CHAPTER 1

INTRODUCTION

“Todenypeopletheirhumanrights,istochallengetheirvery humanity.”

-Nelson Mandela

Given its diversified population, India is regarded as a shining example of a

culturally and legally pluralistic nation. The laws must not only be made in a way
that honours all communities, but also in a way that fairly represents each
community. Since it was necessary to ensure that a majoritarian influence couldbe
avoided in order to defend minority interests, such equal representation was
acknowledged bytheConstitution's framersas beingimportant. But it is crucial to
concentrate on individual rights before addressing the greater issue of collectiveor
group rights. Each person has certain rights that are meant to guarantee his
abilityto live a secure and fulfilled life byvirtue of his birth in a nation. The word
"human rights" refers to a collection of these many rights. Individuals frequently
assume the risk that the arbitrary rule of an authority figure, more frequently the
country's government, would negatively influence their own lives. Human rights
are responsible for defending the public from any potential violations of their
fundamental rights that can impair their ability to advance personally and,
consequently, the advancement of society as a whole. India runs a significant risk
ofpotentiallyinterferingwithitsinhabitants'fundamentalrightsduetoitssizeand
population. The pursuit of "national interest" frequently compromises "individual
interest," which makes the public lose faith in the government. While the Centre
has always been powerful, we have been missing a potent opposition for a very
long time. This is harmful for a country's development both in theory and in
practisebecauseaweak opposition would mean that the government would not be
subject to checks and balances. This makes it possible for corruption and theabuse
of such power. The abuse is accompanied bya flagrant disregard for human
[Link]
has even issued various decisions to that effect, the recent erosion in the rightsthat
people can exercise has been a major source of worry. If the latest human rights
atrocities go undetected and unrecognised, it could pave the way for a potentially
bleak future.

Everyone has a part to play in the realisation of human rights, according to the
UniversalDeclarationof HumanRightsandtheUNDeclarationonHumanRights
Defenders. Everyone should be aware of the importance of people who strive to
defend human rights, respect their work, and urge on their government officials to
support and uphold the rights outlined in the UN Declaration of Human Rights
Defenders.

Despite this, governments, security, traditional authorities, armed organisations,or

religious leaders obstruct the implementation of human rights in numerous nations
around the world. They violate citizens' rights and foster an environmentin which
human rights are not respected. The concept of promotingand defending
humanrightscallsfortheestablishmentofmechanismstoassuretherealisationof those
rights within the current political, economic, and cultural power structures.

Thegreatestworth ofhuman lifeis bestexemplified by:

• theacknowledgementoffundamentalrights;and

• the full enabling of individuals to enjoy and exercise these rights to the
extentthat does not violate their humanity or civility.

Ifpeoplewereunableto:

• exercisetheirinherentrights;

• adoptthepolitical stancestheybelieved in; and

• livein safetywithintheircommunities,lifewould beworthless.

However, there are systems in place at the national, regional, and international
levels that provide protection for both the rights of individuals and those whofight
to uphold and advance such rights.
By enforcing various laws, the State upholds the framework of social order
without which well-ordered social life would not be conceivable. According to a
number of social contract theory thinkers, the goal of state formation is to uphold
and defend individual rights. Aristotle claimed that the state was born out of basic
human needs and endures now for the sake of a good life.

1
According to Prof. Laski, a state is judged by the rights it upholds. In a same
vein,2 Locke believed that the goal of state should be to remove constraints on an
individual's growth. Therefore, the primary goal of the state, the safeguarding of
individual rights and liberties, serves as evidence of its existence.

The protection of an individual's dignityis crucial for maintaining social cohesion

because its violation can have serious repercussions on both the individual and
society as a whole. Some fundamental rights that come with being a person are
due to each individual. These rights—often referred to as human rights—should
not be violated on the basis of gender, race, caste, ethnicity, religion, etc. Basic
rights, fundamental rights, natural rights, and inherent rights are other terms for
human rights. 'Human Rights' is a twentieth-century word, although the idea
behind it predates mankind itself. It took a while for it to mature through many
stages and become the idea we understand today.

These rights, which comprise civil rights, liberties, and social, cultural, and
economic rights, were recognised in all ancient communities even if they were
known by different names3. All people must have these rights because they are
consistent with their freedom and dignity and, in the end, advance social welfare 4.
Human rights protection is essential for an individual's personal growth and
development, which ultimatelyaids in the advancement of the countryas a whole.
It is a problem that is acknowledged globally, and a number of international
instruments have been formed to safeguard human rights.

1
[Link],AbcoPoliticalScience73(Rajpublishers(Regd.),Jalandhar,2005)
2
[Link],AbcoPoliticalScience73(Rajpublishers(Regd.),Jalandhar,2005)
3
[Link],HumanRightsInternationalChallengesVol.13(ManasPublication, NewDelhi, 1997).
4
Availableat[Link]
1.1 THECONCEPTOFHUMANRIGHTS

Human rights protection in India is dynamic, adapting to the requirements of the

nation and its people. The ultimate goal of both national and international law isto
protect people's human rights. Various attempts have been made at the
international level to defend human rights. The United Nations, through itscharter,
represents a great step forward in the promotion and protection of human rights.
The UN Charter now includes an international human rights bill.

In the Preamble and numerous Articles 1, 13(b), 55, 56, 62 (2), 68, and 76(c) 5, the
UN Charter contains various provisions for the advancement of human rights and
basic freedoms. Aside from the UN Charter, there are four international
instruments known as the International Bill of Human Rights that were created
underthe auspicesofthe UnitedNations,which includetheUniversal Declaration of
Human Rights 1948, the International Covenant on Civil and Political Rights
1966, and the International Covenant on Economic, Social, and Cultural Rights
1966, as well as the Optional Protocol to the International Covenant on Civil and
Political Rights 19666. The international human rights regime is constantly
evolving; it sets certain acknowledged legal norms that all governments should
accept and apply in their domestic laws. All governments must seek to improve
people's lives by eliminating all forms of discrimination and ensuring everyone's
right to equality and fairness.

1.2. WHATAREHUMANRIGHTS?

Sincehumansarethoughttobelogical beings,theyareendowed frombirthwitha set of

fundamental rights. Because they take effect at birth, these rights are
[Link]'ssocial,moral,spiritual,

5
[Link],InternationalLaw&HumanRights800(CentralLawAgency,Allahabad,17th
edition2009
and bodilywell-being. The terms fundamental rights, basic rights, inherent rights,
natural rights, and birth rights are also used to describe them.

According to Chief Justice of India J.S. Verma, "human dignity is thequintessence

of human rights."7 Human rights are all rights that are necessary for
anindividual'ssafety,respect,[Link]
v. Union of India8, According to D.D. Basu, Human rights are the fundamental
rightsthat everyperson musthaveinoppositiontothestateor anyotherauthority,
without regard to any circumstances.

Thefactthatmoderninternationallawacknowledgeshumandignityandhonouris one of
its accomplishments. This has also been reflected in the various human rights
declarations and conventions that the UN has ratified. By inserting provisions into
the national constitutions of the various nations, the conventions have attempted
to safeguard the rights of individuals on a national basis. Many non-
governmentalorganisationsatthelocal,state,federal,andinternationallevels work to
expose instances of human rights violations and try to stop them.

1.3. CHARACTERISTICSOFHUMANRIGHTS

Sincehumanrightsareinherentlyuniversal,theyapplytoeveryperson, regardless of
caste, creed, race, religion, nationality, or place of birth.

1.3.1 Theserightsare unalienable.

1.3.2 Many thinkers hold that these are inalienable inherent rights that were
bestowed by God and cannot be altered or removed by anybody.

1.3.3 These rights are interconnected and indivisible. If a government grants one
right to its citizens, it is also required to preserve those persons' other rights. For
instance, in order to preserve its inhabitants' right to life, the government must
safeguard their right to a fair trial and must provide them with food, shelter, and a
clean environment.

7
[Link],―TheInternationalizationofHumanRights‖
8
AIR1978SC597
1.3.4 Eachpersonis born withthem andhashadaccessto them.

1.3.5 Even if the man is unaware of or fails to use his rights, nothing is lost. For
instance, a person's right to consult an advocate is still in effect even if they are
unaware of it. Then, it is the responsibilityof the government to inform him of his
rights or to offer him free legal assistance.

1.3.6 They defend the worth and individuality of people. The dignity of a personis
protected by rights such as the right to life, the right to liberty, the right to
arbitrary detention and punishment, etc.

1.4. SOURCESOFHUMANRIGHTS

1.4.1 Internationaltreaties

These are the most significant human rights sources. There are numerous human
rights accords that are enforceable by states that have signed on as parties. For
instance, the American Convention, the African Charter on Human Rights, the
European Convention on Human Rights, and People's Rights.

1.4.2 InternationalCustoms

These rights areapplicable to all governments regardless of their assent since they
have become international customary law through practise. Many of these rights
are regarded as sources of human rights because they are incorporated into
customary international law.

1.4.3 International Instruments

The United Nations has ratified a number of declarations, resolutions, and

proposals pertaining to human rights as a source of such [Link] include the
Vienna Conference (1993), the Tehran Conference (1968), and the Universal
Declaration of Human Rights (1948), among others.
1.4.4 Judicial decisions

By establishing precedents and rulings in numerous cases and conflicts involving

human rights breaches, the International Court of Justice contributes significantly
to the body of knowledge about human rights.

1.4.5 Official documents

Human rights are derived from texts found in publications like the Human Rights
Law Journal, Human Rights Review, European Law Review, and other official
United Nations documents.

1.5. CLASSIFICATIONOFHUMANRIGHTS

There are not many different types of human rights because they are inherent and
dependent on one another. All people have these fundamental rights regardless of
theirage,sex,caste,creed,colour,religion, geography,[Link]
equally vital and inalienable.

Although the Universal Declaration of Human Rights only stated two categoriesof
human rights:

 Civilandpolitical rights.
 Economic,social,andculturalrights.

1.5.1. CivilAnd Political Rights

Individual liberties and one's right to life are protected by civil rights. They are
necessarytoupholdsomeone'[Link] to
privacy, the right to own property, the freedom of expression, of mobility, and of
one's life, liberty, and security. One's ability to participate in governmental
matters is determined by their political rights. These include rights such as the
[Link]
types, they are interconnected. Both of these rights are protected by the United
[Link],alsoreferredtoas first-
generation rights, were established on the principles of the American, English,
and French Revolutions in the 17th and 18th centuries. Because the
government refrains from doing actions that might violate these rights or from
passing legislation that would do so, they are regarded as negative rights. The
following civil and political rights are recognised by the United Nations
Declaration on Human Rights:

• Righttolife,personalliberty,andsecurity(Article3)9

• Freedomfrom slavery(Article4)10

• Theprohibitionagainsttortureandinhumantreatment(Article5)11

• Equalitybeforethelaw andequalprotection(Article 7)12

• Remedybeforenationaltribunals (Article 8)13

• Freedomfromarrest,which isarbitraryinnature(Article 9)14

• Righttoafairtrialandpublichearingbyanimpartialtribunal(Article 10)15

• Freedomfromex-post-factolaws(Article11)16

• Rightto privacy(Article 12)17

• Righttonationality(Article15)18

• Right to own property(Article17)19

9
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10
UDHR,1978
11
UDHR,1978
12
UDHR,1978
13
UDHR,1978
14
UDHR,1978
15
UDHR,1978
16
UDHR,1978
17
UDHR,1978
18
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• Righttofreedomofreligionandconscience(Article 18)20

• Freedomofexpression(Article19)21

• Freedomtoconductapeaceful assembly(Article20)22

• Takepartingovernment activities(Article21)23

1.5.2 Fundamentalrights

Certain constitutional provisions guarantee certain human rights to state people

and forbid any violation of those rights, not even by the government. These are
known as fundamental rights. A word that frequently appears in governmental
announcements and constitutional provisions is "fundamental rights." The
Virginia Declaration of 1776 states that men are free, independent beings with
inherentrights.TheFrenchDeclarationofManandCitizenRightsof1789states that
men are born with the same freedoms and rights as women. The Indian
Constitution guarantees each citizen six fundamental rights, including:

• RighttoEquality(Article14)24

• Righttofreedom (Article19-22)25

• Righttoreligion(Article25)26

• Culturalandeducational rights(Article29–30)27

• Rightagainstexploitation(Article23–24)28

19
UDHR,1978
20
UDHR,1978
21
UDHR,1978
22
UDHR,1978
23
UDHR,1978
24
THECONSTITUTIONOFINIDA,1950
25
THECONSTITUTIONOFINIDA,1950

26
THECONSTITUTIONOFINIDA,1950

27
THECONSTITUTIONOFINIDA,1950
• Righttoconstitutionalremedies(Article32)29

1.5.3. Natural Rights

Natural law philosophy and ancient times are the roots of human rights,
sometimes referred to as natural rights, which have a long history. Plato was one
of the first authors to offer a general ethical code of conduct. According to
Aristotle, rights change depending on the many circumstances that society
occasionally faces. Since they are universal, human rights are similar to natural
[Link],whichholdsthat a law
must represent moral reasoningand must be connected to values imprinted in a
person or created by society. However, positivism argues that the formation of
human rights comes about as a result of laws and other legal orders being passed
along with some penalties.

