Nirma University

Institute of Law
Human Rights Jurisprudence Indian
Context

Jurisprudence
(Academic Year 2015-16)

Submitted To
Ms. Nanda Pardhey
Project Coordinator
Jurisprudence

Submitted By
Ashwin Shrivastava
11BBl115
B.Com. LL.B.
1

:Index:
Sr. No.

Subject

CHAPTER I - RESEARCH METHODOLOGY

CHAPTER II - INTRODUCTION

CHAPTER III - JURISPRUDENTIAL STUDY

CHAPTER IV - ANALYSIS ON INDIAN LEGAL

PROVISIONS

12

CHAPTER V - COMPARITIVE STUDY

18

CHAPTER VI - CONCLUSION

21

CHAPTER VI - SUGGESSTIONS/
RECOMMENDATIONS

Page No.

22

CHAPTER I: RESEARCH METHODOLOGY

The present project attempts to trace out the historical background of the Concept of Human
Rights in India and to critically evaluate the relevance of existing legal system and framework
in order to contribute in a extensive understanding of the concept. Therefore, the present study is
an attempt to fill up this gap. For the purpose of this study, the many theories of various jurists
are taken for consideration.
As far as methodological part of this study is concerned, the study is based on secondary data
sources. Existing literature, reports and consultation papers of various distinguished authors,
reports of Government of India and other reports have been consulted to attain the objectives of
the study.

CHAPTER II: INTRODUCTION

Human rights are a result of a philosophical civil argument that has boiled over for more than
two thousand years inside the European social orders and their pioneer relatives. This contention
has concentrated on a quest for good gauges of political association and conduct that is
autonomous of the contemporary society. As it were, numerous individuals have been unsatisfied
with the idea that what is correct or great is essentially what a specific culture or decision tip top
feels is correct or great at any given time. This unease has prompted a journey for persisting
good objectives that tie social orders and their leaders over the long run and from spot to place.
Furious verbal confrontations boiled over among political thinkers as these issue were contended
through. While a way was cleared by progressive masterminds that prompt contemporary human
rights, a second path was set down in the meantime by the individuals who opposed this bearing.
The development of human rights from the common rights convention did not come without
restriction, as some contended that rights could just from the law of a specific culture and
couldn't originate from any characteristic or inborn source. The pith of this level headed
discussion proceeds with today from seeds sown by past eras of logicians.

The earliest philosophies to human rights might be found in the accepted wisdom of `natural
right' urbanized by classical Greek philosophers, such as Aristotle, but this concept was more
fully developed by Thomas Aquinas in his Summa Theologica1. For several centuries Aquinas'
conception held influence: there were goods or behaviours that were naturally right (or wrong)
because God meant it so. What was naturally right could be established by humans by `right
reason' - thinking properly. Hugo Grotius2 further expanded on this notion in De jure belli et
paci, where he advocated the immutability of what is naturally right and wrong:
Now the Law of Nature is so unalterable, that it cannot be changed even by God himself. For
although the power of God is infinite, yet there are some things, to which it does not
extend.. ...Thus two and two must make four, nor is it possible otherwise; nor, again,
can what is really evil not be evil. 3
1

Summa Theologi of St. Thomas Aquinas, ST I-II, Q. 3, Art. 2, ad.

Hugo Grotius, The Law of War and Peace, ....p.22
3
Ibid
2

The ethical power of characteristic right was guaranteed in light of the fact that it had divine
origin. As a result, God chose what breaking points ought to be set on the human political action.
However the long haul trouble for this train of political thought lay exactly in its religious
establishments.

As the reformation got on and ministerial power was taken aback and tested by logic, political
savants contended for new bases of regular right. Thomas Hobbes corresponded to the first
significant hit in 1651 on the heavenly premise of regular right by portraying a State of Nature
in which God did not appear to assume any element. Maybe all the more essentially, be that as it
may, Hobbes moreover made a critical jump from `natural right' to `a regular right'. As such,
there was no more simply a neglected of conduct that was regularly right or wrong; Hobbes
integrated that there could be some case or privilege which was gotten from nature. In Hobbes'
viewpoint, this regular right was one of insurance toward oneself.

