Brain Booster Articles
Updated: Feb 12, 2021
Author: Ashutosh Chhipa, III year of B.B.A., LL.B.(Hons.) from ICFAI University, Jaipur
The existence of mankind is evolving and this evolution is leading to the need for governing laws that have the roots in the rights and responsibilities of an individual in society. From theory about basic and essential rights of Life, Liberty, and Property to these great conventions and declarations the emphasis is given on the need for Human Rights for every individual irrespective of any social, cultural, or political circumstances.
As the name suggests and we all understood, it is the rights for a Human and responsibility to others for the right of one. This supports that we have certain rights and privileges which are fundamental and should be protected from the others. Human Rights includes all kinds of rights like Civil, Political, Economic, Social, Cultural, and collective rights, which must be protected by the State at the National and International level. The Municipal Law must be inconsistent with the international treaties and conventions on Human Rights.
Internationally, Human Rights are recognized as universally applicable, inalienable, Interdependent, indivisible, Equal, non-discriminatory form of right. In the United Nations Human Rights Declaration, the incorporation of Human rights was given the utmost importance for the policymaking in any nation. The formulation of rights is regulated by the United Nation Human Rights Council among the Nations. The Importance of Human Rights is also reserved under the statute of International Court of Justice where the ICJ has the authority to take the appropriate action against the sovereign state if there is any violation of Human Rights.
The Human Rights Council is established to promote and protect Human Rights among the Nations. The council makes the necessary rules and recommendations to protect Human Rights. The council is empowered to decide the specific matter related to Human Rights. It monitors the protection of Human Rights among the nations around the globe. It has its headquarters in Geneva, Switzerland.
In India, the Apex court held that “welfare State cannot take the benefit arising out of the Doctrine of Adverse Possession”. India has various rights guaranteed under Chapter III of the Constitution, and the protection is ensured by the apex court i.e. Supreme court of India. The fundamental rights have gone through various decisions and changes but the basic nature and objective are secured by the Supreme court of India. India has also witnessed the various incidents of violating Human rights but the Justice has been served in all those cases and necessary steps have been taken like the use of armed force, judicial review, and legislation making. The great importance is given to Human Rights in India.
The Human Rights, like any other law are living in nature, which means they grow as per the time and need of the society by the way of various omissions, repeal and amendments. The Hon’ble Court said, “The Inevitable truth is that law is not static and immutable but ever-increasingly dynamic and grows with the ongoing passage of time.” And to understand the evolution in Human rights by studying various landmark judgements and legislatures of the Nation.
The author of this paper is trying to discuss the various landmark judgments that were delivered and made a special place in the evolution of Human Rights. The topic like Human Rights affects our lives in so many ways and its studies can be made from so many perspectives but here, the author is dealing with the current judicial pronouncements to examine the changes of the society. As D.Y Chandrachud J. said “When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been.”
Independent India was struggling to create its laws and functioning and during that time only, our judiciary interpreted the Constitution of India and ruled a meaning and scope of the detention in its landmark judgement of A.K. Gopalan Vs. The state of Madras while dealing with the legality of preventive detention act as violative of Article 13, 19, 21 and 22 of the Indian Constitution, the court held that if the detention was as per the procedure established by law, then it cannot be said that the law was violative of provisions contained in article 14, 19 and 21 of the Constitution. After the 28 years, the Supreme Court revisited the A.K. Gopalan’s case ruled that the mere existence of an enabling law was not enough to restrain personal liberty, “The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary.”
The major question of Human Rights in India was raised in India, when Emergency was imposed by then Prime Minister Mrs Indira Gandhi and the arrest and detention was challenged in the Supreme Court and the bench with the majority of 4:1 ruled out that the appeal of Habeas Corpus under Article 32 shall be suspended during the proclamation of the emergency. This Supreme Court ruling was overruled by the bench of nine judges in the case of Justice K.S. Puttaswamy (retd.) Vs. Union of India and Ors. And the dissent opinion of Justice Khanna was accepted by stating that “the ADM Jabalpur case which was an aberration in the constitutional jurisprudence of our country and the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection.”
