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CHAPTER 8 THE SUPREME COURT AND THE

FUNDAMENTAL HUMAN RIGHTS

“The Law is for the Protection of the Weak rather than the Strong.”
Erle.J. [1793-1880]

8.1 INTRODUCTION [1]

After the World War II, the United Nations Organization was
established in 1945. India achieved the Independence in 1947. The UNO
passed the Universal Declaration of Human Rights (UDHR) in 1948.
[2]In those times, Dr. Babasaheb Ambedkar was engaged in the
monumental task of drafting the classic Constitution of India. He
added all the Human Rights in our Constitution. Some of the basic
Human Rights are provided in Art. 19 as the Fundamental Rights while
a number of them are included in the Part IV of the Constitution i.e. the
Directive Principles of State Policies.[3] Accordingly the Union and the
State Governments have enacted upon a number of Constitutional
Directions and have achieved the ideals as enshrined under the
Constitution of India. Let us ha have a bird’s eye’s view upon the role of
Supreme Court in protecting the Human Rights in India. Our Father of
the Constitution Dr. Babasaheb Ambedkar has already given us the all
basic Human Rights in the Articles 14 to 27 of the Constitution of India
for which the people of other countries had to struggle for a long time.
When Dr. Ambedkar was planning to write and compile the Historic
Document, the United Nations Organization promulgated the Universal
Declaration of Human Rights in 1948. Dr. Ambedkar immediately
incorporated them even by adding and simplifying them in our
Constitution in such a nice blending way that the Fundamental Rights
and the Human Rights have approximately become one and the same
in India. The Protection of the Human rights in India is an issue
complicated by the country's large size, its tremendous diversity, its
status as a developing country and a sovereign, secular,democratic
republic.

The Constitution of India accommodates Fundamental rights, which


incorporate flexibility of religion. Provisions accommodate the right to
speak freely and additionally
detachment of official and legal and opportunity of development inside
the nation and abroad. The nation additionally has an autonomous
legal and well as bodies to investigate issues of human rights.

In its Report on Human Rights in India- 2013, [released in 2014], Human


Rights Watch stated, "India took positive steps in strengthening laws
protecting women and children, and, in several important cases,
prosecuting state security forces for extrajudicial killings." The report
also condemned the persistent impunity for abuse linked to insurgency
in Maoist areas, Jammu and Kashmir, Manipur and Assam. The report
also went on to state, "The fact that the government responded to
public outrage confirms India’s claims of a vibrant civil society. An
independent judiciary and free media also acted as checks on abusive
practices. However, reluctance to hold public officials to account for
abuses or dereliction of duty continued to foster a culture of
corruption and impunity".

8.2 MEANING OF RIGHTS:-

Rights are those conditions of social life without which man cannot be
at his best. They are essential for the full development and expression
of his personality. A right is a claim recognized by society and
enforced by the state. Rights are the external conditions necessary for
the greatest possible development of the capabilities of an individual.

8.3 MEANING OF HUMAN RIGHTS:-

Human beings are rational. By virtue of being human, they possess


certain basic and inalienable rights, commonly known as human rights.
They become operative with their birth. Human rights, beings the
birthright, are therefore inherent in all human beings irrespective of
their caste, creed, religion, sex and nationality. Human rights are also
sometimes referred to as fundamental rights, ‘basic rights’ ‘inherent
rights’ ‘natural rights’ and ‘birth rights’ ‘Human rights’ is a generic
term, which embrace ‘civil rights’, civil liberties, and ‘social, economic
and cultural rights, The idea of human rights is bound up with the idea
of human dignity. Thus all those rights, which are essential for the
maintenance of human dignity, are called human rights. These rights
are essential for
all individuals as they are consonant with their freedom and dignity
and are conducive to their physical, moral, social and spiritual welfare.
Human rights include those areas of individual or group – freedom that
are immune from Governmental interference because of their basic
contribution to human dignity or welfare and are subject to
Governmental Guarantee, protection or promotion.

D.D. Basu defines human rights as “those minimum rights, which every
individual must have against the State or other public authority by
virtue of his being a member of human family, irrespective of any other
consideration.”.[5]
The Hon. Mr. Justice V. R. Krishna lyer writes:-[6]

Human rights are those irreducible minima, which belong to every


member of the human race when pitted against the State or other
public authorities or group or gangs and other oppressive
communities. Being a member of the human family, he has the right to
be treated as human, once he takes birth or is alive in the womb with a
potential title to Personhood. Once the concept of a higher law binding
on human authorities was evolved, it came to be asserted that there
were certain rights anterior to society, which too were superior to
right created by the human authorities which were of universal
application to men of all ages and all climes, and were supposed to
have existed even before the birth of political society. These rights
could not, therefore, be violated by the State.
8.4 SOURCES OF HUMAN RIGHTS.[7]

However useful the above approaches may be, the justificatory


questions remains what are the sources, if any of human rights claims,
what is their scope or content and how do they relate to one another?
Such questions have been the concern of every scheme of
jurisprudential thought, theological, natural law, positivist, historical,
utilitarian, social science, realist etc. Each theory contributes insights.
We examine here few of them which are more pertinent to the
development of human rights.

a) Human Rights in Christianity and Judaism:- The term human right is


not found in traditional religions. Nonetheless, theology presents the
basis for a human rights theory stemming from a law higher than State
and whose source is the Supreme Being.[8]
If one accepts the premises of Old Testament that Adam was created
in the image of God, this implies that the divine stamp gives human
beings a high value of worth. An appealing expression of this comes
from the Talmud A man may coin several coins with the same matrix
and all will be similar, but the king of kings the Almighty, has coined
every man with the same matrix of Adam and is similar to the other.
Therefore, every man ought to say the whole world has been created
for. Sanhedrin.

Also it is said that a common father gives rise to common humanity


and from this flows a universality of certain rights. Example Bible
prescribes various human rights concepts such as limitation on
slavery justice to the poor fair treatment to strangers racial equality
protection of labor. Since rights stem from divine sources they are
inalienable by moral authority. There is a positive aspect to divine
order since obedience derives from one’s duty to God. Since duties are
ordered by God. Those duties accrue to the individual benefit and
therefore it should not be violated by the state. Bible has many
examples where prophets have denounced their rulers because of
departing from the divine law detriment to the individuals.

b)Human Rights in Islam:- According to Scholars like Nadri and


Tabendeh, the contemporary human rights doctrines merely give
recognition to the 1400 year –old Islamic ideas Islam has set out some
widespread crucial rights for humankind all in all, which are to be
watched and regarded under all circumstances… fundamental rights
for every man by virtue of his statues as a human being Khalid
Ishaque, argues that-Muslims are enjoined constantly to seek ways
and means to assure to each other what in modern parlance we call
human rights. He formulates following fundamental rights
contemplated in Quran. 1) Right to Protection of life 2)Right to Justice
3)Right to equality 4)Duty to obey what is lawful and right to disobey
what is unlawful 5)Right to participate in public life. 6)Right to freedom
7)Right to freedom of conviction, 8)Right to freedom of expression.
9)Right to protection against persecution ontheground of difference of
religion, 10)right to protection of honour and good name, 11)Right to
privacy 12)Economic rights 13)Right to property ,14)Right to adequate
remuneration and compensation. [9]

c) Human Rights in Hinduism:-In the Hindu Philosophical thought, the


concept of ‘Dharma’ pervades throughout and law is considered as a
branch of Dharma. According
to Manu, Dharam is what is followed by those learnt in Vedas and what
is approved by conscience of the virtuous who are exempt from hatred
and inordinate affected.

