Research Paper

Legal Aid: The role of

judiciary in protecting the
Human rights.

BY: Pushpank Pandey

URN: 2019-B-14041999
 ABSTRACT
Human rights are those rights that are inherent in our nature and without which we would be
unable to live as humans. The fact that we are human beings allows us to make claims. The
paper discusses the Indian Constitution's human rights provisions. The purpose of this study
is to examine the role of the Indian judiciary in the preservation of human rights. India has
played a critical role in the protection of human rights since independence. Although India's
constitution does not have a detailed Bill of Rights, efforts have been made to translate this
fact. In India, the judiciary played a critical role in putting these rights into practise.
KEYWORDS: Human Rights, Fundamental Rights, Judicial Review, Judiciary.

INTRODUCTION
The judiciary's role in the development and protection of human rights: Our Constitution
specifically empowers the judiciary to protect human rights in the form of fundamental rights
enumerated in our Constitution, and in the event that citizens' fundamental rights are violated,
the judiciary is empowered to protect and restore those rights. Because the subordinate
judiciary is immediately available to the general public, it is expected to come to the citizens'
aid and protect their human rights first.
Since the establishment of the Constitution, the country has been ruled by the rule of law
rather than the whims of any single authority. The goal of various laws and the establishment
of various state organs is to ensure the citizens' general welfare and to safeguard their life,
liberty, dignity, and fundamental or human rights.
Subordinate courts, in addition to the higher judiciary, play a critical role in safeguarding
citizens' human rights. Because the subordinate judiciary is easily available to the general
public, it takes precedence in protecting citizens' human rights.
Different executive authorities, including as the police, the jail, and others, are frequently
cited for violations of citizens' human rights. Over the years, the Supreme Court has gone to
great lengths to issue directives and recommendations to the lower courts in order to defend
citizens' human rights. The Supreme Court has also regularly ordered the executive branch's
various agencies not to infringe people' human rights. The police and jail authorities are the
targets of the majority of complaints alleging violations of human rights. The different
legislations and Supreme Court judicial decisions pertaining to the preservation of citizens'
human rights must be discussed here.

RESEARCH PROBLEMS
Working towards the protection of human rights ought to be the paramount goal of any Court
of the country. I sense some barriers which I believe are to be set aside.
• Avoidance of the legal system due to economic reasons or fear.
• Excessive number of laws.

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• Expensive legal procedures.
• Inadequate Legal Aid Systems.
• Inadequate information about laws, the rights arising out of them and the prevailing
practices.
• Failure of legal systems to provide remedies which are preventive, just, non-discriminatory
and adequate.
• Lack of public participation in reform movements.

LITERATURE REVIEW
The Supreme Court is known as the "Guardian of the fundamental rights," and one of its most
important functions is to defend these rights. We are signatories to international human rights
accords; hence HR is enshrined in part III of our constitution as a fundamental right. The
separation of powers principle establishes the judiciary's independence from the other two
institutions, allowing it to preserve the rule of law and protect human rights. In India, the
judiciary effectively uses its authority of interpretation of Part III to promote progress in the
protection of human rights.
The Supreme Court of India has the power of judicial review, and article 32 expands on this
power by empowering the court to evaluate all government actions and declare them void if
they violate part III of the constitution's basic framework. This authority of review keeps all
of the state's organs within the bounds established by the constitution or any other statute. In
the event of a violation of part III rights, a person may file a complaint with the High Court
under article 226 and the Supreme Court under article 32, which is also a fundamental right.
Article 32 is the cornerstone of our democracy, and it designates the Supreme Court as the
guardian of fundamental rights. According to them, they claim that if an emergency is
declared, 32(4), this right to approach will be suspended.
The following SC decisions demonstrate how the SC advanced the HR's protection and
advancement:
The case of the Fundamental Right (Kesavananda Bharati v State of Kerala): This case
was heard by the greatest constitutional bench in history, consisting of 13 judges. The
doctrine of the basic structure has been bestowed upon us by this court. The court determined
that this concept is inviolable, and as a result, the court stated that the ability to amend is not
limitless, but rather limited. This case reversed the Golaknath case, and the court stated that
if the parliament tries to rewrite the entire constitution in light of its jurisdiction under Article
368 of the constitution, it will be considered ultra-vires. The Supreme Court's position
safeguards fundamental human rights.
Case of Habeas Corpus: (ADM Jabalpur v Shivakant Shukla Case) This case is a blemish
on Indian historical verdicts. In this instance, four out of five judges ruled that during an
emergency, all fundamental rights shall be suspended. Justice H.R. Khanna wrote a
dissenting opinion that established the norm that the state cannot deprive someone of their
right to life or liberty without due process of law.

