HYPOTHESIS

Supreme court is custodian of rights of citizen from the time of independence and it helps in
making laws better for the society by using its powers given under the constitution.

ABSTRACT

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 the human family', irrespective of any
other consideration. The concept of human rights is as old as the ancient doctrine of 'natural
rights' founded on natural law, the expression 'human rights' is of recent origin, emerging from
(post-Second World War) international Charters and Conventions. It would, therefore, be logical
to start with the concept of natural rights, which eventually led to the formulation of 'human
rights'. In the beginning, the right of man as a legal or moral concept appeared in the form of
natural rights. The natural rights were derived from the nature of man for these are inherent in
the nature of man and form part of his intrinsic nature. It means there exist in the nature of
universe certain objective moral principles which can be perceived by the man by the application
of his reason and self determination. There are so many theories round the corner about the
nature, meaning and concept of natural rights, which ultimately culminated into the idea that an
individual has right upon society or against society which the society must recognize as human
rights. This concept of human rights can be termed as updated version of the traditional 18th
Century concept of the right of man. The expression human right is of recent origin emerging
after the end of the Second World War. The outcome of the Second World War had given rise to
the serious concern towards humanity 2 because humanity suffered lot in this era, and as a
consequence tremendous developments have been made in the field of human rights. Universal
Declaration of Human Rights was adopted by the United Nations General Assembly in 1948 and
subsequently large number of international human right instruments and covenants came into
existence.

INTRODUCTION

HUMAN RIGHTS IN CONSTITUTION

"Swaraj mera janma sidh adhikar hai" (Freedom is my birthright and I shall have it) was the
daring declaration made by a great patriot, Lokmanya B. G. Tilak, before the British Government
as far back as 1895. Tilak's and subsequent freedom fighters' demands for the guarantee of basic
human rights denied to Indians during British rule found compendious expression in Part 111.20
The Constituent Assembly members debated the subject of fundamental rights, "the most
criticized part of the constitution" with great passion for thirty-eight days. They used the
American Bill of Rights as their model in drafting the rights. Thus, with respect to Part III, it
was "the Potomac and not the Thames that fertilized the flow of Yamuna." The Constitution
guarantees an impressive array of Fundamental Rights covering a wide range of civil, political,
cultural, economic and social rights. These rights are subject to certain exceptions that do not
render them illusory. Originally, the Constitution guaranteed a right to property and to obtain
compensation for the property acquired by law for a public purpose except in the crucial areas of
agrarian reform. The Forty-fourth Constitutional Amendment introduced in 1978 removed
property as a fundamental right. Today, the right to property enjoys the status of a mere legal
right.

The right to equality guarantees both equality before law and equal protection of all laws.
Specific kinds of discrimination such as those based on religion, race, caste, sex or place of birth
are constitutionally prohibited. Further, the Constitution sanctions "special treatment" in favor of
women, children, scheduled castes and tribes and "backward classes" of citizens. The
Constitution also abolishes untouchability, and forbids its practice in any form. These provisions
were designed to eradicate the evils of casteism and untouchability that had been practiced on a
relentless scale in India. Unfortunately, they have not yet been totally banished from modern and
free Indian society. Other crucial rights such as freedoms of speech and expression, to assemble
peacefully without arms, to form associations, to move freely and to reside and settle in any part
of the country, to acquire, hold and dispose property, and to practice any profession,
occupation, trade or business, have all been given constitutional protection. There are explicit
grounds on which "reasonable restrictions" can be placed in exercising these freedoms. 36
Article 21, which enshrines the most venerable right, reads as follows: "No person shall be
deprived of his life or personal liberty except according to procedure established by law."
Accepting an American jurist, Felix Frankfurter's, sagacious advice, the framers eliminated the
original "due process" clause in this article. The resistance was not to due process as a
requirement of fair procedure but to the substantive interpretation that could flow from it. The
phrase "due process" was replaced with the "procedure established by law" clause - a term
borrowed from the Japanese Constitution. Articles 20 and 22 provide a host of safeguards
designed to assure a fair trial to all citizens. These crucial provisions were inserted at the behest
of Dr. B.R. Ambedkar to compensate for the absence of a "due process" clause in Article 21.
They guarantee freedom from retroactive crimes, double jeopardy, self-incrimination,
imprisonment without being informed of the grounds of arrest, the right to counsel on arrest, the
right to be produced before a magistrate within twenty four hours of arrest and the right to
magisterial supervision in case of imprisonment for a period beyond twenty four hours. The
framers' serious commitment to upholding the dignity of the individual is amply reflected in the
constitutional ban on the traffic of human beings, 'begar' and other forms of forced labor, and the
employment of children below the age of fourteen years in any hazardous occupation or
workplace. These salutary provisions are grouped under the rubric - the right against
exploitation. Freedom of religious thought, belief, practice and "institutional existence" is also
guaranteed. It is interesting to note that the State has been vested with far reaching powers to
regulate this freedom not merely in its secular aspects, in the interests of 'public order' and
'morality'," but also to effect social reform and compel public Hindu temples to open their doors
to all classes of Hindus. This was done with the intention of accelerating the emancipation of
Indian women and abolishing the concept of untouchability. Additional provisions were included
to safeguard the rights of minorities - any distinct religious, cultural and linguistic group. These
groups are free to establish and administer institutions to preserve their culture, language and
script. In cases where such institutions receive grants from the State, they are subject to the
constitutional ban on the exercise of specific kinds of discrimination in their admission policies.

