HUMAN RIGHT PROJECT.pdf

8/17/2019 HUMAN RIGHT PROJECT.pdf

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HUMAN RIGHTS AND SUPRME COURT OF INDIA 2016

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CHANAKYA NATIONAL LAW

U NIVERSITY

SUBJECT- HUMAN RIGHTS

PROJECT WORK ON HUMAN RIGHT& SUPREME COURT OF INDIA

SUBMITTED TO- DR . VIJAY K UMAR VIMAL

SUBMITTED BY

R OHIT SINHA

R OLL NO. 601

10TH SEMESTER


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AIMS AND OBJECTIVE-

The aim of researcher, in doing the research work is to give a broad outline of human

rights and Supreme Court of India. The project will further analyze the various aspect of “Art 21

as interpreted by apex court” in contrast with the various judicial precedents which are relevant

to the topic.

RESEARCH METHODOLOGY:-

As whole research work for this work is confined to the library and books and no

field work has been done hence researcher in his research work has opted the doctrinal

methodology of research. Researcher has also followed the uniform mode of citation

throughout the project work.

SOURCES OF DATA:-

For doing the research work various sources has been used. Researcher in the

research work has relied upon the sources like many books of International Law, Articles,

and Journals. The online materials have been remained as a trustworthy and helpful source

for the research.

SCOPES AND LIMITATIONS:-

Though the researcher has tried his level best to not to left any stone unturned in

doing his research work to highlight the various aspects relating to the topic, but the topic

being so vast and dynamic field of law and whose horizon and ambit cannot be confined

and narrowed down, the research work has sought with some of the unavoidable

limitations.

HYPOTHESIS:-

Researcher by reading and doing preliminary research researcher is of the opinion

that Supreme Court Of India is protecting Human Rights through the power conferred

through various articles in the constitution.,


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TABLE OF CONTENT

AIMS AND OBJECTIVE- ................................................................................ 2

RESEARCH METHODOLOGY:- ................................................................... 2

SOURCES OF DATA:- .................................................................................... 2

SCOPES AND LIMITATIONS:- .................................................................... 2

HYPOTHESIS:- ............................................................................................... 2

TABLE OF CONTENT .................................................................................. 3

INTRODUCTION ........................................................................................... 5

DEFINITION OF HUMAN RIGHTS ........................................................... 6

CHARACTERISTIC AND NATURE OF HUMAN RIGHTS ..................... 6

DEVELOPMENT OF HUMAN RIGHT ....................................................... 8

The UN Charter, 1945 ................................................................................. 8

The Universal Declaration of Human Rights, 1948 ......................... 8

International Covenants on Human Rights........................................ 8

LEGAL STATUS OF HUMAN RIGHTS IN INDIA .................................... 9


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ACTIVE ROLE OF JUDICIARY ................................................................ 10

ENABLING PROVISION ........................................................................... 11

HUMAN RIGHTS DEVELOPMENT IN INDIA ...................................... 12

JUDICIAL INTERPRETATION ................................................................ 13

CHILD LABOUR AND RIGHT TO EDUCATION .................................. 14

CHILD LABOUR WELFARE AND THE LOCUS STANDI.................... 16

JUVENILE JUSTICE .................................................................................... 17

ADOPTION OF CHILDREN...................................................................... 18

SEXUAL EXPLOITATION OF CHILDREN ............................................ 19

REHABILITATION OF CHILD PROSTITUTES ................................... 20

SUPREME COURT ON HUMAN RIGHTS .............................................. 21

VERSATILE ROLE OF COURTS .............................................................. 30

CONCLUSION ............................................................................................. 33

BIBLIOGRAPHY ........................................................................................ 36


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INTRODUCTION

Human Rights – Two simple words but when put together they constitute the very foundation of

our existence. Human Rights are commonly understood as “inalienable fundamental rights to

which a person is inherently entitled simply because she or he is a human being”.

There is no denying that all human beings are entitled to certain ‘basic’ and ‘natural’ rights

meant for a dignified existence as a human being. A dignified living environment with freedom

coterminous with that of others, to one and all is the central tenet of human rights.

Human rights are conceptualized to be certain rights that are inherent or occur naturally to

individuals as human beings, having existed even in the ‘state of nature’ before the development

of societies and emergence of the state. As widely recognized, the State cannot be accepted as

the fundamental source of these rights. They inhere in individuals by virtue of their birth as a

human itself. The State is accepted and understood merely as a recognizer, guarantor and

protector of these rights. The State, as its concept exists today, cannot act to the detriment of the

inherent rights of an individual, or for that matter, the collective conscience of individuals as a

community or a society.

Alternatively the natural or human rights are recognized as legal rights, constitutional rights etc

depending upon their assimilation in statutes or constitution of a nation, or, even fundamental

rights as per terminology awarded to them in the statute or the constitution.


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DEFINITION OF HUMAN RIGHTS

The Universal Declaration of Human Rights (UDHR), 1948, defines human rights as “rights

derived from the inherent dignity of the human person.” Human rights when they are guaranteed

by a written constitution are known as “Fundamental Rights” because a written constitution is

the fundamental law of the state.

Dr. Justice Durga Das Basu defines “Human rights are those minimal rights, which every

individual must have against the State, or other public authority, by virtue of his being a

‘member of human family’ irrespective of any consideration. Durga Das Basu’s definition brings

out the essence of human rights.

CHARACTERISTIC AND NATURE OF HUMAN RIGHTS

1. Human Rights are Inalienable – Human rights are conferred on an individual due to the

very nature of his existence. They are inherent in all individuals irrespective of their

caste, creed, religion, sex and nationality. Human rights are conferred to an individual

even after his death. The different rituals in different religions bear testimony to this fact.

2. Human Rights are Essential and Necessary - In the absence of human rights, the moral,

physical, social and spiritual welfare of an individual is impossible. Human rights are

also essential as they provide suitable conditions for material and moral upliftment of the

people.

3. Human Rights are in connection with human dignity – To treat another individual with

dignity irrespective of the fact that the person is a male or female, rich or poor etc. isconcerned with human dignity. For eg. In 1993, India has enacted a law that forbids the

practice of carrying human excreta. This law is called Employment of Manual

Scavengers and Dry Latrines (Prohibition) Act.


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4. Human Rights are Irrevocable: Human rights are irrevocable. They cannot be taken away

by any power or authority because these rights originate with the social nature of man in

the society of human beings and they belong to a person simply because he is a human

being. As such human rights have similarities to moral rights.

5. Human Rights are Necessary for the fulfillment of purpose of life: Human life has a

purpose. The term “human right” is applied to those conditions which are essential for the

fulfillment of this purpose. No government has the power to curtail or take away the

rights which are sacrosanct, inviolable and immutable.

6. Human Rights are Universal – Human rights are not a monopoly of any privileged class

of people. Human rights are universal in nature, without consideration and without

exception. The values such as divinity, dignity and equality which form the basis of these

rights are inherent in human nature.