Since law was not separated from religion it is obvious that, Hindu
Philosophy spoke of “righteousness” in terms of law and law interims
of righteousness. Certain virtues were necessary for good life. In fact
‘Sadacharas – behavior or usages of good men furnished a criterion fro
asserting nature of approved conduct. They were also treated as one
of the sources of law, Hindu sages thus propounded the following
freedoms and virtues.[10]
1) Freedom from Violence (Ahimsa)
2) Freedom from Want (Asatya)
3) Freedom from Exploitation (Aparigraha)
4) Freedom from Violation or Dishonor (Avyabhichara)

5) Freedom from early Death and Diseases (Amritva


and Aregya) The five individual possessions or
virtues are:
a) Absence of Intolerance (Akrosha)
b) Compassion for fellow being (Butadaya, Adreha)
c) Knowledge (Inana Vidya)
d) Freedom of Thought and Conscience (Satya Suntra)
e) Despair (Pravaitti, Abheyy, Dhriti)

Hindus believes that soul is immortal and there is a chain of birth and
rebirth, and attaining salvation breaks the chain, Birth in human form
is an opportunity for an individual to liberate himself from the bondage
of birth and rebirth, till one attains Moksha.
d) Sources of Modern Human Rights [11]
1) The Universal Declaration of Human Rights.
2) The International Covenant, on civil and Political Rights.
3) The International Covenant on Economic, Social and Cultural
Rights
4) The Constitution of India.
5) The Protection of Human Rights Act, 19993.
6) The decisions and judgments of the Supreme Court and State
High Courts.
7) Annual Reports and Orders of the National Human Rights
Commission.

e) Human Rights in the Constitution of India [12]


a) Freedom of speech and expression;
b) Freedom of assembly;
c) Freedom of association;
d) Freedom of movement;
e) Freedom of residence and settlement; and
f) Freedom of profession, occupation, trade or business.

f)The Universal Declaration of Human Rights 1948:-

The Second War ended in 1945. It devastated approximately five crores


of lives of the human beings. The United Nations Organization was
established in the same year. Its main objective is they protection
human rights throught out the world. Because of the cultural diversity
in different countries, it is sometimes difficult to formulate a set of
rights accepted by all people as human rights . So to solve this
problem and to protest against the terrible atrocities, which had
occurred during World War II, members from 14 nations representing
all political systems and geographical areas of the United Nations
(herein after referred to as UN) Met together in 1948 to write the
Universal Declaration of Human Rights ( Hereinafter referred to as
U.D.H.R.) This group was called the commission on Human Rights, and
the declaration, which they wrote was adopted by the UN Assembly in
1948.

The Nations and the people of the world the U.D.H.R. , With the hope
that human rights abuse like the genocide of six million Jews by the
Nazis would never happen again. The U.D.H.R. stated the basic hopes
and aspirations that are common to all humanity living in the
developed and developing communities.

th
The U.D.H.R. accepted by the General Assembly on 10 December
1948, constituted a historical event on the first magnitude. It’s a
beacon call to all the states to respect some of the basic rights. It
enumerates the political civil, economic, social and cultural rights of
man, It defines various human rights in thirty articles It is a manifesto
of man’s
inalienable rights and fundamental freedom. It is the first document of
an ethical sort that organized humanity has ever adopted and precisely
at a moment when man’s power over nature became vastly increased
of scientific discoveries and when it was essential to decide to what
constructive ends these powers should be put.

Articles 1,2,and 3 deal with fraternity, equality and liberty. Articles 4 to


13 enlarge the basic principles of liberty mentioned in Article 3. They
deal with slavery, torture and inhuman punishment, equality before
law, right to effective treatment by competent domestic tribunal,
arbitrary arrest or detention, right to fair and public hearing,
presumption of innocence, privacy and home, freedom of movement
respectively. Articles 14 to 20 deal individually with various rights such
as right to asylum, nationality, marriage, property, freedom of thought
and religion, freedom of assembly. Articles 28 to 30 deal with rights
and duties of individual in relation to the community. In the words of
the General Assembly, this declaration is intended “as a common
standard of accomplishment for all individuals and all countries to the
end that each person of organ culture, remembering this revelation
always might endeavor by instructing and training to advance
appreciation for these rights and opportunity and by dynamic
measures, national and global, to secure their all inclusive and
compelling acknowledgment and recognition, both among the general
population of domains under among the general population of regions
under their locale.

In its Thirty Articles the U.D.H.R. sets forth man’s inalienable rights in
civil, personal economic, social and cultural fields. Its special
character lies in the combination of the classical rights. i.e. the civil,
and political rights, with modern rights, i. e. social and economic rights
of the individual. The universal Declaration as already stated sets forth
a wide range of right, including rights relating to political participation,
individual liberty, and social welfare. In order to give greater
specificity to the principles established by the Universal Declaration
and to provide an instrument which individual states could ratify, the
United Nations proceeded to develop a Covenant on Human Rights.
The original concept was a single covenant covering all the rights set
forth in the Universal Declaration.

However, to give more binding legal effect to the U.D.H.R. United


Nations General Assembly adopted three other Covenants and legal
instruments which defend and
guarantee the protection of human rights. They are the International
Covenant on Economic, social and Cultural Rights, 1996, the
International Covenant on Civil and Political Rights, 1996 and the
Optional Protocol to the latter Covenant. The Covenants are treaties
binding on the States, Which ratify them. As observed, it substantially
took eighteen years to convert the Declaration into Convention. This
delay was due to various reasons.

Firstly, it was necessary to accommodate deep differences between


democratic libertarian and socialist revolutionary States their
differences in fundamental conceptions about the relation of society to
the individual, about purpose of Government, about individual rights.
For western states civil and political rights were only human rights,
economic, social rights were nor rights but were aspirations or plans
whose realization depend on economic resources. The socialists
insisted on economic and social rights, which were real rights for
them.

Secondly, many new States emerged at that time and all joined the
process, which slowed down the negotiations.
Thirdly, delay was also due to differences between declaration and a
binding covenant.
Some states wanted it to be only a Declaration a formal announcement
or statement.
But States wanted a clear legal obligation with legal consequences.

Lastly, delay was also due to compromises required for differences


over some particular rights like right to self-determination and
sovereignty over national resources.

However, though late, it culminated in two covenants namely Civil and


Political Covenant, 1996 and Economic social and Cultural Covenant,
1996.
On a global level, India opts for a policy of "non-interference in internal
affairs of other countries". However India is engaged in promoting
stability and human rights in Afghanistan, pledging nearly US$2 billion
for the country’s rehabilitation and reconstruction efforts, supporting
education of girls, providing some police training, and granting asylum
to a number of activists fleeing Taliban threats. Let us have short
glimpse of the Development of the Human Rights in India. The Role of
the Supreme Court in their protection is highly important. It will follow
after the Illustration Chart

8.5 ILLUSTRATION CHART OF HUMAN RIGHTS IN INDIA [13]


1829- The practice of sati was formally abolished by Governor General
William Bentick after years of campaigning byHindu reform movements
such as the Brahmo Samaj of Ram Mohan Roy against this orthodox
Hindu funeral custom of self-immolation of widows after the death of
their husbands.

1929- Child Marriage Restraint Act is passed


1947- India wins Freedom

1950-The Father of the Constitution of India Dr. B R Ambedkar and his


group sets up a sovereign vote based republic with all inclusive grown-
up establishment. Section 3 of the Constitution contains a Bill of
Fundamental Rights enforceable by the Supreme Court and the High
Courts. It additionally accommodates bookings for beforehand
burdened areas in training, vocation and political representation.