1.5.4. Moral Rights

Moral rights are those facets of human rights that have an impact on an
individual's moral and religious conduct. Since they highlight different moral
ideals that cannot be highlighted by any set of institutional rights, they are
primarily found in moral rights. They support moral ideals including respect for
all individuals, fraternity, secularism, life preservation, and social harmony,
among others. Under the principles of human rights, the state and its citizens are
[Link],itwill result in
penalties as specified by the established statute.

28
THECONSTITUTIONOFINIDA,1950

29
THECONSTITUTIONOFINIDA,1950
1.5.5. LegalRights

Legal rights are those that are safeguarded by the legal system of a country. The
two main elements of these rights are the rights holders and those who have
obligations.

There is a connection between rights and duties. A right cannot exist without an
equivalent duty. A person who possesses a right has a responsibility to respect
other people's rights as well. Human rights are given to everyone without
consideration of any other criteria, and it is the duty of the state to protect these
rights for its citizens. Article 2 of the Universal Declaration of Human Rights
statesthatitisthestate's primarydutytopromote,protect,andmaintain allhuman rights
through a variety of laws and [Link] government of the state in issue should
pass any laws that transgress the rights of the people.

1.5.6. EconomicRights,Cultural RightsAndSocialRights

These freedoms, which are also commonly referred to as rights, guarantee that a
person has access to the most basic necessities of life. Theyare also mentioned in
the International Covenant on Economic, Social, and Cultural Rights. Since the
stateisrequiredtoenactthelawsandregulationsrequiredtocarrythemout,these
[Link]
founded on the ideal of social equality. These rights include the ability to work,
get social security, have excellent physical and mental health, and receive an
education. The Universal Declaration of Human Rights recognises the following
diverse economic, cultural, and social rights:

• Righttosocial security(Article 22)30

30
UDHR,1978
• Righttoworkandchoiceofemployment (Article23)31

• Righttorest(Article24)32

• Righttostandardlivingandhealth(Article25)33

• Righttoeducation(Article26)34

• Freedomtoparticipateinculturallife(Article27)35

• Righttosocialandinternationalorder(Article28)36

In addition to the rights mentioned above, there is a further category of rights

known as collective rights. These rights, which include the right to self-
determination, the protection of the group's physical integrity, and the outlawment
of genocide, are enjoyed by people as a whole.

1.6HUMANRIGHTSIN INDIA

The largest democracyin the world is found in India. The preservation of peoples'
fundamental rights is one of the key goals of a democratic nation. The
acknowledgment and defence of human rights have received proper consideration
from the Indian government. These rights of the people are acknowledged by the
Indian Constitution, which also expresses great concern for them. Civil, political,
economic, social, and cultural rights are outlined in the Universal Declaration of
Human Rights. The majority of the rights outlined in the Universal Declaration of
Human Rights are protected under the constitution. Civil and political rights are
covered in Part III of the constitution, while economic, social, and cultural rights
[Link]'s

31
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UDHR,1978
33
UDHR,1978
34
UDHR,1978
35
UDHR,1978
36
UDHR,1978
requirements. The safeguarding of an individual's dignity is one of the principles
and goals of the Indian Constitution, which are written in the preamble. The right
to equality, the right to freedom, the right against exploitation, the right tofreedom
of religion, the right to cultural and educational rights, and the right to
constitutional remedies are among the fundamental rights that are guaranteed to
individuals under Part III of the constitution in order to achieve this goal. The
central and state governments have a responsibility to ensure that each person has
the necessary circumstances to exercise their human rights.

The Directive Principles of State Policy, which are incorporated in Part IV of the
Constitution, establish the obligations on the government to strive for the welfare
of the people and the defence of their human rights. These serve as the state's
guiding principles when developing policies pertaining to distributive justice, the
right to work, the right to an education, social security, just and humane working
conditions,thepromotionofinterestsofthe weakersectionsofsociety,raisingthe
standard of nutrition and living, enhancing public health, protecting andimproving
the environment, enhancing ecology, etc., so that each person can fully exercise
their rights.

[Link]

Itissimpletostatethat Indiaenteredthefieldofhumanrightswiththehelpofthe
Constitutionandbycreatingitsownlawsandregulations(suchasthePHRA),but
thenotionofhuman rightsin Indiahasalonghistory. Thebestwaytoexplain this
evolution is to divide it into three eras: the Ancient, the Mediaeval, and the
Modern.

1.7.1. ThePrehistoric Period

Many people believe that the idea of human rights has existed since the Vedic era
and is mentioned in numerous Vedas. The Vedics held that the role of the king
was to guarantee that his people's rights were upheld while also governing in
[Link],Manuoutlinedanumberofeconomic
and political rights for the populace.37 Kautilya continued by stating that the
happiness of the State is entirely dependent on the happiness of its citizens,
emphasising the significance of individual rights even more. While Ashoka
advanced the ideals of peace and liberty, religions like Buddhism and Jainism
fervently promoted the concepts of equality and virtue. 38The persistent insistence
on protecting everyone's human rights was a defining characteristic of ancient
civilisations and texts.

1.7.2. TheMiddleAges

The Mughal era in India is primarily associated with the Mediaeval Era. The
majorityof historians frequentlyuse Akbar as an example, whosereign is referred
to as the "Golden Age" because he promoted religious tolerance and harmony
acrossall [Link] went so far as to layout aDeen-E-Illahi planthat
advocated tolerance and secularism in an effort to bring all religions together. 39It
created a straightforward strategy by fusing the greatest aspects of various faiths.
Later, his son Jahangir continued to promote tolerance in a similar manner.

1.7.3. TheContemporaryPeriod

The beginning of British rule emphasises this. As we are all aware, India
experienced numerous egregious human rights breaches under British rule. The
Britishsuppressedtheeconomic,social,political,andculturalrightsoftheIndian

37
HumanRightsinIndia:HistoryandDevelopment,Available
at:[Link]
38
HistoryandDevelopmentofHumanRightsinIndianContext,Available
at:[Link]
9/[Link]
39
TheHistoryandDevelopmentofHumanRightsinIndia:AComparativeStudybetweenIndia and
USA’s Human Rights Laws, Available at: [Link]
the-history-and-development-of-human-rights-in-india-comparative-study-between-india-and-
[Link]
people when they passed the Regulation Act of 1773. 40 The suspension of
fundamental rights prompted Indian leaders to urge their people to fight for the
freedom they had lost in order to restore a secure nation for all Indians. The first
outcry that called for the restoration of all those privileges and freedoms that the
Indians had lost was expressed in the Constitution of India Bill, 1895. 'Mrs.
Besant's Common Wealth of 1925', which outlined seven fundamental individual
rights that could be asserted by any person, was another significant
breakthrough.41However, despite the atrocities committed under the British, there
were also significant advancements done.

Raja Ram Mohan Roy shown a major care for the rights held by women that had
been disregarded for decades by actively working to abolish Sati and legalise
widow remarriage, both of which were accomplished during the same period.
Jyotibai Phule actively promoted the idea of women's education and worked to
ensure that the oppressed classes lived in a society free from discrimination. 42
Therefore, it is impossible to disregard the major advancements that were
produced throughout this time.

[Link]

Theseveralfundamentalrightsthat Indianpeopleareentitledtoareenumerated in Part

III of the Indian Constitution. To make sure that the UDHR could be adopted in a
fashion that would allow it to be regarded as legally enforceable, this was done.
Part III's Articles 14–30 outline the potential civil rights that citizens may enjoy.
Part IV also includes Directive Principles, which offer the State further
recommendations for ensuring the welfare of its citizens. The concept of Audi
AlteramPartemwaseventuallyembracedbythejudiciaryinordertoapproach

40
HistoryandDevelopmentofHumanRightsinIndianContext,Available
at:[Link]
9/[Link]
41
HumanRightsinIndia:HistoryandDevelopment,Available
at:[Link]
42
HumanRightsintheConstitutionofIndia,Availableat: [Link]
%20Rights%[Link]
cases more flexibly and incorporate subjectivity. Initially, the judiciary had a
rigorous viewpoint while assessing cases.

This can be illustrated by looking at how Article 21 was interpreted after the A.K.
Gopalan v. Stateof Madras43case, wheretheinterpretation was almost reduced to
the right to life being equivalent to animal existence. The Maneka Gandhi v.
Union of India44landmark case, however, expanded the purview of Article 21 and
even went so far as to link Articles 14 (right to equality), Article 19 (six
fundamental freedoms), and Article 21 (right to lifeand liberty).[15] Right to Life
now also respects a man's culture and tradition and works to protect him from any
potential abuses of his fundamental rights.

How the right to privacy should be covered by Article 21 was discussed in

thecaseofKharakSinghv. [Link]
against the recording of a detained person's name because he felt it infringed his
right to privacy.

Similar to this, the Supreme Court established rules for how persons who are
incarcerated should be treated in the case of D.K. Basu v. State of Bengal46,which
concerned custodial death. It was found that police frequently treated inmates
harshly and abused them ruthlessly without allowing them to invoke anypotential
legal protections against such treatment. The court decided that in order to
safeguard people who were being imprisoned, such activity had to be condemned
as a violation of human rights.

The Right to Life was further linked to the Right to a Livelihood under OlgaTellis
v. Bombay Municipal Corporation47. The right to a livelihood, it was contended,
cannot be held apart from the right to life because it significantly influences one's
level of living. The court concluded that if someone were prevented from
obtaining the means of support they desire, their life would become meaningless
and their rights would ultimately be infringed.

43
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44
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45
1963AIR1295,1964SCR(1)332
46
WRITPETITION(CRL)NO.592OF1987
47
1986AIR180,1985SCRSupl.(2)51
The following examples demonstrate how the rights primarily focus on the
advancement of women and children.

Primary education for children was made mandatory in Unni Krishnan v. State of
AP48, and this is also stated in Article21 AoftheConstitution(underPartIII). Up
until theage of fourteen, all children have theright to free and required education.
People's Union of Civil Liberties v. Union of India mandated that all child
labourers be freed right away and paid for their labour. Additionally, childrenwere
shielded from sexual slavery in Public at large v. State of Maharashtra49.

Similar to this, the court demanded the creation of fundamental rules to shield
women from sexual harassment at work in Vishaka v. State of Rajasthan50.
Articles 14, 19, and 21 (the "golden trio") were kept in mind while doing this.