Further support of characteristic rights accompanied Immanuel Kant's compositions later in the
seventeenth century that responded to Hobbes' work. In his view, the gathering of people into a
statestructured society came about because of a sound requirement for assurance from one
another's viciousness that would be found in a condition of nature. Then again, the key
prerequisites of profound quality obliged that each one treat an alternate as indicated by
widespread standards. Kant's political precept was gotten from his ethical reasoning, and as
being what is indicated he contended that a state must be sorted out through the burden of, and
compliance to, laws that connected all around; by the by, these laws ought to appreciation the
uniformity, flexibility, and self-rule of the subjects. Along these lines Kant, endorsed that
essential rights were important for common society:
A true system of politics cannot therefore take a single step without first paying tribute to
morality. ...The rights of man must be held sacred, however great a sacrifice the ruling
power must make4

Immanuel Kant, "Perpetual Peace," in Hans Reiss (ed.), Kant: Political Writings, 2nd.ed., Cambridge: Cambridge
University Press, 1991, p.125.

Consequently, the historical backdrop of political rationality has been one of a few hundreds of
years of open deliberation. The offspring of common rights savants, human rights, now hold an
effective place in contemporary political awareness. Notwithstanding, not one or the other
dominant faith in, nor even a agreement of backing for human rights don't answer the concerns
raised by the prior masterminds - are rights really the result of a specific vision and laws of a
general public? Then again, are human rights so intrinsic in humanness that their birthplaces and
establishments are incontestable?
A further trouble, with significant ramifications, that human rights speculations need to succeed
is their rising up out of these Western political customs. Not just are they a result of European
characteristic rights, however the specific rights that are seen as `natural' have been significantly
molded by the progressivism that developed in the nineteenth and twentieth hundreds of years.
With human rights, the logical structure of the regular rights custom now serves as a vehicle for
the estimations of Western progressivism.

A simple and compelling feedback is that human rights can't be general. In their fundamental
idea they are a Western creation, based on the European custom that people are distinct from
their general public. Anyway one may address whether these rights can apply to collectivist or
communitarian social orders that view the single person as a unified component of the entire
society. Westerners, and numerous others, now put a high esteem on each singular human;
however this is not a quality ruling that is all comprehensive. There is substantive opposition on
the level of, or even the necessity for, any insurance of people against their society.
Notwithstanding this issue with the idea itself, there are solid complaints to the way in which
human rights have been conceptualized. Numerous arrangements of human rights read like
particulars for liberal majority rule government. An assortment of conventional social orders can
be found in the world that work amicably, however are not focused around equity without taking
into consideration general suffrage.
A question that will repeat in later exchanges is whether the `human rights' pushed today are
truly social liberties that relate to a specific - liberal - origination of society. To a vast degree, the
determination of this issue relies on a definitive objective of human rights. On the off chance that
6

human rights are truly surrogate progressivism, then it will be alongside difficult to contend their
intrinsic power over contending political qualities. In place for human rights to appreciate
general authenticity they must have a premise that survives charges of ideological government.
Human rights must have an all around worthy premise with the goal there should be any
significant measure of consistence.

DEVELPOMENT TOWARDS HUMAN RIGHTS:

A very clear idea about the way of development human rights can be gathered from the different
reasons that progressed for holding them. A prime concern is to offer assurance from
overbearing and tyrant counts. Fanciful or abusive measures of a dictatorial government may be
obliged with the distinguishment of incomparable good cutoff points on any government's
flexibility of activity. Anyhow even among governments that are truly restricted by moral
contemplations, there may at present be a need to shield the masses from utilitarian choice
making. More noteworthy else's benefit of the entire society may prompt reparation or misuse of
minority hobbies. Then again, the procurement of essential advantages inside the general public
may be restricted by counts that open assets ought to be spent on different ventures.
The fascination of human rights is that they are regularly thought to exist past the determination
of particular social orders. Therefore, they set an all inclusive standard that can be utilized to
judge any general public. Human rights give an adequate seat mark with which people or
governments from one piece of the world may reprimand the standards took after by other
governments or societies. With an acknowledgement of human rights, Moslems, Hindus,
Christians, industrialists, communists, vote based systems, or tribal theocracies might all
genuinely reprimand each other. This feedback crosswise over religious, political, and monetary
partitions picks up its authenticity since human rights are said to revere general good
benchmarks. Without completely general human rights, one is left just attempting to affirm that
one's own specific manner of speculation is superior to some individual else's.
The prime expository profit of human rights is that they are seen as being so fundamental thus
key to human presence that they ought to trump whatever other thought. Pretty much as Dworkin
has contended that any origination of `rights' trumps different claims inside a general public,