7. Human Rights are never absolute – Man is a social animal and he lives in a civic society,

which always put certain restrictions on the enjoyment of his rights and freedoms. Human

rights as such are those limited powers or claims, which are contributory to the common

good and which are recognized and guaranteed by the State, through its laws to the

individuals. As such each right has certain limitations.

8.

Human Rights are Dynamic - Human rights are not static, they are dynamic. Human

rights go on expanding with socio-eco-cultural and political developments within the

State. Judges have to interpret laws in such ways as are in tune with the changed social

values. For eg. The right to be cared for in sickness has now been extended to include

free medical treatment in public hospitals under the Public Health Scheme, free medical

examinations in schools, and the provisions for especially equipped schools for the

physically handicapped.

9.

Rights as limits to state power - Human rights imply that every individual has legitimate

claims upon his or her society for certain freedom and benefits. So human rights limit the

state’s power. These may be in the form of negative restrictions, on the powers of the

State, from violating the inalienable freedoms of the individuals,


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DEVELOPMENT OF HUMAN RIGHT

The UN Charter, 1945The United Nations Charter was drafted, approved and unanimously adopted by all the delegates

of the 51 states, who attended the United Nations Conference at San Francisco The UN Charter

contains provisions for the promotion and protection of human rights. The importance of the

Charter lies in the fact that it is the first official document in which the use of ‘human rights’ is,

for the first time traceable and which also recognized the respect for fundamental freedom.

The Universal Declaration of Human Rights, 1948The Universal Declaration of Human Rights was adopted by the General Assembly of the United

Nations on 10th December, 1948. The Declaration consists of thirty Articles and covers civil,

political, economic, social and cultural rights for all men, women and children. The declaration

however is not a legally binding document. It is an ideal for all mankind.

International Covenants on Human Rights

The Universal Declaration of Human Rights, 1948 was not a legally binding document. It lacked

enforcements. This deficiency was sought to be removed by the U.N. General Assembly by

adopting in December, 1966, the two Covenants, viz,

1. International Covenant on Civil and Political Rights and

2. International Covenant on Economic, Social and Cultural Rights.

The two International Covenants, together with the Universal Declaration and the Optional

Protocols, comprise the International Bill of Human Rights. The International Bill of Human

Rights represents a milestone in the history of human rights. It is a modern Magna Carta of

human rights.


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LEGAL STATUS OF HUMAN RIGHTS IN INDIA

India has had a history of its own, in-so-far human rights of its inhabitants are concerned. Ruled

by despotic rulers/kings and emperors, its public, probably was never aware of the concept of

human rights. While European and other western countries got a taste of real time concept of

human rights with the advent of Magna Carta era, the concept of human rights remained alien, or

at the most, so intermittent that the people of India would have never bothered to think of their

existence with certain rights by the virtue of their being born as humans. The intermittent periods

were those isolated period of history when some benevolent individual had the reigns in their

hand as the ruler/kings and emperors. The colonial rule in India gave much impetus torecognition of certain rights. The struggle for independence was marked with uprisings for

individual and societal rights. There was mass awakening and recognition of rights that were

inherent to human existence. The end of World War II was a turning point in the history of

struggle for human rights worldwide and the world community rose to the occasion by

endeavouring hard for recognition of human rights that would have universal application.

By virtue of being one of the signatories to the United Nation Declaration of Human Rights on

December 10, 1948, India became one pioneering countries of the world to have made a

commitment to respect and protect the human rights declared and accepted by the United Nations

Organizations. Induced by its people's struggle for freedom, India very promptly incorporated

some of the widely accepted human rights as fundamental rights in the Indian Constitution.

The Constitution of India epitomizes the testament of the people of India to protect and promote

the fundamental freedoms and rights of all human beings. The Constitution of India provides

elaborate provisions for all classes of human rights. Part- III relating to the Fundamental Rights

deals with the civil and political rights which and are justifiable in nature; meaning thereby, that

they are enforceable through a Court of Law. The economic, social and cultural rights are

contained in Part IV of the Constitution which lays down Directive Principles of State Policy.

The later are non-enforceable in a court of law, but, are fundamental to governance of country.


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However, the country has witnessed enforcement of these r ights by the deliberations of Hon’ble

Supreme Court of India.

ACTIVE ROLE OF JUDICIARY

Of course, all legal rights are human rights but it is unfortunate that all human rights have not

become legal rights as on date. This is because the law follows the action, as a consequence, it is

not possible to codify all probable laws in anticipation for protection of human rights, and this is

when the due procedure of law or the principle of natural justice plays an active role in

protecting the rights of the people when there is no legislation available.

As I have mentioned earlier, the magnificence of human rights is that it is all pervading, the trick

lies in the successful execution of the same. Fundamentally, the basic motive of all the three

wings of the democratic government, namely, the executive, the legislative, and the Judiciary

revolves around the protection of human rights. They strive together and separately to uphold the

human rights of the people in the country.

The Judiciary with no doubt has played a vital role in protection of Human rights over the

decades. Some of the most unpleasant violation of human rights like Sati, Child Marriage, Honor

Killings, Slavery, Child labour etc., have been abolished wholly owing to widespread awareness

and strict implementation measures taken by the Judiciary.

The status of human rights is fairly high under the Constitution of India which makes provision

for fundamental rights and empowers Supreme Court of India and High Courts to enforce these

rights. Equally important is the fact that India is a signatory to international conventions on

economic, social, cultural, civil and political rights, with certain conditions. These rights are

partly contained in Part III of the Constitution of India including the right to equality in Article

14, right to freedom of speech and expression in Article 19(1)(a), the right to protection of life

and personal liberty in Article 21 and the right to religious freedom in Article 25 etc.


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In Part IV of the Constitution, the Directive Principles of State Policy i.e. the duties of the State

or the socio-economic rights, have been envisaged which are non justiciable in any court of law

but complementary to the fundamental rights in Part III. It directs the State to apply policies and

principles in the governance of the country so as to enhance the prospects of social and economic

justice. For instance, Article 43 directs the State to secure for workers a living wage, decent

standard of life and social and cultural opportunities. On a different note, the society should be

changed in a positive way by the State, enlighten and place every human being in a society

where their individual rights can be protected as well as upheld.

The Indian judiciary with its widest interpretation in observance of Human Rights has

contributed to the progress of the nation and to the goal of creating India as a vibrant State. The

definition of Human Rights can be found under Section 2(d) of the Protection of Human Rights

Act, 1993 as, “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

the Court of India.” So it is evident that Courts have a major role to play in enforcing the rights.

ENABLING PROVISION

The right to enforce the Human Rights provided in the Constitution of India is protected through

enabling provisions. Article 226 of the Constitution empowers High Courts to issue directions,

orders or writs in the nature of Habeas Corpus, Quo Warranto, Mandamus, Certiorari,

Prohibition for the enforcement of fundamental rights as well as any other legal rights. Article

32, itself a Fundamental Right, invests the Supreme Court with the power of judicial review for

the enforcement of fundamental rights with the power to issue directions, orders and writs as

well.

