harmony in the society, as its
violation can have grave impact on individual in particular and on society in general. Each
individual is entitled to some rights which are inherent to human existence. Such rights
should not be violated on the grounds of gender, race, caste, ethnicity, religion etc. these are
called human rights. Human rights are also known as basic rights, fundamental rights,
natural rights or inherent rights. The concept of human right is not a new phenomenon,
‘Human Rights’ is a twentieth century term but its notion is as old as humanity. It has gone
through various stages of development and has taken long time to become the concept of
present day. These rights had place in all ancient societies though referred by different
names4, it includes civil rights, liberties and social cultural and economic rights. These rights
are essential for all individual as these are consonant with the freedom and dignity and
ultimately contribute to social welfare.5

Vigilante violence aimed at religious minorities, marginalized communities, and critics of

the government—often carried out by groups claiming to support the ruling Bharatiya Janata
Party (BJP)—became an increasing threat in India in 2017. The government failed to
promptly or credibly investigate the attacks, while many senior BJP leaders publicly
promoted Hindu supremacy and ultra-nationalism, which encouraged further violence.
Dissent was labeled anti-national, and activists, journalists, and academics were targeted for
their views, chilling free expression. Foreign funding regulations were used to target
nongovernmental organizations (NGOs) critical of government actions or policies.

Lack of accountability for past abuses committed by security forces persisted even as there
were new allegations of torture and extrajudicial killings, including in the states of Uttar
Pradesh, Haryana, Chhattisgarh, and Jammu and Kashmir. Supreme Court rulings in 2017
strengthened fundamental rights, equal rights for women, and accountability for security

1
J.S. Badyal, Abc of Political Science 73 (Raj publishers (Regd.), Jalandhar, 2005).
2
Id. at 40.
3
Supra note1
4
Dr.S.Subramanian, HumanRights InternationalChallenges Vol.1 3(ManasPublication,NewDelhi,1997).
5
Available at http://shodhganga.inflibnet.ac.in/bitstream/10603/8112/10/10_chapter%201.pdf (Last visited on
October 17th ).

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forces violations. In August, the court declared the right to individual privacy “intrinsic” and
fundamental under the country’s constitution, and emphasized the constitution’s protections,
including free speech, rule of law, and “guarantees against authoritarian behaviour.” That
month, the court also ended the practice of “triple talaq,” allowing Muslim men the right to
unilaterally and instantaneously divorce their wives. In July, the court ordered an
investigation into 87 alleged unlawful killings by government forces in Manipur state from
1979 to 2012.

ROLE OF JUDICIARY:-

Only provision for the fundamental rights does not fulfill the objective of ‘protection of
dignity of an individual’, but free enjoyment of the rights has to be ensured. Therefore,
Article 32 guarantees right to constitutional remedies, i.e. right to move to Supreme Court
to enforce fundamental rights.

It is constitutional mandate of judiciary to protect human rights of the citizens. Supreme

Court and High Courts are empowered to take action to enforce these rights. Machinery for
redress is provided under Articles 32 and 226 of the constitution. An aggrieved person can
directly approach the Supreme Court or High Court of the concerned state for the protection
of his/her fundamental rights, redress of grievances and enjoyment of fundamental rights. In
such cases Court are empowered to issue appropriate order, directions and writs in the nature
of Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari.

Judiciary is ultimate guardian of the human rights of the people. It not only protects the
rights enumerated in Constitution but also has recognized certain unenumerated rights by
interpreting the fundamental rights and widened their scope. As a result people not only
enjoy enumerated rights but also un-enumerated rights as well.

Supreme Court in Maneka Gandhi v. Union of India,6 interpreted the right to life and to
widen its scope and deduced un-enumerated right such as “right to live with human dignity”.
Supreme Court propounded the theory of “emanation” to make the existence of the
fundamental right meaningful and active. Thereafter, in many cases court such as People's
Union for Civil Liberties and another v. State of Maharashtra and others,7 Francis Coralie
Mullin v. The Administrator, Union Territory of Delhi8 held that right to life includes right
to live with human dignity. Therefore, through the judicial interpretations various rights have
been recognized though they are not specifically provided in Part III of the Constitution.

