Module-4: PROTECTION OF HUMAN RIGHTS IN

INDIA:
Introduction

 The expression ‘Public Interest Litigation’ has been borrowed from American
jurisprudence, where it was designed to provide legal representation to previously
unrepresented groups like the poor, the racial minorities, unorganised consumers,
citizens who were passionate about the environmental issues, etc.
 Public interest Litigation (PIL) means litigation filed in a court of law, for the
protection of “Public Interest”, such as Pollution, Terrorism, Road safety, Constructional
hazards etc. Any matter where the interest of public at large is affected can be redressed
by filing a Public Interest Litigation in a court of law.
 Public interest litigation is not defined in any statute or in any act. It has been
interpreted by judges to consider the intent of public at large.
 Public interest litigation is the power given to the public by courts through judicial
activism. However, the person filing the petition must prove to the satisfaction of the
court that the petition is being filed for a public interest and not just as a frivolous
litigation by a busy body.
 The court can itself take cognizance of the matter and proceed suo motu or cases can
commence on the petition of any public spirited individual.
 Some of the matters which are entertained under PIL are:
 Bonded Labour matters
 Neglected Children
 Non-payment of minimum wages to workers and exploitation of casual
workers
 Atrocities on women
 Environmental pollution and disturbance of ecological balance
 Food adulteration
 Maintenance of heritage and culture

Genesis and Evolution of PIL in India: Some Landmark Judgements

 The seeds of the concept of public interest litigation were initially sown in India
by Justice Krishna Iyer, in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai.
 The first reported case of PIL was Hussainara Khatoon vs. State of Bihar (1979) that
focused on the inhuman conditions of prisons and under trial prisoners that led to the
release of more than 40,000 under trial prisoners.
 Right to speedy justice emerged as a basic fundamental right which had been
denied to these prisoners. The same set pattern was adopted in subsequent cases.
 A new era of the PIL movement was heralded by Justice P.N. Bhagawati in the case
of S.P. Gupta vs. Union of India.
  In this case it was held that “any member of the public or social action group
acting bonafide” can invoke the Writ Jurisdiction of the High Courts (under article
226) or the Supreme Court (under Article 32) seeking redressal against violation of
legal or constitutional rights of persons who due to social or economic or any other
disability cannot approach the Court.
 By this judgment PIL became a potent weapon for the enforcement of “public
duties” where executive action or misdeed resulted in public injury. And as a result
any citizen of India or any consumer groups or social action groups can now approach
the apex court of the country seeking legal remedies in all cases where the interests of
general public or a section of the public are at stake.
 Justice Bhagwati did a lot to ensure that the concept of PILs was clearly
enunciated. He did not insist on the observance of procedural technicalities and even
treated ordinary letters from public-minded individuals as writ petitions.

 The Supreme Court in Indian Banks’ Association, Bombay & Ors. vs. M/s Devkala
Consultancy Service and Ors held :- “In an appropriate case, where the petitioner might
have moved a court in her private interest and for redressal of the personal grievance,
the court in furtherance of Public Interest may treat it a necessity to enquire into the
state of affairs of the subject of litigation in the interest of justice.” Thus, a private
interest case can also be treated as public interest case.
 M.C Mehta vs. Union of India: In a Public Interest Litigation brought against Ganga
water pollution so as to prevent any further pollution of Ganga water. Supreme Court
held that petitioner although not a riparian owner is entitled to move the court for the
enforcement of statutory provisions, as he is the person interested in protecting the lives
of the people who make use of Ganga water.
 Vishaka v. State of Rajasthan: The judgement of the case recognized sexual
harassment as a violation of the fundamental constitutional rights of Article 14, Article
15 and Article 21. The guidelines also directed for the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Factors Responsible for the Growth of PIL in India

