1

Nirma University

Institute of Law

Human Rights Jurisprudence Indian Context

Jurisprudence

(Academic Year 2015-16)

Submitted To

Ms. Nanda Pardhey

Project Coordinator

Jurisprudence

Submitted By

Ashwin Shrivastava

11BBl115

B.Com. LL.B.

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:Index:

Sr. No. Subject Page No.

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CHAPTER I - RESEARCH METHODOLOGY

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2 CHAPTER II - INTRODUCTION 4

3 CHAPTER III - JURISPRUDENTIAL STUDY 9

4 CHAPTER IV - ANALYSIS ON INDIAN LEGAL

PROVISIONS

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5 CHAPTER V - COMPARITIVE STUDY 18

6 CHAPTER VI - CONCLUSION

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7 CHAPTER VI - SUGGESSTIONS/ RECOMMENDATIONS

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CHAPTER I: RESEARCH METHODOLOGY

The present project attempts to trace out the historical background of the Concept of Human

Rights in India and to critically evaluate the relevance of existing legal system and framework

in order to contribute in a extensive understanding of the concept. Therefore, the present study is

an attempt to fill up this gap. For the purpose of this study, the many theories of various jurists

are taken for consideration.

As far as methodological part of this study is concerned, the study is based on secondary data

sources. Existing literature, reports and consultation papers of various distinguished authors,

reports of Government of India and other reports have been consulted to attain the objectives of

the study.

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CHAPTER II: INTRODUCTION

Human rights are a result of a philosophical civil argument that has boiled over for more than

two thousand years inside the European social orders and their pioneer relatives. This contention

has concentrated on a quest for good gauges of political association and conduct that is

autonomous of the contemporary society. As it were, numerous individuals have been unsatisfied

with the idea that what is correct or great is essentially what a specific culture or decision tip top

feels is correct or great at any given time. This unease has prompted a journey for persisting

good objectives that tie social orders and their leaders over the long run and from spot to place.

Furious verbal confrontations boiled over among political thinkers as these issue were contended

through. While a way was cleared by progressive masterminds that prompt contemporary human

rights, a second path was set down in the meantime by the individuals who opposed this bearing.

The development of human rights from the common rights convention did not come without

restriction, as some contended that rights could just from the law of a specific culture and

couldn't originate from any characteristic or inborn source. The pith of this level headed

discussion proceeds with today from seeds sown by past eras of logicians.

The earliest philosophies to human rights might be found in the accepted wisdom of `natural

right' urbanized by classical Greek philosophers, such as Aristotle, but this concept was more

fully developed by Thomas Aquinas in his Summa Theologica1. For several centuries Aquinas'

conception held influence: there were goods or behaviours that were naturally right (or wrong)

because God meant it so. What was naturally right could be established by humans by `right

reason' - thinking properly. Hugo Grotius2 further expanded on this notion in De jure belli et

paci, where he advocated the immutability of what is naturally right and wrong:

Now the Law of Nature is so unalterable, that it cannot be changed even by God himself. For

although the power of God is infinite, yet there are some things, to which it does not

extend.. ...Thus two and two must make four, nor is it possible otherwise; nor, again,

can what is really evil not be evil.3

1Summa Theologi of St. Thomas Aquinas, ST I-II, Q. 3, Art. 2, ad. 2 Hugo Grotius, The Law of War and Peace, ....p.22 3 Ibid

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The ethical power of characteristic right was guaranteed in light of the fact that it had divine

origin. As a result, God chose what breaking points ought to be set on the human political action.

However the long haul trouble for this train of political thought lay exactly in its religious

establishments.

As the reformation got on and ministerial power was taken aback and tested by logic, political

savants contended for new bases of regular right. Thomas Hobbes corresponded to the first

significant hit in 1651 on the heavenly premise of regular right by portraying a State of Nature

in which God did not appear to assume any element. Maybe all the more essentially, be that as it

may, Hobbes moreover made a critical jump from `natural right' to `a regular right'. As such,

there was no more simply a neglected of conduct that was regularly right or wrong; Hobbes

integrated that there could be some case or privilege which was gotten from nature. In Hobbes'

viewpoint, this regular right was one of insurance toward oneself.