1952-Criminal Tribes Acts canceled by government, previous "criminal


tribes" sorted as "denotified" and Habitual Offenders Act (1952)
authorized.
1955-Reform of family law concerning Hindus gives more rights to
Hindu ladies.
1958-Arms Forces[ Special Powers Act] 1958

1973-Supreme Court of India principles in Kesavananda Bharati case


that the essential structure of the Constitution (counting numerous
crucial rights) is unalterable by a constitutional amendment Criminal
Procedure Code 1973[Implemented 1974] passed by repealing the
Victorian Criminal Procedure Code 1898

1975-1977-Black Age in the History Indian Democracy National


Emergency-Gross Violation of Human Rights throughout India

1978- SC rules in Menaka Gandhi v. Union of India that the right to life
under Article 21 of the Constitution cannot be suspended even in an
emergency.
1978-Jammu and Kashmir Public Safety Act, 1978 1984-Operation Blue
Star Badly handled the Sikh difficulties and their problems The Indian
Military entered the sacred Golden Temple. A massacre took place in
which even some of the saints and priests too assassinated, Gross
Violation of human rights. Assassination of Mrs. Indira Gandhi and
ufortunate Anti- Sikh Riots, a blot over Indian Democracy, Innocent
Sikh brothers killed. 2006 Extrajudicial disappearances in Punjab by
the police

1985-86-The Shah Bano case, where the Supreme Court perceived the
Muslim lady's entitlement to upkeep upon separation, sparkles
dissents from Muslim ministry. To
invalidate the choice of the Supreme Court, the Rajiv Gandhi
government established The Muslim Women (Protection of Rights on
Divorce) Act 1986 1987-Hashimpura slaughter amid shared uproars in
Meerut.

1989-Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)


Act, 1989 passed 1989-Kashmiri insurrection sees ethnic purifying of
Kashmiri Pandits, tainting Hindu sanctuaries, slaughtering of Hindus
and Sikhs, and snatchings of outside travelers and government
functionaries.

1992-A protected correction builds up Local Self-Government


(Panchayati Raj) as a third level of administration at the town level,
with 33% of the seats held for ladies. Reservations were
accommodated planned stations and tribes also. Babri Masjid
devastated by Hindu swarms, bringing about uproars the nation over.

1993-National Human Rights Commission is set up under the


Protection of Human Rights Act.2001 Right to Food recognized by the
Supreme Court of India 2002-Unfortunate Riots in Gujarat
2005- Right to Information Act is passed

Here the Researcher aims to study certain important decided cases


from the Supreme Court in which the fundamental human rights have
been upheld.
a) The State has given directions for land reforms in India.
b) Equal Remuneration Act has been passed
c) The State is constantly trying to protect the interest of weaker
sections.
d) The State is also trying to promote International and Security.

The Supreme Court has become successful in providing proper


directions to the Union as well as the State Governments in India.
Judiciary in every country has an obligation and a Constitutional role
to protect Human Rights of citizens. As per the mandate of the
Constitution of India, this function is assigned to the superior judiciary
namely the Supreme Court of India and High Courts. The Supreme
Court of India is perhaps one of the most Active Courts when it comes
into the matter of protection of Human Rights. It has great reputation
of independence and credibility. The preamble of the Constitution of
India encapsulates the objectives of
the Constitution-makers to build a new Socio-Economic order where
there will be Social, Economic and Political Justice for everyone and
equality of status and opportunity for all. This basic objective of the
Constitution mandates every organ of the State, the executive, the
legislature and the judiciary working harmoniously to strive to realize
the objectives concretized in the Fundamental Rights and Directive
Principles of State Policy. The judiciary must therefore adopt a
creative and purposive approach in the interpretation of Fundamental
Rights and Directive Principles of State Policy embodied in the
Constitution with a view to advancing Human Rights jurisprudence.
The promotion and protection of Human Rights is depends upon the
strong and independent judiciary. The main study here would be given
wide coverage to the functional aspect of the judiciary and see how far
the Apex judiciary in India has achieved success in discharging the
heavy responsibility of safeguarding Human Rights in the light of our
Constitutional mandate. The major contributions of the judiciary to the
Human Rights jurisprudence have been twofold: (1) the substantive
expansion of the concept of Human Rights under Article 21 of the
Constitution, and (2) the procedural innovation of Public Interest
Litigation.

The Asian Centre for Human Rights estimated that from 2002 to 2008,
over four individuals for every day kicked the bucket while in police
care, with "hundreds" of those passing’s being because of police
utilization of torment. As indicated by a report composed by the
Institute of Correctional Administration in Punjab, up to half of cops in
the nation have utilized physical or mental misuse on detainees.
Occurrences of torment, for example, through an absence of
sanitation, space, or water have been recorded in West Bengal also,
Sexual Violence [14]

India is unfortunately becoming the home of the sexual violence.

About 53./.of the children have been subjected to some form of sexual

abuse. In 2012, India introduced the Protection of Children from Sexual

Offences Act (POCSO) to deal with cases of child sexual abuse.

However, it took two years to record the first cases under the law and

there are huge gaps in its implementation with the conviction rate under

the act being only 2.4%. The Supreme Court of India has given

important guidelines for eliminating the sexual violence in the

landmark decision-State of Maharashtra v


Madhukar Narayan(AIR 1991 SC207) In this case the court stated that
even a woman of easy virtue is entitled to privacy and she must not
face any sexual relations against her will

Forced Labour[15]

India has the highest number of people living in conditions of slavery,


14 million, most of who are in bonded labour. The Supreme Court of
India has given important guidelines for eliminating the forced labour
in the landmark decision of Bandhua Mukti Morcha. Here in this case
the social workers brought to the notice of the court the plightful
condition of the bonded labourers even of old age in North India. The
practice is based upon an old rotten custom, fully against the spirit of
the Constitution of India.

Child labour[16]

India has the largest number of child laborers’ under the age of 14 in
the world with an estimated 12.6 million children engaged in hazardous
occupations. The Supreme Court of India has given important
guidelines for eliminating the child labor in the landmark decision in M
C Mehta v State of Tamil Nadu. Here in this case Mr Mehta brought to
the notice of the court the plightful condition of the children of tender
age in the Fire Industry of Shivkashi and other parts of the State

Human trafficking [17]

Human trafficking is a $8 million illicit business in India. Around 10,000


Nepali ladies are conveyed to India every year for business sexual
abuse. Every year 20,000–25,000 ladies and kids are trafficked from
Bangladesh.
Babubhai Khimabhai Katara was a Member of Parliament, in 2007,
when captured at the Indira Gandhi International Airport inDelhi, India
for trying smuggle a mother and her teen son to Canada, on his
diplomatic passport. The Mother and her son were hoping to join her
husband who was living as an illegal migrant in Canada, and had paid
Babubhai Khimabhai Katara about $70,000 USD. The woman had
previously been repeatedly denied a visa by the Canadian government.
The fact that even some members of parliament with diplomatic
privileges can be approached for such purposes is seen as
opening a Pandora's box on corruption in the Indian political system
(See also Operation Duryodhana). He was suspended from his party
and stripped of his seat in the parliament for this offense.
Religious Violence [18]

Shared clashes between religious gatherings (generally amongst


Hindus and Muslims) have been common in India since around the
season of its freedom from British Rule. Among the most established
rates of public viciousness in India was the Moplah defiance, when
Militant Islamists slaughtered Hindus in Kerala. Mutual mobs occurred
amid the segment of India between Hindus/Sikhs and Muslims where
expansive quantities of individuals were executed in huge scale
savagery.

