Unit -4 {Human rights & Judicial Process}

Judicial Activism
HUMAN RIGHTS can be defined as rights inherent in all over the world, without
which we cannot live as human beings. Everyone is entitled to these rights without
discrimination on the ground of race, sex, nationality, religion and language etc.
Therefore, it is generally believed that the violation of human rights will be the
failure to recognize the value of human life.
India with other countries, recognizes that the human rights in the Constitution of
India as basic rights of all people, regardless of their considerations or
reservations.The Supreme Court of India is the custodian of the Human Rights that
reflect judicial initiative, involvement, resourcefulness and concern over the
recognition of the fundamental Right. The Supreme Court has the widest powers to
protect the basic rights and human rights of citizens or non-citizens, and there is no
reason to restrict the Supreme Court from taking any actions and issuing
instructions to the state.
Judicial activism in India refers to the active role that the judiciary, especially the
Supreme Court, has played in addressing societal issues, often stepping beyond the
conventional interpretation of the law to ensure the protection of fundamental
rights and the promotion of social justice. This activism has been particularly
influential in the realm of human rights, where the judiciary has proactively
interpreted constitutional provisions to expand the scope of human rights, ensuring
that they are not mere theoretical concepts but practical realities for every citizen.
In India, the Supreme Court and High Courts act as guardians of fundamental
rights, safeguarding individual freedoms and addressing human rights abuses.
Judicial independence is critical to enforcing human rights, providing legal
remedies for violations, and protecting minority rights. Through landmark
judgments and proactive interventions, the judiciary has reinforced its commitment
to equality, dignity, and justice in a democratic society.
Understanding Judicial Activism in India
Judicial activism, in the Indian context, refers to the proactive role played by the
judiciary in interpreting laws, ensuring that the laws are in line with the
Constitution, and sometimes even expanding or reshaping the scope of legal
rights. The Indian judiciary, through judicial review, examines the constitutionality
of laws and governmental actions, intervening where necessary to protect the rights
of individuals.
India’s Constitution guarantees certain fundamental rights, such as the right to
life, equality before the law, and protection from discrimination. Judicial activism
has often been seen as a means to enforce these rights, especially when the
executive or legislature fails to do so effectively.
Origin of Judicial Activism
 The concept of judicial activism originated and developed in the USA.
 This term was first coined in 1947 by Arthur Schlesinger Jr., an American
historian and educator.

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  In India, the foundation of Judicial Activism in India was laid down by
Justice V.R Krishna Iyer, Justice P. N Bhagwati, Justice O.Chinnappa Reddy,
and Justice D.A Desai.
Key Aspects of Judicial Activism in Human Rights Protection
1. Expansion of Fundamental Rights
One of the most significant ways judicial activism has impacted human rights in
India is by expanding the interpretation of fundamental rights provided under
Part III of the Constitution, which includes rights like the right to life, liberty,
and freedom of expression. Indian courts have broadened the scope of these rights
through landmark judgments. For example:
 In Maneka Gandhi v. Union of India (1978), the Supreme Court expanded
the interpretation of Article 21, which guarantees the right to life and
personal liberty. The Court held that the right to life is not limited to mere
physical existence, but also includes the right to live with dignity,
encompassing a range of civil, political, and social rights.
 In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi
(1981), the Supreme Court ruled that the right to life under Article 21
includes the right to live with human dignity, which, in turn, implies a right
to access basic necessities of life like adequate food, shelter, and healthcare.
2. Judicial Review of Laws and Policies
Judicial activism in India has led to the judicial review of several laws and
government policies to ensure that they are not in conflict with the fundamental
rights enshrined in the Constitution. Courts have played a pivotal role in striking
down or amending laws that violate human rights.
 In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held
that while Parliament can amend the Constitution, it cannot alter the “basic
structure” of the Constitution, which includes the fundamental rights of
individuals. This doctrine of the “basic structure” has been instrumental in
safeguarding human rights from legislative overreach.
 In Vishaka v. State of Rajasthan (1997), the Supreme Court delivered a
judgment that led to the formulation of guidelines for the protection of
women from sexual harassment in the workplace, filling the gap in the law
and making it a part of India’s constitutional and human rights
jurisprudence. This decision was not based on any statutory law, but rather
on the Constitution’s guarantees of equality and dignity, showcasing the
judiciary’s proactive role.
3. Public Interest Litigation (PIL)
Public Interest Litigation (PIL) is a significant tool of judicial activism in India,
allowing individuals or groups to approach the court for the protection of public
rights, especially when vulnerable sections of society face violations. PIL has been
a crucial mechanism in advancing human rights, especially for marginalized
communities such as the poor, women, children, and the disabled.
 PILs have been used to address a variety of human rights issues, from
environmental protection to the rights of prisoners. For example, in M.C.

