SESSION: 2022 – 2023

Review of Literature

Role of Indian Judiciary in area of

Human Rights

SUBMITTED BY: SUBMITTED TO:

Udit Goyal Ashish Acharya

BBA-LLB (HONS.) Assistant Professor

ILS22119 ICFAI Law School, Jaipur

1st year, 2nd semester

CONCEPT OF REVIEW OF LITERATURE
Review of literature is very important for every researcher after the selection of
his/her research problem. In this a researcher studies and explores the available
literature related to his/her subject matter or if not exactly the same and however
relative. As research is process of continuing the study and going forward with
some new idea and suggestions on the relevant issue or subject, so review of
literature is very important from this point of view of knowledge. To study what is
the jurisprudence behind our research topics, we have to do review of literature so
that we can understand for what we are going to research and things are unfold or
untouched. By this, we can explore different dimensions of our research problem
and bring out something important and relevant for our subject. It provides you
that where do the previous study remains stopped and from where we have to start
again. This also a vital tool for sharpening a researcher’s mind so that he can
understand what kind of methods and tools he will need for his research work.

This review of literature includes the study of books, article, cases, theories,
concepts and a co-relation among them. This is true that until a researcher does not
relate a thing to the past, he cannot come with a good conclusion. To perform a
good research, he needs to understand past problem accurately.
INTRODUCTION
Human Rights are basis rights and freedom that belongs to every person in the
world. We are all equally emitted to our human rights without discrimination.

Injustice anywhere is a threat to justice everywhere. Human Rights are rights

inherent to all human beings. Rights is not nearly speaking about biological
needs but also those conditions of life which allow to freely development and
use or human qualities of intelligence and conscience and to satisfy our
spiritual needs.

India is a democratic country. During our freedom struggle, the freedom

leaders of the freedom movement had realised the importance of rights. The
Motilal Nehru Committee had demanded a bill of rights as far back as in 1928.
It was therefore, natural that when India became independent and the
constitution was being prepared the concept of Human Rights was accepted.

A unique feature of the Indian constitution is that a large part of human rights
are named as fundamental rights. The fundamental rights in the Indian
constitution constitute the Magna Carta of individual liberty and human rights.

Indian Constitution provides us a list of Fundamental Rights:

1. Rights to Equality.
2. Rights to Freedom.
3. Rights against Exploitation.
4. Cultural and Educational Rights.
5. Rights to Freedom of Religion.
6. Rights to Constitutional Remedies.
ARTICLES
COMMON LAW OF HUMAN RIGHTS: Transnational judicial
conversations on constitutional rights.
Christopher Mc Crudden1
In this article author says that it is now commonplace in many jurisdictions for judges to refer to decisions of the
courts of foreign jurisdiction when interpreting domestic human rights guarantees. But there has also been a
persistent undercurrent of scepticism about this trend, and the emergency of a growing debate about its
appropriateness. This issue is of particular relevance in jurisdictions that have relatively recently incorporated
human rights provisions that are significantly judicially enforced.

A review of the existing literature is undertaken with a view to determining how far scholars have succeeded in
answering these questions. The article concludes that significant gaps exist in our understanding of the
phenomenon and raises for discussion the methodologies that may be appropriate for addressing the
phenomenon in the future.

TORT LAW AND HUMAN RIGHTS: Brothers in arms on the

role of tort law in the area of business and human rights.
Cees van Dam2
In this article author says that over the past decades, transnational corporations (TNCs) have come under
increasing public scrutiny for their involvement in human rights violations, particularly in developing countries.
One may think of child and slave labour in the supply chain, cooperation with violent or corrupt regimes, and grand
scale environmental pollution.

Legal protection for victims of human rights violations against TNCs is poor. Public international law protects the
freedom of trade but does not regulate the way companies use this freedom. Moreover, it is disputed whether
international human rights law can impose obligations on companies. This has triggered the question what role
national tort laws can play to fill this protection gap.

1
https://academic.oup.com/ojls/article-abstract/20/4/499/1595147
2
https://www.degruyter.com/document/doi/10.1515/jetl.2011.221/html
VIOLATION OF HUMAN RIGHTS: During COVID – 19 and
the role of Indian judiciary.
Swati Pandit3
In this article author says that in the past three years, India has been facing its second biggest challenge after
COVID. That is of rampant violation of human rights. With the onset of pandemic, the number of cases filed by
marginalized groups for the protection of their human rights increased many-folds. Therefore, it becomes
imperative to study in detail the issue of violations and the response of judiciary. In the first part, the researcher
examines the various types of violations reported. Violation of citizens right to freedom of speech and expression,
privacy, education, access to social services, and equal treatment have been considered. In the next part,
intervention by courts has been critically analyzed. Then in the end, the researcher discusses the concerns that
surfaced while investigation and offers some remedial measures to deal with them.

Human Dignity and Judicial Interpretation of Human

Rights:
Christopher Mc Crudden4
In this article author says that the Universal Declaration on Human Rights was pivotal in popularizing the use of
‘dignity’ or ‘human dignity’ in human rights discourse. This article argues that the use of ‘dignity’ beyond a basic
minimum core does not provide a universalistic principled basis for judicial decision-making in the human rights
context in the sense that there is little common understanding of what dignity requires substantively within or
across jurisdictions. The meaning of dignity is therefore context-specific varying significantly from jurisdiction to
jurisdiction and (often) over time within particular jurisdictions. Indeed instead of providing a basis for principled
decision-making dignity seems open to significant judicial manipulation increasing rather than decreasing judicial
discretion. That is one of its significant attractions to both judges and litigators alike. Dignity provides a convenient
language for the adoption of substantive interpretations of human rights guarantees which appear to be
intentionally not just coincidentally highly contingent on local circumstances. Despite that however, I argue that
the concept of ‘human dignity’ plays an important role in the development of human rights adjudication not in
providing an agreed content to human rights but in contributing to particular methods of human rights
interpretation and adjudication.

