Role of Judiciary in the protection and

promotion of Human Rights

ABSTRACT: Judiciary is an independent branch of the state, established as a

guardian of conscience of the people and protector of the law of the land.
Judicial process is an important armor of the judiciary, which upholds the
rights of the people and maint ains the democratic essence of the government.
This paper explores the working of the Indian judiciary, its practice of
judicial activism and how it acts as an upholder of human rights.

Name: Mohd Oves Ahmad

Batch: Semester V, B.A. LLB (H)
Roll no: 33
Subject: Human Rights Law
Submitted to: Dr. Noorjahan Momin
Introduction

Human rights are conceptualized to be those rights that occur naturally to human beings
and are inherent to the quality of being a human itself. The notion of human rights is
rooted in the concepts of “natural rights” that was propounded by John Locke, who
insisted that some rights are natural to individuals having existed since the “state of
nature” that existed before the conception of state.1 The right to a dignified life,
regardless the status of that person, is cardinal to the essence of human rights. The state is
essentially a body to protect these rights. It has various instrumentalities created to hear
concern of the people and provide them with compensation and restoration of their given
rights.

It is necessary that there exist laws outlining the rights of the people and the duties of the
state. Judiciary in each nation has a commitment and a Constitutional job to ensure
Human Rights of the citizens. According to the Indian Constitutional mandate, this
capacity is doled out to the superior judiciary to specifically the Supreme Court of India
and High courts. The Supreme Court of India is maybe a standout amongst the most
dynamic courts when it comes into the matter of insurance of Human Rights. The
autonomous judicial framework originates from the idea of the separation of power where
the executive, legislature and judiciary shape three parts of the government. This
separation and ensuing freedom is vital to the judiciary's effectiveness in upholding and
maintaining human rights.

The philosophy and objective of the Constitution of India is enshrined in the preamble
which include the protection of the dignity of an individual. For the fulfillment of this
objective Part III of the constitution guarantees fundamental rights to people which are
essential for the development of an individual personality, these rights include right to
equality, the right to freedom, the right against exploitation, the right to freedom of
religion, cultural and educational rights and the right to constitutional remedies. The
constitution through Directive Principles of State Policy enshrined in the Part IV of the

1
Burns Weston, ‘Human Rights.’ In 20 New Encyclopedia Britannica 656 (fifteenth edition 1992), in
Henry Steiner and Phillip Alston, International Human Rights in Context: Law, Politics, Morals. 324.
(Oxford: Oxford University Press. 2000)
Constitution, ascertains the duties on the government to work for the welfare of the
people and protection of human rights of the people. These are guiding principles for the
state to make policies regarding distributive justice, right to work, right to education,
social security, just and humane conditions of work, for promotion of interest of weaker
section, raise the standard of nutrition and standard of living and to improve public
health, protection and improvement of environment and ecology etc. so that each
individual can enjoy rights to the fullest. Judiciary is the cardinal upholders of these
rights of the people.

Role of the Judiciary

 Provision of Article 32

A mere provision for the fundamental rights is not enough for ensuring the dignity of the
people; free enjoyment must also be ensured. Article 32 has been included in the
constitution that grants everyone the right to constitutional remedies.

Article 32 gives a guaranteed and speedy solution for authorizing basic rights in light of
the fact that a person can go directly to the Supreme Court without experiencing the tardy
procedures of continuing from the lower to the higher court as he needs to do in other
conventional legislation. The Supreme Court has in this way been established into the
defender and guarantor of fundamental rights. Under Article 32, the court enjoys broad
discretion in the matter of framing the writs to suit the exigencies of a specific case and it
would not toss out the use of the candidate basically on the ground that the proper writ
has not been supplicated for2. The Court's capacity isn't restricted to issuing writs; it can
make any order including even a declaratory one, or give any bearing, as may appear to it
to be important to give appropriate relief to the applicant.

In S.P. Gupta and others v. President of India and Others3, it is held that Under Article
32(1) the Supreme Court’s power to enforce fundamental right is widest. There is no
limitation in regard to the kind of proceedings envisaged in Article 32(1) except that the
proceeding must be ‘appropriate’ and this requirement must be judged in the light of the

2
Chiranjit Lat v. India (AIR 1951 SC 41).
3
(AIR 1982 SC 149.)
purpose for which the proceeding is to be taken, namely, enforcement of fundamental
rights.

In The Fertilizer Corporation case4 has underlined the significance of Article 32 as “an
important and integral part of the basic structure of the Constitution.” Because it is
meaningless to confer fundamental rights without providing an effective remedy for their
enforcement, if and when they are violated. A right without a remedy is a legal
conundrum of a most grotesque kind. Article 32 confers one of the highly cherished
rights,5 subsequently protecting the dignity of the people.