SUPREME COURT ROLE IN PROTECTION OF HUMAN RIGHTS

Right to freedom of movement and personal liberty

Kharak Singh vs The State Of U. P. & Others on 18 December, 1962

Facts
Kharak Singh, the Petitioner was released from an investigation of dacoity for lack of evidence
against him, but the U.P. Police opened a ‘history sheet’ against him under Chapter 20 of the
U.P. Police Regulations. These Regulations allowed surveillance on individuals who were
habitual criminals or were considered likely to become habitual criminals. The police conducted
surveillance as per Regulation 236 of the U.P. Police Regulations, which involved secret
picketing of Petitioner’s house, nightly domiciliary visits, periodic inquiries by officers as well
as tracking and verification of his movements. The Petitioner challenged the constitutionality of
Chapter 20 of the U.P. Police Regulations that allowed police officials to conduct this nature of
surveillance upon him.
JUDGMENT
The Court at the outset noted that the Regulations were executive and not legislative in nature as
they did not have any statutory basis, whether delegated or otherwise. Since the Regulations
were departmental instructions framed for the guidance of police officers, they neither
constituted law as required within the meaning of ‘procedure established by law’ in Article 21
nor did they satisfy the test laid out in Articles 19(2)-(6). Therefore, the Respondent would not
be able to make use of the protection of ‘reasonable restrictions’ if the Regulations were found to
violate fundamental rights as that defence was reserved for duly made ‘law’.
The Court considered the constitutionality of all the clauses of Regulation 236. With regard to
clause (a), authorising secret picketing of the houses of suspects, and clauses (c), (d) and (e),
which were meant to maintain records of shadowing of history-sheeters, the Court held that
keeping a watch over a suspect and secretly recording their activities did not impede movement
in physical terms and that a psychological barrier to action was not protected by Article 19(1)(d).
Further, it also did not deprive the suspect of his ‘personal liberty’ within the meaning of Article
21. With regard to clause (b), which provided for nightly domiciliary visits of the history-
sheeters, the Court discussed whether intrusion into a citizen’s house constituted a violation of
Articles 19(1)(d) or 21. The Court found that Article 19(1)(d) was not infringed as it did not
cover psychological inhibition, but physical movement, which had not been impaired. While
analysing Article 21, the Court examined the width, scope and content of the term ‘personal
liberty’, and reviewed several US Supreme Court cases in this context. It referred to the
judgment of Justice Field in Munn vs. Illinois ((1877) 94 U.S. 113), and affirmed its observation
that "life" in the Fifth and Fourteenth amendments of the U.S. Constitution corresponding to
Article 21 “means not merely the right to the continuance of a person's animal of existence, but a
right to the possession of each of his organs - his arms and legs etc”, and Justice Frankfurter
in Wolf vs. Colorado ((1949) 338 U.S. 25), which held that “security of one's privacy against
arbitrary instruction by the police...is basic to a free society” and it is “implicit in 'the concept of
ordered liberty’”. It also alluded to the Fourth Amendment to the US Constitution, which
encapsulates the “right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures” and noted that the Indian Constitution lacked a
corresponding provision. While discussing the concepts related to personal liberty, the Court also
alluded to the English common law maxim that “every man’s house is his castle”. 
Further, the Court analysed the relationship between the ‘liberties’ in Articles 19(1) and 21, and
found that while Article 19(1) dealt with particular species or attributes of freedom, “the term
‘personal liberty’ is used in Art. 21 as a compendious term”, which took in and comprised the
residue. It observed that the term ‘personal liberty’ intends to promote the constitutional
objective mentioned in the Preamble to the Constitution of assuring the dignity of the individual.
On the basis of the above discussion, the Court found that clause (b) fell afoul of Article 21, and
struck down Regulation 236(b), which authorised domiciliary visits. However, it upheld the rest
of the Chapter 20 of the U.P. Police Regulations, as attempts to surveil the movements of an
individual only invaded his privacy, and that “the right of privacy is not a guaranteed right under
our Constitution”.
However, the minority opinion noted that “It is true our Constitution does not expressly declare a
right to privacy as a fundamental right, but the said right is an essential ingredient of personal
liberty.” It further noted that “nothing is more deleterious to a man's physical happiness and
health than a calculated interference with his privacy”, and referred to the observations of Justice
Frankfurter in Wolf vs. Colorado, to reiterate the importance of securing the privacy of a person
against arbitrary intrusion by the police. It held that the term ‘personal liberty’ was wide enough
to take in a right to be free from restrictions, placed directly or indirectly on his movements.
Further, the minority held the entire Regulation to be unconstitutional and not just Regulation
236(b), on grounds of infringing both Articles 19(1)(d) and 21, and observed that the attempt to
dissect the act of surveillance into different consequences was unjustified as all the sub-clauses
of the Regulation were adopted for the same purpose. Moreover, it found that the Regulation
violated freedom of expression under Article 19(1)(a), as it prevented a person from expressing
their real and intimate thoughts.
Right To Privacy