human rights may be of a higher request that supersedes much different rights asserts inside a
society.5
Different inspirations for human rights may originate from an alarm of the results of denying
their presence. On account of the cash given human rights in contemporary political verbal
confrontation, there is a risk that such a refusal will give backing to merciless administrations
who protect their suppression because worldwide human rights standards are basically a
whimsical creation that has no widespread power. The United Nations gathering on human rights
held in Vienna in 1993 saw a percentage of the world's most harsh governments making exactly
this contention, and few individuals would wish to give further defense to this position. In
expansion, a lot of political promotion depends on human rights talk to give a legitimating good
compel. Without the speak to human rights, majority rule champions would need to contend the
allure of qualities, for example, balance and the right to speak freely over the regularly
exceptional circumstances of the world's social orders, instead of declaring that such profits
simply inalienably spill out of human presence.6

Tom Campbell, The Left and Rights: A Conceptual Analysis of the Idea of Socialist Rights, London: Routledge

and Kegan Paul, 1983.

6

Douglas Husak, "The Motivation for Human Rights", (1985) 11 Social Theory and Practice, 249-255

CHAPTER III: JURISPRUDENTIAL STUDY

Numerous jurists and authors have contended that human rights exist with a specific end goal to
secure the essential dignity of human existence. Without a doubt, the United Nations Declaration
on Human Rights symbolized this objective by pronouncing that human rights stream from "the
inalienable dignity of the human individual". Concrete arguments have been made, particularly
by western liberals, that human rights must be keeping pace to protected and to proceed human
dignity. As Jack Donnelly has thought of, "We have human rights not to the imperatives for
wellbeing yet to those things `needed' for a life of respect, for a life deserving of an individual, a
life that can't be delighted in without these rights" (original importance).7 This perspective is
maybe the most pervasively held, particularly among human rights activists; the talk of humanrights question most habitually summons this thought of striving for the nobility that makes
human life worth living. The thought of advancing human pride has extensive offer, since human
life is given a unique weight over different creatures in many social orders decisively on the
grounds that we are equipped for developing the nature of our lives.
Sadly, the advancement of human dignity may well give a shaky establishment to the
development of all inclusive good measures. The intrinsic shortcoming of this methodology lies
in attempting to recognize the way of this dignity. Donnelly 8 unwittingly uncovers this
inadequacy in developing the purposeful human activity that makes human rights. "Human rights
speak to a social decision of a specific good vision of human possibility, which rests on a
specific substantive record of the base necessities of a life of respect".
Human Dignity is an extremely versatile idea and the substance given to it is all that much an
ethical decision, furthermore a specific origination of nobility gets to be foremost. Yet, who
settles on this decision and why ought to one origination beat different perspectives of nobility?
Indeed general dismissal of extraordinary affirmations of respect may not show concurrence on a
center substance. There power be across the board scorn of my statement that I can just lead a
really honorable life in the event that I am encompassed by 100 gushing adoration slaves. Yet
7

Jack Donnelly, Universal Human Rights in Theory and Practice, Ithaca: Cornell University Press, 1989,
p.17.
8
Ibid ,,p17

dissatisfaction with the absence of balance in my vision of nobility does not so much exhibit that
equity is an all inclusive part of human dignity.

While a standout amongst the most fundamental liberal convictions about human nobility is that
all people are equivalent, social division and chain of command assume vital parts in parts of
Hindu, Confucian, Muslim, what's more Roman Catholic perspectives of human life. To be sure,
`dignity' is regularly accomplished in these perspectives by striving to satisfy one's specific
livelihood inside a requested set of parts. Anyway, if human rights are intended to be all
inclusive gauges, the inalienable pride that should be secured ought to be a typical vision.
Without sufficient shared characteristic, poise can't suffice as a definitive objective of human
rights.

