1. Protection and Preservation of the rights of the individual and his free access to justice are indispensable in a civilized society. Its emphasis is more on Democratic set up, which is based on rule of law, where safeguarding human rights and assuring dignity of the individuals is the responsibility of the State. This has been admitted in our constitution particularly in chapter III which deals with fundamental Rights of Citizens. Since Rights & Duties run parallel to each other & are co-existent, as such the main duties have also been added therein, making citizens more conscious of their rights and corresponding obligations for dignified existence.
2. Concept of Rule of Law.-
Hon’ble Supreme Court in case S. G. Jai Singhani vs. U.O.I. AIR 1967 page 1427, held that absence of arbitrary power is the first essential of rule of law, upon which Indian Constitutional system is based. The court while speaking on the golden rule of law as laid down in case A.K. Kraipak vs. U.O.I. AIR 1970, page 150 said “The rule of law pervades over the entire filed of administration and every organ of the state is regulated by rule of law. The Concept of rule of law would lose its vitality, if the instrumentalities of the state are not charged with the duty of discharging their functions in a fair and just manner.”
3. Legal remedies.-
To protect the rights of individual against false imprisonment, arbitrary assests and detention without trial, remedies run through the provisions of our Constitution particularly Art. 20, 21 & 22 besides writ jurisdiction of Supreme Court under Art. 32 and High Courts under Art. 226 of the Constitution. To make the rule of law a reality Art. 39-A was added in the Constitution, which pronounced to give equal justice and free legal aid to those who are deprived of the same due to economic disabilities or otherwise. The new legislation i.e Legal Service Authorities Act, 1987 (Central) and Legal Service Authorities Act, 1997 (State Act) owes its origin to Art. 39(A) of the Constitution which provides for free legal aid at the State Cost & has become Constitutional mandate for protection of Human rights.
4. Legal Interpretation.-
Hon’ble Supreme Court in several judicial pronouncements viz Hussainara Khatoon vs. Sate of Bihar AIR 1979 SC 1369, M.H. Hoscot Vs. State of Maharashtra AIR 1978 SC 1548, Khatri vs. State of Bihar, AIR 1981 SC 928 and Sukhdas vs. Union Territory of Arunachal Pradesh, AIR 1986 SC 991 have ruled that right to free legal aid at the State cost is a part of fundamental rights and it is not confined to prisoners only. Since the protection of human right is the primary Consideration of the State, any infraction or violation thereof, has to be viewed with concern. Needless to say, that the greatest achievement of the Supreme Court in all these years, is in protecting the fundamental rights of the citizens especially Article-21 which speaks “no persons shall be deprived of his life or personal liberty except according to procedure established by law.” Supreme Court has made it clear that ‘right to life’ means something more than physical survival or existence. It brings within its broad matrix the right to live with human dignity, which includes all the graces of human civilization. For the first time in Hussainara’s case. The Supreme Court has held that Speedy trial is a part of the fundamental right and unless there is a procedure which ensures a speedy trial to an undertrial prisoner for determination of his guilt it would to depriving him of his right of personal liberty. Any such procedure which negates or infringes the human rights and personal liberty being violative of Article 21 of the Constitution, is arbitrary and unreasonable.
In Francis Mullin’s case (AIR 1981 SC 746) the Supreme Court elevated the human rights and expanded the reach and ambit of right to life of a prisoner, enshrined in Art. 21. The Apex court also held that this right is not confined merely to right to physical existence, but also included the right to the use of faculty or limb through which life is enjoyed as well as the right to live with basic human dignity. In this decision, also the Supreme Court upheld the human right (right against torture or cruel, inhuman or degrading treatment or punishment) guaranteed under Art. 7 of the international covenant on civil and Political rights, to the status of fundamental right under Art. 21 of the Constitution. Thus the decisions of the Apex Court & different High Court, which are judge made laws, have added a new dimension to the Protection of human rights against their possible enforcement & infraction, even from inconceivable quarters.
5. Mandate of law viz-a-viz Human Rights.-
The courts are the guardians of human rights and the common man looks upon the courts as his protector. The duty and responsibility in the context under the Constitution is to be more concerned about the rights of poor and illiterates who have hardly the capacity to defend themselves. The Supreme Court has reminded the trial judges that the persons without any resources are not ‘non-prisons’. They are also citizens of India. The Courts are, therefore, under additional obligation to see that when a poor & illiterate person is produced before it, the judicial process does not fall functionally, as the protector of personal liberty.