The 1984 Anti-Sikh Riots was a four-day time frame amid which Sikhs
were slaughtered by individuals from the common centrist Congress
Party of India; a few assessments express that more than 2,000 were
killed. Different occurrences incorporate the 1987Hashimpura
slaughter amid common uproars in Meerut, 1992 Bombay Riots.
2002 Gujarat riots [19]

The 2002 Gujarat violence —in the latter, more than 100 Muslims were
killed 2,500 people were injured non-fatally, and 223 more were
reported missing. Other sources estimate that up to 2,000 Muslims
died. There were instances of rape, children being burned alive, and
widespread looting and destruction of property. The Chief Minister at
that time, Narendra Modi, has been accused of initiating and
condoning the violence, as have police and government officials who
allegedly directed the rioters and gave lists of Muslim-owned
properties to them. The reason for the attack considered by some a
Muslim mob attack on a train full of Hindu pilgrims in the Godhra Train
Burning, where 58 Hindus were killed. Some commentators, however,
hold the view that the attacks had been planned, were well
orchestrated, and that the attack on the train was a "staged trigger"
for what was actually premeditated violence.

Lesser incidents plague many towns and villages; representative was


the executing of five individuals in Mau, Uttar Pradesh amid Hindu-
Muslim revolting, which was activated by the proposed festivity of a
Hindu celebration. Other such mutual occurrences incorporate the
2002 Marad slaughter, which was completed by the aggressor Islamist
bunch National Development Front, and also collective mobs in Tamil
Nadu executed by the Islamist Tamil Nadu Muslim Munnetra Kazagham
against Hindus.
Position Problems-[20]

As indicated by a report by Human Rights Watch, "Dalits and


indigenous people groups (known as Scheduled Tribes or adivasis)
keep on facing separation, prohibition, and demonstrations of public
savagery. Laws and arrangements received by the Indian government
give a solid premise to insurance, however are not being loyally
executed by neighborhood powers."

The UN expressed in 2011 that the station arrangement of India will be


announced a human rights misuse. The UN's Human Rights Council,
meeting in Geneva, is relied upon to confirm draft standards which
perceive the size of oppression endured by 65 million "untouchables"
or "Dalits" who do the most humble and corrupting work.

Absolution International says "it is the obligation of the Indian


government to completely sanction and apply its lawful procurements
against separation on the premise of standing and plummet.

Denotified tribes of India, alongside numerous migrant tribes all in all


60 million in populace, keep on facing social disgrace and monetary
hardships, regardless of the truth Criminal Tribes Act 1871, was
revoked by the administration in 1952 and supplanted by Habitual
Offenders Act (HOA) (1952), as adequately it just made another
rundown out of the old rundown of supposed "criminal tribes. These
tribes even today confront the outcomes of the 'Aversion of Anti-Social
Activity Act' (PASA), which just adds to their regular battle for
presence as the vast majority of them live beneath destitution line.
National Human Rights Commission and UN's against segregation body
Committee on the Elimination of Racial Discrimination (CERD) have
requested that the administration annul this law also, as these
previous "criminalized" tribes keep on suffering mistreatment and
social shunning everywhere and numerous have been denied SC, ST or
OBC status, denying them access to reservations which would raised
their financial and societal position.
Opportunity of Expression-[21]

As per the appraisals of Reporters without Borders, India positions


122nd worldwide in 2010 on the press opportunity list (down from
105th in 2009), The press flexibility file for
India is 38.75 in 2010 (29.33 for 2009) on a scale that keeps running
from 0 (most free) to 105 (minimum free). In 2014 India was down
positioned to 140th around the world (score of 40.34 out of 105)
however notwithstanding this remaining parts one of the best scores
in the locale.

The Indian Constitution, while not saying "press", accommodates "the


privilege to the right to speak freely and expression"(Article 19(1) a).
In any case this privilege is liable to limitations under sub clause (2),
whereby this flexibility can be confined for reasons of "power and
uprightness of India, the security of the State, well disposed relations
with remote States, open request, protecting fairness, saving ethical
quality, in connection to disdain of court, maligning, or prompting to an
offense". Laws, for example, the Official Secrets Act and Prevention of
Terrorism Act (POTA) have been utilized to cutoff press opportunity.
Under POTA, individual could be confined for up to six months before
the police were required to bring charges on claims for terrorism-
related offenses. POTA was canceled in 2004, yet was supplanted by
changes to UAPA. The Official Secrets Act 1923 is canceled after right
to data act 2005

For the main half-century of autonomy, media control by the state was
the significant limitation on press opportunity. Indira Gandhi broadly
expressed in 1975 that All India Radio is "a Government organ, it will
remain a Government organ..." With the liberalization beginning in the
1990s, private control of media has blossomed, prompting expanding
freedom and more prominent examination of government. Associations
like Tehelka and NDTV have been especially persuasive, e.g. in
realizing the abdication of capable Haryana priest Venod Sharma. Also,
laws like Prasar Bharati act went as of late contribute fundamentally
to lessening the control of the press by the legislature.

Until the Delhi High Court decriminalized consensual private sexual


acts between consenting grown-ups on 2 July 2009, homosexuality
was viewed as criminal according to translations of the questionable
Section 377 of the 150-year-old Indian Penal Code (IPC), a law went by
the provincial British powers. In any case, this law was infrequently
authorized. In its decision decriminalizing homosexuality, the Delhi
High Court noticed that existed law clashed with the major rights
ensured by the Constitution of India, and such criminalizing is violative
of Articles 21, 14 and 15 of the Constitution. The Supreme
Court of India has given critical rules for disposing of the infringement
of this human right in the historic point choice
8.6 Mr.S.M SHARMA Vs SHRI KRISHNA SINHA (A.I.R 1959 S.C. 395)
This case is famous as a Searchlight Case. It attracted Arts 19 and Art.
194 ---------[22]

Mr.S M Sharma was the editor of a daily in patna, known as


‘Searchlight’. He published, on May 31, 1958, in his paper, a report of
the proceedings of Bihar State Legislative Assembly. The report
included a portion of the proceedings which the Speaker had ordered
to be expunged from the proceedings. Hence, a privilege committee
was appointed by the House to consider the question of the breach of
privilege by Sharma. The Committee called upon Sharma to attend the
meetings of the Committee, and to show cause why appropriate Action
should not be taken against him. There upon, of an appropriate writ. He
subsequently withdrew the petition and submitted a petition to the
Supreme Court under Art. 32.

It was urged, on behalf of Sharma, that he had the fundamental right to


speech and expression, which included the freedom of press under Art.
19(1) (a), and as such, he was entitled to publish the proceedings of
the Bihar State Legislative Assembly. On behalf of Shri Krishna Sinha,
the respondent and others, it was urged that the expunged portion did
not form part of the proceedings at all. Moreover, there was no right
even to the press to publish the proceedings of the House. Publication
of proceedings without then authority of the house was a breach of its
privileges and as such the house had a right to take appropriate Action
against the defaulters. Article 194 (3) was relied upon in support
contention. Thus Court was called upon to decide whether right to the
freedom of press of Fundamental Rights was superior to the privileges
of the legislature or whether the privileges of the legislature would
prevail over the Fundamental Rights.

On a proper contruction of art . 194(1),(2) and (3), the Supreme Court


came to the conclusion that the provision of art 19(1)(a) which are
general, must yield to art (194)(1), and the latter part of its clause (3)
whicdh are special. Hence, the houses of legislature in india have the
privilege under art 194(3) to prohibit the publication of their
proceedings.

