JUDICIAL PROCESS AND HUMAN

RIGHTS IN THE INDIAN SPHERE

DR TSN Sastry
Prof & Head
Department of Law
University of Pune
India
tsnsastry@gmail.com
Introduction
 Apart from the Legislature and Executive, Judiciary in every legal system has
number of functions including judicial review and judicial process.
 Judicial process is an important tool in the hands of courts to protect the
rights of citizenry, whenever, the other constitutional organs fails to deliver
justice.
 Judges need to be watch dogs of law in the protection and enforcement of
rights that are guaranteed either by constitution or legislative enactments or
international documents of universal character or to which a state is party.
 This is referred to as Judicial Process or due process of procedure adopted
by judiciary in all aspects of law especially civil and criminal law.
 With the introduction of Due Process of Law in the contemporary judicial
system it gained popularity .
Meaning of Due Process In English context
 It evolved along with the adoption of Magna Carta in 1215.
 The phrase received statutory recognition in 1354 during the reign of Edward III when Magna Carta
received assent of British Parliament.
 The same was introduced in America in 1776 constitution and in France it was orchestrated with the
Napoleonic code basing on the ideas French Revolution, though it was an old concept developed on
the basis Justinian code.
 According to Justice Frankfurter Due process is not a mechanical instrument and it is a process which
need to be evolved basing on the nature and circumstances of an issue at the disposal of a judge.
 Allgeyer V Louisina’s case (1897) led to the evolution of Substantive Due Process
 Murray’s Lessee case 1856, laid the foundations for Procedural Due Process
 In the Indian context, the constitution has limited the judicial review to the extent necessary as per the
wishes of the legislative intention.
 From the beginning, though the supreme Court of India discussed the concept of Due process, largely it
confined to procedural due process.
 However, there were few judges who used to discuss the significance of substantive due process.