An option premise for human rights draws from the necessities for human prosperity. One
promoter of this methodology, Allan Gewirth, would concur with Donnelly that human rights are
attracted substance from mankind's ethical nature, however Gewirth does not take after
Donnelly's conclusion that human rights are an ethical vision of human poise, rather, Gewirth
contends that "existence or activity is the regular subject of all ethical quality and practice". 9

Human rights are a result of ethical quality as well as ensure the essential flexibility and
prosperity important for human existence. Gewirth recognized three sorts of rights that address
distinctive levels of prosperity. Fundamental rights protect one's subsistence or essential
prosperity.

Non-subtractive rights keep up the limit for satisfying purposive office, while added substance
rights give the requirements to adding to one's capacities - for example, instruction. Gewirth
separates between these rights in light of the fact that he acknowledges that people shift
massively in their limit for purposive org. Through what he calls the guideline of proportionality,
people are qualified for those rights that are proportionate to their ability for organization.
Accordingly, people who are irrational just have essential rights to subsistence, since they are
inadequate of any purposive activity.
9

Allan Gewirth, "Why There Are Human Rights", (1985) 11 Social Theory and Practice, 235-248, p.235.

10

The final alternative basis for human rights would provide the needs for human existence. 10
Human rights may be constrained to giving all people the requirements for their physical
subsistence. At the same time, this subsistence would include a certain level of negligible solace
past only keeping one's organs working, in light of the fact that human subsistence likewise
comprises of being ableto capacity. Promoters of alternate methodologies to human rights have
rejected needs to subsistence as excessively restricted an establishment; however this feedback
may not represent the consequences that spill out of the scope of human needs. Human rights
would ensure the procurement of the sustenance, attire, and sanctuary without which anybody
would die. Likewise, fundamental human services guarantees human survival; my grandma
passed on in 1924 from a ruptured appendix, while I am alive today on the grounds that an
operation was accessible for my own assault of a ruptured appendix in 1968. Since most families
are not just furnished with the necessities to life yet purchase them with the wages of their work,
one can undoubtedly develop the scope of human rights into different profits identifying with the
work power. This expansion is especially genuine if the fulfillment of necessities is refined not
by specifically supplying the particular products required, yet in giving the ability to people to
accommodate themselves. In an expansive communist perspective, work ought to be ensured to
all that are competent. In a more confined perspective, the instruction important to acquiring the
work expected to support oneself is a human right. Consequently, human rights can cover a
substantial, and exceptionally extravagant, cluster of social-welfare programs. Very much a
central renewal of most political frameworks would happen if governments genuinely tended to
welfare programs as vital human rights.

These views delineate that the establishment for human rights may be not one or the other plainly
obvious nor generally acknowledged. One picks, expressly or certainly a specific defense or
premise for human rights, and that decision will have critical results upon the scope of profits
that fall inside human rights. Decision invades human rights from their origination to their
conveyance, and those decisions may well undermine the very establishment of human rights
moral influence.

10

Johan Galtung, Human Rights in Another Key, Cammbridge, Mass: Polity Press, 1994.

