Judiciary – Harbinger Of Human Rights


Rights of human beings today occupy the top most slots in priority, nationally and internationally, over other issues. With the growing tendencies of technologies and arbitrary and abuse of power, the very survival of human beings is under great threat. Large scale human violations take place in each and every corner of different states under the nose of the government. Under such circumstances, the role of judiciary in protecting human rights and assuring social security becomes crucial and more important. The judiciary in India has adopted creative and purposive approach in the interpretation of Fundamental Rights and Directive Principles of State policy enshrined under the Constitution of India. Protection of the dignity of the individual is an essential requisite of the civilised society. Each and every individual of the society is entitled to have inherent rights such rights have been ascribed as Human Rights.  Human beings are rational beings. They by being virtue of being human possess certain basic and inalienable rights which are commonly known as Human Rights. Since these rights belong to them because of their existence they become operative with their births. Human rights being the birth right are therefore are inherent in all individuals irrespective of their caste, creed, colour, religion, sex and nationality. Because of their immense significance to the human beings, human rights are also sometimes referred as fundamental rights, basic rights, inherent rights, natural rights and birth rights.[1] In general terminologies human rights may be referred as all those rights that all people have by virtue of being human are human rights. The idea of human rights is bound up with the idea of human dignity. Chief Justice of India J.S Verma has rightly stated that human dignity is the quintessence of human rights.[2] All those rights which are essential for the protection and maintenance of dignity of individual which create conditions in which every human being can develop his/her personality to the fullest extent may be termed as human rights.[3] Modern concept of Human rights is that the rights possessed by the Human beings in their natural capacity of being human and not because of any particular system of law under which they happen to live.

Human Rights in India

India being the largest democracy in the world the main objective of such democratic state is the protection of basic rights of the individuals. Also the Universal Declaration of human rights contains the civil, political, economic, social and cultural rights. The Constitution of India guarantees most of the rights contained in the Universal Declaration of Human Rights. Part III of the Constitution of India contains the civil and political rights whereas economic, social and cultural rights have been embodied under Part IV of the Constitution of India. The ideal and philosophy of the Constitution of India is enshrined under the Preamble which include protection of the dignity of the individual.  In order to fulfil the objectives mentioned in the Preamble, Part III of the Constitution of India guarantees fundamental rights to provide each and every individual with equal opportunities to develop themselves to the fullest extent. The rights embodied under Part III of the Constitution includes right to equality, right to freedom, right against exploitation, right to freedom of religion, right to constitutional remedies. The constitution of India under Par IV through Directive Principles of State Policy ascertains the duties of the central and state government to work for the maximum welfare of the citizens of India and protection of their rights. The Directive Principles are considered as the guiding principles for the state to make policies regarding distributive Justice, right to education, right to adequate nutrition, right to work, right to social security and right to just and humane conditions of work, work for the promotion of weaker sections of the society, improve public health, work for the preservation and protection of environment, ecology and natural habitat.

Guardian: Protective Role

The Constitution makers clearly lay down the most paramount duty of the judiciary to act as a protector of human rights and guard it against any kind of infringement and arbitrary and abuse of power. This is the reason why Fundamental rights have been made justifiable so that the courts can intervene against any violation or infringement of Fundamental rights. In the case of Daryao v. State of Uttar Pradesh[4] the court was of the opinion that:

“The Fundamental Rights are intended not only to protect individual rights but such are based on public policy. Liberty of the individual and the protection of his/her fundamental rights are the very essence of the democratic way of life adopted by the Constitution and it is the privileges and the duty of the court to uphold those rights. The court would naturally refuse to circumscribe them or to curtail them except as provided by the constitution”.