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Personal liberty (in the instance of Maneka Gandhi): In this case, the court applied a
broader definition of the term "personal liberty." The court reasoned that because article 14,
19, and 21 are interrelated, the requirements of article 14 and 19 must be met in order to
deprive a person of personal liberty.'
Maintenance Case (Shah Bano case): The Supreme Court gave Shah Bano maintenance and
safeguarded Muslim women's rights outside personal law, but the Muslim community
believed that the court's decision infringed on Muslim Sharia Law, thus parliament
established the All-India Muslim Personal Law Board in 1973.
Interpretations of Article 21: The word "life" is clarified in a watershed opinion of the
United States Supreme Court that life is something more than mere animal existence [xvi].
The right to life, according to the Supreme Court of India, is not merely physical existence
but also the right to live with dignity. Non-payment of wages to workers, according to Article
21, is a violation of their right to live in dignity Sexual harassment in the workplace is a
violation of articles 14, 15, and 21, according to the Supreme Court. Right to shelter, right to
know, right to livelihood, right against solitary imprisonment, right to free legal aid, right to
privacy, and so on. When the Supreme Court exercised its power of interpretation, it added
all of these as an intrinsic component of Article 21.
The third Gender: Transgender people were recognised as the third gender by the Supreme
Court in 2014, and their rights were protected.
Triple Talaq: In 2017, the Supreme Court of India ruled that Triple Talaq is illegal since it
jeopardises and breaches the rights of Muslim women in every way. The bill has not yet been
passed due to some controversies.
Sabarimala Temple: The Supreme Court allowed women between the ages of 10 and 50 to
enter the temple because devotion cannot be subjected to gender discrimination.
Homosexuality: Section 377 of the Indian Penal Code, 1860 was decriminalised in 2018 by
the Supreme Court on the grounds that it violated Articles 14, 15, 19, and 21 of the
Constitution. The Supreme Court's decision merely decriminalises homosexuality under
Section 377; the remainder of the legislation remains unchanged. After 72 years,
homosexuals' rights have been restored, and they can now enjoy the same privileges as
heterosexuals.
Adultery: SC ruled that because a husband is no longer the ruler of his wife, adultery is no
longer a criminal because it degrades a woman's dignity and so violates article 21 of the
constitution. Adultery is still grounds for divorce, according to the court, and it will be
considered criminal if it results in the abetment of suicide. Adultery could be prosecuted
under section 306 of the IPC, 1860.

RELEVANT & CONSTITUTIONAL PROVISIONS

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Human Rights Court: Section 30 of the PHRA requires all state governments to recognise
the Court of Session as a Human Rights Court if they reach an agreement with the Chief
Justice of the respective state's High Court. Section 31 of the law states that the state must
designate a prosecutor or an advocate with at least seven years of experience in practise to
deal with the cases before this court. The Supreme Court, in the same D. K Basu case,
ordered that this clause to designate HRC be followed in 2015.It was discovered that the state
makes no attempt to communicate with the CJI of the relevant state's High Court in order to
assess the suitability of the session court for designation as HRC.
In 2019, during the hearing of Punjab State Human Rights Commission vs. Jatt Ram, the
NHRC asserted that, with the exception of a few states, no state has compiled the order to
establish or set up the HRC. The bench stated that since the establishment of these courts
does not necessitate any additional appointments of judges or infrastructure, the court's ruling
is not carried out. The Supreme Court has ordered Chief Secretaries to show cause why such
orders are not necessary.
India is a democratic country. During our freedom struggle, the freedom leaders of the
freedom movement had realised the importance of rights. The Motilal Nehru Committee had
demanded a bill of rights as far back as in 1928. It was therefore, natural that when India
became independent and the constitution was being prepared the concept of Human Rights
was accepted.
A unique feature of the Indian constitution is that a large part of human rights are named as
fundamental rights. The fundamental rights in the Indian constitution constitute the Megna
Carta of individual liberty and human rights
Indian Constitution provides us a list of Fundamental Rights:
1. Rights to Equality.
2. Rights to Freedom.
3. Rights against Exploitation.
4. Cultural and Educational Rights.
5. Rights to Freedom of Religion.
6. Rights to Constitutional Remedies.

CONCLUSION
Human rights are an ancient phenomenon that are essential to every human being's
development. Human rights have long been seen as the foundation of any democratic system.
India has put in the sincerest efforts in the world to safeguard and promote human rights.
In India, the Supreme Court and the High Court have both played vital roles in defending and
safeguarding human rights. The judiciary administers justice by interpreting laws. The
judiciary can sometimes empower rights by broadening the interpretation of various
provisions of various legislation, as well as the provisions of the constitution.

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Another duty of the judiciary is that of an activist, sometimes known as "Judicial Activism."
When there isn't a precise legislation in place for a given crime, when a specific statute does
not exist for a specific offence, the judiciary uses its activist power to preserve our rights.
By this we conclude our research paper by quoting the famous leader, George
Washington, “If Freedom of Speech is taken away, then dumb and silent we
may be led, like sheep to the slaughter”.

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