Creative Role of Indian Judiciary in enlarging & Protecting Human Rights

Courts in our country are a constant target of criticism. The main reason for that is the inordinate delay in disposal of cases. In this context, unfortunately the contribution of our Supreme Court in protecting and enlarging the fundamental rights of our people is not appreciated.Â

When a person proclaims that his country is a democracy I request him to send me the leading newspapers in his country. If there is fulsome praise of the Government and hardly any criticism I realise that democracy is absent in that country. Another request I make is to supply me a few law reports containing judgments in connection with freedom of expression and freedom of the press. If the courts hardly give relief to persons who complain of violation of their fundamental rights by the Government, it is apparent that the claim of democracy is a myth, not a reality.

Our country suffers from many ills and there is frequent violation of fundamental rights of the people by the executive. Fortunately the judiciary in our country has adopted a creative role in protecting and also enlarging fundamental rights.

Fundamental rights occupy pride of place in Part III of our Constitution. Fundamental rights are enforceable against the State and its manifold instrumentalities and also against bodies and institutions in which there is significant Government control and involvement.

A remarkable instance of the creative role of the Indian judiciary is that fundamental rights which are not expressly mentioned in Part III of the Constitution have been spelt out and deduced on the theory that certain unenumerated rights are implicit in the enumerated guarantees.Â

Let me give some illustrations. Our Constitution does not specifically guarantee freedom of the press as a fundamental right. In several decisions of the Supreme Court freedom of the press has been held to be implicit in the guarantee of freedom of speech and expression and has thus acquired the status of a fundamental right by judicial interpretation. The Supreme Court by interpretation of the free speech guarantee has also deduced the right to know and the right of access to information on the reasoning that the concept of an open Government is the direct emanation from the right to know which is implicit in the guarantee of free speech and expression.Â

The right to travel abroad and return to one’s country has been spelt out from the expression “personal liberty” in Article 21 of the Constitution. Although there is no specific provision in the Constitution prohibiting cruel, inhuman and degrading punishment or treatment, the Court has evolved this guarantee from other provisions of the Constitution. Right to privacy has also been spelled out and based on the inherent human right to be left alone.Â

The expression “life” in Article 21 has received an expansive interpretation. According to the Supreme Court “life” does not connote merely physical or animal existence but embraces something more, namely “the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head”. Based on this interpretation the Supreme Court has ruled that the right to live with human dignity encompasses within its ambit, the protection and preservation of an environment free from pollution of air and water. Health and sanitation have been held to be integral facets of the right to life.

Guaranteed fundamental rights are not absolute. They can be reasonably restricted in public interest. The question whether the restriction imposed is reasonable or unreasonable, excessive or disproportionate has to be determined by an independent judiciary exercising the power of judicial review. This delicate judicial task of striking the balance requires understanding not merely of the legal and constitutional provisions but of the prevalent economic and sociological forces as also the contemporary mores of society. The endeavour of the judiciary in India has been to achieve an acceptable accommodation of the conflicting interests of the individual, society and the State. There is no royal road to achieve such accommodation. Courts have on occasions not struck the balance right.Â

The most remarkable craftsmanship displayed by the Supreme Court in promoting human rights has been to incorporate into fundamental rights some of the Directive Principles, such as those imposing an obligation on the State to provide a decent standard of living, a minimum wage, just and humane conditions of work, and to raise the level of nutrition and of public health. This has been achieved by placing a generous interpretation on the expression ‘life’ in Article 21 of the Constitution.

Access to justice is recognised as a basic human right. In order to achieve that it is necessary that the doctrine of locus standi should not be rigid. Our Supreme Court has liberalised this rule of standing in public law and ruled that where judicial redress is sought for legal injury done to indigent and disadvantaged persons, who on account of economic disabilities are unable to approach the courts themselves, any member of the public acting bona fide and not for oblique considerations, can maintain an action on their behalf.Â

Rights without remedies are useless. A mere declaration of invalidity of an executive order or an administrative decision which has resulted in the violation of a person’s fundamental rights would not provide a meaningful remedy. The International Covenant of Civil and Political Rights [ICCPR] provides that “anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation” [see Article 9(6)]. Our Constitution contains no such explicit provision. Nonetheless the Supreme Court has, in some cases, ordered payment of compensation by the State as a remedy in public law. The National Commission to Review the Working of the Constitution [NCRWC] has recommended that right to compensation for violation of a person’s life or liberty be made an enforceable fundamental right by an express provision in the Constitution. This salutary recommendation has not yet been fully implemented.Â

Based on the expansive interpretation of the expression ‘life’ the Supreme Court has significantly contributed to environmental protection. It has ruled that the right to live with human dignity encompasses within its ambit, the protection and preservation of an environment free from pollution of air and water and sanitation without which life cannot be enjoyed and that hygienic environment is an integral facet of right to healthy life. In its efforts to prevent environmental degradation the Court has ordered certain tanneries and chemical industries which were discharging effluents into the lakes and rivers and in the soil to stop functioning, unless the effluents were subjected to a pre-treatment process by setting up approved primary treatment plants. The Court was conscious that closure of tanneries may bring unemployment, and loss of revenue but it firmly ruled that “life, health and ecology have greater importance to the people”.Â