IN RE : ART.143; CONSTITUTION OF INDIA (A.I.R. 1965 S.C. 475) [Art.143]


K printed and published a pamphlet. The Speaker of the Legislative
Assembly administered a reprimand to K, who was not a member of
the Assembly, for having conferred hatred of the Assemble,
furthermore to have submitted a break of the benefits of an individual
from the Assembly by production of the handout. Later, around the
same time, the Speaker coordinated that K be focused on jail for
conferring hatred of the Assembly by his behavior in that. A warrant
was issued over the mark of the Speaker, coordinating that K be
confined in the prison for a time of seven days, and in execution of the
warrant, k was kept in the correctional facility.

From there on an appeal under S.491, Criminal Procedure Code and


Art.- 226, of the Constitution was introduced to the High Court by an
Advocate in the interest of K, asserting that his detainment in prison
was unlawful. This appeal was taken before a Division Bench of High
Court, which passed a request that K ought to be discharged on
abandon outfitting two sureties. on getting the data of the arrival of K
on safeguard, the Assembly by a determination took the perspective
that the two Judges of the High Court, K and his Advocate had
conferred scorn of the Assembly, and requested that K ought to
quickly be arrested and the two Judges and the Advocate be acquired
care before the Assembly.

On catching wind of this request, the two Judges and the Advocate
made separate petitions to the High Court under Art. 226 battling that
the determination went by the Assembly added up to hatred of Court,
that it was completely without Jurisdiction, that it ought to be put
aside and that by a between time arrange its usage ought to be sat
tight. On these petitions the Full Bench of the High Court passed a
request controlling the Speaker of the Assembly from issuing the
warrant in compatibility of the bearing of the Assembly and from
securing execution of the warrant if as of now issued. At the point
when the episode achieved this stage, the President of India chose to
practice his energy to make a reference to the Supreme Court under
Art. 143(1).The following questions was formulated and referred the to
the Supreme Court for its opinion:

1) Was it competent for the High Court to entertain and deal with the
petition of Mr. K challenging the legality of the sentence imposed by
the Assembly?
2) By Acting on such petition and releasing the petitioner, was the High
Court guilty of contempt of the legislature ?

3) Could the Assembly direct for production of the Judges of the High
Court before it in custody or to call for their explanation for its
contempt ?

4) Was the Full Bench of the High Court competent to entertain and deal
with the petitions of the two Judges and to pass an interim order
restraining the Speaker?

5) Whether the Judge of the High Court entertaining such petition


commits contempt of the legislature and whether the legislature was
competent to take proceedings against him.
The majority opinion of the Supreme Court answered the above questions
as follows:

1) It was competent for the High Court to entertain and deal with the
petition of K, challenging the legality of the sentence of imprisonment
imposed upon him by the Legislative Assembly for its contempt and for
infringememt of privileges, and to pass orders releasing K on bail
disposal of his said petition.

2) K, by causing the petition to be presented on his behalf to the High


Court, the Advocate by presenting the said petition, and the two
Judges of the Division Bench by entertaining and dealing with the said
petition and ordering the release of K on bail pending disposal of the
petition, did not commit contempt of the Legislative Assembly.

3) It was not competent for the Legislative Assembly to direct the


production of the said two Judges and the Advocate before it in
custody or to call for their explanation for its contempt.
4) It was competent for the Full Bench of the High Court to entertain and
deal with the petition of the said two Judges and the Advocate, and to
pass interim orders, restraining

the Speaker of the Legislative Assembly and others from implementing


the aforesaid detention of the said Legislature Assembly.

In a case arising out of a contempt to have been committed by a


citizen who is not a member of the House of Legislature outside the
four walls of the legislative chamber, a Judge of High Court who
entertains or deals with a petition challenging any ordr or decision of a
Legislation imposing any penalty on the petitioner or issuing any
process against the petitioner for its contempt, or for infringement of
its privileges and immunities, or who passes any order on such
petition, does not commit contempt of the
Ligislature. Such a Legislature is not competent to take proceedings
against such a Judge in the exercise and enforcement of its powers,
privileges and immunities.
8.7 THE OFFICIAL SECRETS ACT [OSA][23]

Very little intelligent discussion happens concerning the Official


Secrets Act [OSA] in India. You could say this lack of discussion is by
design, and means the law is doing its job. Perhaps it is. What it also
does is perpetuate a culture of secrecy surrounding decision-making
by officials. With an increasing intensity surrounding the freedom of
information movement, there was a spurt in questions being raised in
the Rajya Sabha about the Official Secrets Act. The tenor of
government’s responses seemed consistently non-committal but
implying that change is mooted. But this seems to have changed as
momentum stilled (see here, and here). In the meanwhile, we had the
Right to Information Act bringing its overriding clauses, and the 2nd
Administrative Reforms Commission recommending a repeal of the
statute altogether. Obviously, that didn’t happen.

8.8 THE ISSUE OF KNOWLEDGE[24]

Two questions become important here, (i) how do persons know that a
a code or sketch, plan model etc is potentially useful to the enemy or
affects the security and interests of India and (ii) does it matter
whether they know or not? Dealing with the second issue first, all hints
point to a position of law that disregards the need for an accused to
have knowledge. I argue this on the basis of the two primary offences,
Sections 3 and 5. Section 3 was mentioned above, and sub-section (2)
therein supports my claims. It allows a conviction simply on the basis
of the ‘conduct or known character’ of the accused and allows the
court to dispense with a need to specifically prove that the person had
some prejudicial purpose. Not only does this go against the basic
tenets of treating character evidence but in a unique manner
disregards both actus reus and mens rea requirements.

8.9 CLASSIFICATION OF UNCONSTITUTIONALITY


The Researcher is not a fan of the Article 21 is omnipotent school, and
so try and make my case on clearer grounds by answering the first
question I posed. The question was how do persons know whether
documents are state secrets when the document hasn’t got TOP
SECRET on its face. The answer exists, and is in the form of a Ministry
of Home Affairs Manual on Departmental Security Instructions. After
the RTI a request was made for disclosure of this Manual. This was
denied by the Ministry, and contested right up to the Central
Information Commission.The Commission upheld that decision to deny
disclosure, reasoning that making the classification public would
prejudice the safety of the state.

Since nobody but the State knows whether something was secret, and
holding secrets is an offence, what stops the State from deciding
something is secretafter it goes public? Take an example. A journalist,
X, gets his hands on a non-public pending legislative bill potentially
legalising marijuana and makes it public. The Police arrest X,
suspecting him of having secret information, and ask the Government
whether such non-public legislative bills form information of the kinds
barred by the OSA.

The Sabarimala Case[Haji Ali/Shani Mandir Issues] Recently the


Supreme Court has heard a final argument on the question of whether
women between the ages of 10 and 50 can be excluded from the
Sabrimala shrine – an issue that has gained a degree of notoriety in the
last few years. On the constitutional questionthe researcher thinks
that the arguments of exclusion were based upon entirely non-
religious, or even non-customary bases . They are against the spirit of
the Constitution of India. Ther is a need of Right ot Religion and Right
to Equality. The issues involved in the demend of the women
organizations in relation to the entry of them on the threshold of the
sacred Shani Maharaj Temple situated in famous Shani Shingnapur
area of Ahmednagar District of the State of Maharashtra are more or
less same hence are aptly referred here.[25]

8.10. THE RIGHT TO PRIVACY AS A DOMINENT HUMAN RIGHT IN


INDIA[26]
The public/private divide largely disappeared during feudal times (the
manorial households, in a sense, came to embody characteristics of
both spheres), and then made a reappearance after the Enlightenment
and the revolutionary era. The modern era – Arendt argues – saw
economic activities and market transactions taken out of the domain
of the private sphere, which was now defined as the site of intimacy,
or intimate relationships.