Golaknath, I.C v State of Punjab (1967)

FACTS

The family of Henry and William golaknath were in possession of over 500 acres of farmland in
Jalandhar, Punjab. Under the Punjab security and Land Tenures Act, the government held that
the brothers could keep only thirty acres each, a few acres would go to tenants and the rest was
declared surplus. This was challenged by the family of golaknath in the courts. Further, this case
was referred to the Supreme court in 1965. The family filed a petition under Article 32
challenging the 1953 Punjab Act on the grounds that it denied them their constitutional rights to
acquire and hold property and practice any profession (Article 19 (f) and (g) and to equality
before the protection of the law (Article 14). They sought to have the seventeenth amendment –
which had placed the Punjab Act in ninth schedule – declared ultra vires (beyond the powers).
Golaknath. I.C v State of Punjab is one of the landmark cases in the Indian history. With its
ruling, in this case, the court developed jurisprudence around what is known as the doctrine of
basic structure. The court in 1967 ruled that the Parliament can not curtail any of the
fundamental rights enshrined under the constitution of India. 

JUDGMENT

In this case, at that time the supreme court had the largest bench ever. The ratio of the judgment
was 6:5, majority was favouring the petitioners. The CJI at that time and with other justices (J.C.
Shah, S.M. Sikri, J.M. Shelat, C.A. Vaidiyalingam) wrote the majority opinion. Justice
Hidayatullah agreed with CJI Subba Rao and therefore he wrote a separate opinion. Whereas
Justices K.N. Wanchoo, Vishistha Bhargava and G.K Mitter they all wrote single minority
opinion and justices R.S. Bachawat & V. Ramaswami wrote separate minority opinions. The
majority opinion of golakh Nath shows scepticism in their minds about the then course of
parliament. Since 1950 the parliament has used article 368 and have passed a number of
legislations that had in one or other way have violated the fundamental rights under part III of
the constitution. The majority had doubts that if Sajjan Singh remained the law of the land, a
time can come when all fundamental rights adopted by our constituent assembly will be changed
through amendments. Keeping in view the problem of fundamental rights and fearing that there
can be a transfer of Democratic India into totalitarian India. Therefore, the majority
overruled Sajjan Singh & Shankari Prasad. 

