HUMAN RIGHTS & JUDICIAL ACTIVISM:
THE INDIAN EXPERIENCE
By Achuth Kylas
Student, School of Legal Studies
“The task of protection and promotion of Human rights is a complex one and requires the co-operation of all sections of the Society”
- Hon’ble Justice Venkitachaliya
The object of the Human Rights Jurisprudence is to humanise state agencies and to make state accountable to the use of power only for public good. In 1610 Coke, C.J. in Bonham’s case held that the collective end of the Constitution of Government is the promotion of a good quality of life and it is the role of the Judiciary to ensure this end. The evolution of Human Rights can be reflected in the judicial trends of the State.
HUMAN RIGHTS UNDER THE CONSTITUTION OF INDIA
The Constitution of India came into force on 26th January, 1950. The impact of Universal Declaration of Human Rights (UDHR) is apparent at a glance at the Part III of the Constitution and other parts as well. While on this topic it is essential that special reference is to be given to Article 21 of the Constitution. The Article runs as follows :
“No persons shall be deprived of his life on personal liberty except according to the procedures established by law”.
It can be seen that Article XXXi of the Japanese Constitution makes an identical provision. The following words are embedded in the Irish Constitution :- “No person shall be deprived of his personal liberty save in accordance with law”.
Hence it is obvious that countries across the globe have adapted to the object laid down in Article 30 of the UDHR :
“Every one has a right to life, liberty and security of person”.
‘Right to life’ is a matter which was subjected to much judicial scrutiny in India. The Court earlier had taken a very narrow view with regard to the matter in A. K. Gopalan v. State of Madras. In Kharak Singh v. State of U.P. the Supreme Court held that the Right to Life in Article 21 did not include Right to privacy. But these restrictive views could not hold up for long. The Courts in State of Maharashtra v. Madhukar Narayan Mardhikar held that right to privacy was embedded with the essence of Article 21. This decision was supplemented by various others like Smt. Saroj Rani v. Sudharshan Kumar Chadha wherein the court held that the violation of privacy of a person to be the violation of a fundamental Right. Cases have been decided where the violation of Fundamental Rights are penalised with compensation . Free Legal Aid and speedy trial have been embedded as part of Right to Life
Another issue that had peaked within the realm of Human Rights in the Indian Judiciary is that of Public Interest Litigation. Justice Krishna Iyer actively supported the evolution of the scope and ambit of public interest litigation in Mumbai Kamgar Sabha v. Abdulbhai and in Municipal Council of Ratlam v. Shri. Vardichand. These decisions were further supplemented by numerous decisions which finally extended the scope and ambit of public interest litigation.
Hence, it is evident that standing upon its innumerable decisions, the Indian Judiciary has upheld the goal of protecting Human Rights of people through the Constitution.
It is agreed that the Constitution is the corner stone of all laws, but for the purpose of this paper we have to dwell upon few of the innumerable specific instances where violation of Human Rights take place.
HUMAN RIGHTS AND CRIMINAL JUSTICE SYSTEM
This is an arena where perhaps the violation of Human Rights takes place the most. Non-registration of cases, illegal arrest and detention, custodial cruelty, abusive treatment in jail and stagnant nature of trial are the highlights of violation of Human Rights in the Criminal Justice System. The Indian Judiciary has been engaged in a never-ending struggle so as to uphold these rights. The judiciary’s efforts can be viewed through its decisions. A few decisions of impact and importance in the arena are provided below.
* Joginder Kumar v. State of U.P.
- The court had put clear restrictions on the police from making arbitrary arrests.
* Sheela Barse v. State of Maharashtra
- The Court dealt with the issue of mis-treatment of women in Police Station and maintenance of lock ups.
* Prem Shankar Shukla v, Delhi Administration
- The Court issued directions to reform and humanise Jail Administration.
* D. K. Basu v. State of W. B.
- The Court issued guidelines and procedures to be followed during the process of arrest so as to ensure that no Human Rights violation takes place.
Hence it is evident from these decisions that the Indian Judiciary has taken an innovative and active step towards the protection of human rights. But all in all it is yet to be seen that the Indian Judiciary take a pragmatic approach towards the protection of Human Rights in the field of Criminal Justice Administration.
But as often seen in cases of such nature the Courts tend to forget the nature of law with respect to the situation.
An apt example for correction of such misguided use of judicial power can be viewed in Justice Krishna Iyer’s Judgment in Gudikanti Narasimhulu v. Public Prosecutor, High Court of A. P. wherein he quoted Lord Russel, C. J., saying “I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the magistry of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial.”
Justice Krishna Iyer in Nandini Satpathy v. P. L. Dani & Another held that, “Every litigation has a touch of human crisis and as here, it is but a legal projection of life vicissitudes”.
HUMAN RIGHTS AND ATROCITIES AGAINST WOMEN
Though constituting half the population of the world and often referred to as the ‘Better half of man’, women throughout history have had the worst deal at the hands of the society. The Indian Judiciary has taken an active role in protecting the Human rights of Women and in maintaining gender equality. In C. B. Muthamma v. Union of India, the Supreme Court held that the compulsory resignation of women Foreign Service officials after marriage amounts to gender discrimination. And many more has followed its wake.
These decisions are but a mere few, issued by the Indian Judiciary. It cannot be said that the Indian Judiciary has had no impact in protecting the Human Rights of its citizens but nor can it be said that the Indian Judiciary has performed this task to the optimum level.
Hussainara Khatoon & Others v. Home Secretary, State of Bihar, AIR 1979 SC1360; Abdul Rehman Antulay v. R. S. Nayak ,  1 SCC 225