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Role Of The Judiciary In Promoting Governance By Human Rights Development

Basic Human Rights & Democracy

Democracy has evolved from centuries of experience among the people, who care for the human person, dignity & rights as the best and the most acceptable of good governance. It is a concept that occasions the idea that all citizens have a right to participate in the decision-making processes that leads to the adoption of policies that apply to societies.[1]

It also means that there are some limits on majority decision-making and hence the inevitability of certain basic rights being protected. It rests on maintaining a necessary equilibrium between the numerous competing interests, demands, constraints, and compulsions that exist in any civic society eager for development.

India was founded as a democratic welfare state which would allow equal opportunity to one and all, irrespective of caste, creed, sex, religion, color, or any other form of discrimination; a state where everyone would have equal access to personal growth and for contributing to the cause of the nation.

Democracy has been defined as a government by the people for the people and of the people. The founding fathers of modern India took this theory further by reading the expression 'for the people' as indicative of the desirability to set up a governance that works 'for the welfare of people'.

The members of the constituent assembly were not only great visionaries but also architects of consummate skills and fidelity. They created a document that reflected an acute awareness on their part that it was incumbent to entrench the concept of rule of law into the Indian Polity, given the possibility of conflicts of interest arising amongst various sections in a free developing society.

To further solemn resolve to constitute India into a sovereign, socialist, secular, republic that assures the dignity of the individual and secured for one and all not only liberty of thoughts, expression, belief, faith, worship, equality of status, and opportunity but also justice in all its hues, Parliamentary democracy was chosen as the form of government in which the state power is divided amongst the three chief organs namely the legislature, the executive and the judiciary. India incorporated several basic human rights as guaranteed fundamental rights, elaborated in every possible manner, in Part III of the Constitution.

These fundamental rights go beyond the American Bill of Rights. They did draw upon the Universal Declaration of Human Rights issued by the United Nations in 1948 but went ahead of them by incorporating alongside, in Part IV of the Constitution, certain directive principles of state policy which are the principles that would be fundamental for the good governance of this country.[2] The Directive Principles have been used as fundamental principles of governance tempered by Fundamental Rights.

Many adjustments have been made to Fundamental rights through legislative measures, executive actions, or judicial pronouncements. After all, the purpose of the fundamental rights on the one hand and directive principles on the other is common; to provide for an environment that can ensure dignified growth and development of each individual as a useful human being. One of the most important principles of just democracy governs is the presence of constitutional limits on the extent of government power.

Such limit includes periodic elections, guarantees of civil rights, and an independent judiciary, which allows citizens to seek the protection of their rights and redress against the government's actions. These limits help make government branches accountable to each other and the people. An independent judiciary is important for preserving the rule of law and is the most important facet of good governance.

Role Of Judiciary

The Judicial system has an important role in play ultimately ensuring better public governance. There may be a plethora of regulations, rules, and procedures but when a dispute arises, they have to be settled in a court of law. There is no area where the judgments of the Supreme Court have not played a significant contribution in the governance, good governance whether it is the environment, human rights; gender justice, education, minorities, police reforms, elections, and limits on constitute powers of parliament to amend the constitution. Indian Judiciary has been proactive and has scrupulously and overzealously guarded the rights fundamental to human existence.

The scope of the right to life has been enlarged to read within its compass the right to live with dignity, the right to a healthy environment, the right to humane conditions of work, the right to education, the right to shelter, and social security, right to know, right to adequate nutrition and clothing and so on. This has been achieved by filling the vacuum in municipal law by applying, wherever necessary, Inter-national instruments governing human rights.[3]

The Supreme Court has, over the years, elaborated the scope of fundamental rights consistently, strenuously opposing intrusions into them by agents of the state, thereby upholding the rights and dignity of the individual, in the true spirit of good governance. In cases, the Apex Court has issued a range of commands for law enforcement, dealing with an array of aspects of executive action in general, and of police at the cutting-edge level in particular.

Some Instances are:
  1. Reiterating the view taken in Motiram[4] the Supreme Court in Hssainnara Khatoon [5], expressed anguish at the 'travesty of justice' on account of under-trial prisoners spending extended time in custody due to unrealistically excessive conditions of bail imposed by the magistracy or the police and issued requisite corrective guidelines, holding that 'the procedure established by law' for depriving a person life or personal liberty (Article 21) also should be 'reasonable, fair and just'.
  2. In Prem Shankar Shukla [6], the Supreme Court found the practice of using handcuffs and fetters on prisoners violated the guarantee of basic human dignity, which is part of the constitutional culture in India and thus not stand the test of equality before the law (Article 14), fundamental freedoms (Article 19), and the right to life and personal liberty (Article 21).

