“The rights of every man are diminished when the rights of one man are threatened.”
  ― John F. Kennedy


Since the days of the Indus Valley Civilization, Indian culture has been the product of a synthesis of diverse cultures and religions that came into contact with the vast Indian sub-continent for a very long time. As Jawaharlal Nehru states, “There is an unbreakable continuity between the most modern and most ancient phases of Hindu thought for over three thousand years.” Human rights have been the concern of all civilizations since time immemorial. “The concept of human rights and other fundamental rights was not unknown to people of earlier times.” Babylonian law and Assyrian law in the Middle East, the “religion” of the Vedic period in India, and the jurisprudence of Lao-tze and Confucius in China have championed human rights in the history of human civilization.

The Indian concept treats the individual, society and the universe as an organic one. Everyone is a child of God and all companions are related to each other and belong to a universal family.

Human Rights

The concept of “human rights” refers to every individual must have against the state or other public authority. Human rights are the right that is given to everyone, without any discrimination. They are understood as inalienable, fundamental rights to which a person is naturally entitled only because he is a human being. Human rights include the right to life and liberty, Right to work and education, freedom from opinion and expression, freedom from slavery and torture. Everyone is entitled to these rights without any discrimination.

The Indian concept treats the individual, society and the universe as an organic one. Everyone is a child of God and all companions are related to each other and belong to a universal family. In this context, Mahatma Gandhi remarks, “I do not want to think in terms of the whole world. My patriotism includes the good of mankind. Therefore, my service in India includes service to humanity.”

Origin and Development of Human Rights

Universal Declaration of Human Rights is the main human rights tool in the world. The Declaration adopted by the United Nations on December 10, 1948. It is the very foundation of the modern human rights movement. Eleanor Roosevelt, its principal architect, called it the international Magna Carta for all mankind. The General Assembly of the United Nations proclaims the recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world.[1]

Nagendra Singh, a Buddhist doctrine of non-violence in deed and thought, says, “A human doctrine is an equality, which was a similar principle in Jainism in the third century BCE. According to the Gita, one who is not ill. One who is friendly and kind, one who is free from ego and self-feeling and who is equal in pain and pleasure and patient is dear to God. It also says that the representation of divinity in humans is ah. Violence, truth, anger.”, Renunciation, freedom from error, compassion to live, greed, gentleness, perseverance, and freedom from perseverance – the qualities that a good person needs. Historical accounts of ancient India doubt Proves beyond. Ancient Hindu and Islamic civilizations as European Christian organizations. Ashoka, Prophet Mohammed, and Akbar could not be excluded from human rights.

Today, there is a growing recognition that human rights must be known, implemented and implemented to be truly effective. The Universal Declaration of the United Nations provided human rights as a framework for the constitution of modern India. Furthermore, it has become an established principle of jurisprudence and international law that every state should provide an effective framework for the redressal of human rights complaints or violations. A Constitutional Bench of the Supreme Court of India held that the State should secure the proper operation of the legal system and proper opportunity to get justice, which shall be its Fundamental Obligation as per Article 39A of the Constitution of India.[2]

Indian Perspectives on Human Rights

India is said to be the largest democracy in the world, which does not have a clean human rights record. In line with the global trend, in recent years, human rights have a special significance in the fabric of Indian society. With the enactment of the Protection of Human Rights Act 1993, a new momentum has come for the development of the jurisdiction of human rights. With the changing social realities, it has been considered a requirement that human rights courts at the district level and human rights commissions at the state and national levels. The basic theme of protection of human rights is based on the demand for a life of mankind in 1993, in which the inherent dignity of man will be respected and protected. In 1993, the establishment of the National Human Rights Commission of India under the Human Rights Act, 1993 can be cited as an example of “institutionalizing the concept of human rights apart from the provisions of fundamental rights enshrined in the Indian Constitution”. Since its formation, the National Human Rights Commission has taken concrete initiatives for agenda setting, policy initiatives, norms and rulemaking and the implementation and evaluation of human rights in India. To define human rights is not always so easy. Comprehensive definitions of human rights are probably not possible due to the nature of rights and the slowly changing perception over time. In India, through the Protection of Human Rights Act, 1993, an honest attempt has been made to define human rights. According to the Act, human rights means rights relating to the life, liberty, equality and dignity of a person conferred by a court of India or enforceable and enforceable in international courts. In this context, human rights are mentioned in India:

• Rights related to life;

• Freedom-related rights;

• Rights related to equality; And

• Rights related to the dignity of the person

Guaranteed by the Constitution of India or embodied in international covenants and enforceable by the Courts in India.

