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Human Rights and Judicial Endeavour for its protection

By Rachana | Views 12077 (author-1697-rachana-.html)

Human Rights and judicial endeavours for its protection - Justice delayed is justice denied.
Human right, a basic right, is for all. It is universal and inalienable. These rights are not conferred by
the law, but by virtue of humanity, it is inherited in every human. Human right is not a new concept it
can be audited form the Vedas, Manusmriti, Arthashastra, and some other scriptures which
discourse human rights. In various written documents such as Magna Carta (1215), French
Declaration of Rights of Man and of Citizens (1789), US Bills of Rights (1791) asserted various
individual rights. In the 20th century, the United Nations came into existence in 1945, after the
Second World War. After 3 years in 1948, UDHR (Universal Declaration of Human Rights) was
presented to the world with 30 articles which awarded the rst recognition to the human rights
universally. Now various international conventions, treaties, covenants, and domestic laws also
emphasize on keeping human rights out of jeopardy. In the present article, vehemence is on how
e caciously judicial body acted to the protection of human rights.

India and Human Rights:-

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 peril in the form of
guaranteed fundamental rights. Same as human rights theses are inherited by birth. These rights
can not be amended as it is the part of the basic structure of our constitution [i]. Part III and IV of the
constitution put an obligation on the state to protect Human Rights though part III is enforceable but
not part IV. The preamble of the Constitution also talks about the protection of the dignity of an
individual. Constitution directs the state to make endeavours for Human Rights protection. Under
article 32 people can approach the SC (Supreme Court) in order to avail the rights guaranteed under
part III and article 13 empower the SC to declare any law void if it encroaches upon the part III, all
this makes the Supreme Court guardian of these rights. 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 the Human Rights Act, 1993 this act provides "human rights" means the rights
relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or
embodied in the International Covenants and enforceable by courts in India [ii]. The Act also directs
to establish the NHRC (National Human Rights Commission), SHRC (State Human Rights
Commission), and HRC (Human Rights Courts).

National Human Rights Commission:-

Section 3 of the Protection of the Human Rights Act (PHRA), 1993 put an obligation of the
establishment of NHRC in compliance with which central government has constituted NHRC in 1993.
This commission is obliged to protect and to promote human rights. PHRA, 1993 also provide
composition, functions and the procedure of NHRC. NHRC play a crucial part in the protection of HR
and keeping the faith of the common man in the Criminal justice system. NHRC and SC can

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complimentarily protect and promote HR. A national commission can give recommendations to
various authorities [iii]. It has provided recommendations in matters like health, education, police
encounters, custodial deaths, guidelines for arrest etc. NHRC can either take suo moto action or on a
petition led before it.

In 1993 the commission has issued the guidelines regarding custodial death to all the state
government, that in case of such incident commission must be informed within 24 hours and this
will be followed with Post-mortem Reports, Magisterial Inquest Reports/Videography Reports of the
post-mortem etc. [iv] Section 36 (2) put some limitation on the NHRC, but Supreme Court in Paramjit
Kaur v. State of Punjab [v] construed this statutory provision that when the SC by exercising its
power under article 32 refer the matter of infringement of HR to the commission than the section
36(2) can not restrict commission to act in accordance with the order of SC. SC said that commission
will be sui generis body to carry out the functions referred by the SC and this body is not
circumscribed by any sort of conditions. In the instant case, SC observed that no statutory provision
can curtail the SC to exercise its power and there is no reason that why this commission cannot
comply with the order of the SC i.e., to look into the matter of violation of the HR. Along with SC
NHRC make endeavour in the protection of Human rights.

State Human Rights Commission:-

21. Constitution of State Human Rights Commissions
(1) A State Government may constitute a body to be known as the... (Name of the State) Human
Rights Commission to exercise the powers conferred upon and to perform the functions assigned to,
a State Commission under this chapter. [vi]

Section 21 of the PHRA, 1993 empowers the State government to establish SHRC. The act also
provides the power and function of the commission. It has to similar function as NHRC, but it can
deal with the matters enlisted in the list II and III of the 7th schedule of Indian constitution. The
deterrent point is that only 19 states have constituted the SHRC. In 2004-2005 report of the NHRC
set forth the list of the states which constituted the SHRC in their respective state. NHRC also
reiterated that the protection of the HR can be ensured if all the states set up the commission and it
must be in compliance of “Paris principles”.

In D.K Basu v. State of West Bengal [vii], the court asked why there is no SHRC in various states even
after 2 decades of the enactment of the PHRA, 1993. SC conspicuously asked how the capital of the
country does not have any HR commission. Court construed the word "may" of section 21 that this
‘may' do not give an option to the state. The word "shall" and "may" does not imply directory or
mandatory in all the cases, but it must be interpreted on the basis of the objective of the section.
Justice T.S Thakur and R Bhanumati directed the State government to constitute SHRC and HRC. SC
elucidated that the state has no option but to comply with the order in 6 months. In the year 2016
Centre deplored SC order by stating that Delhi is not a state but union territory and the law behest
the state to establish the HR commission, not to union territories.