    It observed that 'to bind a man hands and feet fetter his limbs with hoops of steel; shuffle him along in the streets, and to stand him for hours in the courts, is to torture him, defile his dignity, vulgarise society, and foul the soul of our constitutional culture'. Strongly denouncing handcuffing of prisoners as a matter of routine, the Court said that to 'manacle a man is more than to modify him, it is to dehumanize him, and therefore to violate his personhood'. The rule thus laid down was reiterated in the case of Citizens for Democracy [7].
  3. In Icchu Devi Choraria[8], the court declared that personal liberty is a most precious possession and that life without it would not be worth living. Terminating it as its duty to uphold the right to personal liberty, the court condemned the detention of suspects without trial observing that 'the power of preventive detention is a draconian power, justified only in the interest of public security and order and it is tolerated in a free society only as a necessary evil'.
  4. In Nilabati Behera [9], the Supreme court asserted the jurisdiction of the judiciary as a 'protector of civil liberties' under the obligation 'to repair damage caused by officers of the state to fundamental rights of the citizens', holding the state responsible to pay compensation to near and dear ones of a person who has been deprived of life by their wrongful action, reading into Article 21 the 'duty of care' which could not be denied to anyone. For this purpose, the court referred to Article 9(5) of the International Covenant on civil and political rights, 1966 which lays down that 'anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation'.
  5. In Joginder Kumar [10], the court ruled that the law of arrest is one of balancing individual rights, liberties, and privileges on the one hand and individual duties, obligations, and responsibilities on the other; of weighing and balancing the rights, liberties of the single individual and those of individuals collectively.
  6. In the Delhi Domestic Working Women's forum[11], the Court asserted that 'speedy trial is one of the essential requisites of law' and that expeditious investigations and trials only could give meaning to the guarantee of 'equal protection of law' under Article 21 of the Constitution.
  7. In PUCL [12], the dicta in Article 17 of the International Covenant on Civil and Political Rights, 1966 was treated as part of the domestic law prohibiting 'arbitrary interference' with privacy, family, home, or correspondence and stipulating that everyone has the right to protection of the law against such intrusions.
  8. In D.K Basu [13], the Court found custodial torture ' a naked violation of human dignity' and ruled that the law doesn't permit the use of third-degree methods or torture on an accused person since actions of the state must be right, just, and fair, torture for extracting any kind of confession would neither be right nor just fair.
  9. In Vishakha[14], the Supreme Court said that:
    "Gender equality includes protection from sexual harassment and the right to work in dignity, which is a universally recognized basic human right. The common minimum requirement of this right has received global acceptance.

In absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the interpretation of the guarantee of gender equality, right to work with human dignity in Article 14, 15, 19(1)(g) and 21 of the constitution and the safeguards against sexual harassment implicit therein and for the formulation of guidelines to archive this purpose.

in the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at all workplaces, guidelines, and norms are hereby laid down for the strict observance at all workplace or other institutions until legislation is enacted for the purpose.

This is done in the exercise of the power available under Article 32 for enforcement of the fundamental rights and it is further emphasized that this would be treated as the law declared by the Supreme Court under Article 141 of the Constitution".

The aforesaid cases are only a few examples from numerous landmark judgments concerning human rights. Playing a proactive role in matters involving the environment, the judiciary in India has read the right to life enshrined in Article 21 as inclusive of the right to a clean environment.

It has been mandated to protect and improve the environment as found in the series of legislative enactments and held the state duty bound to ensure sustainable development where common natural resources were properties held by the government in trusteeship for the free and unimpeded use of the general public as also for the future generation.

The court has consistently expressed concern about the impact of pollution on ecology in present and the future and the obligation of the state to anticipate, prevent and attack the causes of environmental degradation, and the responsibility of the state to secure the health of the people, to improve public health and protect and improve the environment.[15]

The democratic form of government of the kind adopted by India depends on its success of a system of free and fair elections regulated, monitored, and controlled by an independent agency. We have in position a high-powered Election Commission as an autonomous body to overseas the electoral process.

Judiciary has made significant contributions through various pronouncements to plug loopholes and preclude the possibility of abuse by the candidates. Instance criminalization of politics has been one smoldering issue since it has an immediate bearing on the choice of candidates in an election and goes to the root of the expectation of good governance through elected representatives.