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 Mehta v. Union of India (1987), the Supreme Court took suo motu (on its
own motion) cognizance of pollution in the Ganga river and ordered steps to
protect the river and its surrounding environment, recognizing
environmental protection as an essential human right.
 PILs have also been instrumental in addressing child labor, human
trafficking, and rights of migrant workers. For example, in Gaurav Jain
v. Union of India (1997), the Court emphasized the need to protect the
rights of children working in hazardous conditions and instructed the
government to formulate policies to rescue and rehabilitate child laborers.
4. Right to Life and Human Dignity
The right to life under Article 21 has been the cornerstone for many human rights
advances. The Indian judiciary has interpreted this right in a broad and expansive
manner, recognizing several facets of human dignity and rights beyond mere
survival.
 In Puttaswamy v. Union of India (2017), the Supreme Court declared the
right to privacy as a fundamental right under Article 21, stating that privacy
is an essential part of human dignity and personal freedom. This landmark
judgment expanded the scope of rights under Article 21 and highlighted the
importance of privacy in a digital age.
 In Bandhua Mukti Morcha v. Union of India (1984), the Supreme Court
ruled that the right to life includes the right to be free from bonded labor,
ordering the government to take steps to identify and release bonded
laborers, as well as provide for their rehabilitation.

 D.K. Basu v. State of West Bengal (1997): Issued guidelines to prevent

custodial violence.
5. Protection of Vulnerable Groups
Judicial activism in India has significantly advanced the cause of vulnerable
groups, ensuring that their rights are protected. This includes the protection of
minorities, women, children, and indigenous communities.
 In Shah Bano Case (1985), although controversial, the Supreme Court’s
ruling in favor of a Muslim woman seeking alimony under the Criminal
Procedure Code led to widespread public debate on women’s rights and the
need for gender justice.
 In Right to Food case (2001), the Supreme Court issued directives to the
government to ensure food security for underprivileged sections, particularly
children, pregnant women, and the elderly, leading to the eventual
formulation of the National Food Security Act (2013).
Challenges and Criticisms of Judicial Activism
While judicial activism has played a crucial role in advancing human rights in
India, it has not been without its criticisms and challenges:
1. Overstepping Judicial Boundaries: Critics argue that judicial activism
sometimes leads to judicial overreach, where the judiciary interferes in the
domain of the legislature and executive. The separation of powers doctrine is

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 seen by some as being undermined when the judiciary takes on roles that
traditionally belong to the elected branches of government.
2. Political Influence: In some instances, judicial activism has been perceived
as politically motivated or influenced by public opinion, especially in high-
profile cases. Critics claim that this could result in decisions that are more in
line with political agendas rather than the law.
3. Implementation Issues: Even when the judiciary provides clear rulings in
favor of human rights, ensuring the implementation of these decisions
remains a challenge. In many cases, executive agencies are slow to act, and
there are difficulties in enforcing the court's orders, especially in complex
social and economic contexts.
Conclusion
Judicial activism in India has played an instrumental role in the advancement of
human rights, often filling gaps in legislation, providing remedies for marginalized
communities, and expanding the scope of constitutional rights. Through Public
Interest Litigation, judicial review, and expansive interpretations of the right to life
and dignity, the Indian judiciary has protected and promoted human rights across
various sectors.
However, the fine line between judicial activism and judicial overreach remains a
topic of debate. As India continues to evolve as a democracy, the role of the
judiciary in protecting human rights will continue to be pivotal, balancing the
principles of justice, fairness, and respect for the Constitution.