Therefore, Delhi will go along without the HR commission until the law amended. The bench headed
by Justice T.S. Thakur reiterated “Do you fancy that Union Territories are Utopian ideals where
there are no human rights violations... do you expect people from other territories like Daman and
Diu, Puducherry to come all the way to Delhi to ght their case before the National Human Rights
Commission?” [viii] Regarding amendment in the law J. T.S. Thakur said there was no need for an
amendment in the laws to be made by Parliament to set up a human rights commission for Delhi.
“We will give a legal interpretation to the existing laws if necessary” [ix].

The PHRA, 1993 was amended in 2006 which mandate all the states to establish the SHRC. According
to the report of the NHRC HR commission in states will bring forth better governance as the better
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11/11/2019 Human Rights and Judicial Endeavour for its protection

governance and Human right go parallelly. Establishment of the commission in states will ease
access of the people to better protection of the human right.

Human Rights Courts:-

Section 30 of the PHRA directs all the state government on an agreement of opinion with the CJI of
the High Court of respective state to recognise the Court of Session as a Human right court, for the
speedy remedy. And section 31 provides that state shall appoint a prosecutor or an advocate with
not less than 7 years' experience of practice, for the purpose of dealing with the cases of this court.
In the year 2015 in the same D.K Basu case, the Supreme Court also directed to comply with this
provision to specify HRC. It was ascertained that no attempt is made by the state to consult with CJI
of High Court of the respective states for scrutinizing the viability of the session court for specifying
as HRC.

In the year 2019 again NHRC during the hearing of Punjab state Human Rights Commission vs. Jatt
Ram NHRC again put forth the except few states no state compiled the order to specify or set up the
HRC. The bench said that the setting of these courts does not require any additional appointment of
Judges or infrastructure still judgment of the court is not executed. Supreme Court has issued Chief
Secretaries to show cause that why such directions need not be issued.

Supreme Court Jurisprudence on Human Rights:-

Supreme Court cognized as “guardian of the fundamental rights” so its crucial function is to
protect these rights. We are the signatory of the international conventions on HR therefore our
constitution is embodied with HR in the form of fundamental right in part III. The concept of the
separation of power makes the judiciary independent from the other two organs which allow the
judiciary to uphold the rule of law and protection of HR. In India judiciary exercise its power of
interpretation of part III e caciously in order to triggers advancement in the human right protection.

Supreme Court of India is endowed with the power of the judicial review and article 32 gives
increment to this power by allowing the court to review all the measures taken by the government
and pronounce it void if it abridges the part III or basic structure of the constitution. This power of
review keeps all the organs of the state within its limit as conferred by the constitution or any other
law. In case of the infringement of the rights of part III person can directly approach to High court
under article 226 and to Supreme Court under article 32 which itself is a fundamental right. Article
32 is the cornerstone of our democracy which makes the SC protector of fundamental rights.
According to the 32(4) this right to approach will be suspended if the emergency is proclaimed.

Following are the SC judgments assert how SC advanced the protection and promotion of the HR:-
Fundamental Right case
(Kesavananda Bharati v State of Kerala [x]) this case was heard by the ever largest constitutional
bench of 13 judges. In this court has gifted us the doctrine of the basic structure. 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 case [xi]and the court said the parliament act will be
counted ultra-vires if it tries to rewrites the whole constitution in the light of its power under article
368 of the constitution. This view of the Supreme Court protects human rights fundamentally.

Habeas Corpus case

(ADM Jabalpur v Shivakant Shukla Case [xii]) this case is a black spot in the Indian historical
judgments. In this case, four out of ve judges held that all the fundamental rights will remain
suspended during emergency. Justice H.R. Khanna gave a dissent best judgment which paved the
way for the rule that the state cannot deprive anyone of the right to life and personal liberty without
due process of law.
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Personal liberty
(Maneka Gandhi's case [xiii]) in the present Case, the court gave the wider interpretation of the word
‘personal liberty'. The court considered that for depriving a person of ‘personal liberty'
requisites of article 14 and 19 must be ful lled as article 14, 19 and 21 are interconnected.

Maintenance case
(Shah Bano case [xiv]) Supreme Court granted maintenance to the Shah Bano and protected the
rights of Muslim woman beyond the personal law, but Muslim community considered that this
verdict of the court encroaches Muslim Sharia Law, therefore, parliament ordained All India Muslim
Personal Law Board, 1973.

Article 21 interpretations
Apex court has widely construed article 21 the word "life" is explained in a watershed judgment of
U.S. Supreme Court [xv] that life is something more than mere animal existence [xvi]. SC of India said
that the right to life is not mere physical existence but the right to live with dignity [xvii]. Article 21
includes non-payment of the wages to the workers will be the denial of the right to live with human
dignity [xviii]. SC held that sexual harassment at the workplace is a violation of article 14, 15, and 21
[xix]. Right to shelter, [xx] right to know, [xxi] right to livelihood, [xxii] right against solitary
con nement, [xxiii] right to free legal aid [xxiv] and right to health [xxv] right to privacy [xxvi] etc. All
these are appended as an inherent part of article 21 by the apex court while exercising its power of
interpretation.

