Legal Reform of Human Rights in India

“ The rights of every human are diminished when the rights of one human are threatened.”
― John F. Kennedy[1]

Introduction

The concept of “human rights” refers to every individual must have rights against the state or other public authority. Human rights are the right which is given to all the human being, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. They are commonly understood as inalienable, fundamental rights “to which a person is inherently entitled simply because she or he is a human being”. Human rights include the right to life and liberty, Right to work and education, freedom to form opinion and expression, freedom from slavery, and torture. Everyone is entitled to these rights without any discrimination.

The Indian concept perceives the individual, the society, and the universe as an organic whole. Everyone is a child of God and all fellow beings are related to one another and belong to a universal family. In this context, Mahatma Gandhi remarks, “I do not want to think in terms of the whole world. My patriotism includes the good of mankind in general. Therefore my service to India includes the services of humanity.

Origin and Development of Human Rights

Universal Declaration of Human Rights is the main human rights tool in the world. The Declaration adopted by the United Nations on December 10, 1948, is the universal human rights document in operation. It is the very foundation of the modern human rights movement. Eleanor Roosevelt, its principal architect, called it the international Magna Carta for all mankind. The General Assembly of the United Nations proclaims the recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world.[2]

Today, there is a growing recognition that human rights must be known, implemented, and implemented to be truly effective. The Universal Declaration of the United Nations provided human rights as a framework for the constitution of modern India. Furthermore, it has become an established principle of jurisprudence and international law that every state should provide an effective framework for the redressal of human rights complaints or violations. A Constitutional Bench of the Supreme Court of India held that the State should secure the proper operation of legal system and proper opportunity to get justice, which shall be its Fundamental Obligation as per Article 39A of Constitution of India.[3]

Indian Perspectives on Human Rights

India is said to be the largest democracy in the world, which does not have a clean human rights record. In line with the global trend, in recent years, human rights have a special significance in the fabric of Indian society. With the enactment of the Protection of Human Rights Act 1993, a new momentum has come up for the development of the jurisdiction of human rights. With the changing social realities, it has been considered a requirement that human rights courts at the district level and human rights commissions at the state and national levels.

Comprehensive definitions of human rights are probably not possible due to the nature of rights and the slowly changing perception over time. In India, through the Protection of Human Rights Act, 1993, an honest attempt has been made to define human rights. According to the Act, Human rights mean rights relating to the life, liberty, equality and dignity of a person conferred by a court of India or enforceable and enforceable in international courts. In this context, human rights are mentioned in India:

Rights related to the dignity of the person

Guaranteed by the Constitution of India or embodied in international covenants and enforceable by the Courts in India.

Protection of Human Rights and Judicial Obligation

The major object of the present study is to evaluate the role of the judiciary in the context of the protection of human rights and to examine whether the development of the law as response of judiciary to the needs of the society is a constitutional obligation or some sort of activism or adventurism (What Justice A.S. Anand calls judicial obligation or judicial activism) being indulged in by the judiciary. While talking about the Constitution as living law, it is usually understood to refer to the doctrines and understandings that the Courts have invented, developed, spread and applied to make the Constitution work in every situation. Unless life can be pumped into the cold print of the Constitution to keep it vibrant at all times it shall cease to be living law.

The Constitution cannot be living and dynamic instrument if it lives only in the past and does not address the present and the future. This exercise of jurisdiction by the Courts in India has been called judicial activism. The judiciary will continue to respond to the changing needs of the times. That is how activism has evolved in India. Justice Mehmood of the Allahabad High Court, in 1983 delivered a dissenting judgement which sowed the seed of judicial activism in India.[4]

The concept of judicial activism and public interest litigation are interlinked. Public interest litigation has become a citizen’s favorite tool for fighting an incompetent and irresponsible government. To his credit, in some cases, Supreme Court rulings advanced civil rights and strengthened constitutional protections for the common man. This changing stance of the judiciary has been called judicial activism, judicial creativity which Justice A.S. Anand, (often referred to as judicial activism), as a means of developing new judicial principles for the growth and development of law. This is an accepted judiciary principle of the judiciary not only in this country, but in almost all common law. It is a well-recognized role of countries.

The law must run with time and the judiciary must live this reality forever. This role of the judiciary is not new in India or anywhere else. It has been there all along. In a situation when the existing law appears to be deficient to provide for the felt needs of the time, the role of the judiciary is not only to interpret but also to expound the law to provide for those situations as well. The society has placed judges on a high pedestal. The Courts are the guardians of the constitution framed WE THE PEOPLE OF INDIA and have to act according to their conscience to uphold the constitution. “In Bandhua Mukti Morcha v. Union of India case, the Supreme Court reiterated once again that right to life guaranteed by Article 21 included the right to live with human dignity, free from exploitation.

“In M.H.Hoskot v. State of Maharashtra case, the Supreme Court recognized the right of an indignant person to have legal aid. The wide definition of life and liberty as interpreted by the courts helped various types of issues to come before the courts.

The doors opened by the constitutional Courts in pursuance of its determination to keep open the legal process more participatory and democratic led to the public interest litigation being used liberally for various types of relief’s, such as for protecting the fundamental rights of under trial prisoners in jails, amelioration of the conditions of detention in protective homes for women, for medical check-up of remand home inmates, prohibition of traffic in women and relief for the victims, for the release of bonded labor, enforcement of other labor laws, e.g., full and direct payment of wages to workers or prohibiting the employment of children in construction work, acquisition of cycle. Rickshaws by licensed Rickshaw pullers, relief against custodial violence to women prisoners while in police lockup, for environmental protection, for enforcement of gender equality and protection from sexual harassment and the like.

The Supreme Court of India by a series of landmark judgments, established basic principles of common law described as judicial activism. Various High Courts have been very much active and conscious to the right of the people including children. They have indeed revolutionized the scope of the right to life by holding that environmental degradation violates fundamental rights to life. The Supreme Court has been very much conscious of the right of the child to healthy ecological environment which is reflected in its judgment in Ganga pollution case (1991).The court declared that access to pollution free water and air is a fundamental right of the citizens and held that right to life under Article 21 of the constitution includes right to enjoyment of pollution free water and air for full enjoyment of life.

[1] ‘Human Rights Quotes’ (Good Reads) <www.goodreads.com/quotes/tag/human-right> accessed 7 June 2019

[2] The Universal Declaration of Human Rights, Whatare Human Rights? HumanRights.com

[3] Kartar Singh v. State of Punjab, (1994) 3 SCC 569

[4] Justice Michael Kirby, Bar Association of India Lecture, 6th January 1997