In addition, Associate Bank Officers v. State Bank of India51demanded the

elimination of the organization's blatant discrimination against women as well as
equal compensation for men and women. This needed to be upheld while keeping
in mind the parameters of Article 14 of the Constitution. By defending the lives
and liberty of sex workers, State of Maharashtra v. Madhukar Narayan
Mandlikar52 interpreted Article 21 in a different way. In this case, it was decided
that even a woman of "easy virtue" cannot have her privacy breached. This was a
departure from the prior ruling in Tukaram v. State of Maharashtra53, where the
victim lost because of her "easy character."

There have also been other cases in recent years that give people optimism for the
judiciary's ability to safeguard human rights. In the landmark case of Naz
Foundation v. Govt. of NCT of Delhi 54, it was determined that criminalising
consenting homosexual sex between two people violated their constitutionally
guaranteedfundamentalrights.ItprimarilyreliedonArticles19and21tomake

48
1993AIR2178,1993SCR(1)594
49
1997(4)BomCR 171
50
AIR1997
51
AIR1997
52
AIR1991SC207,(1991)1SCC57
53
1979AIR185,1979SCR(1) 810
54
AIR2009
the case that it was violating a person's privacy by interfering with their sexual
orientation and forcing them to live in secrecy and terror.

Additionally, it should be emphasised that it violated Article 21 since it prevents a

person from living according to their own preferences, which reduces their
chances of having a high quality of life. In addition to all of this, it was a
discriminating and outdated attitude. Therefore, it was regarded as a violation of
human rights. This resulted in the repeal of Section 377.

The Sabrimala case55also affirmed the notion that women could not be prohibited
from entering the temple and acknowledged women's Right to Religion (Article
25). However, they also had religious convictions and tried to rule in a moderate
manner.

India has significantly degraded over the last few years despite all these
advancements. The biggest human rights violation occurred in the Jammu and
Kashmir conflict, which the government has not effectively addressed. Removing
Jammu and Kashmir's special status was not just a very arbitrary choice; it was
also followed by abuse of the region's citizens. Despite the fact that having access
to high-speed 4G Internet is now a fundamental right, Kashmir had no internet
connectivityfor averylongtimeafterthejudgement was made. Citizens, political
figures, journalists, and otherpeople werebeingarbitrarilydetained without much
justification.

EveniftheInternethasbeenmadeavailableonceagain,the2Gspeeditisnow operating
at is a reminder of Kashmir's citizens' terrible living conditions.56

A human rights commission must be established at the state and federal levels,
[Link] and make
decisions that are supposed to be enforceable at the Centre levels.
Althoughit hasmadeimportantdecisions, suchastheprobeduringthe Godra

55
AIR2018
56
[Link]
riots57,inrecent years,itsauthorityhasbeencurtailedandtheCommissionhas not
taken many actions despite the violations taking place all around it.

NGOs,whoweregivenparticularauthorityunderthePHRA,havetakenamore
aggressive approach to making sure that such abuses are exposed and that
individuals who seek justice are granted it.

Domestic violence instances have increased more than ever during lockdown, yet
despite reports claiming as much and offering statistics to back up those
allegations, little has been done to stop it. On the guise of "violating COVID
rules,"policeofficershavearrestedpeopleduringlockdown,resultinginarbitrary
detention and even mistreatment of the detainees. There were a few incidences
that were reported, including one in West Bengal when a guy was killed by the
police after going outside to get some supplies.

Since arrests have been undertaken under the guise of "national security" and
"public interest," but no additional justification for these arrests has been given,
thelivesofjournalistshavealsobeenputinjeopardy. Itnotonlyviolatestheright to free
speech but also the right to privacy. Multiple people are being detained onlyas a
result of the application ofastrict sedition law that hasn't changed much since the
British era. However, hardlyany responsibilityhas been assigned for all of these
human rights abuses.

[Link]
ECEMBER 10, 1948

India joined the list of nations that signed the declaration of human rights on
December 10, 1948, pledging to uphold and defend the rights that the UN
organisations had proclaimed and approved58. The UNO had mandated that the
member nations include the widely accepted human rights in their national
[Link],whichhasbeenineffect

57
2002
58
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sinceJanuary26,1950,thehumanrightsthatIndiaasasignatorytotheseUNO Declarations
of human rights has integrated as essential rights.

1.10. LIST OF30 ARTICLES OF

HUMANRIGHTSUNIVERSALLYDECLAREDBYTHEGENER
ALASSEMBLY OF THE UNITED NATIONS ON DECEMBER
10, 1948 59

Article 1 : All human beings are born free and equal in dignity and rights. They
areendowedwithreasonandconscienceandshouldacttowardsoneanotherina spirit of
brotherhood.

Article 2 : Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or
other status. Furthermore, no distinction shall be made on the basis of the
political,jurisdictionalorinternationalstatusofthecountryorterritorytowhicha person
belongs, whether it be independent, trust, non-self-governingor under any other
limitation of sovereignty.

Article3 :Everyonehasthe rightto life,libertyandsecurityof person.

Article4:Nooneshallbeheldinslaveryorservitude;slaveryandtheslavetrade shall be
prohibited in all their forms.

Article5:Nooneshallbesubjectedtotortureortocruel,inhumanordegrading treatment
or punishment.

Article6:Everyonehastherighttorecognitioneverywhereasapersonbeforethe law.

Article7:Allareequalbeforethelawandareentitledwithoutanydiscrimination to equal
protection of the law. All are entitled to equal protection against any

59
[Link]
discriminationinviolationofthisDeclarationandagainstanyincitementtosuch
discrimination.

Article 8 : Everyone has the right to an effective remedy by the competent

nationaltribunalsforactsviolatingthefundamentalrightsgrantedhimbythe
constitution or by law.

Article9 : No oneshall besubjected to arbitraryarrest, detention or exile.

Article10:Everyoneisentitledinfullequalitytoafairandpublichearingbyan
independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him.

Article 11(1) : Everyone charged with a penal offence has the right to be
presumedinnocentuntilprovedguiltyaccordingtolawinapublictrialatwhich he has
had all the guarantees necessary for his defence.

Article11(2):Nooneshallbeheld guiltyofanypenaloffence on accountofany act or

omission which did not constitute a penal offence, under national or international
law, at the time when it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time the penal offence was committed.

Article12:Nooneshall besubjectedtoarbitraryinterferencewithhisprivacy,
family,homeorcorrespondence,nortoattacksuponhishonourandreputation.
Everyone has the right to the protection of the law against such interference or
attacks.

Article13(1):Everyonehastherighttofreedomofmovementandresidence within
the borders of each state.

Article13(2):Everyonehastherighttoleaveanycountry,includinghisown,and to
return to his country.

Article14(1):Everyonehastherighttoseekandtoenjoyinothercountries asylum
from persecution.
Article 14(2) : This right may not be invoked in the case of prosecutions
genuinelyarisingfromnon-politicalcrimesorfromactscontrarytothepurposes and
principles of the United Nations.

Article15(1):Everyone hastherighttoanationality.

Article15(2):Nooneshallbearbitrarilydeprivedofhisnationalitynordenied the right

to change his nationality.

Article 16(1) : Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a family. They are
entitled to equal rights as to marriage, during marriage and at its dissolution.
Article16(2):Marriageshallbeenteredintoonlywiththefreeandfull consentof the
intending spouses.

Article16(3):Thefamilyisthenaturalandfundamentalgroupunitofsocietyand is
entitled to protection by society and the State.

Article17(1):Everyonehastherighttoownpropertyaloneaswellasin association
with others.

Article17(2): No oneshall bearbitrarilydeprivedof his property.

Article18:Everyonehastherighttofreedomofthought,conscienceandreligion; this
right includes freedom to change his religion or belief, and freedom, either alone
or in community with others and in public or private, to manifest hisreligion or
belief in teaching, practice, worship and observance.

Article 19 : Everyone has the right to freedom of opinion and expression; this
rightincludesfreedomtoholdopinionswithoutinterferenceandtoseek,receive and
impart information and ideas through anymedia and regardless of frontiers.

Article20(1):Everyonehastherighttofreedomofpeacefulassemblyand association.

Article20(2): No onemaybecompelledto belongto anassociation.

Article21(1):Everyonehastherighttotakepartinthegovernmentofhis country,
directly or through freely chosen representatives.

Article21(2):Everyonehastherightofequalaccesstopublicserviceinhis country.

Article 21(3) : The will of the people shall be the basis of the authority of
government;thiswillshallbeexpressedinperiodicandgenuineelectionswhich shall be
by universal and equal suffrage and shall be held by secret vote or by equivalent
free voting procedures.

Article 22 : Everyone, as a member of society, has the right to social security and
isentitledtorealization,throughnationaleffortandinternationalco-operationand in
accordance with the organization and resources of each State, of the economic,
socialandculturalrights indispensableforhisdignityandthefreedevelopmentof his
personality.

Article 23(1) : Everyone has the right to work, to free choice of employment, to
justandfavourableconditionsofworkandtoprotectionagainstunemployment.

Article23(2):Everyone,withoutanydiscrimination,hastherighttoequalpay for
equal work.

Article 23(3) : Everyone who works has the right to just and favourable
remunerationensuringforhimselfandhisfamilyanexistenceworthyofhuman dignity,
and supplemented, if necessary, by other means of social protection.

Article23(4):Everyonehastherighttoformandtojointradeunionsforthe protection of his

interests.

Article24:Everyonehastherighttorestandleisure,includingreasonable limitation
of working hours and periodic holidays with pay.

Article 25(1) : Everyone has the right to a standard of living adequate for the
health and well-being of himself and of his family, including food, clothing,
housingandmedicalcareandnecessarysocialservices,andthe righttosecurity
intheeventofunemployment,sickness,disability,widowhood,oldageorother lack of
livelihood in circumstances beyond his control.

Article 25(2) : Motherhood and childhood are entitled to special care and
[Link],whetherborninoroutofwedlock,shallenjoythesame social
protection.

Article 26(1) : Everyone has the right to education. Education shall be free, at
least in the elementaryand fundamental stages. Elementaryeducation shall be
compulsory. Technical and professional education shall be made generally
availableandhighereducationshallbeequallyaccessibletoallonthebasisof merit.

Article 26(2) : Education shall be directed to the full development of the human
personalityandtothestrengtheningofrespectforhumanrightsandfundamental
freedoms. It shall promote understanding, tolerance and friendship among all
nations, racial or religious groups, and shall further the activities of the United
Nations for the maintenance of peace.

Article26(3):Parentshaveapriorrighttochoosethekindofeducationthatshall be given
to their children.

Article27(1):Everyonehastherightfreelytoparticipateintheculturallifeofthe
community, to enjoy the arts and to share in scientific advancement and its
benefits. Article 27(2) : Everyone has the right to the protection of the moral and
material interests resulting from any scientific, literary or artistic production of
which he is the author.

Article28:Everyoneisentitledtoasocialandinternationalorderinwhichthe rights
and freedoms set forth in this Declaration can be fully realized.

Article29(1):Everyonehasdutiestothecommunityinwhichalonethefreeand full
development of his personality is possible.

Article 29(2) : In the exercise of his rights and freedoms, everyone shall be
subjectonlytosuchlimitationsasaredetermined bylawsolelyforthepurposeof
securingdue recognition and respect for the rights and freedoms of others and of
meetingthejustrequirementsofmorality,publicorderandthegeneralwelfarein a
democratic society.

Article29(3):Theserightsandfreedomsmayinnocasebeexercisedcontraryto the
purposes and principles of the United Nations.

Article30:NothinginthisDeclarationmaybeinterpretedasimplyingforany State,
groupor person anyright to engagein anyactivityor to perform anyact aimed at
the destruction of any of the rights and freedoms set forth herein.