6
AIR 1978 SC 597.
7
2014 (10) SCC 635.
8
(1981) 2 SCR 516.

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The rule of locus standi, i.e. right to move to the court, whereby only aggrieved person can
approach the court for redress of his grievances has been relaxed by the judiciary. Now court
through public interest litigation permits public spirited persons to file a writ petition for the
enforcement of rights of any other person or a class, if they are unable to invoke the
jurisdiction of the Court due to poverty or any social and economic disability. In S.P. Gupta
v. Union of India and others, 9 Supreme Court held that any member of the public can
approach the court for enforcing the Constitutional or legal rights of those, who cannot go
to the court because of poverty or any other disabilities. Person can even write letter to the
court for making complaints of violation of rights. Public interest litigation is an opportunity
to make basic human rights meaningful to the deprived and vulnerable sections of the
community. To assure vulnerable section social, economic and political justice, any public
spirited person through public interest litigation can approach the court to protect their rights
on behalf of aggrieved persons who cannot approach the court themselves due to their
vulnerable conditions. Similar observations have been made by Supreme Court in various
judgments such as in Bandhua Mukti Morcha v. Union of India,10Ramsharan Autyanuprasi
and another v. Union of India and Others, 11 Narmada Bachao Andolan v. Union of
India.12Therefore, public interest litigation has become the tool for the protection of human
rights of the people in India.

The oppressed sections of the society are more prone to the violation of human rights. Most
vulnerable sections of society are children, women and socially and educationally weaker
sections of society. Judiciary has taken many steps to ensure protection of human rights of
these sections. Children are more prone to exploitation and abuse. The rights of the children
are needed to be specially protected because of their vulnerability. For this reason United
Nations Convention on the Rights of the Child was adopted in 1989 13. This convention
brings together children’s human rights, as children require safety and protection for their
development. Judiciary is playing a commendable role in protecting the rights of children
from time and again.

There are various instances where judiciary intervened and the rights of children. In the case
of Labourers working on Salal project v. State of Jammu and Kashmir14, Supreme Court
held that child below the age of 14 years cannot be employed and allowed to work in
construction process. Court has issued various directions related to child labour. Supreme
Court in Vishal Jeet v. Union of India15 asked governments to setup advisory committee to
make suggestions for eradication of child prostitution and to evolve schemes to ensure

9
AIR 1982 SC 149.
10
(1984)2 SCR 67.
11
AIR 1989 SC 549.
12
(2000) 4 SCJ 261.
13 Available at http://www.ohchr.org/en/professionalinterest/pages/crc.aspx (Last visited on October 21, 2019).
14

15 1990 (3) SCC318.

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proper care and protection to the victim girls and children. The Supreme Court further in
Gaurav Jain v. Union of India16showed its concern about rehabilitation of minors involved
in prostitution and held that juvenile homes should be used for rehabilitation of them and
other neglected children.

ETYMOLOGY:-

PUNISHMENT:

THE OBJECTS OF PUNISHMENT:

THE DETELRRENT THEORY OF PUNISHMENT:

THE PREVENTIVE THEORY OF PUNISHMENT:

THE REFORMATIVE THEORY OF PUNISHMENT:

16 1997 (8) SCC 114.

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THE RELTRIBUTIVE THEORY OF PUNISHMENT:-

REFERENCES:-

BOOKS:

 Criminology and Prison Reforms, Girish Kathpalia, LexisNexis, Ed. 3rd

 Salmond, Jurisprudence ed. 25th
 N. V Paranjape, Jurisprudence and Legal Theory, ed. 7th
 Lloyd’s Introduction to Jurisprudence ed. 4th.

WEBSITES:

 www.scconline.com
 www.manupatra.com

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