Further support of characteristic rights accompanied Immanuel Kant's compositions later in the

seventeenth century that responded to Hobbes' work. In his view, the gathering of people into a

statestructured society came about because of a sound requirement for assurance from one

another's viciousness that would be found in a condition of nature. Then again, the key

prerequisites of profound quality obliged that each one treat an alternate as indicated by

widespread standards. Kant's political precept was gotten from his ethical reasoning, and as

being what is indicated he contended that a state must be sorted out through the burden of, and

compliance to, laws that connected all around; by the by, these laws ought to appreciation the

uniformity, flexibility, and self-rule of the subjects. Along these lines Kant, endorsed that

essential rights were important for common society:

A true system of politics cannot therefore take a single step without first paying tribute to morality. ...The rights of man must be held sacred, however great a sacrifice the ruling power must make4

4 Immanuel Kant, "Perpetual Peace," in Hans Reiss (ed.), Kant: Political Writings, 2nd.ed., Cambridge: Cambridge

University Press, 1991, p.125.

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Consequently, the historical backdrop of political rationality has been one of a few hundreds of

years of open deliberation. The offspring of common rights savants, human rights, now hold an

effective place in contemporary political awareness. Notwithstanding, not one or the other

dominant faith in, nor even a agreement of backing for human rights don't answer the concerns

raised by the prior masterminds - are rights really the result of a specific vision and laws of a

general public? Then again, are human rights so intrinsic in humanness that their birthplaces and

establishments are incontestable?

A further trouble, with significant ramifications, that human rights speculations need to succeed

is their rising up out of these Western political customs. Not just are they a result of European

characteristic rights, however the specific rights that are seen as `natural' have been significantly

molded by the progressivism that developed in the nineteenth and twentieth hundreds of years.

With human rights, the logical structure of the regular rights custom now serves as a vehicle for

the estimations of Western progressivism.

A simple and compelling feedback is that human rights can't be general. In their fundamental

idea they are a Western creation, based on the European custom that people are distinct from

their general public. Anyway one may address whether these rights can apply to collectivist or

communitarian social orders that view the single person as a unified component of the entire

society. Westerners, and numerous others, now put a high esteem on each singular human;

however this is not a quality ruling that is all comprehensive. There is substantive opposition on

the level of, or even the necessity for, any insurance of people against their society.

Notwithstanding this issue with the idea itself, there are solid complaints to the way in which

human rights have been conceptualized. Numerous arrangements of human rights read like

particulars for liberal majority rule government. An assortment of conventional social orders can

be found in the world that work amicably, however are not focused around equity without taking

into consideration general suffrage.

A question that will repeat in later exchanges is whether the `human rights' pushed today are

truly social liberties that relate to a specific - liberal - origination of society. To a vast degree, the

determination of this issue relies on a definitive objective of human rights. On the off chance that

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human rights are truly surrogate progressivism, then it will be alongside difficult to contend their

intrinsic power over contending political qualities. In place for human rights to appreciate

general authenticity they must have a premise that survives charges of ideological government.

Human rights must have an all around worthy premise with the goal there should be any

significant measure of consistence.

DEVELPOMENT TOWARDS HUMAN RIGHTS:

A very clear idea about the way of development human rights can be gathered from the different

reasons that progressed for holding them. A prime concern is to offer assurance from

overbearing and tyrant counts. Fanciful or abusive measures of a dictatorial government may be

obliged with the distinguishment of incomparable good cutoff points on any government's

flexibility of activity. Anyhow even among governments that are truly restricted by moral

contemplations, there may at present be a need to shield the masses from utilitarian choice

making. More noteworthy else's benefit of the entire society may prompt reparation or misuse of

minority hobbies. Then again, the procurement of essential advantages inside the general public

may be restricted by counts that open assets ought to be spent on different ventures.