T. SAREETHA V T. VENKATA SUBBAIH [A P HIGH COURT/REVERSED


BY SUPREME COURT][27]

On July 1, 1983, Justice P.A. Choudary of the Andhra Pradesh High


Court struck down Section 9 of the Hindu Marriage Act, which allowed
the Court to pass an order for ‘restitution of conjugal rights.’ In simple
language, if the Court was convinced that either a husband or a wife
had ‘without reasonable cause, withdrawn from the society ‘ of their
spouse, then it could decree that the defaulting spouse was required
to go back to the company of their partner – a decree that could be
enforced by attaching the defaulter’s property. Justice Choudary held
that Section 9 violated the rights to equality and privacy under the
Constitution, and was accordingly void. Within five months, the Delhi
High Court handed down a judgment disagreeing with this conclusion.
And a little over a year later, the Supreme Court affirmed the judgment
of the Delhi High Court, bringing the legal controversy to a close.

Sareetha remains as a footnote in family law courses, a passing


reference in discussions about the restitution of conjugal rights. This
is a pity. Sareetha was one of those rare cases in Indian constitutional
history where a Court understood the Constitution as a radically
transformative document, and struck out in a direction that was
unfamiliar, bold, and creative – while remaining constitutionally
tethered. Its interpretations of equality and privacy anticipated similar
developments in other jurisdictions by years, or decades; and in some
respects, it is still ahead of the time. Quite apart from the actual
decision, it is its reasoning that constitutional lawyers should not
forget; because even though the Supreme Court overruled the
judgment, and perhaps closed off the window to a certain kind of legal
change, Sareetha’s reasoning remains a template for other cases that
might attempt to shape equality and privacy in
an emancipatory and progressive direction. The Supreme Court of
India has greatly contributed the sacred Institution of Marriage by
reversing the judgment of the Andhra Pradesh High Court.

Gobind V State Of MP Therefore, when the Indian Supreme Court began


to take up issues relating to the right to privacy, it was adjudicating in
the context of a number of different – although somewhat
complementary – traditions. The case that first held that there existed
a constitutional right to privacy in India reflected this problem.

The Kerala Bar Hotels V State Of Kerala Recently, the Supreme Court
delivered another distinctly underwhelming judgment, in The Kerala
Bar Hotels Association & Anr. v. State of Kerala & Ors. This judgment is
disappointing not so much for its outcome, but because of a glaring
omission.

THE PUNJAB INSTABILITY 1980-1984 [28]

From 1984 to 1994, the state of Punjab in northern India was engaged
in a power struggle between the militant secessionist Khalistan
movement and Indian security forces. The Indian government
responded to the escalating Punjab insurgencyby launching Operation
Blue Star in 1984, storming the Harmandir Sahib, or Golden Temple
complex in Amritsar—the center of Sikh religious and spiritual life,
where some militant groups had retreated. The Operation was
controversial and resulted in death of hundreds of civilians, militants
and soldiers. After Sikh bodyguards assassinated Prime Minister Indira
Gandhi, further violence ensued.

The aftermath of these events were felt for more than a decade.
According to a Human Rights Watch report, state security forces
adopted “increasingly brutal methods to stem the insurgency,
including arbitrary arrests, torture, prolonged detention without trial,
disappearances and summary killings of civilians and suspected
militants”. Militant organizations responded with increased violence
aimed at civilians, state security forces, and Sikh political leaders
deemed to be negotiating with the government. Let us see the areas
upon which the Supreme Court of India has to work for protection of
human rights
The Supreme Court of India has strongly resented over the riots
against the innocent Sikhs after 31-10-1984. The Court has orderd to
file charge sheets against the wrongdoors. A Charge-Sheet is filed
against an influential political personality from New Delhi. The Court
wants to award compensation to the victims of the riots. Some cases
are still pending.
8.12 RIGHT TO LIFE LIBERT UNDER ARTICLE 21
Each individual has the natural right to life. This privilege should be
ensured by law.
Nobody might be subjectively denied of his life.

The privilege to life is the vital right that an individual has the privilege
not to be murdered by another person. The concept of a privilege to
life is vital to discusses on the issues of fetus removal, the death
penalty, killing, self protection and war. As per numerous human rights
activists, capital punishment disregards this privilege. The United
Nations has approached states holding capital punishment to build up
a ban on the death penalty with a perspective to its abrogation. States
which don't do as such face extensive good and political weight. The
Constitution of India recognizes the Right to life as a Fundamental
Right under Art.21.It’s sphere has been much widened by the Supreme
Court of India and now this right includes rights related to Shelter,
Good Health, Environment, and Privacy. Rights to get benefits as per
the principles of newly emerging Victimology-etc

8.13 MANIFOLD HUMAN RIGHTS OF THE PRISONERS- [29]

The Supreme Court has interpreted the Right to life in relation to


accused and the prisoners. Now they must have full Freedom from
torture. Their hands and feet must not be in chains. They have full
Righr to Legal Aid. Getting bail and having Speedy Trail are their
fundamental rights.They must not be publicly hanged etc.
All through history, torment has been utilized as a technique for
political re-training, cross examination, discipline, and pressure.
Notwithstanding state-supported torment, people or gatherings might
be inspired to dispense torment on others for comparative motivations
to those of a state; be that as it may, the thought process in torment
can likewise be for the cruel delight of the torturer, as in the Moors
murders.

Sunil Batra V Delhi Admn[AIR 1980 sc 1579] Since the mid-twentieth


century, torment is disallowed under global law and the household
laws of generally nations. It is thought to
be an infringement of human rights, and is announced to be
inadmissible by Article 5 of the UN Universal Declaration of Human
Rights. Signatories of the Geneva Conventions of 1949 and the
Additional Protocols I and II of June 8, 1977 authoritatively concur not
to torment caught people in outfitted clashes, whether worldwide or
interior. Torment is additionally restricted by the United Nations
Convention against Torture, which has been endorsed by 157 nations.

National and universal lawful forbiddances on torment get from an


accord that torment and comparable sick treatment are corrupt, and
unreasonable. In spite of these worldwide traditions, associations that
screen misuse of human rights report across the board use supported
by states in numerous districts of the world. Absolution International
gauges that no less than 81 world governments as of now practice
torment, some of them transparently. In the above case every one of
these angles were talked about and it was held that the utilization of
third degree technique is only the physical torment and putting weight
is a mental torture.It is infringement of Art.21.
8.14 FREEDOM FROM SLAVERY[30]

Freedom from slavery is internationally recognized as a human right.


Article 4 of the Universal Declaration of Human Rights states:

Nobody might be held in subjugation or bondage; servitude and the


slave exchange should be restricted in every one of their structures.

In spite of this, the quantity of slaves today is higher than any time
ever, staying as high as 12 million] to 27 million, Most are obligation
slaves, to a great extent in South Asia, who are under obligation
subjugation brought about by loan specialists, here and there
notwithstanding for eras. Human trafficking is essentially to prostitute
ladies and kids into sex commercial ventures. In India the Father of the
Constitution Dr B R Ambedkar has prompted the legal to be strict over
this spoiled practice.

In Deena V Union Of India[AIR 1983sc1155] In this case a Gaoler


ordered to take labours from the prisoners. The remuneration was also
not given to them The Supreme Court of India stated that it was a
clear violtion of the Art.23

8.15 RIGHT TO A FAIR AND SPEEDY TRIAL[31]


Everybody is qualified in full fairness for a reasonable and open
hearing by an autonomous and unbiased tribunal, in the determination
of his rights and commitments and of any criminal allegation against
him.