The third Gender

In the year 2014 SC recognised the transgender [xxvii] as the third gender and protected their rights.

Triple Talaq
In the year 2017 SC of India majority of judge 3:2 declared Triple Talaq as unconstitutional as this
practice jeopardise and violates the rights of the Muslim woman in all facets. Though the bill is not
yet passed due to some controversies in it.

Sabarimala Temple
Supreme Court allowed the woman entry in Sabarimala temple that is of age 10 to 50 years as the
devotion cannot be subjected to the gender discrimination [xxviii].

Homosexuality
SC in the year 2018 decriminalized section 377 [xxix] of Indian Penal Code, 1860 on the ground that
it goes against article 14, 15, 19 and 21 of the constitution. This verdict of the SC only decriminalize
homosexuality under section 377 rest of the law will remain the same. After 72 years rights of the
homosexual people is o the hook and they can also enjoy their rights as heterosexual people.

Adultery
SC said that husband is no more master of wife, therefore, pronounced the adultery is no more
crime as it violates the dignity of woman hence infringes article 21 of the constitution. Court also
elucidate that adultery is still ground for divorce and it will be considered criminal if it leads to the
abetment of suicide adulterous could be prosecuted under section 306 of IPC, 1860.

Analysis:
Historic verdicts show that judiciary made endeavours for protection and promotion of human
rights, but we can not say that is infallible. However, it can be stated that SC exercised its power of
interpretation so well that it widened the scope of rights which made it more expeditious for
everyone to enjoy their rights. In India, the judiciary is not superior but as we have constitutionalism
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11/11/2019 Human Rights and Judicial Endeavour for its protection

which invokes that judiciary is independent and all the bodies have to comply with the order of the
SC for the welfare state. Our law directs the government to establish certain organs for the
protection of human rights in compliance of this NHRC at union level and few of the states set up the
SHRC. Law provides that the state should establish the District human rights courts but, there is
noncompliance in this regard. Supreme Court has directed the state governments to establish SHRC
and HRC however, most of the states not acted in accordance with the same. This lacuna on the part
of state dilatory in serving justice to part of society as it is not easy for every person to approach
NHRC from anywhere in the country in order to avail their rights. Law since 1993 requires every state
to constitute SHRC and HRC in their respective territory to accomplish the objective of speedy
remedy to all. The controversial point is that law does not set fort the procedure of the HRCs to deal
with such type of complaints and the act does not mark the jurisdiction of such courts regarding the
o ences of violation of HR. This ambiguous factor must be looked into promptly by the lawmakers
so that vigilant protection provided to the human rights and the aftermath of the already existing
law will not dismay.

End-Notes
[i] Kesavananda Bharati V. State Kerala 1973(4)SCC 225
[ii] section 2(d) of Protection of Human Rights Act, 1993
[iii] Section 18(3) of Protection of Human Rights Act, 1993
[iv] http://nhrc.nic.in/press-release/nhrc-issues-fresh-guidelines-regarding-intimation-custodial-
death
[v] A.I.R. 1999 SC
[vi] Section 21 of Protection of Human Rights Act,1993
[vii] (2015) 8 SCC 744
[viii] https://www.thehindu.com/news/cities/Delhi/are-there-no-rights-violations-in-union-territories-
sc-asks-centre/article8491799.ece
[ix] https://www.thehindu.com/news/cities/Delhi/are-there-no-rights-violations-in-union-territories-
sc-asks-centre/article8491799.ece
[x] (1973) 4 SCC 225
[xi] I. C. Golaknath & Ors vs. State of Punjab and others 1967 AIR 1643
[xii] (1976) 2 SCC 521
[xiii]Maneka Gandhi v. Union of India (1978) A.I.R 597
[xiv] Mohd. Ahmed Khan vs. Shah Bano Begum and others 1985 SCC (2) 556
[xv] Munn v. Illinois 94 US. 113(1876)
[xvi] Kharak Singh v. State of Uttar Pradesh 1963 SC 1295
[xvii] Maneka Gandhi v. Union of India (1978) A.I.R 597
[xviii] Peoples Union for democratic rights v. Union of India 1982 A.I.R 1473
[xix] Vishakha V. state of Rajasthan (1997) 6 SCC 241
[xx] U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited AIR 1996 SC 114
[xxi] Reliance Petrochemicals Ltd. vs. Proprietors of Indian Express Newspapers 1988 SCC (4) 592
[xxii] Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni (1983) 1
SCC 124
[xxiii] Sunil Batra v. Delhi Administration AIR 1978 SC 1675
[xxiv] Hussainara Khatoon vs. State of Bihar 1980 SCC (1) 98
[xxv] State of Punjab v. M.S. Chawla AIR (1997) SC 1225
[xxvi] Justice K.S.Puttaswamy and others vs. Union Of India (2017)10 SCC 1
[xxvii] National Legal Services Authority v Union of India 2014 5 SCC 438
[xxviii] Indian Young Lawyers Association vs. The State of Kerala 2018 SC
[xxix] Navtej Singh Johar V. Union of India (2018)SCC online 1350

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