The fascination of human rights is that they are regularly thought to exist past the determination

of particular social orders. Therefore, they set an all inclusive standard that can be utilized to

judge any general public. Human rights give an adequate seat mark with which people or

governments from one piece of the world may reprimand the standards took after by other

governments or societies. With an acknowledgement of human rights, Moslems, Hindus,

Christians, industrialists, communists, vote based systems, or tribal theocracies might all

genuinely reprimand each other. This feedback crosswise over religious, political, and monetary

partitions picks up its authenticity since human rights are said to revere general good

benchmarks. Without completely general human rights, one is left just attempting to affirm that

one's own specific manner of speculation is superior to some individual else's.

The prime expository profit of human rights is that they are seen as being so fundamental thus

key to human presence that they ought to trump whatever other thought. Pretty much as Dworkin

has contended that any origination of `rights' trumps different claims inside a general public,

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human rights may be of a higher request that supersedes much different rights asserts inside a

society.5

Different inspirations for human rights may originate from an alarm of the results of denying

their presence. On account of the cash given human rights in contemporary political verbal

confrontation, there is a risk that such a refusal will give backing to merciless administrations

who protect their suppression because worldwide human rights standards are basically a

whimsical creation that has no widespread power. The United Nations gathering on human rights

held in Vienna in 1993 saw a percentage of the world's most harsh governments making exactly

this contention, and few individuals would wish to give further defense to this position. In

expansion, a lot of political promotion depends on human rights talk to give a legitimating good

compel. Without the speak to human rights, majority rule champions would need to contend the

allure of qualities, for example, balance and the right to speak freely over the regularly

exceptional circumstances of the world's social orders, instead of declaring that such profits

simply inalienably spill out of human presence.6

5 Tom Campbell, The Left and Rights: A Conceptual Analysis of the Idea of Socialist Rights, London: Routledge

and Kegan Paul, 1983.

6 Douglas Husak, "The Motivation for Human Rights", (1985) 11 Social Theory and Practice, 249-255

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CHAPTER III: JURISPRUDENTIAL STUDY

Numerous jurists and authors have contended that human rights exist with a specific end goal to

secure the essential dignity of human existence. Without a doubt, the United Nations Declaration

on Human Rights symbolized this objective by pronouncing that human rights stream from "the

inalienable dignity of the human individual". Concrete arguments have been made, particularly

by western liberals, that human rights must be keeping pace to protected and to proceed human

dignity. As Jack Donnelly has thought of, "We have human rights not to the imperatives for

wellbeing yet to those things `needed' for a life of respect, for a life deserving of an individual, a

life that can't be delighted in without these rights" (original importance).7 This perspective is

maybe the most pervasively held, particularly among human rights activists; the talk of human-

rights question most habitually summons this thought of striving for the nobility that makes

human life worth living. The thought of advancing human pride has extensive offer, since human

life is given a unique weight over different creatures in many social orders decisively on the

grounds that we are equipped for developing the nature of our lives.

Sadly, the advancement of human dignity may well give a shaky establishment to the

development of all inclusive good measures. The intrinsic shortcoming of this methodology lies

in attempting to recognize the way of this dignity. Donnelly 8 unwittingly uncovers this

inadequacy in developing the purposeful human activity that makes human rights. "Human rights

speak to a social decision of a specific good vision of human possibility, which rests on a

specific substantive record of the base necessities of a life of respect".

Human Dignity is an extremely versatile idea and the substance given to it is all that much an

ethical decision, furthermore a specific origination of nobility gets to be foremost. Yet, who

settles on this decision and why ought to one origination beat different perspectives of nobility?

Indeed general dismissal of extraordinary affirmations of respect may not show concurrence on a

center substance. There power be across the board scorn of my statement that I can just lead a

really honorable life in the event that I am encompassed by 100 gushing adoration slaves. Yet

7 Jack Donnelly, Universal Human Rights in Theory and Practice, Ithaca: Cornell University Press, 1989,

p.17. 8 Ibid ,,p17

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dissatisfaction with the absence of balance in my vision of nobility does not so much exhibit that

equity is an all inclusive part of human dignity.

While a standout amongst the most fundamental liberal convictions about human nobility is that

all people are equivalent, social division and chain of command assume vital parts in parts of

Hindu, Confucian, Muslim, what's more Roman Catholic perspectives of human life. To be sure,

`dignity' is regularly accomplished in these perspectives by striving to satisfy one's specific

livelihood inside a requested set of parts. Anyway, if human rights are intended to be all

inclusive gauges, the inalienable pride that should be secured ought to be a typical vision.