1.11. INTERNATIONALHUMANRIGHTSAN
DFUNDAMENTAL RIGHTS (PART III OF
COI)

The Universal Declaration of Human Rights was ratified by India on January 1,

1942. The Fundamental rights are contained in Part III of the Indian Constitution,
which is commonly referred to as the Magna Carta. These are the rights that, inthe
event of a breach, the state must uphold directly. The state is not allowed to pass
any laws that violate the Fundamental Rights, according to Article 13(2) 60. It
always stipulates that any portion of a law that violates fundamental rights would
be considered void. The entire act may be deemed void if the void portion cannot
be distinguished from the main act. The Supreme Court stated this in the case of
Keshvanand Bharti v. State of Kerela61: "The Universal Declaration of Human
Rights maynot be a legallybinding instrument but it shows how India understood
the nature of human rights at the time the Constitution was adopted."

It was noted that UDHR had been acknowledged as a Model code of conduct
adopted by the United Nations General Assembly in the case of Chairman,
Railway Board v. Chandrima Das &Ors62. In family law, it could be necessaryto
read the principles.

The following are provisions from the Universal Declaration of Human Rightsand
their equivalents from the Indian Constitution:
60
TheConstitutionOfIndia,1950
61
AIR1973
62
AIR2000
BriefDescriptionof UDHR COI
Provision
Equalityandequal Article7 Article 14
protectionbeforelaw
Remediesforviolationof Article8 Article 32
FundamentalRights
Rightto Lifeand Article9 Article 21
personalliberty
Protectioninrespectfor Article11(2) Article20(1)
convictionof offences
Righttoproperty Article 17 Earliera Fundamental
RightunderArticle31
Right to freedom of Article18 Article25(1)
conscience and to
practice,professand
propagate anyreligion
Freedomofspeech Article 19 Article19(1)(a)
Equalityinopportunityof Article21(2) Article16(1)
publicservice
Protectionof minorities Article 22 Article29(1)
Righttoeducation Article26(1) Article 21A

Part III of the Indian Constitution includes several of the civil and political rights
outlined in the 1966 International Covenant on Civil and Political Rights(ICCPR).
The ICCPR has been ratified and signed by India.

Even if a clause is present in the ICCPR but not the Indian Constitution, [Link]
Iyer noted in the case of Jolly George Varghese &Anr. v. Bank of Cochin63that this
did not makethe covenant an enforceablepartof "Corpus Juris" in India.

63
1980AIR470,1980SCR(2) 913
The following are the provisions of the ICCPR and the corresponding provisions
of the Indian Constitution:

BriefDescriptionof ICCPR COI

Provision
Righttolifeand liberty Article6(1)&9(1) Article 21
Prohibition of trafficking Article8(3) Article 23
andforcedlabour
Protectionagainst Article9(2),(3)and(4) Article 22
detentionincertaincases
Freedomofmovement Article12(1) Article19(1)(d)
Righttoequality Article14(1) Article 14
Rightnottobecompelled to Article14(3)(g) Article20(3)
be a witness against
own self
Protectionagainst double Article14(7) Article20(2)
jeopardy
Protectionagainstex-post Article15(1) Article20(1)
factolaw
Right to freedom of Article18(1) Article25(1)&25(2)(a)
conscience and to
practice,professand
propagate anyreligion
Freedomofspeechand Article19(1) &(2) Article19(1)(a)
expression
Righttoassembly Article 21 Article19(1)(b)
peacefully
Righttoformunion/ Article22(1) Article19(1)(c)
association
Equalityinopportunityof Article25(c) Article16(1)
publicservice
Equalityandequal Article 26 Article14&15(1)
protectionbeforelawand
no discrimination on the
basis of any ground such
as race, colour, sex,
language,religionetc.
Protectionofinterestsof Article 27 Article29(1)&30
minorities

Some of the rights that were previously absent from the Fundamental Rights but
were incorporated in the ICCPR. They were regarded as Fundamental Rights in a
number of judicial rulings. Among them are the rights to an impartial jury, to
privacy, to legal assistance, and to international travel.

1.12. INTERNATIONAL COVENANT ON

ECONOMIC,SOCIAL AND CULTURAL RIGHTS (ICESCR)
ANDDIRECTIVEPRINCIPLESOFSTATEPOLICY(PARTIVO
FCOI)

A multinational treaty known as the ICESCR primarily focuses on social and

cultural rights such as those related to food, health, education, and housing. The
agreement was ratified by India on April 10th, 1979. Part IV (DPSPs) of the
Indian Constitution contains the majority of the clauses in this covenant.

Thefollowing are theprovisions ofthe ICESCR and the correspondingprovisions of

the Indian Constitution:

BriefDescriptionof ICESCR COI

Provision
Righttowork Article6(1) Article 41
EqualPayforequal work Article7(a)(i) Article39(d)
Righttolivingwage and Article7(a)(ii) &(d) Article 43
descentstandardforlife.
Humaneconditionsof Article7(b)and10(2) Article 42
workandmaternity leave.

Faculties and Article10(3) Article39(f)

opportunitiestochildren
for prevention against
exploitation.
Improving public health Article 11 Article 47
and raise level of
nutritionandstandardof
living.
Compulsoryeducation Article13(2)(a) Article 45
for children
Protectionofinterestsof Article 27 Article29(1)&30
minorities

1.13. UNREMUNERATEDFUNDAMENTALRIGHTS

At the time the Constitution was enacted, a number of rights that were guaranteed
by the covenant were not guaranteed as fundamental rights. The extent of
fundamental rights guaranteed by the Indian Constitution has been expanded by
court interpretations.

The Indian Constitution is the only document that recognises natural or common
law rights, according to the Supreme Court's observation in the case of A.D.M.
Jabalpur v. Shivkant Shukla.64

After that, J. Bhagwati made the following statement in the case of Maneka
Gandhiv.UnionofIndia65"Theexpression'personalliberty'inarticle21isofthe
64
1976AIR1207,1976SCR172
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 ofdistinct
fundamental rights and given additional protection under Article 19. No one's
right to travel abroad may be taken away from him unless the State makes a
legislation outlining the process for doing so and the taking away is done strictly
in accordance with that procedure.

To make fundamental rights active and meaningful, the apex court developed the
"theory of emanation" in response to the current case. A court-ordered relaxation
of the locus standi rule was also made. The following are some of the key court
interpretations of fundamental rights:

Right Case Law

Rightto livewith Human Dignity PUCL&[Link]
Maharstra&Ors.66
RighttoCleanAir [Link](TajTrapeziumMatter) v.
Union of India67
RighttoCleanWater [Link] [Link] ofIndia&Ors68
Righttofreedom from NoisePollution InRe:NoisePollution69
RighttoSpeedyTrial HussainaraKhatoon&Ors. v. Home
Secretary,StateofBihar70
RighttoFreeLegalAid KhatriAnd Others [Link] Bihar
&Ors.71
RighttoLivelihood OlgaTellis&Ors.v. Bombay

65
AIR1978SC597

66
AIR1997SC568,JT1997(1)SC288,1996(9)SCALE318,(1997)1SCC301,1996Supp10
SCR321,1997(1)UJ187SC
67
AIR1996
68
AIR1996
69
WritPetition(civil)72of 1998
70
1979AIR1369,1979SCR(3)532

71
1981SCR(2)408,1981SCC(1)627
 MunicipalCorporation72
RighttoFood [Link] Odisha73
RighttoMedicalCare [Link] v. Union of
India&Ors74.
RighttoCleanEnvironment RuralLitigation And Entitlement
[Link].P.&Ors75
RighttoPrivacy K.S. Puttaswamy&Anr. [Link] of
India&Ors76

72
1986AIR180,1985SCRSupl.(2)51
73
1989AIR677,1989SCR(1) 57
74
1989AIR2039,1989SCR(3)997
75
1985AIR652,1985SCR(3) 169
76
WRITPETITION(CIVIL)No.376of2018
 CHAPTER2

JUDICIARY

[Link]

The government's judicial branch is responsible for enforcing the rule of [Link]
phrase is used to refer generically to the individuals who manage the system,
including the courts, judges, magistrates, adjudicators, and other support staff.

[Link]

The courts apply the law, settle disputes, and punish lawbreakers in
accordancewith the law.

 Our judicialsystemisanessentialcomponentofourdemocraticway of [Link]

maintains peace, order, and good governance.
 Citizens rely on the courts to interpret the law. Individual parties must not
be favored by the judiciary.
 Theabilityofacourttodispensejusticeisdependentonitsabilityto enforce its
judgements.
 Onlya courtof appeals canoverturnalower court's decision.
 The judiciary is the ultimate defender of the people's human rights. It not
onlyprotects the rights stated in the constitution, but it has also recognized
numerous unenumerated rights by interpreting and broadening the scopeof
fundamental rights.
 [Link]

Only providing for fundamental rights does not achieve the goal of 'protection of an
individual's dignity,' but unrestricted enjoyment of the rights must be ensured. As
a result, Article 32 ensures the right to constitutional remedies, i.e. the abilityto
petition the Supreme Court for the enforcement of fundamental rights. The
judiciary has a constitutional mandate to protect citizens' human rights. The
Supreme and High Courts have the authorityto take action to enforce these rights.
Articles 32 and 226 of the constitution provide for redressal mechanisms. An
aggrieved individual may file a direct complaint with the Supreme Court or

High Court of the relevant state for the protection of his or her fundamental
rights,redress of grievances, and enjoyment of basic [Link] judiciary has a
constitutional mandate to protect citizens' human rights. The Supreme and High
Courts have the authority to take action to enforce these rights. Articles 32
[Link] individual
may file a direct complaint with the Supreme Court or High Court of the relevant
state for the protection of his or her fundamental rights, redress of grievances, and
enjoyment of basic rights. In such circumstances, the Court has the authority to
make appropriate orders, instructions, and writs of Habeas Corpus, Mandamus,
Prohibition, Quo-Warranto, and [Link] judiciary is the ultimate defenderof
the people's human rights.

It not only protects the rights specified in the Constitution, but it has also recognized
numerous unenumerated rights by interpreting and broadening the scope of
fundamental rights. As a result, persons have not only enumerated rights
butalsounenumerated rights. In ManekaGandhi [Link] India77,theSupreme
Courtinterpreted the righttolifeandbroadeneditsscope,deducing unenumerated

77
AIR1978SC597
rights such as "right to live with human dignity." To make the existence of the
fundamental right relevant and active, the Supreme Court proposed the
"emanation"theory. Followingthat, in numerous court instances, suchas People's
Union for Civil Liberties and Others v. State of Maharashtra and Others, Francis
Mullin, Coralie78 The Administrator of the Union Territory of Delhi stated thatthe
right to life includes the ability to live with dignity. As a result, numerous
rightshavebeen recognizedthrough courtinterpretationseven thoughtheyarenot
expressly stated in Part III of the Constitution. The courts has loosened the locus
standi norm,which statesthat onlyan aggrieved personcan approach thecourtfor
redress of his claims. Now, the court allows public-spirited individuals to file a
writ petition for the enforcement of the rights of any other person or class if they
are unable to invoke the Court's jurisdiction owing to poverty or any other social
and economic impairment.

The Supreme Court ruled in S.P. Gupta v. Union of India79and others12 that any
member of the public can approach the court to enforce the constitutional or legal
rights of people who are unable to attend to court due to poverty or other
limitations. A person can even write a letter to the court to protest about a breach
of their rights. Public interest litigation provides an opportunity to make basic
human rights meaningful to the community's most disadvantaged and vulnerable
[Link] ensurevulnerable sectionsocial,economic,andpoliticaljustice, any
public spirited individual can approach the court through public interest litigation
to safeguard their rights on behalf of aggrieved persons who are unable to contact
the court themselves due to their vulnerable conditions.

Similar observations have been made by the Supreme Court in a number of cases,
including Bandhua Mukti Morcha v. Union of India80, Ramsharan Autyanuprasi
andothersv.UnionofIndiaandOthers81,andNarmadaBachaoAndolanv.