It is worth mentioning that Dr. Ambedkar who in course of his speech referred to draft Article 25

corresponding to the present Article 32, in the Constituent Assembly, said, “if I was asked to

name any particular article in the Constitution as the most important-an article without which this


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Constitution would be nullity – I would not refer to any other article except this one. It is the

very soul of the Constitution and very heart of it and I am glad that the House, has realized the

importance”. During the debates in the Constituent Assembly Alladi Krishnaswami Aiyar also

remarked, “The future evolution of the Indian Constitution will thus depend to a large extent

upon the work of the Supreme Court and the direction given to it by the Court, while its function

may be one of interpreting the Constitution….it cannot in the discharge of its duties afford to

ignore the social, economic and political tendencies of the time which furnish the necessary

background”. And these predictions have come true. Any aggrieved person could have direct

access to superior Courts for obtaining quick relief against the state for violation of any

fundamental right. In addition to the above provisions, Article 142 enables the Supreme Court to

make such orders as are necessary to do complete justice in the cause; Article 141 provides that

the law declared by the Supreme Court shall be binding on all; and Article 144 obliges all

authorities to act in the aid of the Supreme Court.

HUMAN RIGHTS DEVELOPMENT IN INDIA

1829 - The practice of sati was formally abolished by Governor General William Bentick.

1929 - Child Marriage Restraint Act, prohibiting marriage of minors under 14 years of

age is passed.

1955 - Reform of family law concerning Hindus gives more rights to Hindu women.

1973 - Supreme Court of India rules in Kesavananda Bharati case

1 that the basic structure

of the Constitution (including many fundamental rights) is unalterable by a constitutional

amendment.

1978 - SC rules in Menaka Gandhi v. Union of India2 that the right to life under Article

21 of the Constitution cannot be suspended even in an emergency.

1985-6 - The Shah Bano case3, where the Supreme Court recognized the Muslim

woman's right to maintenance upon divorce, sparks protests from Muslim clergy. To

1 (AIR) 1973 SC 1461 2 AIR (1978) SC


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nullify the decision of the Supreme Court, the Rajiv Gandhi government enacted The

Muslim Women (Protection of Rights on Divorce) Act 1986

1989 - Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act , 1989 is

passed.

1992 - A constitutional amendment establishes Local Self-Government ( Panchayati Raj )

as a third tier of governance at the village level, with one third of the seats reserved for

women. Reservations were provided for scheduled castes and tribes as well.

1993 - National Human Rights Commission is established under the Protection of Human

Rights Act.

2001 - Supreme Court passes extensive orders to implement the right to food.

JUDICIAL INTERPRETATION

The role of the India Judiciary and the scope of judicial interpretation have expanded remarkably

in recent times, partly because of the tremendous growth of statutory intervention in the present

era. The judiciary plays an important role in the protection of fundamental rights4 of the citizen

and non-citizens alike. The twin safeguards of equality before law and equal protection of laws5

are acknowledge as two of the most important pillars of human rights of the universe of freedom

that is where ever freedom to assert human rights is recognized, whether under an unwritten or a

written constitution. India is the largest democracy in the world, a sovereign, socialist, secular 6

democratic and republic with a comprehensive charter of rights written into its constitution. The

Indian Constitution lays down base on which its foreign policy should be constructed and its

3 (1985) SCC (2) 556

4 Part III of the Constitution. For details see Durga das Basu, Shoter Constitution of India,Prentice-Hall of India Pvt.

Ltd., New Delhi, 1996, p. 22-23.5 Article 14 of the Indian Constitution: The State shall not deny to any person equality before law or the equal

protection of the laws within the territory of India.6 Word secular is inserted by the Constitution (42nd Amendment) Act, 1976 (w.e.f. 03.01.1977).


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international obligations respected. These base are articulated principally in Article 51,7 which

occurs in Part IV of the Indian Constitution.

The true nature and scope of the function of the court has since long been a matter of debate

almost in all the countries regulated by written Constitution. Austinian Jurisprudence gives a

very narrow view of the judicial function. Austin defined law as a command of the political

sovereign and his sovereignty was indivisible and absolute, only the legislature could make law.

The function of the court was merely to declare the pre-existing law or to interpret the statutory

law. But on the other hand, the realist movement in the United State the latest branch of

sociological Jurisprudence which concentrates on decisions of law courts. Regards and contend

that law is what court says. For them, judges are the law makers. The entire common law is the

creation of the English courts but is posited on the myth that judge merely found law. Even with

such self-negating perception of their own role, the English judges not only made law but also

changed it to suit entirely new conditions created by the industrial revolution.In this modern era

Judicial Activism emerged as tool for protecting Rights of the Children including protection

from sexual exploitation, child trafficking, child abuse etc. some case dealt by the Indian

judiciary for the protection of child rights are as follows

CHILD LABOUR AND RIGHT TO EDUCATION

Education is critical for economic and social development. It is crucial for building human

capabilities and for opening opportunities. The importance of education was fully recognised by

classical economist and social scientist such as Adam Smith, John Stuart Mill, Schultz, Becker

and Amartya sen. Alfered Marshall in the Principles of Economics observed as follows:

“The wisdom of expending public and private funds on education in not to be measured by itsdirect fruits alone. It will be profitable as a mere investment, to give the masses of the people

7 Article 51: The Stae shall endeavour to (a) promote international peace and security; (b) maintain just and

honourable relations between nations; (c) foster respect for international law and treaty obligations in the dealing of

organise peoples with one another; and (d) encourage settlement of international disputes by arbitration.


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much greater opportunities, than they can generally avail themselves of. For by this means many,

who would have died unknown, are able to get the start needed for bringing out their latent

abilities. The most valuable of all capital is invested in human beings.”

The abolition of child labour must be preceded by the introduction of compulsory education

since compulsory education and child labour laws are interlinked. Article 24 of the Constitution

bars employment of child below the age of 14 years.8 Article 45 is supplementary to Article 24

for if the child is not to be employed below the age of 14 years he must be kept occupied in some

educational institution.9The Court in series of cases has unequivocally declared that right to

receive education by the child workers is an integral part of right of personal liberty embodied in

Article 21 of the Constitution.10 In M.C. Mehta v. State of Tamil Nadu11 The Supreme Court

directed that children should not be employed in hazardous jobs in factories for manufacture of

match boxes and fireworks, and positive steps should be taken for the welfare of such children as

well as for improving the quality of their life.