Without sufficient shared characteristic, poise can't suffice as a definitive objective of human

rights.

An option premise for human rights draws from the necessities for human prosperity. One

promoter of this methodology, Allan Gewirth, would concur with Donnelly that human rights are

attracted substance from mankind's ethical nature, however Gewirth does not take after

Donnelly's conclusion that human rights are an ethical vision of human poise, rather, Gewirth

contends that "existence or activity is the regular subject of all ethical quality and practice".9

Human rights are a result of ethical quality as well as ensure the essential flexibility and

prosperity important for human existence. Gewirth recognized three sorts of rights that address

distinctive levels of prosperity. Fundamental rights protect one's subsistence or essential

prosperity.

Non-subtractive rights keep up the limit for satisfying purposive office, while added substance

rights give the requirements to adding to one's capacities - for example, instruction. Gewirth

separates between these rights in light of the fact that he acknowledges that people shift

massively in their limit for purposive org. Through what he calls the guideline of proportionality,

people are qualified for those rights that are proportionate to their ability for organization.

Accordingly, people who are irrational just have essential rights to subsistence, since they are

inadequate of any purposive activity.

9 Allan Gewirth, "Why There Are Human Rights", (1985) 11 Social Theory and Practice, 235-248, p.235.

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The final alternative basis for human rights would provide the needs for human existence.10

Human rights may be constrained to giving all people the requirements for their physical

subsistence. At the same time, this subsistence would include a certain level of negligible solace

past only keeping one's organs working, in light of the fact that human subsistence likewise

comprises of being ableto capacity. Promoters of alternate methodologies to human rights have

rejected needs to subsistence as excessively restricted an establishment; however this feedback

may not represent the consequences that spill out of the scope of human needs. Human rights

would ensure the procurement of the sustenance, attire, and sanctuary without which anybody

would die. Likewise, fundamental human services guarantees human survival; my grandma

passed on in 1924 from a ruptured appendix, while I am alive today on the grounds that an

operation was accessible for my own assault of a ruptured appendix in 1968. Since most families

are not just furnished with the necessities to life yet purchase them with the wages of their work,

one can undoubtedly develop the scope of human rights into different profits identifying with the

work power. This expansion is especially genuine if the fulfillment of necessities is refined not

by specifically supplying the particular products required, yet in giving the ability to people to

accommodate themselves. In an expansive communist perspective, work ought to be ensured to

all that are competent. In a more confined perspective, the instruction important to acquiring the

work expected to support oneself is a human right. Consequently, human rights can cover a

substantial, and exceptionally extravagant, cluster of social-welfare programs. Very much a

central renewal of most political frameworks would happen if governments genuinely tended to

welfare programs as vital human rights.

These views delineate that the establishment for human rights may be not one or the other plainly

obvious nor generally acknowledged. One picks, expressly or certainly a specific defense or

premise for human rights, and that decision will have critical results upon the scope of profits

that fall inside human rights. Decision invades human rights from their origination to their

conveyance, and those decisions may well undermine the very establishment of human rights

moral influence.

10 Johan Galtung, Human Rights in Another Key, Cammbridge, Mass: Polity Press, 1994.

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CHAPTER 4: ANALYSIS ON INDIAN LEGAL PROVISIONS In the Indian context, it can be acknowledged that parts III and IV of Indian constitution along

with preamble to the constitution, even before the declaration of human rights, personified the

concepts of human right. Additionally, India is now a party to sixteen International treaties

relating to Human rights including the International Covenant on Economic and Social and

Cultural Rights and civil and political rights. It consist of International Convention on Racial

Discrimination, Covenant on Right of child and the political rights of women; slaves convention,

etc.

With the rising concept of welfare state and democracy in India, state guided to the trend of

assuring basic human rights in constitution itself. It presumes that every citizen has a right to life

and liberty and security of a person, free will or freeness from servitude etc. And making certain

equality before law11

and equal protection of law for everyone. Therefore, it is evident that the

Indian legal system from the very inception of the constitution has reacted well to the Human

Rights activism.