78
CRIMINALAPPEALNO.1255OF1999
79
AIR1981
80
1984AIR802,1984SCR(2) 67

81
1989AIR549,1988SCRSupl.(3)870
Union of India82. As a result, public interest litigation has become an instrument
for the defense of people's human rights in India. The oppressed groups of society
are more likely to violate human rights. Children, women, and socially and
educationally disadvantaged groups are the most vulnerable segments of society.
The judiciary has taken numerous steps to assure the protection of these parts'
human rights. Children are especially vulnerable to exploitation and abuse.
Because of their vulnerability, children's rights require special protection.

As a result, the United Nations Convention on the Rights of the Child was ratified
in 198983. As children deserve safety and protection for their growth, this
convention brings together children's human rights. Time and again, the judiciary
has played a commendable role in defending children's rights. There have been
several cases where the judiciary has stepped in to protect children's rights. The
Supreme Court ruled in the case of Labourers working on the Salal project [Link]
of Jammu and Kashmir84 that children under the age of 14 cannot be employed or
allowed to work in the construction process. The Court has issued
[Link]
v. The Union of India85requested that governments form an advisorycommittee to
offer recommendations for the abolition of child prostitution and the development
of programs to provide proper care and protection to victim girls and children. In
Gaurav Jain v. Union of India86, the Supreme Court expressed concern over the
rehabilitation of youngsters involved in prostitution and ruled that juvenile
facilities should be used to help them and other neglected children. In Public at
Large v. State of Maharashtra87, the Mumbai High Court rescued children from
the flesh trade and issued an order prohibiting child sexual slavery and
[Link],butthey

82
AIR2000
83
Availableat[Link]
016).
84
1984(1)SCALE680,(1984)3SCC 538
85
1990AIR1412,1990SCR(2) 861

86
AIR1997
87
1997(4)BomCR 171
are also occasionally held as bonded laborers, as was the case with the People's
Union for Civil Liberties.

The Union of India asked that governments organize an advisory council to make
recommendations for ending child prostitution and developing initiatives to
provide proper care and protection to victim girls and children. The Supreme
Court expressed concern in Gaurav Jain v. Union of India88 about the
rehabilitation of young people involved in prostitution and decided that juvenile
facilities should be used to assist them and other neglected children. The Mumbai
High Court rescued children from the flesh trade in Public at Large v. State of
Maharashtra89, issuing an order outlawing child sexual slavery and rehabilitating
them. Children are not only at risk of sexual abuse, but they are also sometimes
detained as bound workers, as was the case with the People's Union for Civil
Liberties.

In Sheba Abidi v. State of Delhi90, the Delhi High Court stated that child victims
have the right to be supported during their trials and that they can testify outsideof
the courtroom. Women are deemed weak in our society, which has resulted in
women's backwardness in all spheres. Women continue to be repressed and are
frequently denied basic human rights. They are victims of violence in society,
whether it is within the four walls of their home or at work. Despite the right to
equality guaranteed by Article 14 of the Constitution, they are discriminated
against. Intermsofthe Indianlabormarket,genderisregarded asthemost crucial
aspect.

Discrimination against female laborers in wage payments is a widespread

occurrence in India91. Wages earned by women are often lower than those
obtained by men. Article 39 of the Constitution, on the other hand, mandatesequal
compensation for equal work for both men and women. Despite guarantees
ofequalrightsforwomen,[Link]

88
AIR1997
89
1997(4)BomCR171
90
AIR2004
91
ShayanJaveedandAnupamManuhaar,―WomenandWageDiscriminationinIndia:ACritical
Analysis March 19–2013‖2IJHSSI7(2013)
as Associate Banks Officers Association v. State Bank of India, 92 the Supreme
Court has played a noteworthy role in protecting their rights. The Supreme Court
defended therights ofwomenworkers,rulingthat women workersarenot inferior to
their male counterparts and that there should be no sex discrimination against
women.

The Supreme Court ruled in State of Madhya Pradesh v. Pramod Bhartiya 93 that
under Article 39, the state must direct its policy toward ensuring equal pay for
equal work for both men and women. In the case of State of Maharashtra v.
Madhukar Narayan Mandlikar94, the Supreme Court invoked Article 21, i.e.
protection of life and personal liberty, for a dignified existence for prostitutes,
holding that even a woman of easy virtue is entitled to privacy and no one can
denyher privacy. In the case of Bodhi Satwa Gautam v. Subra Chakarborty95, the
Supreme Court ruled that rape is a violation of fundamental human rights. In the
decision of Vishaka v. United Of India 96, the Supreme Court establishedprinciples
for protecting women against sexual harassment at work.

The same was reaffirmed in State of Rajasthan and MedhaKotwalLele v. Union of

[Link] are 31 guidelines for providing a safe workplace for women, and it
is also required that employers accept responsibility when sexual harassment
98
occurs at work. In BALCO Employees Union (Regd.) v. Union of India and
Consumer Edu.& Research Centre v. Union of India99, the Supreme Court upheld
the rights of workers. The Supreme Court ruled in People's Union for Democratic
Rights v. Union of India100that releasing people from bonded labor required
rehabilitation in order to provide a full remedy.

92
AIR1997
93
AIR1993SC286,1992(65)FLR991,JT1992(5)SC683,(1993)ILLJ490SC,1993IOLR
SC448,1992(2)SCALE791,(1993)1SCC539,1992Supp1SCR 904

94
AIR1991SC207(1991)1SCC57
95
1996AIR922,1996SCC(1) 490
96
AIR1997
97
WRITPETITION(CRIMINAL)NOS.173-177OF1999
98
AIR2001
99
1995AIR922,1995SCC(3) 42
100
1982AIR1473,1983SCR(1)456
The Supreme Court noted in Rohtas Industries Ltd. And Anr. vs Workmen
101
Of Rohtas Industries Ltd that the right to equality had become crucial in
defending workers' rights against arbitrary layoffs and discrimination in pension
payments. The legal system defends all citizens' rights, even those of convicts.

Justicesystem defends citizens'rights, especiallythoseof prisoners.

The Supreme Court upheld and maintained the convicts' rights by interpreting
Article 21 of the Constitution. The Supreme Court ruled in the case of Prem
Shankar v. Delhi Administration102 that the practice of handcuffing and fettering
convicts violates the promise of human dignity. A landmark decision inD.K.
Basuv.StateofWestBengal103safeguardedtherightsofthedetainees,established
numerous rules for arrest and incarceration, and said that the right to life includes
the right to live with dignity. Similar to how the court dealt with the issue of
mistreatment of women in police stations in Sheela Barse v. State of
Maharashtra104, the court established a number of rules for the protection of
women's rights in detention and correctional facilities.

The Supreme Court further ruled in Citizens for Democracy v. State of Assam and
Others105 thathandcuffingandrope-tyingareinhumaneand aflagrantviolationof the
human rights that are protected by both domestic and international law. Court
ordered that prisoners who have been convicted or areawaitingtrial should not be
forced to wear handcuffs or other fetters while being held in custody or evenwhile
being transported. Police and jail staff should not be allowed to order the
handcuffing of any jail inmate or while they are being transported without the
consent of the Protection of Human Rights in India magistrate. Without a
magistrate's approval, the individual who has been detained cannot be handcuffed
during the execution of the arrest warrant.

101
AIR1967Pat224,(1968)ILLJ710 Pat

102
1980AIR1535,1980SCR(3) 855
103
WRITPETITION(CRL)NO.592OF1987
104
1983AIR378,1983SCR(2) 337
105
1995(3)SCR 943
Because of this, the judiciary continuously contributes to the protection ofpeople's
human rights by extending the purview of existing rights and recognizing new
ones as circumstances dictate. The judiciary has broadened the definition of the
right to life to include obligations that are necessary for the exercise of the right to
life in dignity. Whether it is a right against violence in custody, a right to live in a
pollution-free environment, a right to health, a right to adequate wagesfor
workers, a right to the safety of women at work, a right to compensation for rape
victims, a right to protect the rights of child laborers, etc., courts have protected
people's rights in numerous cases.

[Link], 1993

The Protection of Human Rights Act, 1993, a law that specifically deals with
protectinghumanrights,waspassedinresponsetotheneedforsuchprotectionon both a
national and international level. The Act's goal is to give the defense of human
rights an administrative framework. In order to further defend humanrights and
issues related to them, the Act calls for the establishment of Human Rights
Commissions at the national and state levels in each state, as well as district-level
Human Rights Courts

In Section 2(d) of the Act, "the rights are relating to life, liberty, equality and
dignity of the individual guaranteed by the Constitution or embodied in the
International Covenants and enforceable by courts in India," are defined as "the
rights relating to the individual and enforceable by courts in India." However, the
National Human Rights Commission's ability to function is constrained by the
aforementioned definition. The International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social, and Cultural Rights
werebothratifiedbyIndia.106 Sinceinternationalcovenantscannotbedefendedin court,
the nation should have laws that are in line with these conventions.

106
[Link],[Link]―ProtectingHuman
Rights through the Judicial Process‖on 21 December 2002 at Raipur, 15, available at
[Link] (Last visitedon August 8,2016).
[Link]

The State has a key duty to safeguard citizens' human rights against infringement,
as well as to avoid suchinfringements byensuringtheir realization and promoting
further human development. The government handled this duty through its
institutions. In orderto carryout this dutyon anational level, theNational Human
Rights Commission was founded under the Protection of Human Rights Act of
1993. The National Human Rights Commission is to be composed, according to
Section 3 of the Act. A Chairperson and four additional people make up the
commission.

In addition to these members, the chairs of the National Commissions for

Minorities, SCs, STs, and Women are given ex-officio membership in the
Commission in order to provide representation for the underrepresented and
oppressed groups in society.

The National Human Rights Commission's duties are outlined in Section 12, and
according to Section, the Commission carries out the following duties:-

a) On a petition that is brought to his attention or at the court's request,

investigate incidents of human rights violations.

b) With the consent of the court in question, intervene in any case involving a
claim of a violation of human rights.

c) VisitanyprisonorotherfacilityrunbytheStateGovernmentwherepeopleare held or
lodged for the purpose of treatment, reformation, or protection in order to
investigate the living conditions of the inmates and provide recommendations to
the Government on how to improve such conditions;

d) Conduct a thorough analysis of the government's human rights policy to

identify gaps in respect for such rights and offer solutions. The National Human
Rights Commission has been carrying out this duty by offering comments on
proposed legislation, alerting the government to a gap in the law, and developinga
national human rights policy that takes into account regional requirements.
 e) Examine the factors—including acts of terrorism—that prevent people from
exercising their human rights and suggest appropriate corrective action.

f) Research international human rights treaties and other legal frameworks, and
offer suggestions about how to best put them into practice.

g) Conduct and encourage human rights-related research through publications, the

media, seminars, and other accessible means, increase human rights literacy
among diverse societal groups and raise knowledge of the protections availablefor
the preservation of these rights. The Commission has the authority to perform
civil court functions such as obtaining affidavit evidence, summoning witnesses,
requiring their attendance, and interrogating them under oath.

The commission may, with the consent of the Central Government or the State
Government, as the case may be, use the services of any officer or investigation
agency of the Central Government or any State Government for the purpose of
conducting any investigation related to the inquiry. Making suggestions and
guidelines to various authorities is another significant duty performed by the
National Human Rights Commission. It has frequently given numerous
suggestionsonarangeof issues,includingfoodsecurity,violenceagainst women, jail
changes, police confrontations, and public relations for the police. Recently, the
Commission made suggestions regarding leprosy, mental health, human rights
defenders, and prison reform.107 The Commission has contributed significantly to
the upholding of human rights. It took suomotu cognizance in various cases of
human rights violation and took cognizance of the complaints brought before it.