In Goodricke Group Ltd v Center of West Bengal 12

the Court held that it would be for the Centre

and State/Union Territories to raise necessary resources to achieve the goal of providing free

education. Recently Article 21-A has been inserted in the India Act, 2002 which provides that

the state shall provide free and compulsory education to all children of the age of six to furteen

years in such manner as the state may, by law, determine. In Unni Krishnan J.P . v State of

Andhra Pradesh Justice Mohan observed “in educational institutions which are seed-beds of

culture, where children in whose hands quiver the destinies of the future, are trained. From their

8 Article 24: No Child below the age of fourteen years shall be employed to work in any factory or mine or engaged

in any other hazardous employment.9 Article 45 of the Indian Constitution: State shall endeavour to provide, within period of ten years from the

commencement of this Constitution, for free and compulsory education for all children until they complete the age

of 14 years.10 AIR 1993 SC 2178.11 AIR 1991 SC 417.12 123 CTR 516..


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ranks will come out when they grow up statesmen and soldiers, patriots and philosophers, who

will determine the progress of the land.13

CHILD LABOUR WELFARE AND THE LOCUS STANDI

The liberalization of the concept of locus standi, to make access to the court easy, is an example

of the changing attitude of the Indian Courts. It is generally seen that the working children by

and large come from the families, which are below the poverty line, and there are no means to

ventilate their grievance that their fundamental rights are being breached with impunity. Keeping

in view the pitiable conditions of the child workers, the apex court has shown its sensitivity

towards the poor people by relaxing the concept of locus standi.

One important case in which Supreme Court entertained a letter, sent by post as public interest

litigation was the Peoples Union for Democratic Rights v. Union of India14

Also known as the

Asiad Workers case. The Supreme Court held that though the Employment of Children Act,

1938 did not include the construction work on projects because the construction industry was not

a process specified in the Schedule to the Act, yet, such construction was a hazardous occupation

and under Art.24 children under 14 could not be employed in a hazardous occupation. The right

of a child against exploitation under Art.24 was enforceable even in the absence of implementing

legislation, and in a public interest proceeding15

They have no faith in the existing social and economic system”. A high water mark in the

application of the Article 24 of the Constitution was reached in the decision of the Court in Salal

Hydro Project v. Jammu and Kashmir 16

wherein the Court reiterated the above stand. The Court

maintained that child labour is an economic problem. Poor parents seek to argument their meager

income through employment of their children. So, a total prohibition of child labour in any form

may not be socially feasible in the prevailing socio-economic environment. Article 24 therefore,

13 AIR 1993 SC 2178.14 AIR 1982 SC 1473.15 Retrieved from last visited on 27th Nov. 2011, at 15:41

IST.16 AIR 1987 SC 177.


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puts only a practical restriction on child labour. The Court further observed that so long as there

is poverty and destitution in this country, it will be difficult to eradicate child labour.

JUVENILE JUSTICE

The Juvenile Justice (Care and Protection) Act , 200017

is enacted as human rights legislation and

it is now in force in all State uniformly, repealing the entire Children’s Act enacted by states

individually. This legislation deals with the two types of juveniles. “Juvenile in conflict with

law” as defined under Section 2(1) and child in need of care and protection as defined under

Section 2 (d). A juvenile or a child as defined under Section 2 (k) is a person who has not

attained the age of 18 years. The penitentiary system shall comprise treatment of prisoners, the

essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders

shall be segregated from adults and be accorded treatment appropriate to their age and legal

status.18

In Sheela Barse v. Union of India19

Ms.Sheela Barse, a dedicated social worker took up the case

of helpless children below age of 16 illegally detained in jails. She petitioned for the release of

such young children from jails, production of information as to the existence of juvenile courts,

homes and schools and for a direction that the District judges should visit jails or sub-jails within

their jurisdiction to ensure children are properly looked after when in custody. The Court

observed that children in jail are entitled to special treatment. Children are national assets and

they should be treated with special care. The Court urged the setting up of remand and juvenile

homes for children in jails.20

In Sheela Barse v Secretary Children Aid Society21

the Supreme

Court came forward to protect the rights of the children in the observation homes.

17 Juvenile Justice (Care and Protection) Act was enacted in 2000 by repealing the Juvenile Justice Act 1986.18 Article 10 of the International Convention on Civil and Political Rights, 1966.19 1986 3 SCC 596.20 Retrieved from last visited on 27th Nov. 2011,

at 15:40 IST.21 AIR 1987 SC 656.


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ADOPTION OF CHILDREN

Adoption concerns two of our basic human concerns identity and family. A child’s rights to an

identity and family are now universally recognized. They are enshrined in the United Nation

Convention on the Rights of the Child , 1989.22

The Activist Supreme Court of India in Lakshmikant Pandey v Union of India23

1. This writ

petition has been initiated on the basis of a letter addressed by one Laxmi Kant Pandey, an

advocate practising in this Court, complaining of mal-practices indulged in by social

organisations and voluntary agencies engaged in the work of offering Indian children in adoptionto foreign parents. The letter referred to a press report based on "empirical investigation carried

out by the staff of a reputed foreign magazine" called "The Mail" and alleged that not only

Indian children of tender age are under the guise of adoption "exposed to the long horrendous

journey to distant foreign countries at great risk to their lives but in cases where they survive and

where these children are not placed in the Shelter and Relief Homes, they in course of time

become beggars or prostitutes for want of proper care from their alleged foreign foster parents."

The petitioner accordingly sought relief restraining Indian based private agencies "from carrying

out further activity of routing children for adoption abroad" and directing the Government of

India, the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry out

their obligations in the matter of adoption of Indian children by foreign parents. This letter was

treated as a writ petition and by an Order dated 1st September, 1982 the Court issued notice to

the Union of India the Indian Council of Child Welfare and the Indian Council of Social Welfare

to appear in answer to the writ petition and assist the Court in laying down principles and norms

which should be followed in determining whether a child should be allowed to be adopted by

foreign parents and if so, the procedure to be followed for that purpose, with the object of

ensuring the welfare of the child. In this case the Supreme Court held that any adoption in

violation of or non-compliance with may lead adoption to be declared invalid and expose person

22 Asha Bajpai, Adoption Law and Justice to the Child, Center of Child and the Law NLSIU, Bangalor, 1996, p. 1.23 AIR, 1986, SC, p. 1272.


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concerned with to strict action including prosecution. For years, social activists have used these

directions to protect children and promote desirable adoptions. The Government of India framed

a national policy in this regard.

SEXUAL EXPLOITATION OF CHILDREN

Human Rights are derived from the dignity and worth inherent in the human person. Human

right and fundamental freedom have been retreated by the Universal Declaration of Human

Rights. The human rights for women, including girl child age, therefore, inalienable, integral and

indivisible part of universal human rights. All forms of discrimination on ground of gender are

violative of fundamental freedoms and human rights. It would, therefore, be imperative to take

all steps to prohibit prostitution. Eradication of prostitution in any form is integral to social weal

and glory of womanhoods. Right of the child to development hinges upon elimination of

prostitution. Success lies upon effective measures to eradicate root and branch of prostitution. In

Bachpan Bachao Andolan v Union of India writ petition filed by HRLN, Suprem Court on

18.04.2011 has ordered for implementation of suggestions put forth during the hearing of this

case, which will introduce significant reforms in existing child protection regime. The petition

was originally brought in 2006 on issue of abuse and exploitation of children in circus industry.

