Political Science

Political Science Project
Name- Shaghil Nasid
Enrollment No. – 2021/342/099
Subject – Political Science (202)
Semester – 2nd
Topic – Role of Judiciary in Protection of Fundamental Rights
Faculty – School of Law
Department- Hamdard Institute of Legal Studies and Research (HILSR)
University – Jamia Hamdard, New Delhi
Introduction
Human rights are not conferred by any ruler, constitution or statute. A human being is born with human rights.
Giving new dimensions to Article 21 of the Constitution, the Supreme Court, in the cases noted below, has
declared that right to live as guaranteed under Article 21 is not merely confined to physical existence but it
includes within its ambit the right to live with human dignity. The right to live is not restricted to mere animal
existence. It means something more than just physical survival. The right to ‘live’ is not confined to the protection
of any faculty or limb through which life is enjoyed or the soul communicates with the outside world but it also
includes “the right to live with human dignity”, and all that goes along with it, namely, the bare necessities of life
such as, adequate nutrition, clothing and shelter and facilities for reading, writing and expressing ourselves in
diverse forms, freely moving about and mixing and commingling with fellow human being. Anything which
impedes the right to lead life with dignity and decency is violative of human.
FUNDAMENTAL RIGHTS IN INDIA: CONSTITUTIONAL PROVISIONS
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:
 Rights to Equality
 Rights to Freedom
 Rights against Exploitation
 Cultural and Educational Rights
 Rights to Freedom Religion
 Rights to Constitutional Remedies
Role of Judiciary
In our country Judiciary is known as independent part of government. This independent
judiciary has two rules:
1. The traditional role i.e. to interpret the laws, and
2. Judicial Activism, i.e. to go beyond the statute and to exercise the discretionary power to
provide the justice. It plays both roles in very well manner for the protection of fundamental
rights.
Any individual whose fundamental rights have been violated can direct move the Supreme
Court for namely. The Supreme Court and High court can issue writs to the government for the
enforcement of rights.
 Habeas Corpus: A writ of Habeas Corpus means that the court orders that the arrested
person should be presented before it. It can be also order to set free an arrested person
if the manner or grounds of arrest are not lawful or satisfactory.
 Mandamus : Mandamus is a Latin word, which means “We Command” This writ is
issued when the court finds that a particular office holder is not doing legal duty and
thereby is infringing on the right of an individual.
 Prohibition: This writ is issued by a higher court when a lower court has considered a
case going beyond its jurisdiction.
 Qua-Warranto : The word Qua-Warranto literally means “by what warrants?” or “what
is your authority”. If the court finds that a person is holding office but is not entitled to
hold that office, it issue the writ and restricts that person from acting as an officer
holder.
 Certorai: Under this writ, the court orders a lower court or another authority to
transfer a matter pending before it to the higher authority or court.
Thus Judiciary play a important role for the protection of our fundamental right.
Role of Judiciary Activism

The most important power of Supreme Court is the power of Judicial Review. In particular the review
power means that the Judiciary can interpret the constitution and the laws passed by the legislature.
If the court arrives at the conclusion that the law is inconsistent with the provisions of
the constitution such a law is declared as unconstitutional and inapplicable.
Judicial Activism may be defined as dynamic process of judicial outlook in a changing
society. Judicial Activism is all about providing a good governance and ensuring the
safety, security and welfare of the society. The decision of Gulalthanath vs. state of
Punjab, Keshvanand Bharti vs. state of Kerala, Minerva mills vs. Union of the India
are worth putting forth. The colour of Judiciary Activism change with the Supreme
Court Judgement in S.P Gupta care wherever it was pronounced that any person
could file a Public interest Integration for another affected person who was deprived
and could not approach the court.
Case study: Air India vs Nargish Mirza (Air hostesses case)
In Air India vs Nargesh Meerza the service regulations pertaining to the retirement of air
hostesses of Air India and Indian Airlines was challenged as being violative of the right to
equality under the Indian constitution.
The Supreme Court upheld the condition permitting the termination of an ‘Air Hostess’ services
on her marriage within the first four years, but invalidated the condition that terminated her
services on her pregnancy.
Kesavananda Bharti vs. State of Kerala.
The Kesavananda Bharti judgement is a landmark decision of the Supreme Court of India that
outlined the ‘basic structure doctrine’ of the constitution. The Supreme Court held that
although no part of the constitution’ including fundamental rights, was beyond the amending
power of parliament, the basic structure of the constitution could not be changed even by a
constitutional amendment.
Mohd Ahmed Khan vs Shah Bano Begum
Shan Bano, a 62 year old Muslim women was divorced by her husband in 1978. She filed a
criminal suit in the Supreme Court of India, she wanted alimony from her husband.
Supreme Court delivered a judgement favour maintenance given to aggrieved divorced Muslim
women.
Shreya Singhal vs. Union of India
Shreya Singhal vs. Union of India is a judgement of the Supreme Court of India, on the issue of
online speech and intermediary liability in India.
The Supreme court struck down section 66A of information technology Act, 2000, relating to
restrictions on online speech, as unconstitutional on grounds of violating the freedom of speech
guaranteed under Article 19(1)(a) of the constitution of India.
Conclusion
Human Rights is a very old phenomenon and is integral to every human beings for its
development. Human Rights has always been regarded as the backbone of every democratic set
up. India has made the most sincere efforts for the protection and promotion of human rights
in the world over.
Supreme Court, High court played an important role in protecting and safeguarding the human
rights in India. Judiciary provide justice through the interpretation of laws. Sometimes through
the wide interpretation of provision of various legislation and also the provision of constitution
judiciary is able to empower to rights.
Another role of judiciary is the activist role which is popularly known as “Judicial Activism.”
When there is no specific law for a specific offence in that case judiciary applies its activist
power for the protection of our rights.

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Political Science

Uploaded by

Copyright:

Available Formats

Political Science Project

Name- Shaghil Nasid

Enrollment No. – 2021/342/099

Subject – Political Science (202)

Topic – Role of Judiciary in Protection of Fundamental Rights

Faculty – School of Law

Department- Hamdard Institute of Legal Studies and Research (HILSR)

University – Jamia Hamdard, New Delhi

Indian Constitution provides us a list of Fundamental Rights:

Role of Judiciary Activism

Case study: Air India vs Nargish Mirza (Air hostesses case)

Kesavananda Bharti vs. State of Kerala.

Mohd Ahmed Khan vs Shah Bano Begum

Shreya Singhal vs. Union of India

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