 The character of the Indian Constitution. India has a written constitution which

through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy)
provides a framework for regulating relations between the state and its citizens and
between citizens inter-se.
 India has some of the most progressive social legislations to be found anywhere in the
world whether it be relating to bonded labor, minimum wages, land ceiling,
environmental protection, etc. This has made it easier for the courts to haul up the
executive when it is not performing its duties in ensuring the rights of the poor as per
the law of the land.
 The liberal interpretation of locus standi where any person can apply to the court on
behalf of those who are economically or physically unable to come before it has helped.
 Judges themselves have in some cases initiated suo moto action based on newspaper
articles or letters received.
 Although social and economic rights given in the Indian Constitution under Part IV
are not legally enforceable, courts have creatively read these into fundamental rights
thereby making them judicially enforceable. For instance the "right to life" in Article 21
has been expanded to include right to free legal aid, right to live with dignity, right to
education, right to work, freedom from torture, bar fetters and hand cuffing in prisons,
etc.
 Judicial innovations to help the poor and marginalised: For instance, in the Bandhua
Mukti Morcha, the Supreme Court put the burden of proof on the respondent stating it
would treat every case of forced labor as a case of bonded labor unless proven otherwise
by the employer. Similarly in the Asiad Workers judgment case, Justice P.N. Bhagwati
held that anyone getting less than the minimum wage can approach the Supreme Court
directly without going through the labor commissioner and lower courts.
 In PIL cases where the petitioner is not in a position to provide all the necessary
evidence, either because it is voluminous or because the parties are weak socially or
economically, courts have appointed commissions to collect information on facts and
present it before the bench.

Who Can File a PIL and Against Whom?

 Any citizen can file a public case by filing a petition:

 Under Art 32 of the Indian Constitution, in the Supreme Court.
 Under Art 226 of the Indian Constitution, in the High Court.
 Under sec. 133 of the Criminal Procedure Code, in the Court of Magistrate.
 However, the court must be satisfied that the Writ petition fulfils some basic needs for
PIL as the letter is addressed by the aggrieved person, public spirited individual and a
social action group for the enforcement of legal or Constitutional rights to any person
who are not able to approach the court for redress.
 A Public Interest Litigation can be filed against a State/ Central Govt., Municipal
Authorities, and not any private party. The definition of State is the same as given under
Article 12 of the Constitution and this includes the Governmental and Parliament of
India and the Government and the Legislature of each of the States and all local or other
authorities within the territory of India or under the control of the Government of India.

Significance of PIL

 The aim of PIL is to give to the common people access to the courts to obtain legal
redress.
 PIL is an important instrument of social change and for maintaining the Rule of law
and accelerating the balance between law and justice.
 The original purpose of PILs have been to make justice accessible to the poor and the
marginalised.
 It is an important tool to make human rights reach those who have been denied rights.
  It democratises the access of justice to all. Any citizen or organisation who is capable
can file petitions on behalf of those who cannot or do not have the means to do so.
 It helps in judicial monitoring of state institutions like prisons, asylums, protective
homes, etc.
 It is an important tool for implementing the concept of judicial review.
 Enhanced public participation in judicial review of administrative action is assured by
the inception of PILs.

Certain Weaknesses of PIL

 PIL actions may sometimes give rise to the problem of competing rights. For

instance, when a court orders the closure of a polluting industry, the interests of the
workmen and their families who are deprived of their livelihood may not be taken into
account by the court.
 It could lead to overburdening of courts with frivolous PILs by parties with vested
interests. PILs today has been appropriated for corporate, political and personal gains.
Today the PIL is no more limited to problems of the poor and the oppressed.
 Cases of Judicial Overreach by the Judiciary in the process of solving socio-economic
or environmental problems can take place through the PILs.
 PIL matters concerning the exploited and disadvantaged groups are pending for many
years. Inordinate delays in the disposal of PIL cases may render many leading
judgments merely of academic value.

Conclusion

 Public Interest Litigation has produced astonishing results which were unthinkable
three decades ago. Degraded bonded labourers, tortured under trials and women
prisoners, humiliated inmates of protective women’s home, blinded prisoners, exploited
children, beggars, and many others have been given relief through judicial intervention.
 The greatest contribution of PIL has been to enhance the accountability of the
governments towards the human rights of the poor.
 The PIL develops a new jurisprudence of the accountability of the state for
constitutional and legal violations adversely affecting the interests of the weaker
elements in the community.
 However, the Judiciary should be cautious enough in the application of PILs to avoid
Judicial Overreach that are violative of the principle of Separation of Power.
 Besides, the frivolous PILs with vested interests must be discouraged to keep its
workload manageable.