 Locus Standi and the progression of PILs

In law, locus standi means the right to bring an action, to be heard in court, or to address
the Court on a matter before it. Locus standi is the ability of a party to demonstrate to the
court sufficient connection to and harm from the law or action challenged to support that
party's participation in the case.

The traditional rule was that only people whose rights has been infringed can file a writ
petition but the Supreme Court has now considerably relaxed this rule in various case
laws. The court now allows Public Interest Litigations (PIL) on the instance of ‘Public
Spirited Citizens’ for the enforcement of constitutional and other legal rights of any
person or group of persons who are unable to approach the court for relief by themselves
for various reasons6

In Fertilizer Corporation Kamgar Union v. Union of India, the court observed that the
new trend on Locus Standi is to be welcomed which would increasingly create a sense of
responsibility in public authorities exercising enormous powers and minimize the abuse
of power by public authorities. Public enterprises are owned by the people and those who
run them are accountable to the people.

Through Public Interest Litigation the courts permit people or organizations to file
complain regarding any public issue for enforcement of rights of other class or people

4
(AIR 1981 SC 344)
5
M.P. Jain, Indian Constitutional Law, p 703 (Nagpur: Wadhwa and Company, 2002).
6
Dr. J.N. Pandey, Constitutional Law of India, p 314 (Allahabad: Central Law Agency, 2001).
who are unable to do so themselves. In S.P. Gupta v. Union of India and others,7
Supreme Court held that any individual from the general population can approach the
court for implementing the Constitutional or lawful privileges of those, who can't go to
the court due to neediness or some other incapacities. Individual can even compose letter
to the court for making complaints of infringement of rights. PIL is a chance to make
essential human rights meaningful to the denied and powerless segments of the
community. To guarantee vulnerable section social, economic and political equity, any
person/organization through PIL can approach the court to secure the rights in the interest
of wronged people.

Similar observations have been made by Supreme Court in other judgments such as in
Bandhua Mukti Morcha v. Union of India,8 Ramsharan Autyanuprasi and another v.
Union of India and Others,9 Narmada Bachao Andolan v. Union of India10.

In the case of Bandhua Mukti Morcha v. Union of India11, the Court has forged new
tools, devised new methods and adopted new strategies by appointing commissions for
the purpose of gathering facts and data.

In R.R. Delavai v. The Indian Overseas Bank12, the Madras High Court explained the
purpose of PIL both in the Apex Court and the High Court’s thus;

“Being aware of the limitations of legalism, the Supreme Court in the main and the High
Courts to some extent, for the last decade and a half did their best to bring law into the
service of the poor and downtrodden under the banner Public Interest Litigation. The
range is wide enough to cover from bounded labour to prison conditions and from early
trial to environmental pollution. It is not confined to enforcement of fundamental rights of
an individual or a group of persons, but would take in rights of public at large.”

Hence, public interest litigation has become an important tool for the protection of human
rights of the people, especially the destitute, suppressed & exploited, in India.

7
(AIR 1982 SC 149.)
8
(1984) 2 SCR 67.
9
(AIR 1989 SC 549.)
10
(2000) 4 SCJ 261.
11
(1984) 3 SCC 161.
12
(AIR 1991 Mad. 61.)
  Judicial Process and expansion of Human Rights

The statement of Justice Holmes, “the actual life of the law has not been logic; it has been
experience”13 is more relevant in the contemporary era, compared to that of early years.
Whenever the government or legislature betrays its responsibilities or acts abusively the
judiciary and its judges have to take an active role to restore the rights of the people.
Judiciary is ultimate guardian of the human rights of the people. It not only protects the
rights enumerated in Constitution but also has recognized certain un-enumerated rights
by interpreting the fundamental rights and widened their scope. As a result people not
only enjoy enumerated rights but also un-enumerated rights as well.

By Judicial process it is basically meant the role played by a judge in a court of law while
espousing the concept of law over specific aspects of legal guarantee either by
constitution, a legislative enactment or an order of the Executive. They expand the
meaning of laws according to the contemporary needs of the society. This convention is
contained in the legal maxim of boni judicis est ampliare jurisdictionem.14

Supreme Court in Maneka Gandhi v. Union of India15 interpreted Article 21 of the

Constitution and widened its scope by providing many un-enumerated rights such as
“right to live with human dignity”, and in another case the court declared it “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”.16 Based on this interpretation, the
Supreme Court has ruled that the right to live with human dignity encompasses within its
ambit, the protection and preservation of an environment free from pollution of air and
water.17 Court has issued numerous directions regarding polluting industries, vehicular
traffic and related matters. Health and sanitation have been held to be an essential facet of
the right to life. Consequently the Court has intervened and provided relief to inmates of