Court has ordered Central Government to bring a notification prohibiting employment of

children in circus, to conduct raids to rescue children already working in circuses and frame

proper scheme for their restoration. During the hearing in this case, several recommendations

were put forth by petitioner and respondent, aimed on reforming existing legal and procedural

mechanism on child protection. This recent order is just one among the several orders which may

be given by Hon’ble Supreme Court in due couese of time as Hon’ble Court has made clear its

intention to deal with issue of childrens exploitation in a long term and systematic manner.

Assuring to deal with childrens exploitation firmly, Supreme Court has observed: “We plan to

deal with the problem of childrens exploitation systematically”.


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In Vishal Jeet v. Union of India24

Supreme Court in this case deals with some seminal questions

relating to the sexual exploitation of children. Here it has been observed that it is highly

deplorable and heart rending to note that many poverty stricken children and girls in the prime

age of youth are taken to the ‘flesh market’ and forcibly pushed into “flesh trade” which is being

carried on in utter violation of all cannons of morality, decency and dignity of mankind. In

Gaurav Jain v. Union of India,25

The Supreme Court held that the children of the prostitutes

have the right to equality of opportunity, dignity, care, protection and rehabilitation so as to be

part of the mainstream of social life without any pre-stigma attached on them. The Court directed

for the constitution of a committee to formulate a scheme for the rehabilitation of such children

and child prostitutes and for its implementation and submission of periodical report of its

Registry.26

7. Sakshi v Union of India27

In this Public Interest Litigation matter, the Supreme

Court of India asked the Law Commission to consider certain important issues regarding sexual

abuse of children submitted by the petitioner and the feasibility of amendment to 375 and 376

IPC28

.

REHABILITATION OF CHILD PROSTITUTES

The rescue and rehabilitation of the child prostitutes and children should be kept under the Nodal

Department, namely; Department of Women and Child Development under the Ministry of

Welfare and Human Resource, Government of India. It would devise suitable schemes for proper

and effective implementation. The institutional care, thus, would function as an effective

rehabilitation scheme in respect of the fallen women or the children of fallen women even if they

have crossed the age prescribed under the Juvenile Justice (Care and Protection) Act . They

24 AIR 1990 SC 1413.25 AIR 1997 SC 3051.26Retrieved from < http://www.hrcr.org/safrica/childrens_rights/India.html> last visited on 27th Nov. 2011, at 15:42

IST.27 1999 8 SCC 591.28 Retrieved from last visited on 27th Nov. 2011, at 15:42

IST.


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should not be left to themselves, but should be rehabilitated through self-employment scheme or

such measures as are indicated by the Supreme Court in this case. The juvenile homes should be

used only of a short stay or relieve the child prostitutes and neglected juveniles from the trauma

they would have suffered. They need to be rehabilitated in the appropriate manner. The details

are required

To be worked out by meaningful procedure and programmes. In the light of the directions

already given by this court from time to time to the central government state governments and

Union Territory Administrators, adequate steps should be taken to rescue the prostitutes, child

prostitutes and the neglected juveniles. They should take measures to provide them adequate

safety, protection and rehabilitation in the juvenile homes manned by qualified trained social

workers or homes run by NGOs with the aid and financial assistance given by Government of

India or state government concerned. A nodal committee with the public spirited NGOs, in

particular women organizations women members should be involved in the management.

Adequate encouragement may be given to them. The needed funds should be provided and

timely payments disbursed so that the scheme would be implemented effectively and fruitfully.29

SUPREME COURT ON HUMAN RIGHTS

The progress of any society is dependent upon proper application of law to its needs and since

the society today realizes more than ever before its rights and obligations, the judiciary has to

mould and shape the law to deal with such rights and obligations. It is thus clear that within

certain limits judges have the power of profoundly influencing the system of law and

contributing to its substance. Courts enable the law to keep pace with the changing conditions.

Numerous illustrations can be presented from the laws of various countries which show that

courts with their creative function kept the law abreast with time without any formal change in it.

This process of development of law is so well illustrated by how from A.K. Gopalan to Maneka

29 Y. Vishnupriya, Judicial Activism For Protection of Children in India, Socio-legal Journal, Vol.37 (1), Jan. 2011,

p. 150.


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Gandhi, it took the supreme court of India more than a quarter of a century to read a new

dimension into Art 21 of the Indian constitution.

Safety of life and liberty of a person are most significant Human Rights in any ordered society.

The Protection of Human Rights Act, 1993 has now defined "Human Rights30

" Under the Act31

"Human Rights" means the rights relating to life, liberty, equality and dignity of the individual

guaranteed by the constitution. The rights relating to life, liberty, equality and dignity of the

individual are guaranteed by part III of Indian Constitution.

In the beginning the judiciary has a conservative attitude towards this right and checks only bad

provisions, judiciary limited the scope of the expression personal liberty, to bodily restrains only.

In A.K Gopalan V. State of Madras32

personal liberty was held to mean liberty of the physical

restrains of body only. In this case, the majority held that the expression, 'procedure established

by law' means procedure prescribed by the law of the state i.e. this right is guaranteed against

executive arbitrariness and if the following conditions are satisfied, once liberty may be

deprived:

(i) There should be a law

(ii) Law should be a valid law

(iii) The procedure laid down by law should be followed.

Court refused to infuse in that procedure the principles of natural justice. The court also arrived

at the conclusion that Article 21 excluded enjoyment of the guaranteed under article 19 Because,

Article 19, according to the court, postulated legal capacity to exercise the rights guaranteed by

it. But this restrictive interpretation of the Article 21 has not been accepted in the subsequent

cases. The term life cannot be confined only to take away of life.

30 The act shall be deemed to have come into force on 28/09/1993, vide section 1 (3) of the Act31 Sec 2 (1) (d)32 AIR 1950 SC 27


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In an American case (Munn v. Illinois)33

, it was held that, right to life means something more

than mere animal existence. The Supreme Court of India upheld this in Kharak Singh v. State

of U.P34 and said Art 21 means not merely the right to the continuance of person’s animal

existence, but a right to the possession of his organs, his arms and legs etc.

In the case of Anwar v. State of Jammu & Kashmir35

, it was held that the protection

guaranteed under article 21 extends to all persons, not merely citizens, including even persons

under imprisonment. A prisoner has the right to freedom of expression reading and writing

except in so for as it is circumscribed by the fact of imprisonment.36

In Menaka Gandhi v. Union of India37

Indian Supreme Court pronounced a landmark

judgment that the procedure contemplated by Article 21 should be in conformity with the

principles of natural justice and unless it was so, it would be no procedure at all; the requirement

of Article 21 would not be satisfied.

It was a turning point when the Supreme Court held that any state action affecting life and liberty

of a person has to be ‘right, just, fair and reasonable and not arbitrary, fanciful and oppressive’.