The roots of Human Rights are given under Chapter III of the Constitution as the fundamental rights. The important of Fundamental Rights in the Indian Constitution is as the important importance of heart and soul in a body and the question of its amendment was first raised in the Supreme Court in the year of 1951, the Hon’ble Court interpreted the laws under Article 368 and Article 13(2) and established that the amendment can be made in chapter III as well. This view was reiterated in Sajjan Singh Vs. The state of Rajasthan but later on while the re-examined by the Court it was overruled by the majority of six to five saying that the legislature does not enjoy the power to amend part III of the Constitution to take away or abridge fundamental rights. Which was again overruled in the thirteen-judge bench landmark judgment of Kesavananda Bharati Sripadagalavaru V. State of Kerala and the most important evolution known as the Doctrine of basic structure was established and it was ruled that the amendment in the fundamental right are constitutional as far as it is not destroying the basic structure of the Constitution of India. The doctrine was basic structure was upheld in various other judgements and still is the base of any amendment in the constitution including the fundamental rights.
Another way of judicial activism and protection of Human Rights emerged with the way of Public Interest Litigation, which was introduced in the Indian system by providing the locus standi to any person who is willing to work for the society as a whole. Various court cases have found in a better shape with the involvement of social welfare organization who works pro bono for the protection of the fundamental rights of the people who are unable to approach the court due to various reasons like lake of money, knowledge and support etc. the philosophy of the Public Interest Litigation was explained by the Supreme Court in the case of Bandhua Mukti Morcha V. Union of India stating that “where a person or class of persons to whom legal injury is caused by reason of violation of a fundamental right is unable to approach the court of judicial redress on account of poverty or disability or socially or economically disadvantaged position, any member of the public acting bona fide can move the court for relief under Article 32 and a certiorari also under Article 226, so that the fundamental rights may be meaningful not only for the rich but also for the deprived people who by reason of lack of awareness, assertiveness and resources are unable to seek judicial redress.” The tool of Public Interest Litigation has been used to protect Human Rights in India.
Various philosophers with their numerous theories have a different way to look at the Human Rights but one is common among them i.e. right to life. This very own right came in question at multiple occasions in various cases. The landmark judgement for the understanding of the Human Right of life is dealt in the Public Interest Litigation filed by the Common Cause for Aruna Ramchandra Shanbaug where the Supreme Court examined the interpretation of the Article 21 of the Constitution of India and held that right to life and liberty does include the right to die with dignity. Aruna who was on PVS from 37 years and came into the age where she has no hopes to survive and the court allowed the passive enthusiasm with certain guidelines to be followed. This 2018 judgement is another landmark in the evolution of Human Rights in India.
The identity of an individual is another important aspect of the Human Rights, despite being Male and Female, India have not recognized the third gender in many years of independence but in the year 2014, the Hon’ble Supreme Court of Indiadealt with the question of the gender identity of the transgender person and the court held that the “Gender identity is integral to the dignity of an individual and is at the core of “personal autonomy” and “self-determination” and Article 14, 19 and 21 of the Constitution within their sweep include transgender and are not as such limited to the male or female gender.”
The protection of human rights extends to the right to privacy that every human deserves to some extent. The right to privacy was dealt with by the Supreme Court in the case of Justice K.S. Puttaswamy (retd.) Vs. Union of India and ors. (Aadhaar Case) held that right to privacy is an integral part of Article 21 of the Constitution of India and elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognized and guaranteed by the fundamental rights contained in Part III.
In recent times, with the recognition of the third gender, the apex court in the case of Navtej Singh Johar vs. Union of India A five-judge SC bench dealt with the phenomena of homosexuality and declared it no more as a crime, which was the crime in India before that. The decriminalization of homosexuality was a unanimous decision of all five judges and they observed that sexual orientation is an intrinsic element of liberty, dignity, privacy, individual autonomy and equality and that intimacy between consenting adults of the same-sex is beyond the legitimate interests of the state. The Supreme Court held section 377 of Indian Penal Code as violative of Article 14, 15, 19 and 21 of the Constitution of India. The recognition was given in the Transgender Persons (Protection of Rights) Act, 2019.