PROTECTION OF HUMAN RIGHTS IN INDIA:

 Protection of human rights is essential for the development of the people of the
country, which ultimately leads to development of the national as a whole. The
Constitution of India guarantees basic human rights to each and every citizen of the
country. The framers of the Constitution have put their best efforts in putting down the
necessary provisions. However, with continuos developments taking place, the
horizon of human rights has also expanded. The parliamentarians are now playing a
great role in recognizing the rights of people and passing statues, amending provisions
etc. as and when required. 

Development of Human Rights 

The Human Rights in India originated long time ago. It can easily be recognized from
the principles of Buddhism, Jainism. Hindu religious books and religious texts like
Gita, Vedas, Arthasatra and Dharmashstra also contained provisions of human rights.
Muslim rulers like Akbar and Jahangir were also very much appreciated for his regard
for rights and justice. During the early British era, the people suffered a great
violation of several rights and this led to the birth of modern Human Rights
jurisprudence in India.

On January 24, 1947, Constituent Assembly voted to form an advisory committee on

Fundamental Rights with Sardar Patel as the Chairman. Drafted list of rights were
prepared by Dr. B. R. Ambedkar, B. N. Rau, K. T. Shah, Harman Singh, K. M.
Musnshi and the Congress expert committee. Although there were few amendments
proposed, there was almost no disagreement on the principles incorporated. The rights
in the Universal Declaration of Human Rights were almost completely covered in the
Indian Constitution either in Fundamental Rights or Directive Principles of State
Policy. Nineteen fundamental rights were covered in Motilal Nehru Committee
Report, 1928  out of which ten appear in the Fundamental Rights whereas three of
them appear as Fundamental Duties.

International Human Rights and Fundamental Rights (Part III of COI) 

India had signed the Universal Declaration on Human Rights January 01, 1942. Part
III of the Constitution India ‘also referred as magna carta’ contains the Fundamental
rights. These are the rights which are directly enforceable against the state in case of
any violation. Article 13(2) prohibits state from making any law in violation of the
Fundamental Rights. It always provides that if a part of law made is against the
Fundamental Rights, that part would be declared as void. If the void part cannot be
separated from the main act, the whole act may be declared as void. 

In the case of Keshvanand Bharti v. State of Kerela, the apex court observed: “The
Universal Declaration of Human Rights may not be a legally binding instrument but it
shows how India understood the nature of human rights at the time the Constitution
was adopted.”
In the case of Chairman, Railway Board & Ors. v. Chandrima Das & Ors., it was
observed that UDHR has been recognized as Model code of conduct adopted by
United Nations General Assembly. The principles may have to be read if needed in
domestic jurisprudence.

Provisions of Universal Declaration of Human Rights along with corresponding

provisions in Constitution of India are as follows:

Brief Description of Provision COI

UDHR

Equality and equal protection

Article 7 Article 14
before law
Remedies for violation of
Article 8 Article 32
Fundamental Rights
Right to Life and personal liberty Article 9 Article 21
Protection in respect for Article
Article 20(1)
conviction of offences 11(2)
Article Earlier a Fundamental
Right to property
17 Right under Article 31
Right to freedom of conscience
Article
and to practice, profess and Article 25(1)
18
propagate any religion
Article
Freedom of speech Article 19(1)(a)
19
Equality in opportunity of public Article
Article 16(1)
service 21(2)
Article
Protection of minorities Article 29(1)
22
Article
Right to education Article 21A
26(1)
Many of the civil and political rights contained in the International Covenant on
Political and Civil Rights, 1966 (ICCPR) are also contained in the Part III of the
Constitution of India. India has signed and ratified the ICCPR. 

In the case of Jolly George Varghese & Anr. v. Bank of Cochin, J. Krishna Iyer
observed that though a provision is present in ICCPR but not in Indian Constitution,
does not make the covenant an enforceable part of ‘Corpus Juris’ in India. 