The preamble to the constitution which is committed to the plan of communist model of society,

has ensured social, financial and political equity, freedom of thought, interpretation and

conviction, confidence and love, fairness of status and chance to all with no segregation as to

race, rank, sex, religion, spot of conception, and so on. The constitution of India additionally

accommodates the right to speak freely and representation, tranquil get together and opportunity

of calling, practice and engendering of religion and instructive and social rights. The constitution

additionally gives reprimand to these rights by making them enforceable by immediate access to

the Supreme Court or the High Court through sacred plans.

The S.C. what's more H.C. has opened new measurement to the idea of Human Right

development by generously deciphering and growing the importance of Basic Human Right.

There are number of situations where the idea of human rights has been given greater

measurement through legal activism. Subsequently, the privilege to life and individual freedom

has been deciphered so generously that now it covers inside its ambit mixture of rights and

incorporates Right to satisfactory nourishment, garments and haven, right to wholesome

11 Article 14 of The Constitution of India.

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environment, right to fast trial; right to lawful support to poor, right to know, right to pay, and so

on.

Consequently it is said constitution of India through legal activism assuming an unequivocal part

in usage of human right. These days human right rationality completely followed in India and it

is base of constitution of India. Vienna Conference on human rights on June 25, 1993 prescribed

that each state should give on compelling systems of hardware or foundation to give cures in the

event of infringement of human rights.

After this conference several states including India established National Human Right

Commission to redress human right grumbles or infringements and as per the Article 51 of the

Indian constitution state should strive to:

(a) Promote international peace and security.

(b) Maintain just and honourable relations between nation, etc. pursuant to the direction

enshrined in Article 51 of the constitution and International Commitments, Parliament has

passed the protection of Human Rights Act, 1993 and then set up a National Human Rights

Commission from 1993.

The National Human Rights Commission is concocted to give force to go into occasions of

carelessness from open administration faculty in averting Violations National Human Right

Commission (NHRC) has rendered a solitary administration for the reason for recognition of

human rights, particularly in the field of Civil Liberties. NHRC's intercession in a portion of the

human right infringement cases outlines the Service it is accomplishing for reason for human

rights assurance particularly in the field of Civil Liberties. Case in point its work in the field of

avoidance of custodial passings, assault and torment has been very commendable. NHRC acts as

a check over freak cops and it is a kind of cautioning to the cops that in the event that they abuse

their energy or submit abundances, they may be punished for this. NHRC's bearings to all

District Magistrates and Superintendents of Police to answer to the Commission all occurrences

of custodial passing or assault inside twenty four hours has had an exceptionally helpful effect in

anticipating such episodes NHRC work's extraordinary and it has roused the certainty of the

individuals.

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In Landmark Judgment in National Human Rights Commission v. Condition of Arunachal

Pradesh

For this situation "PIL" documented by NHRC for implementing the rights under Article 21 of

the constitution of around 65,000 Chakmas. The All Arunachal Pradesh Student Union had

debilitated to coercively remove them from the state; the Supreme Court held that the state is

sure to secure the life and freedom of each individual whether he is a resident or non-native.

S.C. additionally requested to ensure all "Chakmas" from any endeavor to persuasively expel or

drive them out of state by All Arunachal Pradesh Student Union and Court likewise guided the

state to pay to the applicant (NHRC) Rs. 10,000 as expense of the appeal for bringing the matter

in the witness of the court. This shows up the significant works of NHRC in India.

The Commission has turned into a kind of circuitous however powerful scout the wrongdoings,

overabundances, misuse of force of police, now due to such work of commission. Police

authorities will need to think a few times before endeavoring such misfortunes. The

aforementioned talk uncovers that NHRC and the legal are assuming a viable part in execution of

human rights, however in spite of this, the quantity of human rights infringement cases is

continually expanding especially in the conditions of Bihar, Uttar Pradesh, Jharkhand and

Naxalite regions along these lines it is said that NHRC is a frail or barren body and unfit to

handle the issues of developing human right infringement.