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The asserting role of judiciary as the protector was stated in the case of Romesh Thapar v. State of Madras[5] where it was observed by the court that, “Court is constituted to be the protector and guarantor of the fundamental rights “. In playing the role as a protector and harbinger of human life, the judiciary has taken fourfold path:

  1. It has declared those laws unconstitutional which are against or inconsistent with fundamental rights mentioned under Part III of the Indian Constitution. Article 13(2) states that, “the state shall not make any la which takes away or abridges the fundamental rights and a law contravening fundamental rights is to the extent of contravention is void. In the case of State of Madras v. V.G Row[6] the court while making emphasis of the role of the judiciary has stated that the role of the judiciary i.e. as that of the sentinel on the qui vive.
  2. The apex court of the India prohibited the individual from giving or waiving his/her fundamental rights. In the case of Behram v State of Bombay[7] Justice Venkatarma Ayyar supported the contention that an individual could waive the fundamental rights in only those cases where law infringes the rights by due process of law. The apex court in the another case of Basheshwar Nath v. Income Tax Commissioner[8] observed that the fundamental rights are mandatory on the state and that no citizen can by his/her will or by act relieve the state of its obligations imposed on it by virtue of these fundamental rights. Thus by establishing the doctrine of non waiver of the fundamental rights, the apex court has strengthened the concept of human rights.
  3. The apex court playing the protective role regarding the amendment of fundamental rights was a very long journey from Shankari Prasad case to the Minerva Mills case and in the course of that period the Supreme Court was of the opinion that the fundamental rights can be amended but subject to the doctrine that the basic or the fundamental feature of the Constitution cannot be amended. In Keshvanand Bharati v. State of Kerala[9] popularly known as the Fundamental Right’s Case in which 13 Judge Bench dealt with the Constitutionality and validity of 24th and 25th Amendment Act 1971. The principle question before the Supreme Court in this case was whether the decision in the Golak Nath’s Case was to be upheld to be overruled. The Special Bench of the 13 judges unanimously upheld the constitutional validity of 24th Amendment Act, 1971 and in doing so overruled its prior decision in Golak Nath’s case and cleared the way of upholding the validity of other Constitution Amendment Act which was questioned before the special bench in the writ petition. It is pertinent to observe that the court does not define what constitutes the basic structure of the Indian Constitution. Instead of that, they illustrate the basic structure embodied under the Indian Constitution. They include
  • Supremacy of the Constitution
  • Republican and democratic form of the Government
  • Secular Character of the Constitution
  • Separation of powers between Legislature, Executive and Judiciary
  • Federal Character of the Constitution
  • Fundamental freedoms
  • Sovereignty of India
  • Mandate to build welfare State
  • Fundamental Rights Under Part III of the Indian Constitution

The list mentioned above is illustrative and not exhaustive. What is unique in this context is the fact that there was no uniformity and unanimity in describing the essential and basic features of the Indian Constitution.

  1. The Judiciary by way of judicial review has ensured that human rights to be upheld at all times. The Supreme Court of India started its journey as technocratic courts in the year 1950’s but slowly started acquiring more powers through the interpretation of the Indian Constitution. The roots of the judicial activism are to be seen in Supreme Court’s early assertion regarding the nature of judicial review. In K. Gopalan v. State of Madras[10] the Supreme Court in this particular case conceived its role in a narrow manner and asserted that the power of Judicial review was inherent in the very nature of the written constitution. Afterwards the role of Supreme Court as a Technocratic Court slowly changed to the Activist Court. In the another case of Sakal Newspaper Private Limited v. Union of India[11] the Supreme Court held that the price and page schedule that laid down how much a newspaper could charge for a number of pages was being voilative of freedom of press. The court in this particular case conceived the doctrine of giving preferred position to the freedom of speech and expression embodied under Article 19(1) (a) of the Indian Constitution. It was also further observed by the Supreme Court that a newspaper was not only a business; it was a vehicle of thought and information and therefore could be regulated like any other business.