Treating the right to vote as akin to freedom of speech and expression under Article 19 (1) (a) of the constitution and enforcing the right to get information as a natural right flowing from the concept of democracy, in the case of Association for Democratic Reforms [16], the judiciary brought about a major electoral reform by holding that a power disclosure of the antecedents by the candidate in an election in a democratic society might influence intelligently the decisions made by the voters while casting their votes.

Observing that casting of a vote by misinformed and uninformed voters, or a voter having one-sided information only, is bound to affect the democracy seriously, the court gave various directions making it obligatory on the part of candidates at the election to furnish information about their profile, background, qualifications, and antecedents.

In the field of education and the right of minorities, various judgments in the last 50 years have contributed immensely in both these fields. Instead of earlier cases like Kerala Education Bill, St. Xavier College, and St. Stephen College[17], there are few decisions to be mentioned effectively in recent years like Mohini Jain, Unni Krishnan (leading to insertion of Article 21A), TMA Pai, Islamic Academy and P.A. Inamdar (leading insertion of Article 15(5))[18]

The discussion on this subject would be incomplete without a brief reference to certain decisions which led to the formation of the doctrine of basic structure as a limit on the constituent power of the parliament to amend the Indian Constitution. In 1952, in the Shankari Prasad case[19] a constitutional bench held that any act passed by the parliament under its amending power under Article 8 would be valid even if it abridged any of the fundamental rights contained in Part III of the constitution.

Again in 1964, another constitution bench in the Sajjan Singh case[20] supported the views expressed in the Shankari Prasad case. These two cases were considered by an eleven Judge Bench in the Golak Nath case[21].

The views expressed by the judiciary in the previous two cases were reversed and held by the apex court that fundamental rights are the primordial rights necessary for the development of human personality and these rights enable man to chalk out his own life in a manner he likes best. The bench expressed the view by the majority judgment that fundamental rights are given a transcendental position under our constitution and are kept beyond the reach of parliament.

But, at the same time, Part III and IV of the constitution were held to constitute an integral scheme forming a self-contained code. The scheme is so elastic that all the directive principles can be reasonably enforced without abridging or abrogating the fundamental rights. Various constitutional amendments were made purporting to overcome the decision in the Golak Nath case.

A larger bench of 13 Judges in the celebrated Keshavananda Bharti case[22] examined the correctness of Golaknath's decision to determine whether the law relating to parliament's power of amendment of the constitution had been rightly decided in the Golaknath case or not. In Keshvananda's Bharti case, the majority overruled the Golaknath case. It was held that Article 368 does not enable parliament to amend the constitution to alter the basic structure of the framework of the constitution.

Various amendments were made after the Keshvananda Bharti judgment including the 39th amendment thereby introducing Article 329-A in the constitution which, inter alia, sought to exclude judicial scrutiny of the election of certain members of parliament. The provision in clauses (4) and (5) of Article 329-A was struck down by a constitutional bench in the case of Indira Nehru Gandhi [23] applying the basic structure theory.

This was followed by the proclamation of internal emergency from June 1975 to march 1977 during which period Articles 14, 19, and 21 stood suspended. Sweeping changes were also made in Article 368 to provide that there shall be no limitation whatever on the constituent power of parliament to amend by way of addition, variation or repeal the provisions of the constitution and also providing that no amendment of the constitution including Part III thereof relating to Fundamental Rights shall be called in question on any ground.

With the end of the emergency, Articles 14, 19, and 21 again became enforceable. The constitutional amendment to do away with the limitation and judicial scrutiny was struck down, inter alia, on the ground that the exclusion of judicial review would expand the amending power of parliament in contravention of the decision in the Keshavananda Bharti case.

In Chander Kumar's case, a Seven Judge Bench held that the power of judicial review of our legislative action vested in the High Court under Article 226 and Supreme Court under Article 32 is an integral and essential feature of the constitution and is part of its basic structure. The extent of judicial review and the extent of power to parliament to grant immunity to legislation by placing it in the ninth schedule is yet to be decided by the honorable judges of our nation.

The power of parliament to expel its members in the exercise of its power, privilege, and immunity granted under Article 105 is also awaiting the decision of the Supreme Court. On the insulation of police and other investigating agencies from any kind of external pressure, SC issued various directions to Vineet Narain [24] and Prakash Singh[25].