Provisions of ICCPR along with corresponding provision of Constitution of India are

as follows:

Brief Description of Provision ICCPR COI

 Article 6(1)
Right to life and liberty Article 21
& 9(1)
Prohibition of trafficking and forced labour Article 8(3) Article 23
Article
Protection against detention in certain
9(2), (3) Article 22
cases
and (4)
Article Article
Freedom of movement
12(1) 19(1)(d)
Article
Right to equality Article 14
14(1)
Right not to be compelled to be a witness Article Article
against own self 14(3)(g) 20(3)
Article Article
Protection against double jeopardy
14(7) 20(2)
Article Article
Protection against ex-post facto law
15(1) 20(1)
Right to freedom of conscience and to Article
Article
practice, profess and propagate any 25(1) &
18(1)
religion 25(2)(a)
Article Article
Freedom of speech and expression
19(1) & (2) 19(1)(a)
Article
Right to assembly peacefully Article 21
19(1)(b)
Article Article
Right to form union/ association
22(1) 19(1)(c)
Article Article
Equality in opportunity of public service
25(c) 16(1)
Equality and equal protection before law
and no discrimination on the basis of any Article 14
Article 26
ground such as race, colour, sex, language, & 15(1)
religion etc.
Article
Protection of interests of minorities Article 27
29(1) & 30
Some of the rights which were not earlier included in Fundamental Rights but were
available in ICCPR. They were considered as Fundamental Rights by various judicial
pronouncements. Some of them are Right to fair trial, Right to privacy, Right to legal
aid, Right to travel abroad. I will be dealing with them in detail at the later part of this
article.

 
International Covenant on Economic, Social and Cultural Rights (ICESCR) and
Directive Principles of State Policy (Part IV of COI) 
The ICESCR is a multilateral treaty which mainly focuses on social and cultural
rights like food, health, education, shelter etc. India ratified this covenant on April 10,
1979. Most of the provisions in this covenant are found in Part IV (DPSPs) of the
Indian Constitution.  

Provisions of ICESCR along with corresponding provision of Constitution of India

are as follows: 

Brief Description of Provision ICESCR COI

Right to work Article 6(1) Article 41
Article
Equal Pay for equal work Article 7(a)(i)
39(d)
Right to living wage and descent Article 7(a)(ii)
Article 43
standard for life. & (d)
Humane conditions of work and Article 7(b)
Article 42
maternity leave. and 10(2)
Faculties and opportunities to children Article
Article 10(3)
for prevention against exploitation. 39(f)
Improving public health and raise level
Article 11 Article 47
of nutrition and standard of living.
Article 13(2)
Compulsory education for children Article 45
(a)
Article
Protection of interests of minorities Article 27
29(1) & 30

Unremunerated Fundamental Rights 

A number of rights that were available in the covenant were not available as
fundamental rights at the time of enactment of Constitution. The judicial
interpretations have widened the scope of fundamental rights available in the Indian
Constitution. 

In the court of A.D.M. Jabalpur v. Shivkant Shukla, the apex court had observed that
the law of land does not recognize any natural or common law rights other than
specifically provided in the Indian Constitution. 

Later, in the case of Maneka Gandhi v. Union of India, J. Bhagwati observed; “The
expression ’personal liberty’ in article 21 is of the widest amplitude and it covers a
variety of rights, which go to constitute the personal liberty of man and some of them
have been raised to the status of distinct fundamental rights and given additional
protection under Article 19. No person can be deprived of his right to go abroad
unless there is a law made by the State prescribing the procedure for so depriving him,
and the deprivation is effected strictly in accordance with such procedure.”

After the present case, the apex court came up with the “theory of emanation” in order
to make fundamental rights active and meaningful. Also, relaxation to the rule of
‘locus standi’ was given by the court. Some of the major judicial interpretations of
Fundamental Right are as follows:

Right Case Law

Right to live with Human PUCL & Anr. v. State of Maharstra &
Dignity Ors.
M.C. Mehta (Taj Trapezium
Right to Clean Air
Matter) v. Union of India
Right to Clean Water M.C. Mehta v. Union of India & Ors
Right to freedom from
In Re: Noise Pollution
Noise Pollution