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 Unit -4 {Human rights & Judicial Process}
Human Rights Protection Agencies
Human rights are fundamental principles that uphold the dignity, freedom, and
equality of every individual. Ensuring the protection of these rights requires
vigilant monitoring, advocacy, and enforcement. To achieve this, a variety of
human rights protection agencies have been established at national, regional, and
international levels. These organizations work to prevent abuses, promote
awareness, and ensure accountability for violations, striving to create a world
where everyone’s human rights are respected and upheld.
Definition and Role of Human Rights Protection Agencies
Human rights protection agencies are organizations or bodies that are tasked with
promoting and safeguarding the fundamental rights of individuals. Their roles can
vary, but they typically focus on:
 Monitoring and reporting human rights violations.
 Advocating for stronger laws and policies that protect human rights.
 Providing support and assistance to victims of human rights abuses.
 Ensuring accountability by holding perpetrators of violations accountable.
 Educating the public and governments about human rights issues and the
importance of protection.
These agencies function at various levels, including international, national, and
local, and collaborate with governments, civil society organizations, and the
private sector to uphold human dignity.
Key Human Rights Protection Agencies
1. United Nations Human Rights Council (UNHRC)
The UN Human Rights Council is an intergovernmental body established in 2006
as part of the United Nations system. Its primary role is to promote and protect
human rights globally. The council is responsible for addressing human rights
violations, reviewing the human rights records of UN member states, and
providing technical assistance and capacity-building for human rights protection.
Key functions of the UNHRC include:
 Universal Periodic Review (UPR): A mechanism through which the human
rights situation in every UN member state is reviewed regularly.
 Special Rapporteurs and Independent Experts: Appointed to investigate
specific human rights issues or the situation in particular countries.
 Condemnation of violations: The Council passes resolutions, making
recommendations or urging actions to address serious human rights
violations.
Landmark case relating to women’s right to access legal abortion

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  The first abortion case, KL v. Peru, was resolved by the UN Human Rights
Committee (UNHRC). The ruling points out that restricting access to
medical abortion contradicts the most fundamental human rights of women.
This is the first time a country has been kept accountable by an international
human rights agency for failure to provide access to lawful abortion care.
 In fact, the decision establishes violations of the freedom to be protected
from cruel, inhuman and degrading abuse, anonymity and special protection
of a minor’s interests. It directs the government of Peru to offer restitution to
KL and to enact the necessary laws to ensure access to legal abortion.

2. Human Rights Watch (HRW)

Human Rights Watch is a prominent international non-governmental organization
(NGO) that conducts research and advocacy on human rights issues worldwide.
Founded in 1978, HRW aims to investigate and expose human rights violations,
and to pressure governments and corporations to respect human rights.
Key functions of HRW include:
 Documenting abuses: HRW conducts thorough investigations of human
rights abuses and publishes reports detailing violations.
 Advocacy: The organization lobbies governments, international bodies, and
other stakeholders to take action against human rights abuses.
 Legal advocacy: HRW plays a critical role in efforts to strengthen
international human rights law and support victims of human rights
violations.
3. Amnesty International
Founded in 1961, Amnesty International is one of the most well-known human
rights organizations in the world. It focuses on campaigning to end human rights
violations, advocating for the release of prisoners of conscience, and pushing for
the abolition of the death penalty, torture, and other forms of cruelty.
Key functions of Amnesty International include:
 Campaigns and Advocacy: Amnesty mobilizes public opinion through
petitions, campaigns, and lobbying to influence political leaders.
 Investigations: The organization conducts in-depth research on human
rights violations, publishing detailed reports to bring international attention
to the issues.
 Support for victims: Amnesty also provides resources and assistance to
people affected by human rights abuses, particularly prisoners of conscience.
4. International Criminal Court (ICC)
The International Criminal Court (ICC) is a permanent international tribunal
established in 2002 to prosecute individuals for the most serious offenses under
international law, such as genocide, war crimes, and crimes against humanity. The
ICC is one of the key bodies responsible for ensuring justice for victims of the
most egregious human rights violations.
Key functions of the ICC include:

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  Prosecution of individuals: The ICC investigates and prosecutes
individuals accused of committing international crimes, holding them
accountable for their actions.
 Deterrence: The existence of the ICC sends a strong message that the
international community will not tolerate impunity for human rights
violators.
5. National Human Rights Commissions (NHRCs)
In many countries, National Human Rights Commissions (NHRCs) serve as
government-appointed bodies responsible for investigating human rights violations
and promoting the protection of rights within that country. The creation of NHRCs
is in line with the United Nations' Paris Principles, which set out the standards for
the establishment and functioning of national human rights institutions.
Functions of NHRCs include:
 Investigating Complaints: NHRCs receive complaints of human rights
violations, investigate them, and recommend actions to address the abuses.
 Advisory Role: NHRCs provide advice to governments on human rights
policies and practices.
 Education and Awareness: These commissions often run programs to
educate the public and government officials about human rights.
6. State Human Rights Commissions (SHRC)
The 1993 Protection of Human Rights Act provides for the establishment, at the
state level, of the State Human Rights Commission. In the seventh schedule of the
Indian Constitution, a State Human Rights Commission will investigate abuses of
human rights relating to subjects protected by the state list and the concurrent list.
[10]

Functions of the Commission –

1. Inquire suo motu, or on a petition lodged by a victim, or another person on
his or her behalf, to inquire about a breach of human rights or incompetence
in stopping a public official from committing such a violation.
2. Visit any prison or any other facility under the jurisdiction of the State
Government where people are imprisoned to research and make
recommendations on the living conditions of the prisoners.
3. Spreading literacy on human rights across different parts of society and
fostering understanding of the protections available to secure these rights.
4. The commission is empowered to control its own operation. It has all the
powers of a civil court and has a judicial character in its procedures. It
can ask the state government or some other subordinate authority for
information or reporting.
7. The European Court of Human Rights (ECHR)
The European Court of Human Rights is a judicial body that is part of the
Council of Europe, and it hears cases related to violations of the European

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Convention on Human Rights. Member states of the Council of Europe have
agreed to abide by the Court’s judgments.
Key functions of the ECHR include:
 Judicial Review: The court rules on cases brought by individuals,
organizations, or states concerning violations of human rights by member
states.
 Enforcement: While the court's decisions are legally binding, its
enforcement mechanism relies on member states to comply with its
judgments, though the Court can refer cases to the Committee of Ministers
for further action if compliance is lacking.
7. International Labour Organization (ILO)
The International Labour Organization (ILO) is a specialized agency of the
United Nations that focuses on labor rights. ILO works to ensure that labor
standards are upheld and that workers’ rights are protected globally. It addresses
issues such as child labor, forced labor, workplace safety, and the right to organize.
Key functions of ILO include:
 Setting labor standards: ILO formulates international labor standards and
conventions to ensure that workers' rights are upheld worldwide.
 Monitoring and enforcement: The ILO monitors the implementation of
labor standards in its member countries, providing technical assistance when
needed.
Challenges and Obstacles to Human Rights Protection
While human rights protection agencies play an essential role in advancing human
rights globally, they face numerous challenges:
 Political resistance: Governments often resist international or domestic
pressure to protect human rights, especially when abuses are perpetrated by
the state or powerful elites.
 Lack of enforcement power: Many human rights agencies, particularly
international ones, lack direct enforcement powers and must rely on political
or diplomatic pressure to encourage compliance.
 Resource limitations: Human rights organizations often operate with
limited resources, which can restrict their ability to investigate, monitor, or
provide support.
 Complexity of violations: Human rights violations are often deeply
embedded in political, social, and economic systems, making them difficult
to address through simple remedies.
Conclusion
Human rights protection agencies are indispensable guardians of justice and human
dignity. From global organizations like the UNHRC and ICC to national bodies
such as NHRCs, these agencies work tirelessly to prevent abuses, protect victims,
and ensure accountability. However, the challenges they face underscore the
importance of continued vigilance, cooperation, and support from governments,

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civil society, and individuals to achieve a world where human rights are universally
respected. As global issues evolve, so too must the strategies and capacities of
these agencies to adapt to new threats to human rights and the continued pursuit of
justice for all.