Since it is said that, however it has been depended with the imperative work of guaranteeing

recognition of human right, yet the forces presented on it are not sufficient, it has no force to take

a coupling choice, it can just suggest, NHRC has no autonomous and separate examining

organization and needs to use and depend upon the administration of any officer or exploring

office of the Central or State Government. The concerned Government or the power is not bound

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to acknowledge the suggestions or may acknowledge the proposals with certain change as it may

consider fit.

The genuine desert in the usage of work of NHRC is that the definition gives in area 2(d) of the

Protection of Human Rights Act is exceptionally thin. It is not fitting to breaking point the

human rights just to the rights identifying with life, freedom, uniformity and nobility of the

individual despite the fact that they are the most essential fundamental human rights.

It is likewise said that, as indicated by Act, foundation of State Human Rights Commission as

per Art. 21 (1) is optional for state and not obligatory thus just few states have so far settled State

Human Rights Commission. Once more, it is said that human rights' idea not appropriately

actualized on the grounds that there is no solid locale of human rights court and no distinct

purview detailed in the Act, it is not clear what cases will be directed in such courts and what

technique should be followed in such court thus it is dependably that assurance of human rights

act itself is a reason of loss of power of NHRC or loss of power in usage of human rights in

India. Thus it is said that the position of Human Rights Commission in India is a long way from

palatable. In any case separated from such inadequacies yet it would not be right to say that

National Human Rights Commission has no teeth or there were not any laudable and

praiseworthy work done on account of infringement of human rights. Since as per Section 18 (G)

of the Act.

It is obligatory for the commission to distribute its request report together with the remarks of the

concerned Government or power, and such report when distributed makes solid general feeling

thus the Central Government or State Government will need to think a few times before choosing

to dodge or decline to actualize the suggestions of commission.

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Since no Government in a popularity based nation like our own can stand to oppose or maintain

a strategic distance from such general supposition on the grounds that Government constantly

attempted to be in force, so it is said that popular conclusion is a coupling power of human right

execution of commission thus as opposed to being hesitant or appalling, the Government will be

so eager it is not possible acknowledge and execute the suggestions of the commission. Yet

despite the fact that beyond any doubt thin meaning of 'human right' in Act restrains the extent of

commission to guarantee the recognition of human right. Anyhow Supreme Court these days

perceived various separate and free crucial rights as being either piece of the current major rights

or rights radiating from them.

Additionally, the S.C. has perceived in various cases, International Conventions on human rights

can be utilized as a part of deciphering the protected procurements. Presently key rights, for

example, right to sex equity and forbiddance of lewd behavior of working ladies at their work

environments, can be perceived in future by the Supreme Court.

In this manner, it might be presumed that regardless of a few deficiencies and downsides in the

Act, the commission, practically speaking has ended up being a powerful body for the

recognition of human rights in the nation inside a brief time, i.e., just a couple of years, it has

performed respectable and commendable works and Government ought to for the most part

acknowledge and quickly execute the suggestions of commission. For instance, in the audit of

Acts and statutes, for example, Terrorist and Disruptive Activities (Prevention) Act, 1987 TADA

and Prevention of Terrorism (POT) Bill, 2000

As a result of this demeanor, in some cases normal masses abhor over accentuation of human

right rationality, and this is dependably a contraversile issue in India there are numerous

instances of such circumstances show up in India. Particularly, there has been a hot talk on this

subject in whole India, when two crooks Chalapathi Rao and Vijayavardhana Rao (in

Chilakalooripeta transport looting, blazing and 32 travelers smoldering case) granted capital

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punishment, Human right activists restricted the judgment and said that it is unhuman and the

death penalty is merciless, and so forth thus normal masses communicates their grievance against

such activists, that however, such offenders conferred unhuman act why?

Human right activists help them, and due to such general accentuation of Human right rationality

on inordinate reorganization of culprits and cancelation of capital punishment. Human right

rationality, these days contempted by normal masses.