The paradigm of the Indian Judiciary system is testimony to how the judiciary can contribute to good governance. Indian jurisprudence would insist upon the enforcement of various rights, even of persons suspended of involvement in grave crimes.
  • The rights thus guaranteed include the right to life & liberty;
  • the right against torture or inhumane degrading treatment;
  • the right against outrages upon personal dignity;
  •  the right to due process & fair treatment before the law;
  • the right against the retrospective effect of penal law;
  • right to all judicial guarantees as are indispensable to civilized people;
  • right to effective means of defense when charged with a crime;
  • right against self-incrimination; right against double jeopardy;
  • right of presumption of innocence until proved guilty according to law;
  • right to be tried speedily, in presence, by an impartial & regularly constituted by the court;
  • right of legal aid & advice;
  • right of freedom of speech besides the right to freedom of thought, conscience & religion.

The approach of the judiciary in India has time and been that while it may be appropriate that the courts show due deference and margin of appreciation to the opinion formed by the executive, any state action making inroad into the personal liberties or basic human rights of an individual must invariably be subject to judicial scrutiny which would rest on objective proof, relevant material in accordance to the law and through a procedure that passes the muster of fairness and impartiality.

It is indeed a matter of great satisfaction that two other chief organs of the state in India have always respected the jurisdiction of the judiciary to subject every state action to 'Judicial Review' and therefore, have either abided by the decisions taken or taken requisite follow-up actions in furtherance of such decisions.

Judiciary has, thus, played a crucial role in the development and the evolution of society in general and in ensuring good governance by that holding reign of power in particular. Perhaps, there can be no two views about the significance of the role expected of the judiciary.

  1. Article 25 of the International Covenant on Civil and Political Rights; Article 3 of Protocol I to the European Convention on Human Rights; and Article 23 of the International American Convention on Human Rights.
  2. Article 37 of the Indian Constitution.
  3. Cases: Apparel Export Promotion Council Vs. A.k Chopra 1999; Vishakha V. State of Rajasthan 1997 and T.N Godavarman Thirumalpad V. Union of India & Ors. 2002.
  4. Motiram and others Vs State of MP AIR 1978
  5. Hussainara Khatoon and others Vs Home Secretary state of Bihar AIR 1979
  6. Prem Shankar Shukla V. Delhi Administration 1980
  7. Citizens for Democracy V. state of Assam 1995
  8. Icchu Devi Choraria V. Union of India 1980
  9. Nilabati Behera V. State of Orissa 1993
  10. Joginder Kumar V. State of UP and Others 1994
  11. Delhi Domestic Working Women's Forum V. Union of India & others 1995
  12. People's Union for Civil Liberties {PUCL} V. Union of India & another AIR 1997
  13. D.K Basu V. State of West Bengal, AIR 1997
  14. Vishakha & others v. State of Rajasthan & others 1997
  15. M.C. Mehta v. Union of India 1986; Indian Council for Enviro-Legal Action v. Union of India 1996; Vellore Citizens' Welfare Forum v. Union of India 1996; M.C. Mehta v. Kamal Nath 1997; S. Jagannath v. Union of India 1997; M.C. Mehta (Taj Trapezium Matter) v. Union of India, 1997; M.C. Mehta (Calcutta Tanneries' Matter) v. Union of India, 1997; M.C. Mehta (Badkhal and Surajkund Lakes Matter) v. Union of India 1997; Bittu Sehgal v. Union of India, (2001) and M.C. Mehta v. Union of India, (2002)
  16. Union of India v. Association for Democratic Reforms and Anr. (2002)
  17. Re. Kerala Education Bill, 1957; The Ahmedabad St. Xavier's Society & Anr. v. State of Gujarat & Anr. (1974); St. Stephen's College etc. etc. v. University of Delhi etc. (1992)
  18. Mohini Jain v. State of Karnataka & Ors. (1992); Unni Krishnan & Ors. v. State of Andhra Pradesh & Ors. (1993); T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors. (2002); Islamic Acadamy of Education & Anr. v. State of Karnataka & Ors. (2003); P.A. Inamdar & Ors. v. State of Maharashtra & Ors. (2005).
  19. Sri Sankari Prasad Singh Deo v. Union of India & State of Bihar, 1952 SCR 89
  20. Sajjan Singh v. State of Rajasthan (1965) 1 SCR 933
  21. I.C. Golak Nath & Ors. v. State of Punjab & Anr. (1967 ) 2 SCR 762
  22. His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr., (1973) 4 SCC 22
  23. Smt. Indira Nehru Gandhi v. Shri Raj Narain & Anr. , 1975 (Supp) SCC 1.
  24. Vineet Narain & Ors. v. Union of India & Anr., (1998) 1 SCC 226.
  25. Prakash Singh & Ors. v. Union of India & Ors., JT 2006 (12) SC 225.
Written By: Adv. Priyadarshini

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