The privilege to a reasonable trial has been characterized in various


local and global human rights instruments. It is a standout amongst
the broadest human rights and all worldwide human rights instruments
cherish it in more than one article. The privilege to a reasonable trial
is a standout amongst the most disputed human rights and significant
case law has been set up on the understanding of this human right. In
spite of varieties in wording and situation of the different reasonable
trial rights, universal human rights instrument characterize the
privilege to a reasonable trial in comprehensively the same terms. The
point of the privilege is to guarantee the best possible organization of
equity. As a base the privilege to reasonable trial incorporates the
accompanying reasonable trial rights in common and criminal
proceedings.

In State Of Maharashtra V Champalal[AIR 1981 Sc 1675] The Right to


Fair Trail includes The Right to Speedy Trail. They are two sides of the
same coin. A long pre trail detention is nothing but a tyranny on the
part of the State. It is fully violative of Art. 21 read with Art.19
8.16 FREEDOM OF SPEECH AND EXPRESSION UNDER ART 19

The right to speak freely is the opportunity to talk unreservedly


without control. The term opportunity of expression is at times utilized
synonymously, however incorporates any demonstration of looking for,
accepting and granting data or thoughts, paying little respect to the
medium utilized. Practically speaking, the privilege to the right to
speak freely is not supreme in any nation and the privilege is ordinarily
subject to confinements, for example, on criticism, attack, foulness,
instigation to perpetrate a wrongdoing, and so forth. The privilege to
flexibility of expression is perceived as a human directly under Article
19 of the Universal Declaration of Human Rights and perceived in
worldwide human rights law in the International Covenant on Civil and
Political Rights (ICCPR). Article 19 of the ICCPR states that "[e]veryone
might have the privilege to hold conclusions without obstruction" and
"everybody should have the privilege to flexibility of expression; this
privilege might incorporate opportunity to look for, get and confer data
and thoughts of numerous types, paying little respect to
boondocks, either orally, in composing or in print, as workmanship, or
through some other media of his decision".

In Romesh Thappar Vs. State Of Madras (A.I.R 1950 S.C 124) [Art.16]
The then Government of Madras[Now roughly Tamil Nadu] imposed a
ban upon the entry and circulation of English weekly called “cross
Road” in that State. This order was made in exercise of the power
under the Madras Maintenance of public order Act, 1949. The petitioner
was the printer, publisher and Editor of that weekly. Making his
application for a write of prohibition and certiorari to the Supreme
Court, he contended that the order contravened his fundamental right
of freedom of speech and expression guaranteed under Art.19 (1) (a) of
the Constitution. Under Art,19(2) as it stood before the First
Amendment, restrictions could be imposed by law which were passed
in the interest of security of the State. It was the contention of the
petitioner that public order and security of the State were different
things. The Madras Act, which was directed towards the maintenance
of the public order, was not an Act passed in the interest of the
security of the State. Therefore, the Madras Act, when it sought to
impose restrictions on his freedom of speech and expression, was
inconsistent with Art. 19 (1) (a) and Art. 19 (2).

The contention of the petitioner was upheld by the Supreme Court, and
the order of the Madras Government was quashed. This was one of the
decisions which led to the passing of the Constitution (First
Amendment) Act, 1951, which amendment Art. 19(2) and some other
Articles of Constitution.
8.17 FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION [32]

Everybody has the privilege to opportunity of thought, inner voice and


religion; this privilege incorporates flexibility to change his religion or
conviction, and flexibility, either alone or in group with others and in
broad daylight or private, to show his religion or faith in educating,
practice, love and recognition.

Flexibility of thought, still, small voice and religion are firmly related
rights that secure the opportunity of an individual or group, out in the
open or private, to think and unreservedly hold scrupulous convictions
and to show religion or faith in instructing, practice, love, and
recognition; the idea is by and large perceived likewise to incorporate
the flexibility to change religion or not to take after any religion. The
flexibility to leave or end enrollment in a religion or religious gathering
—in religious terms called
"dereliction"— is additionally a crucial piece of religious opportunity,
secured by Article 18 of the Universal Declaration of Human Rights.

In Ratilal V/S State Of Bombay (A.I.R. 1954 S.C.388) [Art.26] The


Bombay Public Trust Act, 1950, was enacted for the purpose of
regulating & making better provisions for the administration of public
& religious trusts. The manager of a Jain temple filed a petition before
the High Court of Bombay praying for the issue of a writ of mandamus.
His contention was that certain provisions of the above Act violated
the Fundamental Rights of the petitioner regarding his right to practice
religion. The Act, among other things, required registration of religious
& public trusts and payment of a contribution levied in respect of the
same. It had also certain provisions regarding the appointment of
trustees. The High Court dismissed the petition. On appeal, the
Supreme Court laid down the following principle: (1) The provision of
the above Act relating to the appointment of the charity commissioner
as a trustee of any public trust by the Court, without any reservation in
regard to religious institutions like temples and maths, was
unConstitutional.(2) A religious sect has the undoubted right to
manage its own affairs in matters of religion, and this includes the
right to spend the trust money for religion or religious purposes and
objects indicated by the founder of the trust or established by usage.
(3) Religious practices or performance of Acts in pursuance of
religious beliefs is as much as part of religion as much a part of
religion as faith or beliefs in particular doctrines. (4) To divest the trust
property or funds for purposes with the charity commissioner or the
Court considers expedient or proper, although the original objects of
the founder can still be carried out is an unwarranted encroachment
on the freedom of religious institutions in regard to the management of
their religious affairs.

8.18 FREEDOM OF MOVEMENT [33]

Flexibility of development declares that a native of a state in which


that subject is available has the freedom to travel, dwell in, and/or
work in any part of the state where one satisfies inside the points of
confinement of admiration for the freedom and privileges of others,
and to leave that state and return whenever.

Sexual introduction and sex personality rights identify with the


statement of sexual introduction and sex character taking into
account the privilege to regard for private life
and the privilege not to be oppressed on the ground of "different
status" as characterized in different human rights traditions, for
example, article 17 and 26 in the United Nations International
Covenant on Civil and Political Rights and article 8 and article 14 in
the European Convention on Human Rights.

Mrs Maneka Gandhi Vs Union Of India [ (1978) 1 Supreme Court Cases


248 ] [Arts 19 & 21 ] In this case, the passport of Mrs Maneka Gandhi,
a journalist was impounded "in public interest", and the Government
declined to furnish to her proper reasons for its decision . She ,
therefore filed a writ petition in the Supreme Court under Art 2 of the
Constitution, challenging the order on the ground that it violated
articles 14,19 and 21 of the Constitution. The Union of India, the
respondent in this case, contended that her passport was impounded
because her presence was likely to be required in connection with the
proceedings before a commission of inquiry which was then
functioning. The first question before the Court was whether the right
to go abroad is covered by clause (A) or clause (G) of art. 19(1).The
Court observed that it may happen that right is not expressly
mentoned in any of the clauses of Art. 19(1), and yet it is covered by
one of such clauses. Thus, the freedom of the press is not specifically
guaranteed and yet it is covered by Art 19(1). Thus the freedom of the
press is not specifically guaranteed and yet it is covered by tha at 19
(1)(A). The Court however came to the conclusion that the right to go
abroad cannot be said to be covered by either the freedom of speech
and expression. [art 19(1) (g)]. The Court therefore held that since the
right to go abroad is not a guaranteed right under any of the clauses of
Art 19 (1) (g). The Court therefore held that since the right to go abroad
is not guaranteed right under any of the clauses of Art. 19(1), section10
(3)c of the [passports Act, 1967 which powers the passport authority to
impound a passport in the interests of general public cannot be said to
be void as violative of art 19 (1) (a) or art 19(1)(g).