Afewcasesthat aredetailedbelow maybe brought up inconversation:

Based on media reports of communal riots that occurred in Gujarat in the

beginningof2002, t h e commission t o o k s u o m o t u action i n t h e G u j a r a t

107
Theserecommendations were madeonthe basisoftheNationalSeminar on ―Prison Reforms‖
heldon13-14November,2014,theNationalworkshopon―HumanRightsDefenders‖heldon19
February, 2015, National Conference on ―Leprosy‖ held on 17 April, 2015 and State Mental
Health Secretaries held on 5 September, 2015 ―Journal oftheNational Human
RightsCommission‖,vol.14at335–355(2015).
Communal Riot's Case108. A request for the Commission to become involved was
also sent to it via email.109 Gujarat had been visited by a Commission team in
March 2002, and they prepared a private report that was eventually made public.

The Commission noted that the State's primary and unavoidable dutyto safeguard
the rights to life, liberty, equality, and dignity of all its citizens had not been
carried out.

InBonded Laborers Working in Chana Stone Mines, District GwaliorMadhya

Pradesh110, Bonded Labor Liberation submitted a complaint alleging that 400
boundlaborershadbeen employedinChanaStone minesinDistrictGwaliorand had
been working there without receiving their salary and having been subjectedto
harassment and abuse. To ensure that these establishments are inspected and that
all labor rules are strictly enforced, the Commission requested that the
government instruct the MP for the Labour Commissioner. 44 people were freed
[Link] LabourDepartmentof the
[Link]
report.

44 people were freed and relocated to other areas in accordance with their
requests. The Labour Department of the Government of M.P. afterwards reported
on the rehabilitation of freed laborers and the actions taken against the at-fault
employers. The matter was closed by the Commission after considering the
report.45 The press article "Kids thrashed for refusing insect-infested schoolmeal"
has been brought up by the Commission in Case No. 2432/4/39/201246.
According to the allegation, kids at a school in the Mithani Milki village in the
Vaishali district near Patna were allegedly beaten by their headmaster till they
passed out because they refused to eat khichdi for lunch that contained insects.

The Chief Secretary of the Government of Bihar and the District Magistrate of
VaishaliweregivennoticebytheCommissionto produceareportonthesituation

108
ArunRay,NationalHumanRightsCommissionofIndia:Formation,Functioning,andFuture Prospects
518 (KhamaPublisher,NewDelhi,2nd edn.,2004).
109
CaseNo.1150\6\2001-2002,6March2002.
110
CaseNo:1351/12/2001-2002(FC).
and the actions they had taken. The chargesheet against the school's headmaster
has been filed with the court, according to a report from the SP of Vaishali, Bihar.
The District Magistrate of Vaishali, Bihar, was additionally instructed to submit a
report and proof of payment regarding the granting of interim financial relief tothe
victim SC students in accordance with Rule 12(4) of the SC/ST (PA) Rules 1995
within six weeks. The Commission is taking the responses received into account.

Is school main bachche helmet pehankar karte hain padhai, a storypublished in a

Hindi newspaper, prompted the Commission to take suomotu cognizance of the
case in Case No. 1155/35/5/201447111. Children in a school in the village of
Doodhli, 25 kilometers from Dehradun, reportedly wear helmets while in class. It
has been reported that the school's building is deteriorating and that plaster from
the roof is constantly falling. Many pupils have suffered injuries as a result of the
plaster falling from the roof. Therefore, the parents have given the kids helmets to
use at school in order to protect the kids' heads from injury. The press report's
information brought up the severe issue of schoolchildren's human rights being
violated. The Secretary of Education was given notice by the Commission and
instructed to produce a report regarding the numerous school buildings in theState
that are in a deteriorating condition as well as the corrective measures. The State
Government has taken or is considering taking 33 measures to protecthuman
rights in India. Additionally, the District Magistrate of Dehradun was
instructedtoproduceareportdetailingthenumberofstudents whohavebeenhurt at the
school, the medical care that was given to them, and any ex gratia help that the
State Government may have supplied. The commission is still considering the
situation. The Greater Noida Jail inmate who was charged with the killing of
Mohammed Ikhlaq of Dadri died in a Delhi hospital while receiving treatment,
according to a report in the media on October 5, 2016, and the National Human
Rights Commission has taken suomotu cognizance. The Commission sent notices
to the director general of prisons and the director general of police in Uttar
Pradesh, noting that the news article's contents created a serious issue regarding
theprisoner'shumanrightsbeingviolated,andaskingforareportonthesituation
111
Availableat[Link]
within four weeks. The claims that certain police officers beat the prisoner while
he was in court custody are very serious. A prisoner's constitutionally protected
right to life cannot be violated, not even while they are being held in judicial
custody. The family members have every right to be informed of the prisoner's
condition. When someone is under court custody, they are unable to receive their
own medical care. Accordingly, the Commission noted, it is the responsibility of
the authority who is in charge of looking after him to defend his right to life,
which cannot be exercised if prompt medical attention is not given to him. The
deceased's family claims that on September 30, 2016, while being held in a
separate cell bythe jail staff and being ruthlesslyabused byseveral police officers
within the jail, Ravi's condition deteriorated. The authorities allegedly failed to
notify the family of the prisoner's worsening condition, according to a media
report. His family learned of his passing on October 4th, 2016, only after he had
passed away.112 The Commission is still deliberating on the situation.

[Link]

According to Section 21 (1) of the Act, the state government has the authority to
create commissions at the state level. The Chairperson of the Commission is
joined by the other four members. Similar duties previously assigned to the
National Human Rights Commission may now be carried out by the State
Commission. Only those matters pertaining to any of the entries listed in Lists II
and III in the Seventh Schedule of the Constitution are subject to State
Commission inquiries into violations of human rights. The State Human Rights
Commission is not authorized to investigate treaties or other international
instruments pertaining to human rights. According to the Minister of Human
Affairs,thebestcourseof actioninregards tothemechanismforresolvinghuman

112
Availableat[Link]
rights complaints in Union Territories may be to extend the jurisdiction of State
Commissions of neighboring States into the adjacent Union Territories, as has
been done in regards to High Courts.49

[Link]

These courts were established by the state government, with the Chief Justice of
the High Court's approval, by notifying designating a Court of Session as aHuman
Rights Court under Section 30 for each district. In accordance withSection 31 of
the Act, the State Government appoints a Special Public Prosecutor to handle
matters in the human rights court. In the States of Assam, Andhra Pradesh,
Sikkim, Tamil Nadu, and Uttar Pradesh, human rights courts have been
established.113 In order to make explicit the precise nature of the offenses to be
tried in these courts and other information regardingthe conduct of their business,
the 50 Commission maintains contact with the relevant High
[Link]
ts,and in its reports to the government on a variety of subjects, it has made several
recommendations for actions that should be taken to stop the infringement of
human rights. It has received 7822 new complaints in August 2016 and has
resolved 7772 new and old cases114.

According to Section 30 of the PHRA, all state governments must recognise the
Court of Session as a Human Rights Court in order to provide a prompt remedy
after reaching an understanding with the Chief Justice of the High Court of each
state. For the purpose of handling the matters before this court, section 31 states
that the state shall designate a prosecutor or an advocate with at least seven years
of experience in practise. In the same D.K. Basu case, the Supreme Court also
ordered compliance with this need to designate HRC in 2015.

113
ShashiMotilalandBijayalaxmiNanda,HumanRights,GenderandEnvironment113
(AlliedPublishers Pvt. Ltd., Mumbai,2010).
114
Availableat[Link]
It was determined that the state makes no attempt to contact the Chief Justice of
the High Court of the relevant state to discuss whether the session court should be
designated as the Human Rights Commission.

In the year 2019 the NHRC once more presented the except few states no state
compiledtheorderto specifyorset up theHRC duringthehearingofPunjabstate
Human Rights Commission vs. Jatt Ram. The bench stated that although the
establishingofthesecourtsdoesnotnecessitatetheappointmentofextrajudgesor
additional infrastructure, the court's judgement is nevertheless not carried out.
Chief Secretaries have been ordered by the Supreme Court to give justification as
to why such directives are not necessary.

[Link]

In addition to the government, non-governmental organizations are crucial to the

defense of human rights. NGOs have a significant impact on society. Thesegroups
fill the service gaps left by the government and support the defense of citizens'
rights. NGOs are non-profit organizations with branches all over the world and
can range in size from tiny groups to large worldwide organizations. The strength
of an NGO comes from the people who support their interests on a volunteer
basis. NGOs are independent organizations of the state that are run by a group of
private individuals. Protection of Human Rights in Indiaeducate and improve the
populace to increase awareness of their rights. NGOs are essential to the planning,
oversight, and evaluation of the human rights protection process. According to
B.R.P. Bhasker115, "the role of NGO is particularly important in the field of human
rights as Government or their agencies frequently becomeviolators of the very
rights they are committed to protect and promote vastsections of the people who
are illiterate and ill-informed, and that makes it easyfor rights violators to act with
impunity." In light of this, the need of human rights education becomes apparent,
and NGOs are principally responsible for carrying
[Link]
115
[Link],HumanRightsinaChangingWorld35(GyanPublishingHouse,NewDelhi,2011).
role that NGOs play in a variety of disciplines. They are making a significant
contribution in a number of areas, including those related to health, education, the
environment, and the defense of the rights of different social groups.

Saheli for women's rights, Youth of Voluntary Action for the abolition of child
labor, Bandhua Mukti Morcha for the abolition of bonded labor, People's Union
for Civil Liberties, and Citizens for Democratic Rights are some of the NGOs
working in this field. They have also played a crucial role by bringing numerous
cases of human rights violations before the Supreme Court of India. NGOs have
on numerous occasions been the first to alert the appropriate authorities to a
human rights infringement. The National Human Rights Commission has
respondedtoa numberofcomplaints, primarilysubmissions fromregionalNGOs.

NGOsarealsoplayingasignificantroleineffectivelyenforcingthegovernment's
policies. The 1993 Protection of Human Rights Act recognizes the remarkable
contribution that NGOs make to advancing human rights. In addition to this Act,
the Vienna Declaration and Programme of Action of 1993 also acknowledged the
function of NGOs in advancing human rights. In order to create favorable
conditions for the exercise of human rights, this declaration emphasized the
necessity of national cooperation with NGOs. The Commission was specifically
instructed to "encourage the efforts of non-governmental organizations and
institutions working in the field of human rights" under Section 12(i) of the
Protection of Human Rights Act. This is a duty that the Commission gladly
accepts because the cause stands to benefit greatly from both the practical
assistance and the constructivecriticism that NGOsand theCommission can offer
in the course of their ongoing dialogue.55 The Commission has occasionally
welcomed prominent human rights advocates and NGO representatives for talks
andrecommendations,[Link],the
Commission has made it a point on each visit to a State to take advantage of the
expertise and contacts of NGOs, whose connections at the "grass-roots"level give
the human rights movement strength and meaning where it matters the most.
 CHAPTER
3JUDICIALACTIVISM

“Nomanoughtcertainlytobeajudgeinhisowncause,orinanycausein respect to
which he has the least interest or bias.”
—AlexanderHamilton,TheFederalistPapers116

According to traditional and predominantlyAnglo-Saxon view of justice,judges

couldonlypronouncejustice. Itwasinconceivablethata judgewould
recommend a change or anew [Link] to theeminent Britishjurist
LordReid,"There was a time when it wasalmostvulgarto suggest thata judge
enact alaw - theyjust explained it”117. When a judge is nominated,
he is struck by the magic word "open sesame", according to the popular belief
among many fairy tale lovers that the common law ishidden in allits glory
inAladdin'scave. A
baddecisionismadewhenthejudgeentersthewrong password and unlocks the
wrong [Link] we no longer hold that belief.
Over time, however,it has become important for judges to abandon this
[Link] the
legislation on several important matters and the confusing language of certain
sections,thecourtshaveofferedtheirowninterpretationsoftheproblemsthat
haveemerged. Occasionallytheyextendedtheapplicationofregulations,
sometimesproposingentirely [Link], where
courts already had some power through judicial review functions, judicial
activity developed during this period.