11

CHAPTER 4: ANALYSIS ON INDIAN LEGAL PROVISIONS

In the Indian context, it can be acknowledged that parts III and IV of Indian constitution along
with preamble to the constitution, even before the declaration of human rights, personified the
concepts of human right. Additionally, India is now a party to sixteen International treaties
relating to Human rights including the International Covenant on Economic and Social and
Cultural Rights and civil and political rights. It consist of International Convention on Racial
Discrimination, Covenant on Right of child and the political rights of women; slaves convention,
etc.
With the rising concept of welfare state and democracy in India, state guided to the trend of
assuring basic human rights in constitution itself. It presumes that every citizen has a right to life
and liberty and security of a person, free will or freeness from servitude etc. And making certain
equality before law11 and equal protection of law for everyone. Therefore, it is evident that the
Indian legal system from the very inception of the constitution has reacted well to the Human
Rights activism.
The preamble to the constitution which is committed to the plan of communist model of society,
has ensured social, financial and political equity, freedom of thought, interpretation and
conviction, confidence and love, fairness of status and chance to all with no segregation as to
race, rank, sex, religion, spot of conception, and so on. The constitution of India additionally
accommodates the right to speak freely and representation, tranquil get together and opportunity
of calling, practice and engendering of religion and instructive and social rights. The constitution
additionally gives reprimand to these rights by making them enforceable by immediate access to
the Supreme Court or the High Court through sacred plans.
The S.C. what's more H.C. has opened new measurement to the idea of Human Right
development by generously deciphering and growing the importance of Basic Human Right.
There are number of situations where the idea of human rights has been given greater
measurement through legal activism. Subsequently, the privilege to life and individual freedom
has been deciphered so generously that now it covers inside its ambit mixture of rights and
incorporates Right to satisfactory nourishment, garments and haven, right to wholesome
11

Article 14 of The Constitution of India.

12

environment, right to fast trial; right to lawful support to poor, right to know, right to pay, and so
on.
Consequently it is said constitution of India through legal activism assuming an unequivocal part
in usage of human right. These days human right rationality completely followed in India and it
is base of constitution of India. Vienna Conference on human rights on June 25, 1993 prescribed
that each state should give on compelling systems of hardware or foundation to give cures in the
event of infringement of human rights.
After this conference several states including India established National Human Right
Commission to redress human right grumbles or infringements and as per the Article 51 of the
Indian constitution state should strive to:
(a) Promote international peace and security.
(b) Maintain just and honourable relations between nation, etc. pursuant to the direction
enshrined in Article 51 of the constitution and International Commitments, Parliament has
passed the protection of Human Rights Act, 1993 and then set up a National Human Rights
Commission from 1993.
The National Human Rights Commission is concocted to give force to go into occasions of
carelessness from open administration faculty in averting Violations National Human Right
Commission (NHRC) has rendered a solitary administration for the reason for recognition of
human rights, particularly in the field of Civil Liberties. NHRC's intercession in a portion of the
human right infringement cases outlines the Service it is accomplishing for reason for human
rights assurance particularly in the field of Civil Liberties. Case in point its work in the field of
avoidance of custodial passings, assault and torment has been very commendable. NHRC acts as
a check over freak cops and it is a kind of cautioning to the cops that in the event that they abuse
their energy or submit abundances, they may be punished for this. NHRC's bearings to all
District Magistrates and Superintendents of Police to answer to the Commission all occurrences
of custodial passing or assault inside twenty four hours has had an exceptionally helpful effect in
anticipating such episodes NHRC work's extraordinary and it has roused the certainty of the
individuals.

13

In Landmark Judgment in National Human Rights Commission v. Condition of Arunachal

Pradesh

For this situation "PIL" documented by NHRC for implementing the rights under Article 21 of
the constitution of around 65,000 Chakmas. The All Arunachal Pradesh Student Union had
debilitated to coercively remove them from the state; the Supreme Court held that the state is
sure to secure the life and freedom of each individual whether he is a resident or non-native.

S.C. additionally requested to ensure all "Chakmas" from any endeavor to persuasively expel or
drive them out of state by All Arunachal Pradesh Student Union and Court likewise guided the
state to pay to the applicant (NHRC) Rs. 10,000 as expense of the appeal for bringing the matter
in the witness of the court. This shows up the significant works of NHRC in India.

The Commission has turned into a kind of circuitous however powerful scout the wrongdoings,
overabundances, misuse of force of police, now due to such work of commission. Police
authorities will need to think a few times before endeavoring such misfortunes. The
aforementioned talk uncovers that NHRC and the legal are assuming a viable part in execution of
human rights, however in spite of this, the quantity of human rights infringement cases is
continually expanding especially in the conditions of Bihar, Uttar Pradesh, Jharkhand and
Naxalite regions along these lines it is said that NHRC is a frail or barren body and unfit to
handle the issues of developing human right infringement.