Thereafter, there appeared era of progressive judicial activism for protection of human rights. In

the post –Maneka period court’s activism blossomed and flourished. The Supreme Court, in its

anxiety to protect human rights, has at times undertaken the roles of both organs of the

government, the legislature and the executive.

Prior to the decision of Maneka Gandhi in 1978, Art 21 was constructed only as a guarantee

against executive action unsupported by law, as was held in Gopalan case. However, Meneka

Case opened up new dimensions and laid down, that it imposed a limitation upon legislative

33 94 US 133:24 Led 77 (1877) 34 A.I.R. 1963 SC 129535 A.I.R. 1971 SC 33736 A.I.R. 1966 SC 42437 AIR 1978 SC 597


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action also. A great transformation has come about in the judicial attitude towards the protection

of human rights of persons. From Goplan to Meneka, thus judicial exploration has completed its

trek from North to South Pole.

In Maneka’s case, the supreme court has widened the scope of the words 'personal liberty' and

said ‘the expression personal liberty’ in Article 21 is of widest amplitude and it covers a variety

of rights which go to constitute the personal liberty of a man and some of them have been raised

to the status of distinct fundamental rights and given protection under Article 19. Further the

Supreme Court held that the mere prescription of some kind of procedure is not enough to

comply with the mandate of Article 21. The procedure prescribed by law has to be fair, just and

reasonable not fanciful oppressive or arbitrary, otherwise it should not be a procedure at all the

requirements of Article 21 would not be satisfied. A procedure to be fair or just must embody the

principles of Natural justice. Natural justice intended to invest law with fairness and to secure

justice, the court said ‘law should be reasonable law’ and not merely an enacted piece of law.’

This wider interpretation of Article 21 becomes the starting point for the evolution of the law

relating to judicial intervention in Human Rights Cases. In fact Article 21 of the Indian

Constitution is a fundamental right having its origin in Human Rights. Mr. Justice S.R.Das in his

judgment in Gopalan's case gave an illustration that “if a law provided that the cook of the

Bishop of Rochester be boiled in oil it would be valid under Article 21”. This view stood for 28

years until it came to be overruled by the court's judgment in Maneka Gandhi's case a judgment

that was largely inspired by the dynamic and creative approach of justice Bhagwati.

In this famous decision which according to many jurists marks a watershed in the history of the

constitutional law of the country the Supreme Court for the first time took the view that

procedure under Article 21 has to include natural justice. Justice Bhagwati who represented the

majority consensus of the court as Justice Chandrachud, Justice Untwalia and Justice Fazal Ali

agreed with him insisted that the concept of reasonableness must be projected into the procedure


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contemplated by Article 21.38

Justice Bhagwati and justice Krishna lyer emphasized that human

dignity is an important aspect of liberty and hence while considering liberty we have to consider

human dignity.39 Justice Krishna lyer took great pains to uphold the human dignity and observed,

"Spiritual basis of our constitutional order is human dignity and social justice and not the sadistic

cruelty of hard confinement for years"40

The courts have been making judicial intervention in cases concerning violation of human rights

as an ongoing judicial process. Decisions on such matters as the right to protection against

solitary confinement as in Suni l Batra v. Delh i Admin istration 41

(1978) the right not to be held

in fetters as in Charles Sobraj case42

(1978) the right against handcuffing as in T. Vatheeswaran

case 43

(1983) the right against custodial violence as in Ni labati Behera case 44

(1993) or the

rights of the arrestee as in D.K. Basu case45

(1997) or right of the female employees not to be

sexually harassed at the place of work as in the case of Vishaka v. State of Rajasthan 46

(1997)

are just a few pointers in that directions.

After Maneka's case the right to life has been given an expansive interpretation and the courts

have come down hard in cases of violation of Human Rights. Supreme Court has held in Sunil

Batra V. Delh i Admin istration 47

(1978) that fetters especially bar fetters shall be shunned as

violative of human dignity. Bar fetters were held violative of human dignity in charl es sobraj V.

Supt Centr al Jail 48

(1978) also. In Nandini Satpathy V.P.L . Dani 49

(1978) the Supreme Court

38 Mool Chand Sharma : Justice Bhagwati court constitution and Human Rights (1995) P-89-9939 Jolly G. Varghese V. Bank of Chochin, A.I.R. 1980 SC 47040 Inder Singh V. State, A.I.R. 1978 SC 1091.41 (1978) 4 SCC 49442 (1978) 4 SCC 10443 (1983) 2 SCC 6844 (1993) 2 SCC 74645 D.K. Basu v. State of W.B., (1997) 1 SCC 41646 (1997) 6 SCC 24147 A.I.R. 1978 SC 167548 A.I.R. 1978 SC 1514


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held than an accused has the right to consult a lawyer during interrogation and that the right not

to make self-incriminatory statements should be widely interpreted to cover the pre-trail stage

also. In M.H Haskot V. State of Maharashtra 50 (1978) the Supreme Court held that right to free

legal Aid is a fundamental right. Further The Supreme Court in Hussainara Khatoon a nd

others vs. Home Secretary State of Bihar51

expressed anguish at the “travesty of justice” on

account of under-trial prisoners spending extended time in custody due to unrealistically

excessive conditions of bail imposed by the magistracy or the police and issued requisite

corrective guidelines, holding that “the procedure established by law” for depriving a person of

life or personal liberty (Article 21) also should be “reasonable, fair and just”. Further while

considering while considering the plight of the undertrails in Jail, speedy trial was held to be an

integral part of the right to life and liberty contained in Article 21 of the constitution of India.

In Raj Deo Sharma V. State of B ihar 52

(1998) the Supreme Court has issued guidelines for

speedy disposal of criminal cases besides its earlier guidelines.

In Icchu Devi Choraria53

(1980), the court declared that personal liberty is a most precious

possession and that life without it would not be worth living. Terming it as its duty to uphold the

right to personal liberty, the court condemned detention of suspects without trial observing that

“the power of preventive detention is a draconian power, justified only in the interest of publicsecurity and order and it is tolerated in a free society only as a necessary evil”. Dear ones of a

person who has been deprived of life by their wrongful action, reading into Article 21 the “duty

of care” which could not be denied to anyone. For this purpose, the court referred to Article 9 (5)

of the International Covenant on Civil and Political Rights, 1966 which lays down that “anyone

who has been the victim of unlawful arrest or detention shall have an enforceable right to

compensation”.

49 A.I.R. 1978 SC 1025

50 A.I.R. 1978 SC 154851 AIR 1979 SC 1360 52 A.I.R. 1998 SC 328153 1980 SCC 531


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In Prem Shankar Shuk la vs. Delhi Admin istration 54

the Supreme Court found the practice of

using handcuffs and fetters on prisoners violating the guarantee of basic human dignity, which is

part of the constitutional culture in India and thus not standing the test of equality before law

(Article 14), fundamental freedoms (Article 19) and the right to life and personal liberty (Article

21). It observed that “to bind a man hand-and-foot’, fetter his limbs with hoops of steel; shuffle

him along in the streets, and to stand him for hours in the courts, is to torture him, defile his

dignity, vulgarise society, and foul the soul of our constitutional culture”. Strongly denouncing

handcuffing of prisoners as a matter of routine, the Supreme Court said that to “manacle a man is

more than to mortify him, it is to dehumanize him, and therefore to violate his personhood….”.