Judicial Process in India
 The courts in India began exercising judicial review of legislative acts with the
first act of British Parliament in 1858. In Empress v. Burah and BookBook Singh,
the Calcutta High Court enunciated the principle of judicial review:
 The theory of every government with a written Constitution forming the
Fundamental and paramount law of the nation must be that an Act of
legislature repugnant to the Constitution is void; if void, it cannot bind the
courts, and oblige them to give effect; for this would be to overthrow in fact
what was established in theory and make that operative in law which was not
law (Empress v. Burah and Book Singh, I.L.R. 3 (Cal.) 63, 87-88)
 Due process is not a new concept to India. Art 13 of the Constitution of India,
especially clause (2) makes it clear that any law made in contravention of FR is
void.
 Up to early sixties, the courts in India confronted with the Parliament only with
respect to right to property and not on other aspects.
Due Process In India after sixties
 In Karak Singh V State of Punjab (1964) for the First time both the aspects of
Due process were discussed by the SC followed by State of Maharashtra V
Prabhakar Pandurang (1966)and others gave wide interpretation of due
process evolved in India. In 1972 in the Kesavandha Bharathi’s case the court
held that the basic Structure of the constitution cannot be changed.
 Judicial Process may lead to evolve wider interpretation of the real intention
of a Legislation and constitutional point of view.
 The Set back came from the anarchist rule of the Indira Gandhi and
Emergency and the 42 Amendment described as the Draconian law of India .
 After 44th Amendment and the experiences of horrendous political brutalities
and vindictive attitude of Executive and Legislature led the Supreme Court of
India to give ample interpretation of due process through the institution of
public interest litigation, or is as described as Social Action Litigation by Prof
Upendra Baxi
Black shadow of Judicial Activism
 The activities created by the court in late sixties could not sustain long time. In
ADM Jabalpur’s case in 1975, the court rejected the contention upholding the
suspension of FR during Emergency. It rejected to entertain the binding nature of
International Covenants to which India is a party.
 In a similar fashion in all the cases that came before it could fully embark of the
judicial activism in its fullest extent in all the cases that came before it, refused to
accept the “Vested Rights” Doctrine of International law in the aftermath of
succession of India from British.
 It recognised the “Act of State” doctrine of the Privy council.
 Art 51 © which declares the state shall foster respect for international law was not
taken cognizance.
 It did not refer to arts. 294 and 295 which read clearly all the rights and obligations
of the previous governments would the responsibility of free India.
 Justice Vivian Bose in sixties to advocate to have a look at other civil law practices
of US and other than merely confining to common law traditions.
Post Emergency Period
 Post-emergency judicial activism was probably inspired by the Court’s realization
that its elitist social image would not make it strong enough to withstand the future
onslaught of a powerful political establishment.
 Therefore consciously or unconsciously, the Court began moving in the direction of
the people.
 In Maneka Gandhi’s case it over ruled AK Gopalan and held tthat the law
authorizing deprivation of personal liberty must be valid not only under Article 21,
but also under Article 19; (2) the words “life” and “personal liberty” had wider
meaning that that would be broadened from time to time, and both were open
textured expressions; and (3) the words “procedure” and “established by law” meant
not only the procedure prescribed by law, but also such procedures considered just
and fair in civilized society
 The most significant aspect of Maneka Gandhi was that the Court laid down a
seminal principle of constitutional interpretation: There cannot be a mere textual
construction of the words of the Constitution. Those words are pregnant with
meanings that unfold when different situations arise.
Francis Coralie Mullin v. Administrator Union Territory of
Delhi (1918) Justice Bhagwati held :
 The principle of interpretation which means that a constitutional
provision must be construed, not in a narrow and constricted sense,
but in a wide and liberal manner so as to anticipate and take account of
changing conditions and purposes so that the constitutional provision
does not get atrophied or fossilised but remains flexible enough to
meet the newly emerging problems and challenges, applies with
greater force in relation to a fundamental right enacted by the
Constitution
 This dictum of Bhagwathi was further interpreted liberally by the
Judiciary in a number of ways and introduced the Public Interest
Litigation in India
Expansion of Art 21
It expanded the Jurisprudence slowly and extended to cloth
a number of areas.
Criminal Law: Arrest; Custodial Violence; Preventive
Detention; Handcuffing; Prison Torture; Law of Sexual
Harassment; Women’s rights ; Domestic Violence; Right to
Fair Trial etc.
Rights extended under Art 21 are : Right to Live with
human dignity; Right to Healthy environment; Right to
Health; Free education; Emergency Medical Aid; Right to
Shelter; Right to Livelihood; Right to legal aid; Right to
Work; Right to speedy trial; etc.
Criticism on Judicial Activism
The first idea is that the judiciary being an unelected body is not
accountable to the people through any institutional mechanism.
Skepticism is also voiced against judges using their personal
discretion to grant remedies in areas in which they have no
expertise
It is appropriate to refer to Justice Aharon Barak
“To maintain real democracy and to ensure a delicate balance between its
elements -a formal constitution is preferable. To operate effectively, a
constitution should enjoy normative supremacy, should not be as easily
amendable as a normal statute, and should give judges the power to review
the constitutionality of legislation. Without a formal constitution, there is
no legal limitation on legislative supremacy, and the supremacy of human
rights can exist only by the grace of the majority’s self-restraint.
 A constitution, however, imposes legal limitations on the legislature
and guarantees that human rights are protected not only by the self-
restraint of the majority, but also by constitutional control over the
majority. Hence, the need for a formal constitution.” ( HLR 2002)
 Justifying the stand of Locus standi liberalisation and introduction of PIL
the SC held in SP Gupta’s Case in 1981
 It must now be regarded as well-settled law where a person who has suffered a legal
wrong or a legal injury or whose legal right or legally protected interest is violated, is
unable to approach the court on account of some disability or it is not practicable for
him to move the court for some other sufficient reasons, such as his socially or
economically disadvantaged position, some other person can invoke the assistance of
the court for the purpose of providing judicial redress to the person wronged or
injured, so that the legal wrong or injury caused to such person does not go
unredressed and justice is done to him
 World across criticism exist between judges too.
Lord Reid We do not believe in fairy –tales any more
that judges are not making law and only are in strict
adherence to the theory of Legislative supremacy.
In the Protection of HR judges need to show
considerable resilience, it would be difficult to discharge
their constitutional functions to uphold the rights of
citizenry.
Though the Indian courts showed considerable leniency
to protect the rights of individuals in the constitutional
perspective, it is an ironical issue would they extend when
issues of International Law are involved.
Conclusion.
At the same time judges need to have restraint.
As Alladi Krishnaswamy Ayyer said, The doctrine of
Independence is not to be raised to the level of a
dogma so as to enable the judiciary to function as a
kind of super legislature or super executive
The judicial opinion would lead to protect the rights
against the tyrannical acts of the executive or legislature
but should not be a battle ground.
It is left to the judge where they would stick and the line to
balance the rights citizens and powers conferred on them.