Since it is said that, however it has been depended with the imperative work of guaranteeing
recognition of human right, yet the forces presented on it are not sufficient, it has no force to take
a coupling choice, it can just suggest, NHRC has no autonomous and separate examining
organization and needs to use and depend upon the administration of any officer or exploring
office of the Central or State Government. The concerned Government or the power is not bound
14

to acknowledge the suggestions or may acknowledge the proposals with certain change as it may
consider fit.

The genuine desert in the usage of work of NHRC is that the definition gives in area 2(d) of the
Protection of Human Rights Act is exceptionally thin. It is not fitting to breaking point the
human rights just to the rights identifying with life, freedom, uniformity and nobility of the
individual despite the fact that they are the most essential fundamental human rights.

It is likewise said that, as indicated by Act, foundation of State Human Rights Commission as
per Art. 21 (1) is optional for state and not obligatory thus just few states have so far settled State
Human Rights Commission. Once more, it is said that human rights' idea not appropriately
actualized on the grounds that there is no solid locale of human rights court and no distinct
purview detailed in the Act, it is not clear what cases will be directed in such courts and what
technique should be followed in such court thus it is dependably that assurance of human rights
act itself is a reason of loss of power of NHRC or loss of power in usage of human rights in
India. Thus it is said that the position of Human Rights Commission in India is a long way from
palatable. In any case separated from such inadequacies yet it would not be right to say that
National Human Rights Commission has no teeth or there were not any laudable and
praiseworthy work done on account of infringement of human rights. Since as per Section 18 (G)
of the Act.

It is obligatory for the commission to distribute its request report together with the remarks of the
concerned Government or power, and such report when distributed makes solid general feeling
thus the Central Government or State Government will need to think a few times before choosing
to dodge or decline to actualize the suggestions of commission.

15

Since no Government in a popularity based nation like our own can stand to oppose or maintain
a strategic distance from such general supposition on the grounds that Government constantly
attempted to be in force, so it is said that popular conclusion is a coupling power of human right
execution of commission thus as opposed to being hesitant or appalling, the Government will be
so eager it is not possible acknowledge and execute the suggestions of the commission. Yet
despite the fact that beyond any doubt thin meaning of 'human right' in Act restrains the extent of
commission to guarantee the recognition of human right. Anyhow Supreme Court these days
perceived various separate and free crucial rights as being either piece of the current major rights
or rights radiating from them.

Additionally, the S.C. has perceived in various cases, International Conventions on human rights
can be utilized as a part of deciphering the protected procurements. Presently key rights, for
example, right to sex equity and forbiddance of lewd behavior of working ladies at their work
environments, can be perceived in future by the Supreme Court.

In this manner, it might be presumed that regardless of a few deficiencies and downsides in the
Act, the commission, practically speaking has ended up being a powerful body for the
recognition of human rights in the nation inside a brief time, i.e., just a couple of years, it has
performed respectable and commendable works and Government ought to for the most part
acknowledge and quickly execute the suggestions of commission. For instance, in the audit of
Acts and statutes, for example, Terrorist and Disruptive Activities (Prevention) Act, 1987 TADA
and Prevention of Terrorism (POT) Bill, 2000

As a result of this demeanor, in some cases normal masses abhor over accentuation of human
right rationality, and this is dependably a contraversile issue in India there are numerous
instances of such circumstances show up in India. Particularly, there has been a hot talk on this
subject in whole India, when two crooks Chalapathi Rao and Vijayavardhana Rao (in
Chilakalooripeta transport looting, blazing and 32 travelers smoldering case) granted capital
16

punishment, Human right activists restricted the judgment and said that it is unhuman and the
death penalty is merciless, and so forth thus normal masses communicates their grievance against
such activists, that however, such offenders conferred unhuman act why?

Human right activists help them, and due to such general accentuation of Human right rationality
on inordinate reorganization of culprits and cancelation of capital punishment. Human right
rationality, these days contempted by normal masses.