Human rights law in India, especially in the context of the Protection of Human Rights Act, 1993, is widely accepted and used as a way of empowering people to improve quality. Indian perception of life. The Indian notion of human rights was not a priority of the West or a principle of natural rights. It has its basis in ancient Indian culture and civilization. The Indian vision of rights has been emphasized. Not only the individual but also the local person, a person whose interdependent rights and duties lie within a hierarchical network of their relationships. The impact of Islamic religion, renaissance and reform movements, British colonialism and the national ideology played a vital role in the prospect and practice of human rights in India.[3]

There is hardly any literature available on the idea of human rights in the Indian context. However, in view of the fact that the west possesses rich literature on human rights, it would be wrong to conclude that the idea of freedom is chiefly a western one. The freedom of the individual in the western societies was secured after a long and bitter struggle, little by little, often after much bloodshed against the Church and the State; in India, these freedoms were seen as the very substance of human existence.

Protection of Human Rights and Judicial Obligation

The major object of the present study is to evaluate the role of the judiciary in the context of the protection of human rights and to examine whether the development of the law as response of  judiciary to the needs of the society is a constitutional obligation or some sort of activism or adventurism being indulged in by the judiciary. While talking about the Constitution as living law, it is usually understood to refer to the doctrines and understandings that the Courts have invented, developed, spread and applied to make the Constitution work in every situation. Unless life can be pumped into the cold print of the Constitution to keep it vibrant at all times it shall cease to be living law. The Constitution cannot be a living and dynamic instrument if it lives in the past only and does not address the present and the future. This exercise of jurisdiction by the Courts in India has been called judicial activism. The judiciary will continue to respond to the changing needs of the times [4]. That is how activism has evolved in India. Justice Mehmood of the Allahabad High Court, in 1983 delivered a dissenting judgment which sowed the seed of judicial activism in India.[5]

This was an under-trial case in which a lawyer could not be afforded to engage. So the question was whether the court could decide their case only by looking at their papers. Justice Mahmood said that the pre-condition of the case (as opposed to read-only) is being heard when someone speaks. In this case, the judge considered the law a living organism and engaged in activism. The Hon’ble Judges, VR Krishna Iyer, P.N. Bhagwati, A.S. Anand, and others have become examples of a kind of judicial activism in the Indian context. The decade of the 19th century presents a transformative change in the role of the Indian judiciary, which has created a great political wave in the whole governance system and the concept of social justice. Judicial activism traces its roots to the 1980s, when the concept of Public Interest Litigation (PIL), Justice P.N. came to mind under the learned guidance of Bhagwati and Justice VR Krishna Iyer. There were some PILs that highlighted environmental pollution such as MCs in the sorry state of the Ganges River. The move by the Supreme Court to increase its supremacy in the 1980s and resort to judicial activism was focused on the issue of human rights and ecological concerns by the press, civil society organizations, and NGOs.

The concept of judicial activism and public interest litigation are interlinked. Public interest litigation has become a citizen’s favorite tool for fighting an incompetent and irresponsible government. To his credit, in some cases, Supreme Court rulings advanced civil rights and strengthened constitutional protections for the common man. This changing stance of the judiciary has been called judicial activism judicial creativity which Justice A.S. Anand, (often referred to as judicial activism), as a means of developing new judicial principles for the growth and development of law, is an accepted and accepted judiciary of the judiciary not only in this country but in almost all common law. it’s a good thing. It is a well-recognized role of countries. The law must run with time and the judiciary should live this reality forever. This role of the judiciary is not new in India or anywhere else. It has been all along. In a situation when existing law seems short to provide for the felt needs of the times, the role of the judiciary is not only to explain but also to highlight the law to provide for those situations. The society has placed the judges on a high position. The Courts are the guardians of the constitution framed WE THE PEOPLE OF INDIA and have to act according to their conscience to uphold the constitution. The court acts for those who have believed in them. Judges have accountability, so not only for their conscience but also to the PEOPLE in whom ultimate sovereignty lies. Judges are the servants of law and function for the society and therefore are accountable to it. The courts have made a judicial intervention in cases of human rights violations as an ongoing judicial process. The Decision on such matters as the right to protection against solitary confinement as in Sunil Batra v. Delhi Admn. case [6];the right not to be held in fetters as in Charles Sobraj v. Supdt. Central Jail Case [7]; the right against handcuffing as in T.V. Vatheeswaran v.State of T.N. case [8];the right against custodial violence as in Nilabati Behera v.State of Orissacase [9];or the rights of the arrestee as in D.K. Basuv. State of W.B. case[10];or right of the female employees not to be sexually harassed at the place of work as in the case of Vishaka v. State of Rajasthan[11] are just a few pointers in the direction towards judicial activism. In India, in the post-constitutional era law has been in the continuous process of evolution. The right to the pollution-free environment has to be conceived of as a human right is a facet of right to life guaranteed by Article 21 of the constitution. There is a link between environment, development and human rights. Human rights are based on mankind’s increasing demand for a decent, civilized life in which the inherent dignity of each human being must receive respect and protection. Human rights and the environment are interdependent. Human rights are nothing but the modern name of what had been traditionally known as natural rights, i.e., rights bestowed upon human beings by nature. As such it can be legitimately argued that the right to an adequate environment is a human right because human species cannot exist on this planet without a proper environment. Hence, the constitutional obligations of the Courts are to protect human rights. The Supreme Court has ruled that the right to pollution-free air falls under Article 21 in Subhash Kumar v. State of Bihar[12].

