HUMAN RIGHTS AND SUPRME COURT OF INDIA

2016

CHANAKYA NATIONAL LAW
UNIVERSITY

SUBJECT- HUMAN RIGHTS
PROJECT WORK ON
HUMAN RIGHT& SUPREME COURT OF INDIA

SUBMITTED TO- DR. VIJAY KUMAR VIMAL

SUBMITTED BY
ROHIT SINHA
ROLL NO. 601
10TH SEMESTER

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AIMS AND OBJECTIVEThe 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. is
concerned 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, 1945
The 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, 1948
The 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 to
recognition 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 rights 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 case1 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
2

(AIR) 1973 SC 1461
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 rights 4 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 (42 nd 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 its
direct 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 Bengal12the 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 Kashmir16 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.
AIR 1982 SC 1473.
15
Retrieved from <http://www.hrcr.org/safrica/childrens_rights/India.html> last visited on 27th Nov. 2011, at 15:41
IST.
16
AIR 1987 SC 177.
14

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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 India19Ms.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.20In 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.
Article 10 of the International Convention on Civil and Political Rights, 1966.
19
1986 3 SCC 596.
20
Retrieved from <http://www.hrcr.org/safrica/access_courts/India/Indiacases.html> last visited on 27th Nov. 2011,
at 15:40 IST.
21
AIR 1987 SC 656.
18

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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 adoption
to 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
23

Asha Bajpai, Adoption Law and Justice to the Child, Center of Child and the Law NLSIU, Bangalor, 1996, p. 1.
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.
AIR 1997 SC 3051.
26
Retrieved 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 <http://www.hrcr.org/safrica/childrens_rights/India.html> last visited on 27th Nov. 2011, at 15:42
IST.
25

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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 Act
Sec 2 (1) (d)
32
AIR 1950 SC 27
31

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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)
A.I.R. 1963 SC 1295
35
A.I.R. 1971 SC 337
36
A.I.R. 1966 SC 424
37
AIR 1978 SC 597
34

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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 Sunil Batra v. Delhi Administration41 (1978) the right not to be held
in fetters as in Charles Sobraj case42 (1978) the right against handcuffing as in T. Vatheeswaran
case43 (1983) the right against custodial violence as in Nilabati Behera case44 (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 Rajasthan46 (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. Delhi Administration47 (1978) that fetters especially bar fetters shall be shunned as
violative of human dignity. Bar fetters were held violative of human dignity in charles sobraj V.
Supt Central Jail48 (1978) also. In Nandini Satpathy V.P.L. Dani49 (1978) the Supreme Court
38

Mool Chand Sharma : Justice Bhagwati court constitution and Human Rights (1995) P-89-99
Jolly G. Varghese V. Bank of Chochin, A.I.R. 1980 SC 470
40
Inder Singh V. State, A.I.R. 1978 SC 1091.
41
(1978) 4 SCC 494
42
(1978) 4 SCC 104
43
(1983) 2 SCC 68
44
(1993) 2 SCC 746
45
D.K. Basu v. State of W.B., (1997) 1 SCC 416
46
(1997) 6 SCC 241
47
A.I.R. 1978 SC 1675
48
A.I.R. 1978 SC 1514
39

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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 Maharashtra50 (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 Bihar52 (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 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”.

49
50

A.I.R. 1978 SC 1025
A.I.R. 1978 SC 1548

51

AIR 1979 SC 1360

52

A.I.R. 1998 SC 3281
1980 SCC 531

53

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In Prem Shankar Shukla vs. Delhi Administration54 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 Administration56 that fetters
especially bar fetters shall be shunned as violative of human dignity.
In Icchu Devi Choraria vs. Union of India57 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
(1995) 3 SCC 743
56
A.I.R. 1978 SC 1675
57
( 1980) 4 SCC 531
55

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It was observed in Francis Coralie Mullin v. Administrator, Union Territory of Delhi58 (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. Nilabati Behera @ Lalita Behera vs. State of Orissa & Ors.59 the Supreme Court
asserted the jurisdiction of the judiciary 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 Others60 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
(1993)2 SCC 746
60
(1994) 4 SCC 260
59

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In Delhi Domestic Working Women’s Forum vs. Union of India & 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 another61 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 cases 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 was
held 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
AIR 1997 SC 610
63
(1997) 6 SCC 241
62

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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 Unnikrishnan P.J v s. S tate
of A.P. and others64
 For instance, the decision in Paschim Banga Khet Mazdoor Samity & Ors vs. State of
West Bengal & Anr65. delineates the right to emergency medical care for accident victims
as forming a core minimum of the right to health.

64
65

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

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 The orders in PUCL vs. Union of India66 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 selfdetermination 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 Shukla67 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 of
Emergency 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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HUMAN RIGHTS AND SUPRME COURT OF INDIA

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Union of India with object of ensuring the welfare of the child J. Bhagwati directed the
Government and various agencies to follow some principles as their constitutional obligation to
ensure the welfare of the child. Also judiciary has taken the lead to save the child from
exploitation and improve their conditions. To mention a few, the Asiad case (1981), L.K.Pandey
case (1994), M.C.Mehtas case (1991), Vishal Jeet v. Union of India (1990), and Gaurav Jain v.
Union of India (1997) are some of the famous decisions where the judiciary has shown enough
courage to uphold the interests of the children and spared no one to improve the working
conditions of the child workers. The judiciary has always made concrete efforts to safeguard
them against the exploitative tendencies of their employer by regularizing their working hours,
fixing their wages, laying down rules about their health and medical facilities. The judiciary has
even directed the states that it is their duty to create an environment where the child workers can
have opportunities to grow and develop in a healthy manner with full dignity in consensus of the
mandate of our constitution.

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HUMAN RIGHTS AND SUPRME COURT OF INDIA

2016

BIBLIOGRAPHY
BOOKS
 Kapoor, S.K, “International Law and Human Rights”, 20 edition 2016.
 Agrawal,H.O, “International Law and Human rights”, 20 edition 2014.
 Khanna, D.P, “Reforming human Rights”, 1 edition 2001.
 Upadhya Archana, yasin Adil-ul-yasin, “Human Rights”, 1 edition2000.
 Dannelly Jack, “Universal Human Rights in Theory and Practice”, 2 edition,
2005.
 Saxena Ajay, Singh Indu, “Human Rights in india and Pakisan”, 2004.
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WEBSITES
 http://shodhganga.inflibnet.ac.in.
 http://nhrc.nic.in
 http://www.legalservicesindia.com.
 http://legacy.fordham.edu.
 http://www.ohchr.org

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