17

CHAPTER 5: COMPARITIVE STUDY

When we inspect the historical backdrop of recent years of autonomous India, one of the
amazing accomplishments of this period that quickly rings a bell is the advancement of the
human rights statute. The Indian Supreme Court has played an special part in this respect, maybe
exceptional to some other court on the planet. Without a doubt, the Indian Supreme Court is a
standout amongst the most influential courts on the planet. It is immediately a government court,
a court of request, a gatekeeper of the Constitution and a court of record as in the law proclaimed
by it is tying on all different courts inside the domain of India. Its purview stretches out to
around 900 million individuals and it has the force of legal survey over official activity as well as
enactment and broadens indeed to looking into the legitimacy of Constitutional corrections - a
force endless in many parts of the world.

In Gopalan V. State of Madras (1950) and Jaynarayan V. State of West Bengal (1970), the
Indian Supreme Court had, in any case, propounded the perspective that by receiving the
articulation "rule established by law", Art. 21 of the Indian Constitution had typified the English
idea of individual freedom in preference to that of American standard of "Due Process of
Law"(5th and fourteenth Amendments of the US Constitution) which secures Americans against
discretionary official activities as well as against any enactment the court may see as undue,
unreasonable or unreasonable.

Indian court held that the perspective that not at all like the American Constitution, the
establishing fathers of our Constitution favored the matchless quality of the officials to that of
the legal. In that capacity, they accepted that like the British Constitution, individual freedom in
India was "a freedom limited and controlled by law", despite the fact that the minority of judges
in the Gopalan's case held that such a translation of Art. 21 could just toss "the most imperative
central right to life and individual freedom" "helpless before authoritative dominant parts".

The majority opinion of the Supreme Court had reasons to make a restricted interpretation of the
right to personal liberty granted by Art. 21 of the Constitution. It may be recalled here that the
Drafting Committee of the Constitution Assembly, headed by Dr B R Ambedkar, had rejected

18

the "due process" clause proposed by B. N. Rau. This was done after a detailed scrutiny of the
Constitutional Advisor's draft of the Constitution and other matters, notes, reports and
memoranda placed before it. Undoubtedly, the founding fathers of the Constitution could not
anticipate the irresponsible and highly selfish behavior of present legislators. Unlike American
counterparts, they, therefore, placed certain trust in them. Once, however, our elected
representatives began to increasingly display their scant regard for democratic ethos and popular
welfare, the Supreme Court had to come forward to safeguard a common individual's rights.
After a long struggle, which may be said to have started tangibly since 1971, the minority view
in Gopalan's case could, therefore, come to triumph in the 7-Judge landmark decision in the
Maneka V. Union of India case (1978). In that case, the Supreme Court held that the procedure
contemplated by Article 21 was not any procedure, but had to be just, reasonable and fair. For
the first tme, it took the view that Art 21 afforded protection not only aginst executive action but
also against legislation. The court thus introduced in the Constitution the procedural due process
of the American Constitution. From Gopalan to Meneka, thus, the judicial exploration completed
its trek from the North to the South Pole. The decision in Maneka's case has been followed by
the Supreme Court in subsequent cases such as Sunil V. Delhi Administration (1978), Hassainara
V State of Bihar (1979), State of Maharastra V. Champaklal (1981); and Sher Singh V. State of
Punjab (1983), etc. The Supreme Court developed through these cases three notable basic
commitments to human rights in the last few years. First is the commitment to participative
justice, the second is the commitment against arbitrariness and third is the commitment to just
standard of procedure.

The Supreme Court affirmed its commitment to just standards of procedure in preventing
administrative regression. Relaying on the requirements of a reasonable, fair and just procedure,
the court made legal aid to a poor accused in a criminal case a constitutional right by treating it
as an integral part of a reasonable, fair and just procedure. It also held speedy justice in a
criminal case to be part of a reasonable, fair and just procedure. In the process, the Supreme
Court repudiated its traditional view that fundamental rights merely impose negative restrictions
on the state. Since the landmark judgment of the Meneka Ganhdi case, the court started reading
fundamental rights as imposing affirmative obligations on the state. It marked the beginning of a
new era of judicial activism. It further expanded the scope and ambit of Article 21 by placing an
19

expansive interpretation on the right to life enshrined in that Article in the Francis Coral Mullin
case. In this case the court held that the word "life" did not mean a mere physical or animal
existence but included the use of every limb and faculty through which life was enjoyed and also
a safe and healthy environment was included in the right to life. The right to travel abroad was
also recognized as an integral part of right life and personal liberty.