13
Oliver Wendell Holmes Jr., The Common Law. (Little Brown & Co, 1818, p1); also see Julius Stone:
Legal System and Lawyers’ Reasonings, 301-339 (Universal Law Publishing Co., 1964,)
14
The maxim states that it is the duty of a good judge to enlarge his jurisdiction. It denotes that a good
judge’s duty is to amplify the remedies of the law. Good justice is broad jurisdiction.
15
AIR 1978 SC 597.
16
Francis Coralie Mullin v. Union Territory of Delhi, [(1981) 1 SCC 608]
17
Virender Gaur v. State of Haryana, [(1995) 2 SCC 577]
asylums and so-called ‘care homes’ who were living in sub-human conditions.18
Thereafter, in many cases court such as People's Union for Civil Liberties & another v.
State of Maharashtra & others,19 Francis Coralie Mullin v. The Administrator, Union
Territory of Delhi20 held that right to life includes right to live with human dignity.

Therefore, through the judicial interpretations various rights have been recognized though
they are not specifically provided in Part III of the Constitution.

Part IV of the Constitution of India sets down Directive Principles of State policy. Albeit
Directive Principles are not truly enforceable by any court, they are "nevertheless
fundamental in the governance of the country and it shall be the duty of the State to apply
these principles in making laws."21 The Supreme Court, by exceptional craftsmanship,
has consolidated into fundamental rights a portion of the Directive Principles, for
example, those imposing a commitment on the state to give a decent standard of living22,
a base wage23, just and humane condition of work24, and to raise the level of nourishment
and of public health.25 It is because of this judicial system that some economic rights
have been made a reality for the impoverished segment of the Indian society.

The vulnerable section of the society including women, children and socially,
educationally weaker section of the society has also been repeatedly ensured their rights
by the Courts. There are various instances where judiciary intervened and restored the
human rights of women & children.

In the case of Laborers working on Salal project v. State of Jammu and Kashmir26,
Supreme Court held that children below the age of 14 years cannot be employed and
allowed to work in construction process. Court has issued various directions related to

18
Sunil Batra v. Delhi Admn., [(1978) 4 SCC 494]; Sheela Barse v. State of Maharashtra, [(1983) 2 SCC
96]
19
[2014 (10) SCC 635.]
20
(1981) 2 SCR 516.
21
The Constitution of India, Art. 37.
22
The Constitution of India, Art. 47.
23
The Constitution of India, Art. 43.
24
The Constitution of India, Art. 42.
25
The Constitution of India, Art. 47.
26
(AIR 1984 SC 117.)
child labour. Supreme Court in Vishal Jeet v. Union of India27 asked governments to set
up an advisory committee to make suggestions for eradication of child prostitution and to
evolve schemes to ensure proper care and protection to the victim girls and children. The
Supreme Court further in Gaurav Jain v. Union of India28 showed its concern about
rehabilitation of minors involved in prostitution and held that juvenile homes should be
used for rehabilitation of them and other neglected children.

Supreme Court has similarly passed judgments for protection of basic human rights of
women, workmen, prisoners etc. in cases such as Vishaka v. State of Rajasthan29,
Associate Banks officers Association v. State Bank of India30, BALCO Employees Union
(Regd.) v. Union of India,31 People's Union for Democratic Rights v. Union of India32,
D.K. Basu v. State of West Bengal33, Hussainara Khatoon v. Home Secretary, State of
Bihar34 and many more.

Hence, judiciary has been playing a crucial role in protection and expansion of human
rights in India and will continue to be a powerful and important upholder of the same.

Conclusion

It is evident that the Indian Judiciary has been very sensitive and alive to the protection of
the Human Rights of the people. It has, through judicial activism forged new tools and
devised new remedies for the purpose of vindicating the most precious Human Right to
Life and Personal Liberty. The humongous caseload on the courts is one problem that has
created hindrances in the effective transport of justice; still the judiciary has made
concrete efforts to safeguard rights against the exploitative tendencies of those in power

27
[1990 (3) SCC 318.]
28
[1997 (8) SCC 114.]
29
[(1997) 6 SCC 241.]
30
(AIR 1998 SC 32.)
31
[2002(2) SCC 333.]
32
[1982(3) SCC 235.]
33
[(1997) 1 SCC 416.]
34
[1980) 1 SCC 81.]
by checking the potential excesses of the legislative wings and effectively guarantying
the protection of human rights.35

35
Linda Camp Keith, “Judicial Independence and Human Rights Protection around the World”, 195
Judicature 85(4). (2002)