The rule thus laid down was reiterated in the case of Citizens for Democracy v s. State of Assam

& Ors.55

Supreme Court has held in Sunil Batra V. Delhi Administration 56

that fetters

especially bar fetters shall be shunned as violative of human dignity.

In I cchu Devi Chorari a vs. Union of I ndia 57 the court declared that personal liberty is a most

precious possession and that life without it would not be worth living. Terming it as its duty to

uphold the right to personal liberty, the court condemned detention of suspects without trial

observing that “the power of preventive detention is a draconian power, justified only in the

interest of public security and order and it is tolerated in a free society only as a necessary evil”.Dear ones of a person who has been deprived of life by their wrongful action, reading into

Article 21 the “duty of care” which could not be denied to anyone. For this purpose, the court

referred to Article 9 (5) of the International Covenant on Civil and Political Rights, 1966 which

lays down that “anyone who has been the victim of unlawful arrest or detention shall have an

enforceable right to compensation”.

54 (1980) 3 SCC 526 55

(1995) 3 SCC 74356

A.I.R. 1978 SC 167557

( 1980) 4 SCC 531


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It was observed in Francis Coralie Mull in v. Administrator, Un ion Territory of Delhi 58

(1981)

that right to life cannot be restricted to mere animal existence. It means something more than just

physical survival. Right to life 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 oneself in diverse forms, freely moving about

and mixing and co-mingling with fellow human beings. There is no express provision in the

Constitution of India for grant of compensation for violation of a fundamental right to life and

personal liberty. But the judiciary has evolved a right to compensation in cases of illegal

deprivation of personal liberty.

In Smt. Ni labati Behera @ Lali ta Behera vs. State of Ori ssa & Ors.59 the Supreme Court

asserted the jurisdiction of the judiciar y as “protector of civil liberties” under the obligation “to

repair damage caused by officers of the State to fundamental rights of the citizens”, holding the

State responsible to pay compensation to the near and dear ones of a person who has been

deprived of life by their wrongful action, reading into Article 21 the “duty of care” which could

not be denied to anyone.

For this purpose, the court referred to Article 9 (5) of the International Covenant on Civil and

Political Rights, 1966 which lays down that “anyone who has been the victim of unlawful arrest

or detention shall have an enforceable right to compensation”.

In Joginder Kumar vs. State of UP and Others 60 the court ruled that “the law of arrest is one of

balancing individual rights, liberties and privileges on the one hand and individual duties,

obligations and responsibilities on the other; of weighing and balancing the rights, liberties of the

single individual and those of individuals collectively………”.

58 A.I.R. 1981 S.C. 746

59 (1993)2 SCC 746 60 (1994) 4 SCC 260


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In Delhi Domestic Working Women’s Forum vs. Union of I ndia & Others ( 1 995) 1 SCC 14

the Court asserted that “speedy trial is one of the essential requisites of law” and that expeditious

investigations and trial only could give meaning to the guarantee of “equal protection of law”

under Article 21 of the Constitution.

In People’s Union for Civil Liberties [PUCL] vs. Union of India and another 61

the dicta in

Article 17 of the International Covenant on Civil and Political Rights, 1966 was treated as part of

the domestic law prohibiting “arbitrary interference with privacy, family, home or

correspondence” and stipulating that everyone has the right to protection of the law against such

intrusions.

In D .K. Basu vs. State of West Bengal ,62

the Court found custodial torture “a naked violation of

human dignity” and ruled that law does not permit the use of third degree methods or torture on

an accused person since “actions of the State must be right, just and fair, torture for extracting

any kind of confession would neither be right nor just nor fair”. In ca ses of custodial deaths,

judiciary can issue a writ of mandamus directing the state to grant compensation to the victim’s

family; 5 Lakhs compensation was granted in a case of custodial death42. In recent years

supreme Courts treats delay in execution of death sentence, as violation of Human Right. It washeld that if supreme Courts find that delay in execution of death sentence is undue. “The court

would quash the capital Punishment” and substitute for it the sentence of life imprisonment to

that person.

In Vishaka & Ors. vs. State of Rajasthan & Ors.,63

Supreme Court said that “gender equality

includes protection from sexual harassment and right to work with dignity, which is a universally

recognized basic human right. The common minimum requirement of this right has received

global acceptance. In the absence of domestic law occupying the field, to formulate effective

61 AIR 1997 SC 568 62 AIR 1997 SC 610 63 (1997) 6 SCC 241


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measures to check the evil of sexual harassment of working women at all workplaces, the

contents of international conventions and norms are significant for the purpose of interpretation

of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g)

and 21 of the Constitution and the safeguards against sexual harassment implicit therein and for

the formulation of guidelines to achieve this purpose…. in the absence of enacted law to provide

for the effective enforcement of the basic human right of gender equality and guarantee against

sexual harassment and abuse, more particularly, guidelines and norms are hereby laid down for

strict observance at all workplaces or other institutions, until a legislation is enacted for the

purpose. This is done in exercise of the power available under Article 32 for enforcement of the

fundamental rights and it is further emphasized that this would be treated as the law declared by

the Supreme Court under Article 141 of the Constitution.”

VERSATILE ROLE OF COURTS

The Indian judiciary with its widest interpretation in observance of Human Rights has

contributed to the progress of the nation and to the goal of creating India as a vibrant State. The

intervention by the courts for issues involving the economic, social and cultural rights definitely

created a positive implication.

I can say with pride that some very important developments have occurred wholly due to the

initial efforts taken by the Judiciary, like

Many of the recent changes in law and policy relating to education in general, and

primary education in particular, are owed to the decision in Unni kr ishnan P.J v s. S tate

of A.P. and others 64

For instance, the decision in Paschim Banga Khet Mazdoor Samity & Ors vs. State of

West Bengal & Anr 65

. delineates the right to emergency medical care for accident victims

as forming a core minimum of the right to health.

64 (1993 4 SCC 111) 65 (1996) 4 SCC 37


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The orders in PUCL vs. Union of I ndia 66

underscore the right of access for those below

the poverty line to food supplies as forming the bare non-derogable minimum that is

essential to preserve human dignity.

PIL cases concerning environmental issues have enabled the Court to develop and apply

the ‘polluter pays principle’, the precautionary principles, and the principle of restitution.

The role of court is diverse in nature, sometimes it is required to become the arbitrator too.