Another field in which the Supreme Court has made a remarkable contribution is in the case of custodial violence. It is a notorious fact that in India torture is rampant in police cells and police stations. The Court has ruled that in case of death or injuries suffered whilst the person was in police custody, the burden will lie on the authorities to establish that the death or injuries occurred owing to natural causes. The Court has awarded monetary compensation as a remedy in public law in cases of torture and death of persons at the hands of the police. At times it has imposed a fine on the person found guilty of causing death and made the amount payable to the heirs of the deceased. The underlying rationale is that there must be a meaningful remedy for violation of fundamental rights. And one of the effective ways by which violation of fundamental rights can be prevented is to mulct its violators with the payment of monetary compensation.Â

Freedom of expression and freedom of the press have received generous protection from the Courts. The underlying rationale of this judicial approach is that freedom of the press embraces a variety of rights. The right guaranteed is not merely the individual right of the proprietor of the newspaper, or that of the editor or the journalist. It includes within its compass the collective right of the community, the right of citizens to read and to be informed, to impart and receive information. In essence it is the right of the people of India to know about the functioning of the Government and the working of public institutions which would enable them to make informed choices in discharge of their civic and political duties.Â

The Court’s solicitude for freedom of the press reached its zenith when in 1985 when in its decision in Express Newspapers a steep levy of customs duty on newsprint imposed by an executive notification was held to be subject to judicial review. The Court observed that whilst newspapers did not enjoy any immunity from payment of taxes and other fiscal burdens, the imposition of a tax such as customs duty on newsprint is an imposition on knowledge. The court ruled that a huge fiscal levy on newsprint has a direct impact on the freedom of the press and the impugned notification was struck down.

In the beginning the Supreme Court had adopted an illiberal attitude towards censorship on the ground of obscenity. Its decision in Ranjit Udeshi that D.H. Lawrence’s novel Lady Chatterly’s Lover was obscene was an aberration. The Supreme Court has recently been less illiberal and ruled that neither nudity nor vulgarity can necessarily be equated with obscenity. If a reference to sex by itself in any novel is considered to be obscene and not fit to be read by adolescents, the result will be that adolescents will be unable to read any novel and will have to read books which are purely religious. The Court has deprecated censorship imposed in order to protect the pervert or to assuage the susceptibilities of the over-sensitive. According to the Court’s rulings “the standards we set for our censors must make a substantial allowance in favour of freedom. They must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read”.

The liberalization of the rule of locus standi in the field of public law has fostered the development of Public Interest Litigation (PIL). What is PIL? It is a form of legal proceeding in which redress is sought in respect of injury to the public in general, for example the discharge of effluents into a lake or a river which may harm all who are deprived of clean water, or emission of noxious gas which may cause injury to large numbers who inhale it. In PIL the collective rights of the public are affected and there may be no direct specific injury to any individual member of the public.

The Court’s role in PIL has drawn severe criticism. Indignant critics charge that some orders passed by the courts in PIL tantamount to Government by the judiciary and that the Courts are running and in effect ruining the country. What is forgotten is that it is the notorious tardiness of legislatures and the inertia, almost bordering on callousness, of the executive branch which provide a proper occasion for judicial intervention.Â

When continued derelictions of statutory and constitutional obligations and gross violations of human rights by public authorities are brought to the notice of the Court, it cannot fold its hands and refuse to act. Unlike the executive or the legislature, the judiciary can neither prevaricate nor procrastinate. It must promptly respond.

It is true that PIL has been abused in some cases and has degenerated into publicity interest litigation, private interest litigation and political interest litigation. At times it has become an instrument of black-mail and oppression, when the sole purpose of filing a PIL was to prevent the construction of the factory of a rival industrialist on alleged violations of Municipal laws and regulations. Courts have severely deprecated the misuse of PIL and imposed heavy costs in some such cases. However, abuse of PIL is no ground for its abolition or placing unreasonable fetters on it. Abuse of process is as ancient as legal ingenuity. A good judicial jockey in the saddle can effectively curb the misuse of PIL.

It must not be forgotten that thanks to PIL, numerous, under-trial prisoners languishing in jails for inordinately long periods have been released; persons treated like serfs and held in bondage have secured freedom and have been rehabilitated; inmates of care homes and mental asylums have been restored their humanity; and the condition of workers in stone quarries and brick kilns and young children working in hazardous occupations has undergone a humanizing change. PIL has empowered citizens and groups fighting for justice to approach the courts and has provided opportunities for vindicating the Rule of Law. Fundamental rights have become living realities, to some extent, for at least some illiterate, indigent and exploited segments of Indian humanity. All things considered judicial activism in PIL has greatly contributed to the protection and promotion of human rights.

The Supreme Court of late has displayed a salutary approach e.g. to the question of adultery which was considered a heinous sin and a cardinal offence in Victorian times. The same thinking was reflected in our criminal laws dealing with adultery. The Supreme Court in its recent judgment has struck down the law making adultery a criminal offence punishable with imprisonment and that only of the husband. Supreme Court has recognised that adultery can be a ground for divorce in a civil proceeding but not for jailing the errant husband.

After briefly surveying the scene what fair appraisal can be made of the overall role of our judicial sentinels in India about the performance of their solemn duty of protecting and promoting fundamental rights?Â

A fair assessment would be that despite occasional aberrations our judiciary has been a good sentinel on the qui vive in the protection of the fundamental rights of our people. Despite frustration with the legal and judicial system because of costs and inordinate delays there is yet public confidence in the judiciary. And justice is rooted in confidence. The most heartening feature is that Courts have started taking human suffering seriously and are responding to it with sensitivity. On the whole our judiciary has upheld the Rule of Law, sustained constitutional values and made fundamental rights meaningful for some segments of Indian humanity. And that is no mean achievement in a country with a vast population of about 1.4 billion.

Author Name: Soli J. Sorabjee