The Apex Court has prescribed certain safeguards for arrested persons, touching the Spinal Cord of human rights jurisprudence in recent case of D.K. Basu Vs. State of West Bengal, AIR 1997 SC 610 in which the law relating to arrest of a person has undergone a sea change. Court held that the convicts, undertrials, detenues and other prisoners in custody cannot be denied of this precious right guaranteed under Art. 21 except according to the procedure established by law by placing reasonable restriction as are permitted by law. The time place of arrest and venue of custody of an arrested person must be notified by the police where relative or next friend of the arrestee lives outside the town/district, he should be informed telegraphically with in a period of 8 to 12 hours after the arrest.
6. Public interest litigations.-
Supreme Court in case of People’s Union for democratic rights vs. U.O.I. AIR 1982 SC 1473 emphasized the role of PIL in legal Aid movement for ensuring basic human rights for poor and weaker section interest litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of poor masses, who Constitute the low visibility area of humanity is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties. One making claim or seeking relief against the other and other opposing such claim or resisting such relief. Such litigation is intended to promote and vindicate public interest in general. Court further that the poor too have civil and political rights & rule of law is meant for them also, though today it exists only on paper and not in reality.
7. Universality of Human Rights.-
Kofi Annan, secretary General of United Nations in his message to the world, on 50th Anniversary of the Universal Declaration of human rights told humanity what is message for generations ahead.—
It is the universality of human rights that gives them their strength. It endows them with the powers to cross any border, climb any wall, & defy any force. The struggle for universal human rights has always and everywhere been the struggle against all forms of tyranny and injustice against salvery colonialism and against apartheid. It is nothing less & nothing different today.
He appealed to the young friends of the world that they are the ones who must realise, these rights now & for all time. Human rights are their rights, seize them, defend them, promote and understand, insist on, nourish, enrich them and give them life as being best in them.
8. Challenges before judiciary.-
In the words of justice P.N. Bhagwati “the judiciary has become the bastion for protection of new freedom and promotion of social justice in democratic societies. Confronted with extreme poverty and wide spread disparity in income and level of living, the judiciary in developing Countries find itself unable to coup up with the challenges to Human Rights Protection. India presents a typical example of the continuing dilemma of guaranteed human rights. On the other hand, Art. 21 assures the right to live with human dignity, free from exploitation. Therefore state is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker section of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him.
Justice Bhagwati is of the opinion that protection of Human Rights would remain merely a teasing illusion or a promise of unreality and human rights movements will not happen so long as it is in the hands of those who basically belong to the “Five star culture” He emphasized that “it is only if the Human Rights movement is taken up at the gross root level by social activist groups, who are dedicated to the cause of poor and down trodden.
9. Legislative/Executive measures, whether immune from judiciary review?
In view of the inbuilt safe guards in our Constitutional System to protect fundamental rights of the citizens against legislative/executive supremacy/ arbitrariness, the Supreme Court stands like a rock to protect the life and liberty of Countrymen. After the land mark judgement in passport impounding case of Maneka Gandhi vs. U.O.I. AIR 1978 SC 597 the Supreme Court had virtually tried to retrieve its lost territory. In this case the Apex Court ruled that a person can be deprived of his life or personal liberty if two conditions are complied with. First there must be law and secondly, there must be procedure prescribed by law, provided the same is fair, just and reasonable. Supreme Court over ruled the earlier decision on the subject in case of A.K. Gopalan Vs. State of Madras, AIR 1950 SC 27 and widen the scope of the word “Personal Liberty”. The court for the first time imported the American Doctrine of “due process of law” giving the principles of natural justice its due regard and broad connotation vis-a-vis legislative measures and administrative action, thus adding a glorious chapter to the constitutional jurisprudence.
In the case of Kesvandanda Bharti Vs. State of Kerla, AIR 1973 SC 1461 it has been made clear that “Judicial Review in India has gone far beyond its counterpart USA and now the Constitutional amendment can also be reviewed by the courts on the ground that an amendment violates the basic structure of the Constitution.”
Possibly due to execution in action and to large extent, executive aberration and legislative apathy, the Supreme Court in recent years, has come down heavily reminding the legislature and executive of their duty and obligation under the Constitution, on the issue of public importance, to render social and economic justice to the masses and safeguarding human rights.