In the Doon valley case, Article 21 of the constitution was invoked by the Court to prevent the degradation of Mussoorie Hills due to the mining operations there, which was becoming a health hazard. The court held that Article21 included in its sweep a right to clean environment and that permanent assets of mankind cannot be allowed to be exhausted in the present generation.

Again, in M.C. Mehta v. Union of India[13], the Supreme Court reiterated the fundamental right to clean environment for healthy living and held that pollution treatment plant is a fore-condition of the existence and continuation of an industry. In the Oleum Gas Leak case, the rule of strict liability was applied without exception to a polluting undertaking employing the hazardous process of manufacture. It has to be recognized that the Supreme Court of India did play a positive role in defending the constitution, protecting fundamental rights, promoting the directive principles of state policy, preserving the environment, checking corruption and misuse of powers and incoming to the rescue of the citizens in cases of failure of executive, legislature and administration in performing their roles. In other words, the role of the Supreme Court has been fundamental for good governance. The Directive Principles of State Policy are complementary to the fundamental rights guaranteed under the constitution of India as they spell out the obligation of the state towards the citizens in the discharge of its functions. The resort is therefore logical for the principles directed by the judiciary to interpret the content of fundamental rights. Article 48-A of the Constitution regarding the safeguarding of forests and wildlife is a part of the Directive Principles of the State Policy and not of the chapter on fundamental rights. The Supreme Court of India has been consistently expanding the dimension of Article 21(Right to life and personal liberty) within the bounds of the law by powerful interpretations.

In Francis Coralie Mullin v. Administrator, Union Territory of Delhi[14], Justice Bhagwati observed: “The right to life also includes the right to live with human dignity and all that goes along with it, namely, the base necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and coming line with fellow human beings.

In Mohini Jain v. State of Karnataka[15], the Court held the rights to free education the children untie they complete the age of 14 years also to be a fundamental right by taking note of Article 45 of the Constitution. The concern of the courts for the underprivileged and the poor sections of the society was reflected in Bihar Legal Support Society v. Chief Justice of India[16], when the court said:”…that the weaker sections of Indian humanity have been deprived of justice for long, long years; they have had no access to justice on account of their poverty, ignorance and illiteracy. They are not aware of the rights and benefits conferred upon them by the constitution and the law”.

The Supreme Court in State of HP v. Umed Ram[17]; observed that the right to life under Article 21 embraces not only physical existence of life but the quality of life and for residents of hill areas, access to life itself. Various High Courts have been very much active and conscious to the right of the people including children. They have indeed revolutionized the scope of the right to life by holding that environmental degradation violates fundamental rights to life. The Supreme Court has been very much conscious of the right of the child to a healthy ecological environment which is reflected in its judgment in the Ganga pollution case[18] (1991).The court declared that access to pollution-free water and air is a fundamental right of the citizens and held that Article 21 of the constitution includes the right to the enjoyment of pollution-free water and air for full enjoyment of life.

[1] The Universal Declaration of Human Rights, What are Human Rights? HumanRights.com

[2] Kartar Singh v. State of Punjab, (1994) 3 SCC 569

[3] Vijay Pal Arora, Right to life, Freedom and Equality, 1996, p.122

[4]https://www.indiatoday.in/magazine/cover-story/story/19960315-the-court-has-grown-stronger-in-keeping-with-the-need-of-the-times-justice-j.s.-verma-833082-1996-03-15(Last Updated-01/02/2020)

[5] Justice Michael Kirby, Bar Association of India Lecture, 6th January 1997

[6] SCC(4)494, 1978

[7] SCC(4)104, 1978

[8] SCC(2)68, 1983

[9] SCC(2)746, 1993

[10] SCC(1)416, 1997

[11] SCC (6) 241, 1997

[12]  (1991) 1 SCC 598

[13] AIR 1987 SC 965

[14] 1981 AIR 746

[15] 1992 AIR 1858

[16] 1987 SCR (1) 295

[17]1986 AIR 847

[18] 1992 AIR  382

About the Author

Anuj Datta and Madhu Singh pursuing BA,LL.B (Hons), 2nd Year from Shambhunath Institute of Law, Prayagraj

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