The PIL case brought before the Supreme Court in 1994 by the Narmada Bachao Andolan

(NBA), a mass-based organization representing those affected by the large-scale project

involving the construction of over 3,000 large and small dams across the Narmada river

flowing through Madhya Pradesh, Maharashtra and Gujarat, provided the site for a contest of

what the Court perceived as competing public interests: the right of the inhabitants of the

water-starved regions of Gujarat and Rajasthan to water for drinking and irrigation on the one

hand and the rights to shelter and livelihood of over 41,000 families comprising tribals, small

farmers, and fishing communities facing displacement on the other.

In its decision in 2000, the Court was unanimous that the Sardar Sarovar Project (SSP) did

not require re-examination either on the ground of its cost-effectiveness or in regard to the

aspect of seismic activity. The area of justifiability was confined to the rehabilitation of those

displaced by this Project. By a majority of two to one, the Court struck out the plea that the

SSP had violated the fundamental rights of the tribals because it expected that: ‘At the

rehabilitation sites they will have more, and better, amenities than those enjoyed in their

tribal hamlets. The gradual assimilation in the mainstream of society will lead to betterment

and progress’.

The Court acknowledged that in deciding to construct the dam ‘conflicting rights had to be

considered. If for one set of people namely those of Gujarat, there was only one solution,

66 2003(10) SCALE 967


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namely construction of a dam, the same would have an adverse effect on another set of

people whose houses and agriculture would be submerged in water’.

However, ‘when a decision is taken by the Government after due consideration and full

application of mind, the court is not to sit in appeal over such decision’. Even while it was

aware that displacement of the tribal population ‘would undoubtedly disconnect them from

the past, culture, custom and traditions’, the Court explained it away on the utilitarian logic

that such displacement ‘becomes necessary to harvest a river for the larger good’.

Henceforth, it is no doubt that in 21st century the courts ranging from the subordinate courts

to the highest court of the country requires the judges to play an active role in resolving the

issue. The adversarial legal system is changing more towards the inquisitorial legal system,

due to the complexity of the issues involved.

For example, in a hypothetical situation, if the issue of cyber terrorism is brought before the

court of law, is it possible for the Judges to decide the matter like any other regular criminal

cases. The reply would definitely be in negative, owing to the reason it might result in gross

violation of rights. I stated this example to demonstrate that law is not mathematics; rather a

logical conclusion arrived in the light of the substantive law.

Hence, it requires immense knowledge and active participation of the judges for the justice to

be delivered.


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CONCLUSION

In the present era, the human rights refers to more than mere existence with dignity. The

International Institute of Human Rights in Strasbourg divides the human rights into three

generations. First-generation human rights are fundamentally civil and political in nature, as

well as strongly individualistic in nature; the Second-generation human rights are basically

economic, social and cultural in nature, they guarantee different members of the citizenry with

equal conditions and treatment; the Third-generation human rights refers to the right to self-

determination and right to development.

It is true that nobody is perfect, and this also applies to our judiciary. As in some cases like ADM

Jabalpur v. S. K Shukl a 67

our Judiciary failed to satisfy the need of Human Rights. The five

senior most judges of Indian Supreme Court including the Chief Justice struck down the Habeas

Corpus. On this day during the Emergency the Supreme Court sank to its lowest when it decided

the infamous Habeas Corpus Case with the following conclusion:

In view of the Presidential Order dated 27th June 1975 no person has any locus to move any writ

petition under Article 226 before a High Court for habeas corpus or any other writ or order or

direction to challenge the legality of an order of detention on the ground that the order is not

under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is

based on extraneous considerations.

The Presidential Order referred to was the one issued during Emergency declaring that the right

of any person to move any Court for any enforcement of the rights conferred by Articles 14, 21

and 22 of the Constitution and all proceedings pending in any Court for the enforcement of the

above mentioned rights shall remain suspended for the period during which the Proclamation ofEmergency are in force.

67 AIR 1976 SC 1207


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As a consequence with the expansion of scope of human rights, the ambit of safeguarding the

rights also increases, as a result, the judiciary should toil more to prevent the violation of human

rights. Judiciary is the only organ which can translate these rights into reality; which is not

possible without the help of the judicial officers of the respective courts.

Ultimately after many ups and downs the Indian judiciary is playing a role incomparable in the

history of judiciaries of the world. It must, therefore, prove itself worthy of the trust and

confidence which the public reposes in it. The judiciary must not limit its activity to the

traditional role of deciding dispute between two parties, but must also contribute to the progress

of the nation and creation of a social order where all citizens are provided with the basic

economic necessities of a civilized life, viz. employment, housing, medical care, education etc.

as this alone will win for it the respect of the people of the country.

I from the bottom of my heart congratulate the Academy’s effort to organise such regional

conferences which certainly creates a forum for the judicial officers to develop a national

dialogue of emerging challenges and also to contribute towards the excellence of the judicial

system. With conviction, I can say that with such conferences and training programmes

organised more frequently; it will facilitate in achieving our challenges at ease.

The brief survey of the above mentioned cases shows that the activism of the Indian Supreme

Court to protect the children from various type of exploitation. Although the Supreme Court

made laudable directions and suggestions in many instances to protect basic rights of poor

children, unfortunately these directions and suggestions are not followed and implemented by the

government machinery effectively. In this regards, the performance of the Indian Judiciary

stands out as a signal contribution to the implementation of human rights generally and that of

Child Rights in particular.

As such in the M.C. Mehta v. State of Tamil Nadu and Goodricke Group Ltd v Center of West

Bengal Supreme Court of India emphasized on national Constitution and international

instruments, including the Convention on the Rights of the Child, the Indian government is

required to ensure that children do not engage in hazardous work. In Lakshmi Kant Pandey v


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BIBLIOGRAPHY

BOOKS

Kapoor, S.K, “International Law and Human Rights”, 20 th edition 2016.

Agrawal,H.O, “International Law and Human rights”, 20 th edition 2014.

Khanna, D.P, “Reforming human Rights”, 1st edition 2001.

Upadhya Archana, yasin Adil-ul-yasin, “Human Rights”, 1st edition2000.

Dannelly Jack, “Universal Human Rights in Theory and Practice”, 2 nd edition,

2005.

Saxena Ajay, Singh Indu, “Human Rights in india and Pakisan”, 2004.

WEBSITES http://shodhganga.inflibnet.ac.in.

http://nhrc.nic.in

http://www.legalservicesindia.com.

http://legacy.fordham.edu.

http://www.ohchr.org
http://shodhganga.inflibnet.ac.in/http://shodhganga.inflibnet.ac.in/http://nhrc.nic.in/http://nhrc.nic.in/http://www.legalservicesindia.com/http://www.legalservicesindia.com/http://legacy.fordham.edu/http://legacy.fordham.edu/http://www.ohchr.org/http://www.ohchr.org/http://www.ohchr.org/http://legacy.fordham.edu/http://www.legalservicesindia.com/http://nhrc.nic.in/http://shodhganga.inflibnet.ac.in/

Documents

HUMAN RIGHT PROJECT.pdf