The right of life has multiple rights within it and the Court has examined various inherited rights under Article 21 of the Constitution. The right to have a healthy and safe environment is part of it. The Apex court in the case of MC Mehta Vs. Union of India laid down the principle of Absolute Liability and disapproved the principles of strict liability test and observed that the industries involved in the dealing of hazardous substances are liable for the loss caused by it. The Supreme court pronounced this landmark judgment to protect the Human Right of a healthy and safe environment.
The Human right of having a healthy and safe environment extends to the work environment and the same was dealt in the case of Vishaka & Ors vs State of Rajasthan &Ors.where the Supreme court issued certain guidelines to protect article 14, 19 and 21 of the women in the workplace. The Supreme court recognized the right and made it compulsory for the workplaces to have certain committees and limitations. The case and the guidelines were later becoming the reason for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
The right of women was not only protected in the workplace but also the domestic position of a woman was interfered by the Apex court to improve the condition like the right to have maintenance after divorce to a Muslim woman, the court held that the personal law shall not violate the fundamental rights which are based on the human rights. Similarly, the interest of Hindu women was protected by barring the man from his second marriage after the conversion into Islam where polygamy is allowed. The Supreme court always balanced the values of personal laws and constitutional morality. The legislature for the same is known as The Muslim Women (Protection of Rights on Marriage) Act, 2019.
In recent times, the Supreme Court presented another important judgement to protect the freedom of speech and expression of an individual by declaring the section 66A of the Information Technology Act as unconstitutional and upheld the values of the Rights guaranteed to the individual in its true sense. The judgement stuck about stuck down on a legislative statute denotes that even the legislature cannot make laws which are violative of Human Rights. The Court has always valued Human Rights and protected them in various judgements.
Summing up, India has upheld the values of Human Rights in its policies and functioning and the same has been guaranteed by the Supreme Court in its various Judgements. The author has tried to cover all major legislature and court judgements to understand the evolution of Human rights in India.
 Vidya Devi Vs. The State of Himachal Pradesh and Ors. on 8 January 2020
 Constitution of India, 1950
 S. Ratnaval Pandian, J. in Supreme Court Advocates on Record Association Vs. Union of India (1993) 4 SCC 441
 K.S. Puttaswamy (retd.) Vs. Union of India and ors., (2017) 10 SCC 1
 1950 SCR 88
 Constitution of India, 1950
 Article 14 of the Constitution of India.
Maneka Gandhi V. Union of India (AIR 1978 SC 597)
 ADM Jabalpur V. Shivakant Shukla, (1976) 2 SCC 521
 (2017) 10 SCC 1
 ADM Jabalpur V. Shivakant Shukla, (1976) 2 SCC 521
 B.R. Ambedkar (Constituent assembly)
Shankari Prasad V. Union of India, 1952 SCR 89 (1951)
 Constitution of India, 1950
 AIR 1965 SC 845
 AIR 1973 SC 1461
 Mumbai Kamgar Sabha, Bombay,AIR 1976 SC 1455
 1984 3 SCC 161
 Common Cause (A Regd. Society) vs Union of India on 9 March, 2018
 National Legal Services Authority vs Union Of India &Ors. (2014)
 2017 10 SCC 1
 (2018) 10 SCC 1
 Section 377 of the Indian Penal Code
 AIR 1987 SC 1086
 on 13 August, 1997
Mohd Ahmed Khan Vs. Shah Bano Begum AIR 1985 SC 945
Sarla Mudgal V. Union of India 1995 AIR 1531
 Shreya Singhal V. Union of India on 24 March, 2015
Ashutosh chhipa from 3rd year BBA.LLB(H.). He has completed his 12th from Commerce field at Sanskar public school, Bassi. Now, he is in the 3rd year. He has done an internship in various law firms like Akhil Modi and associates, philomath and high court of Rajasthan. About his achievements, he made achievements in National level like in Paper presentation, publishing a paper and so on. His hobbies are playing cricket, kabaddi and so on. He always tries to learn new things related to my stream and he always tries to master his skills.