The majority said that the parliament has no right to amend the fundamental rights. These are
fundamental rights are kept beyond the reach of parliamentary legislation. Therefore, to save the
democracy from an autocratic actions of the parliament the majority held that parliament cannot
amend the fundamental rights enshrined under Part III of the Constitution of India The majority
said that fundamental rights are the same as natural rights. These rights are important for the
growth and development of a human being. Fundamental rights are considered to be necessary
for the development of human personality. These rights are the rights which helps a man to
figure out his/her own life in a manner he/she wants. Our constitution has given us the
fundamental rights which also includes the rights of minorities and other backward communities.
According to the Constitution, Parliament and the state legislatures in India have the power to
make laws within their respective jurisdictions. But, this power is not absolute in nature. The
Constitution rests with the judiciary and the power to adjudicate upon the constitutional validity
of all laws also rests with the judiciary.  If a law made by Parliament or the state legislatures
violates any provision of the Constitution, the Supreme Court has the power to declare such a
law invalid, unconstitutional or ultra vires. This check notwithstanding, the founding fathers
wanted the Constitution to be an adaptable document rather than a rigid framework for
governance. They wanted it to be a flexible document which can adjust or adapt itself according
to the changing situations.  Parliament was invested with the power to amend the Constitution.
Article 368 of the Constitution gives the impression that Parliament’s amending powers are
absolute and encompass all parts of the document. But the Supreme Court has acted as a brake to
the legislative enthusiasm of Parliament ever since independence. With the intention of
preserving the original ideals envisioned by the constitution-makers, the apex court pronounced
that Parliament could not twist, damage or alter the basic features of the Constitution under the
pretext of amending it. The phrase ‘basic structure’ itself cannot be found in the Constitution.
CONCLUSION

Supreme Court's role since independence, she has defended and applauded the Court's expansive
interpretation of Article 21, its creative procedural innovations, and its indirect method of
weaving international human rights norms into the constitutional tapestry. She must hasten to
add, however, that that this does not mean she applauds every decision rendered by the Court in
the post-emergency era or is oblivious to the fact that judges can go wrong in advancing human
rights. Nonetheless, one must wonder what the landscape of human rights would be like today
were it not for the Court's sensitivity to the harsh realities of Indian society and its juristic
activism. The preceding analysis clearly illustrates the unique contributions that the judicial
process can make to the task of fulfilling the constitutional aspirations of the poor and the
downtrodden. It is fair to conclude that in its role as a "social auditor," the Court has taken
"suffering seriously" and has made a significant contribution to the meaningful protection of
human rights in India. A lot has been accomplished, but there is still much to be done. Indeed, at
this moment during the celebration of the fiftieth anniversary of India's independence, one cannot
avoid wondering if this new commitment of the judiciary to the poor and downtrodden -
displayed after three decades of negation - will be kept? Will it continue and flourish? The
landscape of human rights in India would be one of unrelieved gloom if the Court were to
forsake its new activist role for a traditional one, merely presiding over adversarial proceedings,
and concluding with an order to the parties. India, a pluralist society, can ill afford such a
reactive and restrained judiciary. The concept of judicial activism and the need for a judiciary to
serve as a bulwark of individuals' rights from legislative and executive encroachment is visibly
highlighted on the constitutional landscape of the world today. That judges make law and decide
policy issues in the process of interpreting and applying the law is not a new discovery of our
times. Rather, the focus is on what and for whom they should intervene and how far they should
go. In this concluding part, I shall highlight a few issues where the new forward surge of
constitutional concern is particularly required in future.

This perception of the function of the Court in human rights cases is one that appeals to me and
which I find persuasive. In articulating new rights and placing the mantle of constitutional
protection over a variety of claims, judges in India, have unhesitatingly donned the robes of high
priests, academicians, environmentalists and social reformers. This serves as a reminder of the
danger that they may silence a just claim espoused by an unpopular group on the basis that their
collective wisdom finds it unworthy of constitutional protection. For instance, homosexual men
in India have demanded the repeal of a few discriminatory provisions of the Indian Penal Code
that criminalizes certain types of sexual activity. It is imperative that in the coming years,
"constitutional interpretation by the judges must view the definition of human rights with an
expansive wisdom to interpret the text purposively so as to preserve the right of all human beings
to mutual respect and concern." My emphasis has been on the importance of robust participation
by the Court in the task of translating the Constitution's promise into meaningful action.