3
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4123821
4
https://academic.oup.com/ejil/article/19/4/655/349356
Role of India for Enforcement of International Human
Rights:
Mohammad Rasikh Wasiq5
In this article author says that Indian courts are optimistic about applying international law in domestic courts, and
their technique is always evolving. India has made a strong argument for its commitment to the creation and
application of international law. India, on the other hand, has played no part in the development of some of the
most basic international legal notions. In the disciplines of human rights, environmental law, arbitration, and
commercial law, India has made significant contributions to international law. India on the other hand is wary of
drafting treaties that restrict its sovereignty and openly aim to give home courts legal enforcement powers.
International law provides the legal duties of nations in their relations with one another and their treatment of
others" according to the United Nations. The study employed a doctrinal method of study to evaluate the role of
India in enforcing international instruments of Human rights.

5
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4219345
RESEARCH PAPER
HUMAN RIGHTS IN INDIA: Role of Judiciary and Judicial
Activism.
Sachin6
In this research paper author says that Human Rights can be defined as those rights which are inherent in our
nature and without which we cannot live as human beings. There are claims made by virtue of the fact that we are
human beings. The paper deal with Human rights in Indian Constitution. The paper is a attempt to analyses the
role of Judiciary and judicial activism for the protection of rights in India. After independence India has played a
very significant role in the protection of rights. India has not incorporated an elaborate Bill of Rights in its
constitution by efforts have been made to translate these reality. Judiciary in India played a crucial role to translate
these rights in reality.

Human Rights and Judicial Endeavour for its protection:

Rachana7
In this research paper author says that 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 first 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 efficaciously
judicial body acted to the protection of human rights.

6
http://www.ignited.in/I/a/89690
7
https://www.legalserviceindia.com/legal/article-624-human-rights-and-judicial-endeavour-for-its-
protection.html
HUMAN RIGHTS AND JUDICIAL ACTIVISM IN INDIA:
Romil Bhatkoti8
In this research paper author says that the existing state system very often rights of individual and the state - to be
presumed as executive branch of the government, more often than not seem to be antagonistic to each other. As a
safe mechanism in a situation where human rights are violated, it is but judiciary which plays positive role in
interpreting the rights taking into context evolutionary process of society and hence guide or check the state
accordingly. Hence judicial activism is not something to be seen as extra constitutional mechanism rather it becomes all
the more necessary where basic rights of individual are jeopardized by the state. The concept of judicial activism is
dynamic one.

JUDICIAL ACTIVISM AND HUMAN RIGHTS IN INDIA: a

critical appraisal.
Payel Rai Chowdhury9
In this research paper author says that the responsibilities that a court carries in a country with a written
constitution are very onerous – much more onerous than the responsibilities of a court without a written
constitution. Because here, they do not just interpret the laws but also the provisions of the constitution, and, are
thus entrusted with giving meaning to the cold letter of the constitution. The courts thus act as the supreme
interpreter, protector and guardian of the supremacy of the constitution by keeping all authorities – legislative,
executive, administrative, judicial or quasi-judicial – within legal bounds. The judiciary has the responsibility to
scrutinise all governmental actions and it goes without saying that in a constitution having provisions guaranteeing
fundamental rights of the people, the judiciary has the power as well as the obligation to protect the people's
rights from any undue and unjustified encroachment.

8
https://www.jstor.org/stable/42761429
9
https://www.tandfonline.com/doi/abs/10.1080/13642987.2010.482912?journalCode=fjhr20
PH.D THESIS
Expansion of the Rights to Life Role of Judiciary:
Bhawna10
In this thesis author says that after attaining independence from the foreign rule, the main task before the governors of
Indian polity was to devise the means and strategy for securing economic and social justice for the Indians. After
freedom from the colonial rule, the reconstruction of Indian society on the dynamic philosophy of social revolution was
the main agenda before the leaders. Keeping these things in mind, the constitution makers declared India to be a
sovereign, socialist, secular, and democratic public assuring each individual of equality of status and opportunity for the
development of the best in him. In Article 21 of the constitution is Right to life is the most precious human right of all
other rights. It is the most important and fundamental of all the rights that man can aspire for. Everyone expects that
this right is not deprived arbitrarily. The judiciary is assigned the task to safeguard the liberties of people and to pass
any order for doing complete justice in the matters before it, to usher in a justice promised in the preamble phrases. It
includes Nature, meaning and concept of Right to life and its constitutional perspectives and it also cover the
importance of the topic research methodology, objectives of the study, review of the literature and data used in the
study. It deals with origin and growth of Fundamental Rights and Historical background .In this chapter, it contains
description of various sources from where fundamental rights came into existence in the Indian constitution and what
was the position during Ancient India, Medieval period India , and Modern India and Motilal Nehru committee, Human
right and Indian constitution, Historical Background etc. It deals with the Different dimensions of Right to life in the
perspective of Article 21 of the constitution.

10
https://shodhganga.inflibnet.ac.in:8443/jspui/handle/10603/323433