116
AlexanderHamilton,TheFederalistPapers
117
AccordingtotheeminentBritishjuristLordReid.
A lawsuitincourtthatevadesjudicialreviewis called "legal
activism." As the discussion goes, it is an act beyond the scopeof authority.
TheConstitution does not give courts poweror jurisdiction over"activism" in the
[Link] amongst
theexecutiveandthelegislativebranches. However,duetothe
passivityandinefficiencyofotherstateinstitutions,thejudiciarytookthesedraconianme
[Link],theexploitationandabuseofpartic
ularconstitutionalprovisions,andthegeneral disinterest in the nations
administration, judicial activism has become necessary. Theyhave come to the
attention of courts seeking to address issues raised bythe
[Link] states
shouldn't be given directionsthat include affirmative steps to secure them.
TheSupremeCourthasthegreatestpowertodefendpeople'sconstitutional
[Link],[Link] not
expected to live in bubbles,oblivious to society's problems,likeOlympians with
their eyes closed. But it is important to understand that the judiciary does not
actforitsglory, butaccordingtoitsconstitutionalobligations. Otherwise,
democracywillsufferandcourtswillbeundermined. Whenlegislativeand
executivebranches violate theirconstitutional obligations out ofcomplacency, the
[Link]
people'[Link],
judgesshouldcurbexcessesandencouragegovernmentstoproperlyenforce social
laws.
It first appeared in 1893 in a dissenting decision by AllahabadSupreme
CourtJustice Mahmood. Using the example of a defendant who was in court
whocouldnotafforda lawyer, Judge Mahmood ruledthattheneedto
"hear"the issue was satisfied only if someone spoke. It was unclear whether the
courtwouldbaseitsdecisionsolely [Link] regards
implications,judicialactivismisnotanotiondistinctfromtypical judicial
[Link] isthe term for sustained,active"behaviour",whether forward or
backward.

[Link]
“Greatnessofthebenchliesin creativity…
There are cases where a decision one way or the other will count for the future,
will advance or retard sometimes much, sometimes little, the development of the
law in a proper direction. It is in these types of cases where the judge is to leap
into the heart of legal darkness, where the lamps of precedent and common law
principles flicker and fade, that the judge gets an opportunity to mold the law
and to give it its shape and direction. This is what we have been trying to do in
India.”
–JusticeP.N. Bhagwati118

According to Black's Law Dictionary, judicial activism is a "Theory of judicial

decision-making whereby judges allow their ideas about public policy, among
other things, to shape their choices." The antithesis of judicial activism isjudicial
restraint, which is defined as "the philosophy of judicial decision- making
whereby judges base their judgements on the principle of "staredecisis" (relying
on precedents) to safeguard the status quo”.

Thephrase"judicialactivism"119wasfirstusedbyArthurSchlesingerJr. in a
Fortune magazine story from January 1947 titled "The Supreme Court: 1947."

Judicial activism has advantages as well as disadvantages. A court is

considered to be negatively activist if it utilises its creative power to maintain the
status quo in power relations, as opposed to constructively activist if it uses it to
improve power relations.

118
[Link]
119
[Link] magazinestoryfromJanuary1947titled"The
SupremeCourt:1947."

[Link]
ITIGATION AND JUDICIAL ACTIVISM
According to the definitions of litigation and "public interest," respectively,
litigation is defined as "a legal action, including all proceedings therein,
launched in a court of law to enforce a right or seek a remedy". The term
"Public Interest Litigation" therefore refers to "certain litigations conducted for
the benefit of the public or to assuage some public grievance." Any civic-
minded person may file a petition with the Supreme Court by Article 32 of the
Constitution, the High Court by Article 226 of the Constitution, or the Court of
Magistrate by Section 133 of the Code of Criminal Procedure to move or appear
before the court for the public cause (or public interest or public welfare).

Publicinterestlitigation,commonlyreferredtoassocialinterestlitigation, is a
topic that is now receiving a lot of attention and importance. The "Locus Standi"
concept, which holds that ―the petition can only be filed by the person whose
rights have been violated‖, has been dramatically relaxed by the Supreme Court in
recent instances. The court now accepts public interest lawsuits initiated by
interested parties to uphold constitutional rights. Now, any civic-minded
individual can petition the court for a cause they believe in by submitting a
petition. (in the interests of the public or public welfare).

Judge Krishna Iyer offered the following justifications for the Locus Standi rule's
relaxation in Fertilizer Corporation Kamgar Union v. Union of India120.
1. UsingpowerofStatetobattlecorruptioncanresultindisjointedintrusionwith rights
of people.
2. Freelegalcontrolof governmentalactionsprioritizingsocialjustice.
3. Sternapplicablelawistheantithesisofrealadministration.
4. Participatorypublicjusticerequiresactivism.
120
1981AIR344,1981SCR(2)52
Therefore,bourgeois-minded people must be allowed to litigate in court in the
public [Link] in,S P Gupta [Link] Of India121,commonlyknown as the
'Judge Transfer Case',clearly established the legality of public interest litigation.
Since then, the court has received asignificant number of requests for public
interest litigation.
3.3JUDICIALACTIVISMININDIANSCENARIO

TheIndian Constitutionof1950wasbasedlargelyonWesternmodels,incorporating
Britishparliamentarydemocracyandanindependentjudicial system,
thebasicrightsoftheBillofRights,thefederalismofthefederal structure of
the United States Constitution,andIrish policy principles. In
addition, it contained the basics of the Bill ofRights. These modern beliefs and
practiceswereintroducedfromtheWestandruthlesslyimposedonthesemi- feudal and
semi-advanced civilization [Link] extension of the state,the Indian judiciary
takes a more proactive approach than theAmerican judiciary in
attemptingtomodernizeIndianculturebypromotingcontemporaryidealsand beliefs in
court sentencing. In its early days, theSupreme Court of Indiawas
conservativeandinactive. India's Supreme Courtcontinuedtofollowthe
traditional BritishapproachthroughoutthisperioduntilJustice
GajendraGhadkar was appointed Chief Justice of India in1964.
TheSupreme Court ofIndia continued to use the traditional British approach
throughout this period. There were not many decisions translated into law during
this [Link] was known for his staunch support of his
labour when he was appointedChiefJustice in 1964. His working rules were
largely made by the judge,such as how he would initiate an investigation andhow
he would be allowed to defend himself.

121
1982AIR149=1982(2)SCR365=1981Suppl.SCC87=1981(4)SCALE 1975
TheSupreme Court of India,GolakhNath v. State ofPunjab122failed
toamendPart3oftheFundamental Rightsofthe IndianConstitution, requiring only
atwo-thirds majority in both Houses ofParliament, despitethe
lack of equivalent restrictions in Article [Link] decision was overturned by
13judges of theCourt inan important judgement4,who were convinced thatthe
―basic structure ―of the constitution could not be [Link] is still unclear what
"basic structure"means,although various judgments have attempted to define
[Link], it was noticed thatSection368 omits any reference to the underlying
structure.

3.4ARTICLE21ANDJUDICIALACTIVISM

Article 21states that ,"No one shall be deprived of life or personal libertyexcept
by procedures established by law".123

[Link] [Link] OfMadras124, theSupreme Court ofIndia rejected

theargument that deprivation ofaperson's lifeor libertymust bejust,reasonable and
just in addition to respect for the law. Adecision to the contrary wouldrequire the
reintroduction of the due process clause, which was intentionally removed from
Article 21when the Indian Constitution was drafted.
However, inManekaGandhiv.UnionofIndia125,thecourtinterpretedsection 21 to
include this due process [Link], the due process clause was
deliberately removed from the Constitution and introduced only through legal
action by theSupreme Court [Link] important area oflegal activity
became when theSupreme Court ofIndia interpreted the term "life" in constitution
of India under Article 21 which shall include not onlythe right to life but also the
right to live with human dignity.

122
1967AIR1643,1967SCR(2)762
123
ConstitutionOfIndia,1950
124
1950AIR27,1950SCR88
125
1978AIR59,1978SCR(2)621,1978SCC(1)248
TheSupreme Court in Francis Coralie v. Union Territory of Delhi126ruled that the
right to life goes beyond the mere existence of [Link] need more than bodily
[Link] right to life includes necessities such as freedom of movement,free
interaction with others, the ability to read and write in various ways,the ability to
express oneself,and adequate food,clothing and shelter.
As a result of theR. Rajagopal v. State of TamilNadu127,Section21was amended to
include anew right called the"Right toPrivacy".According to court
decisions,everyone has the right to keep private matters confidential,
includingthose relatingtomarriage, family, reproduction, maternity,childbirth and
[Link] Supreme Court also said that the protection of the right tolife
inArticle21includes the right to [Link] was also agreed that countriesmust provide
necessities to those who cannot afford to buy their [Link] rightto access clean
drinking water was declared by the court. TheSupremeCourtalso said that the right
to safe drinking water is one of the fundamental freedoms arising from the right to
life. Rights include The right to a fair trial,Right to health and medical
care,Protection of pools,ponds, forests, etc. that provide quality of [Link] to a
family pension;right to legal advice and advice;Right toSexualHarassment,The
right to receive medical assistance in the event ofan accident,Right to object to
solitary confinement,Right to handcuffs and poles,The right to a speedy
trial,Theright to police brutality,torture andother forms of corporal punishment,
the right to legal representation by a competent lawyer of their choice,the right to
interview and visitation by prison rules,the right to a minimum wage and other
rights areall are included in the definition of "right to life" in Article 21.
In a later ruling, BhagwanDass Vs. The State ofDelhi(NCT)128 again the Supreme
Court introduced the death penalty as an appropriate punishment for "honour
killings,"defined as the killing of young people who marry outside their castes or
religions or marry in the same village, thereby"dishonouring"their parents or
castes.

126
1981AIR746,1981SCR(2)516
127
1995AIR264,1994SCC(6)632
128
CRIMINALAPPEALNO.1117OF2011
The most recent cases of judicial intervention were those of ArunaRamchandra
[Link] Of India129. ArunaShanbaug was sexually abused in 1973 while
working as a nurse in a hospital [Link] a result, she has been in a
permanent vegetative state ever since. In2011, after Aruna had been in this state
for 37 years, a social activist posing as her friend filed arequest for euthanasia
whichtheSupreme Court of India considered on [Link] court denied this
motion,butin alandmark judgment(written bythe author),it approved passive
euthanasia or suspension of life support for anutritionally ill person with the
approval of the HighCourt.
 CHAPTER
4JUDICIALDECISIONS

[Link]
GHTS

The Supreme Court's primary duty is to uphold these rights because it is

recognised as the "guardian of the fundamental rights." Since we have ratified
numerous international human rights treaties, part III of our constitution includes
provisions for human rights. The separation of powers principle establishes the
judiciary's independence from the other two branches, enabling it to respect the
law and safeguard human rights. In India, the judiciary effectively uses its
authority to interpret Part III in order to spur improvements in the defence of
human rights.

The Supreme Court of India is endowed with the power of judicial review, and
article 32 expands on this power by enabling the court to examine all government
actions and declare them void if theyviolate part III, or the fundamental structure,
of the constitution. All state organs are kept within the scope of their authority as
granted by the constitution or any other statute thanks to this power of review.
When part III rights are violated, a person may directly file a case with the High
Court under article 226 and the Supreme Court under article 32, which is also a
basic right. The SC is the protector of fundamental rights thanks to Article 32, the
cornerstone of our democracy. This right to approach will be suspended if the
emergency is declared, according to section 32(4).