The Court however held that the right to travel abroad is part of
personal liberty guaranteed by art 21 of the Constitution. Hence any
"law" ( as term used in art 21) affecting personal liberty would have o
satisfy the tests of Art. 14 and Art 19. Moreover, this right to go abroad
could not be curtailed without giving a reasonable opportunity to the
person concerned to show cause why his or her passport should not be
impounded.
The Attorney- General ,however, made a Statement to the Court that
the Government would consider any representation that may be made
by Mrs. Maneka Gandhi in respect of impounding of her passport and
deal with her representation expeditiously in accordance with law. In
view of this Statement the majority of the Judges felt that it was not
necessary formally interfere with the impugned order of the
Government, and therefore ,the writ petition was disposed of without
passing any order thereon. However Court stuck a note of warning
against the passport authority in the following terms.

"The passport authority would do well to remember that it is the basic


human right recognised by Article 13 of the universal declaration of
the human rights with which the passport authority is interfering when
it refuses or impounds or cancels a passport .It is highly valuable
right , it is a part of personal liberty and an aspect of the spiritual
dimension of man not lightly interfered with. Cases are not unknown
where people are not allowed to go abroad because of the view held,
opinion expressed, or political beliefs or economic ideologies
entertained by them. It is hoped that such cases will not recur under a
Government Constitutionally committed to uphold freedom and
liberty ,but it is well to remember at all times that eternal vigilance is
the price of liberty , for history shows that it is always subtle and
insidious encroachments made ostensibly for a good cause that
imperceptibly but surely corrode the foundations of liberty.

Maneka Gandhi’s case was heard by a seven-member bench of the


Supreme Court. Justice Bhagwati delivered a Judgement on his own
behalf as well as n behalf of justice Untwalia and justice Faizal Ali.
Four separate Judgements were delivered by Chief Justice Beg,
Justice Chandrachud , justice Krishna Iyer and justice Kaialasman.

The Supreme Court also specifically over ruled the majority view
expressed in Gopalan's case ( considered earlier ) and held that Art. 21
is controlled by Art. 19. So if a law prescribes a procedure for depriving
a person of his personal liberty, even if it does not infringe Art 21, it
can still b challenged o ground that it is violative of Art 19.
8.19 FREEDOM OF TRADE AND PROFESSION[34]

Albeit both the Universal Declaration of Human Rights and the


International Covenant on Economic, Social and Cultural Rights
underline the significance of a privilege to work, neither of these
archives unequivocally say organized commerce as an
instrument for guaranteeing this principal right. But then exchange
assumes a key part in giving employments.

A few specialists contend that exchange is inborn to human instinct


and that when governments repress global exchange they
straightforwardly restrain the privilege to work and the other aberrant
advantages, similar to one side to instruction, that expanded work and
speculation gather. Others have contended that the capacity to
exchange does not influence everybody similarly—frequently gathers
like the rustic poor, indigenous gatherings and ladies are less inclined
to get to the banquet of expanded exchange.

Then again, others believe that it is no more fundamentally people yet


organizations that exchange, and along these lines it can't be ensured
as a human right. Furthermore, attempting to fit excessively numerous
ideas under the umbrella of what qualifies as a human right can
possibly weaken their significance. At long last, it is hard to
characterize a privilege to exchange as either "fair"or "just" in that the
present exchange administration produces victors and washouts yet
its change is liable to create (diverse) champs and failures. The
position of the Right to Trde and calling is found in the accompanying
two cases-

Dr H L Chulani V Bar Council Of Maharashtra And Goa[1996.3 Scc.342]


In this case a doctor had completed his LL.B. degree course. He was
already a Registered Medical Practioner on the Roll of the Medical
Council. He then applied to enroll his name with the Bar council of
Maharashtra as an Advocate. His application was rejected. Upon his
writ petition the Supreme Court made the position of the Right to
Trade and Profession crystal clear in India. Their Lordships declared
that the doctor had to leave his medical profession to enroll himself as
an advocate.
The case of Vijay Cotton Mills is already discussed in this thesis
8.20 THE RIGHT TO PURE ENVIRONMENT [AIR/WATER/PEACE] [35]

There are two basic conceptions of environmental human rights in the


current human rights system. The first is that the right to a healthy or
adequate environment is itself a human right as seen in both Article 24
of (ACHPR) the African Charter on Human and
Peoples' Rights, and Article 11 of the San Salvador Protocol to the
American Convention on Human Rights

In M C Mehta V Union Of India [1987.Scc.463] In this PIL from the great


social activist lawyer Shri M C Mehta put the position of the water
polluting tanneries on the banks of the sacred river Ganga. The
Supreme Court of India immediately took the cognizance of the same
and ordered the State Government to stop the trade which was
becoming an impediment in the Right to Water. Shri Mehta’s
contribution is now recognized on international level.

Recently on July 28, 2010, the United Nations General Assembly


declared water and sanitation as human rights. Today all States have
at least ratified one human rights convention which explicitly or
implicitly recognizes the right, and they all have signed at least one
political declaration recognizing this right.
8.21 WORLD HEALTH ORGANIZATION [36]

Reproductive rights were first established as a subset of human rights


at the United Nations 1968 International Conference on Human Rights.
The sixteenth article of the resulting Proclamation of Teheran states,
"Parents have a basic human right to determine freely and responsibly
the number and the spacing of their children,

In Kirloskar Bros V Esi Corporation [1996.2 Scc. 682] In this case the
Supreme Court of India declared that the Right to Life includesthe
Right to Health. These rights are available not only against State but
also against private industries.
8.22. INFORMATION AND COMMUNICATION TECHNOLOGIES

In October 2009, Finland's Ministry of Transport and Communications


announced that every person in Finland would have the legal right to
[128]
Internet access. Since July 2010, the government has legally
obligated telecommunications companies to offer broadband Internet
access to every permanent residence and office. The connection must
be "reasonably priced" and have a downstream rate of at least 1
Mbit/s. The researcher thinks that such a right must be available to the
Indian citizens.
8.23 RIGHT TO ASYLUM[37]

Non-refoulement is the right not to be returned to a place of


persecution and is the foundation for international refugee law, as
outlined in the 1951 Convention Relating to the Status of Refugees.
Both the right to non-refoulement and the right to asylum have
taken center stage in recent debates over the treatment of refugees. A
central worry about the right to asylum is that it can limit a states
power to handle a mass influx of refugees. Processing asylum
applications can take a considerable amount of time, and this amount
rises with the amount of refugees applying. This creates an incentive
for more refugees to apply, since they are allowed to stay in the
country during the application process. One potential solution to the
problem of mass influx is proposed by political philosopher Andy
Lamey. Lamey proposes a portable procedural model that focuses on
the right to non-refoulement. Crucially, the procedural rights defended
by this model can be applied outside national borders, within any
rights respecting country; this allows the burden of mass influx to be
shared by a plurality of countries without violating the procedural
rights of the refugee. The terrorism is increasing throughout the world.
Recently a Syrian family was going to some European country-whoever
was going to accommodate them. They had to travel a long sea
distance in an old motor boat. Their small son could not bear the
upheavels of the voyage. He unfortunately died when the long
formalities of providing asylum for some typical quantity of refugees
was being discussed in the air conditioned halls among the politicians
of the advanced nations. The Right to Assylum is a must in the modern
age.

8.24 CONCLUSION

In the conclusion we can firmly say that the Supreme Court of India
has done a landmark task of the Golden Interpretation of the
Protection of Human Rights. The Court has really expanded the sphere
of the human rights so that a common citizen may get the fruits of the
liberal democracy. The researcher thinks that there is still much need
to propagate the human right education.

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