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CHAPTER 5: COMPARITIVE STUDY When we inspect the historical backdrop of recent years of autonomous India, one of the

amazing accomplishments of this period that quickly rings a bell is the advancement of the

human rights statute. The Indian Supreme Court has played an special part in this respect, maybe

exceptional to some other court on the planet. Without a doubt, the Indian Supreme Court is a

standout amongst the most influential courts on the planet. It is immediately a government court,

a court of request, a gatekeeper of the Constitution and a court of record as in the law proclaimed

by it is tying on all different courts inside the domain of India. Its purview stretches out to

around 900 million individuals and it has the force of legal survey over official activity as well as

enactment and broadens indeed to looking into the legitimacy of Constitutional corrections - a

force endless in many parts of the world.

In Gopalan V. State of Madras (1950) and Jaynarayan V. State of West Bengal (1970), the

Indian Supreme Court had, in any case, propounded the perspective that by receiving the

articulation "rule established by law", Art. 21 of the Indian Constitution had typified the English

idea of individual freedom in preference to that of American standard of "Due Process of

Law"(5th and fourteenth Amendments of the US Constitution) which secures Americans against

discretionary official activities as well as against any enactment the court may see as undue,

unreasonable or unreasonable.

Indian court held that the perspective that not at all like the American Constitution, the

establishing fathers of our Constitution favored the matchless quality of the officials to that of

the legal. In that capacity, they accepted that like the British Constitution, individual freedom in

India was "a freedom limited and controlled by law", despite the fact that the minority of judges

in the Gopalan's case held that such a translation of Art. 21 could just toss "the most imperative

central right to life and individual freedom" "helpless before authoritative dominant parts".

The majority opinion of the Supreme Court had reasons to make a restricted interpretation of the

right to personal liberty granted by Art. 21 of the Constitution. It may be recalled here that the

Drafting Committee of the Constitution Assembly, headed by Dr B R Ambedkar, had rejected

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the "due process" clause proposed by B. N. Rau. This was done after a detailed scrutiny of the

Constitutional Advisor's draft of the Constitution and other matters, notes, reports and

memoranda placed before it. Undoubtedly, the founding fathers of the Constitution could not

anticipate the irresponsible and highly selfish behavior of present legislators. Unlike American

counterparts, they, therefore, placed certain trust in them. Once, however, our elected

representatives began to increasingly display their scant regard for democratic ethos and popular

welfare, the Supreme Court had to come forward to safeguard a common individual's rights.

After a long struggle, which may be said to have started tangibly since 1971, the minority view

in Gopalan's case could, therefore, come to triumph in the 7-Judge landmark decision in the

Maneka V. Union of India case (1978). In that case, the Supreme Court held that the procedure

contemplated by Article 21 was not any procedure, but had to be just, reasonable and fair. For

the first tme, it took the view that Art 21 afforded protection not only aginst executive action but

also against legislation. The court thus introduced in the Constitution the procedural due process

of the American Constitution. From Gopalan to Meneka, thus, the judicial exploration completed

its trek from the North to the South Pole. The decision in Maneka's case has been followed by

the Supreme Court in subsequent cases such as Sunil V. Delhi Administration (1978), Hassainara

V State of Bihar (1979), State of Maharastra V. Champaklal (1981); and Sher Singh V. State of

Punjab (1983), etc. The Supreme Court developed through these cases three notable basic

commitments to human rights in the last few years. First is the commitment to participative

justice, the second is the commitment against arbitrariness and third is the commitment to just

standard of procedure.

The Supreme Court affirmed its commitment to just standards of procedure in preventing

administrative regression. Relaying on the requirements of a reasonable, fair and just procedure,

the court made legal aid to a poor accused in a criminal case a constitutional right by treating it

as an integral part of a reasonable, fair and just procedure. It also held speedy justice in a

criminal case to be part of a reasonable, fair and just procedure. In the process, the Supreme

Court repudiated its traditional view that fundamental rights merely impose negative restrictions

on the state. Since the landmark judgment of the Meneka Ganhdi case, the court started reading

fundamental rights as imposing affirmative obligations on the state. It marked the beginning of a

new era of judicial activism. It further expanded the scope and ambit of Article 21 by placing an

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expansive interpretation on the right to life enshrined in that Article in the Francis Coral Mullin

case. In this case the court held that the word "life" did not mean a mere physical or animal

existence but included the use of every limb and faculty through which life was enjoyed and also

a safe and healthy environment was included in the right to life. The right to travel abroad was

also recognized as an integral part of right life and personal liberty.