[Link]
W SC ADVANCED THE PROTECTION ANDPROMOTION
OF THE HR:-

4.2.1. KesavanandaBharativ.StateofKerala130

(FundamentalRightCase)
The ever-largest constitutional bench of 13 judges heard this case. The doctrine of
thefundamental structurehas been givento us bythis [Link] that
this principle is unbreakable and as a result stated that the capacity to amendis not
limitless but rather finite. This case overturned the Golaknath case [xi], and the
court declared that if the parliament attempts to rewrite the entire constitution
using its authority under article 368 of the constitution, its act shall be considered
ultra-vires. The Supreme Court's perspective profoundly defends human rights.

4.2.2. ADMJabalpurv.ShivakantShuklaCase131

(HabeasCorpus)

This case is a blemish on Indian legal precedent. Four of the five judges in this
case ruled that all fundamental rights would be suspended during an emergency.
The rule that the state cannot deny anyone their right to life and personal liberty
without following due process of law was established by Justice H.R. Khanna's
dissenting best judgement.

4.2.3 ManekaGandhiCase132(

Personal Freedom )

130
(1973)4SCC225;AIR1973SC 1461
131
1976AIR1207,1976SCR172
132
1978AIR59,1978SCR(2)621,1978SCC(1)248
In this instance, the court interpreted the term "personal liberty" broadly. Thecourt
reasoned that because articles 14, 19, and 21 are interrelated, the requirements of
those articles must be satisfied in order to deny someone their "personal liberty."

4.2.4 ShahBanoCase133
(MaintenanceCase)

The Supreme Court maintained Shah Bano and preserved Muslim women's rights
outside of personal law, but the Muslim community believed that this decision
infringed on Muslim Sharia Law. As a result, parliament established the All India
Muslim Personal Law Board in 1973.

4.2.5.InterpretationsofArticle21

The word "life" is defined in a landmark decision by the U.S. Supreme Court as
something that is more than just animal existence. The Apex Court has broadly
interpreted Article 21. The Supreme Court of India stated that having the right to
life extends beyond simply being physically .

AccordingtoArticle21, therighttolivewithdignityisdeniedtoworkers whoare not

paid their wages. According to the SC, articles 14, 15, and 21 are all violated
whensexualharassment occursin the workplace. Rightstofood, clothing, shelter,
information, a means of subsistence, protection from solitary imprisonment, free
legal representation, health care, privacy, etc. The Supreme Court used its
interpretive authority to add all of these as an inherent component of Article 21.

133
1985AIR945,1985SCR(3)844
[Link]&Orson15 April,
2014134
(TheThird Gender)

In 2014, the SC recognised transgender people as belonging to a third gender and

upheld their rights.

4.2.7. TripleTalaq135
4.2.8.
Triple talaq was deemed unlawful in 2017 by the Supreme Court of India, with a
3:2 majority of the judges ruling that it violates and jeopardises the rights of
Muslim women in every way. Despite this, the measure has not yet been passed
because of some disagreements.

4.2.9. SabarimalaShrineCase136

The Sabarimala shrine Supreme Court let women between the ages of 10 and
50toenter theshrinebecausedevotion cannotbe subjected togender discrimination .

4.2.10. Homosexuality137
NavtejSinghJoharvsUnionOfIndiaMinistryOfLawAnd...on6September, 2018

Section 377 of the Indian Penal Code, 1860 was decriminalised in 2018, as it is a
violationofarticles14,15,19,and21oftheconstitution,accordingtotheSC.

134
WRITPETITION(CIVIL)NO.400OF2012
135
[Link]((2017)9SCC1)
136
IndianYoungLawyersAssociationvsTheStateOfKeralaon28September,2018
137
WRITPETITION(CRIMINAL)NO.76OF2016
The legislation will not change as a result of the Supreme Court's decision; only
Section 377 will no longer be illegal. The rights of homosexuals are now
unrestricted after 72 years, and they can exercise such rights alongside heterosexuals.

4.2.10Adultery138

SC declared that since adultery damages a woman's dignity and thus breaches article
21 of the constitution, the husband is no longer the wife's master. Additionally,
thecourtclarifiesthat adulteryis still areason fordivorceand that it is punishable under
section 306 of the IPC, 1860, if it facilitates suicide.
CHAPTER 5
CONCLUSION

CRITICAL ANALYSIS

The Indian Constitution offers protections for the preservation of human rights, however for
their full and effective application The “Protection of Human Rights Act, 1993” was passed
by the Indian government, and it establishes the National Human Rights Commission, State
Human Rights Commissions in various states, as well as Human Rights Courts at the district
level. The Indian judiciary is also working to defend the people of India’s human rights and
to swiftly provide redress to those who have been violated.

The following factors explain why the Government’s goals have not yet been met despite its
efforts:

- Despite the fact that the Indian Constitution lists a number of rights, many people may not
even know they are protected by the document because of their precarious circumstances and
daily survival struggles. These are the people who are the majority of the time the victims of
human rights violations but who do not even consider going to court since their daily wages
are more important to them than upholding their fundamental human rights.
- Although Part IV of the Constitution, or the Directive Principles of State Policy, outlines the
State’s obligations to enact laws and work for the welfare of the Indian people in a variety of
spheres, these directive principles are not enforceable in courts, and one cannot file a lawsuit
if the Government fails to uphold them.
- The Human Rights Commission is required to operate with total independence. However,
there is no guarantee for the Commission’s independence. In fact, the Act contains measures
that highlight the Commission’s reliance on the government. These are detailed below.-
A) In accordance with Section 11 of the Act, the Commission must obtain its human
resources from the Government.
B) Money is regarded as an organization’s lifeblood. According to Section 32 of the Act, “the
Central Government shall pay to the Commission by way of grants such sums of money as it
may consider fit,” the commission is therefore financially dependent on the federal
government.
C) The Human Rights Commission is a fact-finding body only; it lacks the authority to rule
on contested facts or to issue orders for any party or government to follow. The government
only has access to the Commission’s recommendations. Since there is no clause that makes
the commission’s conclusions and recommendations enforceable against the government, the
government is free to accept or reject them as it sees fit.
D) The Commission lacks the authority to create special investigation teams for the purpose
of looking into and prosecuting crimes including human rights breaches.
- In contrast to the Supreme Court and High Courts, the Commission is not permitted to look
into any cases that are pending before state human rights commissions or human rights
courts, regardless of the seriousness of the issues involved, as stated in Section 36(1) of the
Act.
- The Act places a one-year deadline on bringing complaints before human rights bodies.
According to Section 36 clause 2, human rights commissions are prohibited from looking into
an occurrence if the complaint was filed more than a year after the incident. Therefore, if a
victim fails to contact the commission in a timely manner for any reason, many legitimate
complaints go unresolved.
- The State government is not required to set up a state human rights commission and human
rights courts. A State Government may establish a body to be known as the (name of the
State) Human Rights Commission to exercise the powers granted to and carry out the duties
entrusted to, the State Commission under this chapter, according to Sections 21. The State
Government may, with the concurrence of the Chief Justice of the High Court, by notification
designate for each district a Court of Session to be a Human Rights Court to try the said
offences, according to Section 30 of the Constitution.

CONCLUSION AND SUGGESTIONS

“Man was born free, but everywhere he is in chains.” – Jean-Jacques Rousseau

India has seen tremendous progress in the scope of human rights since the time it was
implemented through the various Acts and Provisions, up until now. There have been
multiple cases that have sought to uphold individual rights to ensure that the citizens enjoy a
high quality of life and enjoy all those freedoms, liberties and rights that our forefathers
sought so hard to acquire. It has been a culmination of their efforts, and our ancestors’, that
we enjoy the freedoms and rights available to us now, and it is their sacrifices that have led us
so far. The Judiciary itself has played an active role in ensuring that the needs of the citizens
are met and that no Act can prevail which threatens the safety of people. But in the past few
years, India has been moving backwards and seems to be entering a period of regression
when considering the ambit of Human Rights. Along with the examples cited above, even
when we consider the haphazard implementation of the CAA and the NRC (that took place in
Assam), we see how many people were displaced or are at the danger of being displaced from
the country of their origin without the safety of an alternate refuge. This could cause a nation-
wide crisis that the country is not yet equipped for, and it could further push down India in
the Human Rights Index (India has already fallen a few ranks since previous years, thereby
signifying a fall in the human rights that are ensured to people). This regressive phase can
only be considered temporary if the Government takes accountability and considers the real
welfare of the state before making further decisions, and only then can we truly honour the
progressions that we have made in the past.

Human rights are basic, fundamental rights that are essential to a person’s growth and
without which they cannot live a life of dignity. The Indian Constitution safeguards people’s
basic rights, or human rights; provisions for this have been established not only in the
Constitution’s Articles, but also in the Preamble, which notably mentions fundamental
freedoms and the preservation of human dignity. In order to better protect human rights, the
Indian judiciary even loosened the locasstandi norm, which paved the door for the notion of
public interest litigation to emerge. The courts had been made aware of a number of instances
of human rights violations thanks to public interest lawsuits. The rights of women, workers,
children, and prisoners were upheld by the courts.

In order for each person to live with dignity, the court is thus acting as a saviour of the
people’s human rights. Numerous international treaties have been integrated for the
preservation of human rights and on the basis of the provision that they are protected as a
fundamental human right. National efforts have been made through international instruments,
such as passing the Protection of Human Rights Act 1993. The Act makes provisions for the
creation of the National Human Rights Commission as well as State Human Rights
Commissions in various States. It also makes provisions for the establishment of Human
Rights Courts at the district level so that victims of human rights violations can receive
justice at every level.
Since its founding, the National Human Rights Commission has done an amazing job of
defending the rights of the populace while also providing financial assistance to the victims
and their families. Although certain adjustments to the Act are required, the following
proposals have been offered in the hopes that they will help the human rights commission
improve its position and make the goals of the Act more easily attainable.

i. The National Human Rights Commission needs to be created an independent

entity in terms of personnel and financial matters because it must look to the
government for guidance.

Instead than remaining dependent on the police department and other authorities who may be
important for the effective operation of the Commission, it should be given its own personnel
to investigate cases.

ii. The National Human Rights Commission may have the authority to monitor
Supreme Court rulings pertaining to the protection of human rights, and if there is
a delay or failure in the execution of such rulings, it may bring the matter before
the Supreme Court of India for further appropriate action.

iii. The Protection of Human Rights Act, 1993’s Sections 21(1) and 30 should be
changed to make it mandatory for State Governments to establish Human Rights
Commissions at the state level and Human Rights Courts at the district level.
Additionally, the jurisdiction of these courts as well as the procedural
requirements should also be specified for the smooth and effective functioning.

iv. Section 36(1) has to be changed in order to provide the National Commission the
authority to take up or look into any case that is currently being heard by a state
human rights commission or human rights court in order to deliver fast justice.

v. The requirement that a person must file a grievance with the commission within a
year should be reduced to accommodate scenarios in which the complaint could
not be lodged with the commission within the year owing to unforeseen causes or
circumstances.

vi. There should be a clause in the Act that specifies the time frame within which the
responsible government must carry out the commission’s recommendations.

vii. It is possible to make provisions for monthly seminars to be held in every district
to inform people about their human rights and the protections provided by the
Constitution and the Act of 1993.
viii. The option to conduct periodic surveys is available. It is important to conduct a
periodic survey to assess how well the provisions are being implemented and
whether the Act’s objectives are being met.

ix. Every human rights court at the district level can establish a special cell where
victims of human rights violations should receive free legal assistance if their
poverty and precarious circumstances allow them to approach the court for the
resolution of their claims.

x. The Act may also include provisions for grants to NGOs. Wherever possible, the
government should support NGOs that fight to safeguard human rights by funding
their activities. These organisations should also be given the responsibility to host
seminars that inform the public about human rights and the laws that protect them.

xi. Students may study about human rights as a required subject in both high schools
and colleges. The local offices in each state can also be established for the
National Human Rights Commission for the convenience of the general public in
order to swiftly resolve cases and deliver justice in a timely manner since it may
not always be possible for individuals to approach the national human rights
commission in New Delhi.