As far as India is concerned, there is no contradiction between the individual and the social good
and natural rights and development. India's Constitution guarantees all human rights and
fundamental freedoms as conceptualized in the Universal Declaration, and recognizes certain
unalienable rights that are inherent to the concept of the dignity of man. At the same time, human
rights are not limited to the protective aspect. It includes the notion that a man must have the
space and the means to achieve freedom. Both democracy and development contribute to human
rights in that they promote freedom of thought, action, and existence. In the politicized discourse
on human rights in the U.N. human rights fora, the development argument is portrayed as an
excuse to justify political repression or human rights violations for the greater good of society.
While this may be true in some instances there are also instances in which the West has sided
with such policies rather than opposed them. To generalize from singular instances would be
unwarranted and unjustified. Similarly, attempts to promote civil and political rights in countries
that blatantly violate such rights should not be uniformly portrayed as political interference.

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CHAPTER 6: CONCLUSION
India is a nation that took the lead fifty years ago to embrace human rights both in the U.N.
Charter and in its own Constitution. Its people are reasonably self-righteous of their social and
philosophical traditions of humanism and universalism based on peacefulness, forbearance,
pluralism, coexistence, and the individual pursuit of truth. These values are deep-rooted in its
culture and marked in national figures such as Lord Buddha, Emperor Akbar, Rabindranath
Tagore, and Mahatma Gandhi. India has demonstrated its commitment to democracy and the
development of human rights in all parts of the world. Significantly, India's commitment to
human rights preceded the Universal Declaration by anticipating the 1996 Covenants and
proclaiming and guaranteeing basic human rights and fundamental freedoms for all citizens,
irrespective of caste, creed, race, religion, or sex. India's interpretation of the duties and
obligations of states under the 1996 Covenants is that each state must strive to recognize and
give effect to the various rights and duties embodied in the 1996 Covenants through the best
avenues available to it. India recognizes that a country's size, population, social structure, and
political environment can effect the assurance of such rights. Furthermore, India embraces
cultural differences, and supports the ideal that every faction in society, irrespective of ethnic
origin, color, caste, sex, or religious belief, should be able to enjoy protected human rights. India
also perceives it as a duty of the State to promote awareness of rights among its own people and
to provide adequate and effective machinery to ensure observance of such rights. India fully
recognizes, consistent with what is stated in the preamble of its Constitution, that every
individual has a duty to other individuals and to the community to observe the rights recognized
therein and to take preventive measures to ensure that the community as a whole is not deprived
of enjoyment of its rights at the hands of individuals or groups of individuals. This duty is
particularly important considering the increase in acts of terrorism and other disruptive activities.
India firmly believes that a country's overall performance and its resolve to translate into reality
the enjoyment of rights by its people is of paramount importance.

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CHAPTER 7: SUGGESSTIONS/RECOMMENDATIONS
The Indian legal system suffers the politicization of western ideas and the over impact of western
ideas of human rights. We require a more cooperative and holistic view of human rights system.
Merely adapting and implementing the ideas and agendas of other developed worlds would never
solve the major issues that our legal, social and political system face. The very thing that we
have adopted the human right agendas directly from the west and did not think about our own
problems is the error in the philosophy of Human Rights in Indian context.

Double standards, selectivity, politicization, self-righteousness, and partial approaches towards

the observation of human rights rekindled a divide. This was accompanied by assertions of a
dubious moral superiority, insinuations of 'bad faith' on the part of others, and misuse of political
pressure against the developing world. These tendencies, as well as the apparent appropriation of
human rights discourse by the West, have affected the credibility of the human rights agenda
among many developing countries. For the most part, critics of the U.N. human rights agenda
focus on the Western influence on such agenda.undamentally, this criticism proceeds along two
lines. The first line questions the human rights credentials of the West itself and its position as
supporter of human rights. The second line of criticism analyzes the distortions and flaws
inherent in the system and the forms it takes in the conduct of international relations. Similarly,
there are criticisms of developing countries for their lack of emphasis on civil and political
rights.

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