As far as India is concerned, there is no contradiction between the individual and the social good

and natural rights and development. India's Constitution guarantees all human rights and

fundamental freedoms as conceptualized in the Universal Declaration, and recognizes certain

unalienable rights that are inherent to the concept of the dignity of man. At the same time, human

rights are not limited to the protective aspect. It includes the notion that a man must have the

space and the means to achieve freedom. Both democracy and development contribute to human

rights in that they promote freedom of thought, action, and existence. In the politicized discourse

on human rights in the U.N. human rights fora, the development argument is portrayed as an

excuse to justify political repression or human rights violations for the greater good of society.

While this may be true in some instances there are also instances in which the West has sided

with such policies rather than opposed them. To generalize from singular instances would be

unwarranted and unjustified. Similarly, attempts to promote civil and political rights in countries

that blatantly violate such rights should not be uniformly portrayed as political interference.

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CHAPTER 6: CONCLUSION

India is a nation that took the lead fifty years ago to embrace human rights both in the U.N.

Charter and in its own Constitution. Its people are reasonably self-righteous of their social and

philosophical traditions of humanism and universalism based on peacefulness, forbearance,

pluralism, coexistence, and the individual pursuit of truth. These values are deep-rooted in its

culture and marked in national figures such as Lord Buddha, Emperor Akbar, Rabindranath

Tagore, and Mahatma Gandhi. India has demonstrated its commitment to democracy and the

development of human rights in all parts of the world. Significantly, India's commitment to

human rights preceded the Universal Declaration by anticipating the 1996 Covenants and

proclaiming and guaranteeing basic human rights and fundamental freedoms for all citizens,

irrespective of caste, creed, race, religion, or sex. India's interpretation of the duties and

obligations of states under the 1996 Covenants is that each state must strive to recognize and

give effect to the various rights and duties embodied in the 1996 Covenants through the best

avenues available to it. India recognizes that a country's size, population, social structure, and

political environment can effect the assurance of such rights. Furthermore, India embraces

cultural differences, and supports the ideal that every faction in society, irrespective of ethnic

origin, color, caste, sex, or religious belief, should be able to enjoy protected human rights. India

also perceives it as a duty of the State to promote awareness of rights among its own people and

to provide adequate and effective machinery to ensure observance of such rights. India fully

recognizes, consistent with what is stated in the preamble of its Constitution, that every

individual has a duty to other individuals and to the community to observe the rights recognized

therein and to take preventive measures to ensure that the community as a whole is not deprived

of enjoyment of its rights at the hands of individuals or groups of individuals. This duty is

particularly important considering the increase in acts of terrorism and other disruptive activities.

India firmly believes that a country's overall performance and its resolve to translate into reality

the enjoyment of rights by its people is of paramount importance.

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CHAPTER 7: SUGGESSTIONS/RECOMMENDATIONS

The Indian legal system suffers the politicization of western ideas and the over impact of western

ideas of human rights. We require a more cooperative and holistic view of human rights system.

Merely adapting and implementing the ideas and agendas of other developed worlds would never

solve the major issues that our legal, social and political system face. The very thing that we

have adopted the human right agendas directly from the west and did not think about our own

problems is the error in the philosophy of Human Rights in Indian context.

Double standards, selectivity, politicization, self-righteousness, and partial approaches towards

the observation of human rights rekindled a divide. This was accompanied by assertions of a

dubious moral superiority, insinuations of 'bad faith' on the part of others, and misuse of political

pressure against the developing world. These tendencies, as well as the apparent appropriation of

human rights discourse by the West, have affected the credibility of the human rights agenda

among many developing countries. For the most part, critics of the U.N. human rights agenda

focus on the Western influence on such agenda.undamentally, this criticism proceeds along two

lines. The first line questions the human rights credentials of the West itself and its position as

supporter of human rights. The second line of criticism analyzes the distortions and flaws

inherent in the system and the forms it takes in the conduct of international relations. Similarly,

there are criticisms of developing countries for their lack of emphasis on civil and political

rights.