In the case of Balaji v. State of Mysore[12], the Supreme Court held that while the backward classes are entitled to positive and protective discrimination and such protective discrimination should not negate the right of equality and equal protection of law guaranteed under Article 14 of the Indian Constitution. In the early of the Supreme Court, the decisions of the Supreme Court was made to overcome through the device of constitutional amendments and with this the debate on the scope of the Parliament power to amend the Constitution also started. The same question was raised before the court in the case of Shankari Prasad v. Union of India[13] and Sajjan Singh v. State of Rajasthan[14] , whether Parliament of India could use its constituent power under Article 368 of the Indian Constitution so as to take away the fundamental rights guaranteed to the citizens of India under Part III of the Indian Constitution. The court unanimously held that the constituent power was not subjected to any limitation. In the year there was shift in the ideology of the court and in the case of L.C Golaknath v. State of Punjab[15], it was held by the Supreme Court that Parliament could not amend the Constitution so as to take away or abridge the Fundamental Right.


Recently the country has witnessed the protective role being played by Judiciary for the protection of human rights to a greater extent. Starting from the case of Indian Young Lawyer Association & Ors. V. State of Kerala & Ors.[16], Joseph Shine v Union of India[17], Justice K.S Puttaswamy (Retd.) & Anr. V. Union of India[18], Navtej Singh Johar and Ors. V. Union of India[19] and Atiya Sabri v. Union of India[20] is the aspects of Judicial Activism as well as the role being played by the judiciary of the recent times. It cannot be disputed that judiciary had done a lot to ameliorate the conditions of the masses of the country. It has set a number of rights and wrongs committed by the states on their individual. The common masses are very often denied the protection of law due to the delayed functioning of the courts also called judicial inertia and judicial tardiness. The greatest asset and the strongest weapon in the armoury of the Judiciary is the confidence by which it commands and the faith which it imbibes in the minds of the people in its capacity to do even handed justice and keep the scales in balance of any dispute. The Chief Justice of India Justice Adarsh Sen Anand realized that the real source of the strength of the Judiciary lies in the public confidence in it and judges have to ensure that this confidence is not to be lost.

“At the heart of any system based on the rule of law, there is a strong judicial system, independent and equipped with powers, financial resources, material and skills that are necessary to protect human rights within the framework of administering justice”[21]

[1] Maurice Cranston quoted in L.J Macfarlane.”The Theory and Practice of Human Rights “ (1985) P.7

[2] David P. Forsyte, “The Internationalization of Human Rights” p.1

[3] Observation of Justice P.N Bhagwati in Maneka Gandhi V. Union of India, A.I.R. 1978 SC PP 597,619.

[4] AIR 1961 SC 1457

[5] AIR 1950 SC 124

[6] AIR 1952 SC 196

[7] AIR 1955 SC 123

[8] AIR 1958 SC

[9] Supra Note 12.

[10] A.I.R 1950 S.C. 27, 34.

[11] Sakal Newspapers Private Ltd. v. Union of India A.I.R. 1962 S.C. 305.

[12] Balaji v. State of Mysore, A.I.R. 1963 S.C. 649.

[13] Shankri Prasad v. Union of India, A.I.R. 1951 S.C. 458.

[14] Sajjan Singh v. State of Rajasthan, A.I.R. 1965 S.C.845.

[15] L.C.Golaknath v. State of Punjab, A.I.R. 1967 S.C. 1643.

[16] W.P (civil) 373 of 2006.

[17] W.P (criminal) no. 194 of 2017).

[18] W.P No. 494 of 2012.

[19] W.P (Criminal) No. 76 of 2016.

[20] W.P (Criminal) No. 43 of 2017.

[21] Report of the General Secretary on the Rule of Law and transitional justice for societies that are prone or emerging from conflict (s/2004/616, paragraph.35).

Pranav Kaushal

Pranav Kumar Kaushal, Content Writter, Law Corner, Student B.A., LLB 7th Semester, School of Law, Bahra University, Shimla, Himachal Pradesh.

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