Role of High Court

Objectives:
The main objectives of this module are to make the students understand

 the role of the High Courts in protecting human rights.

 The power of the High Court and its role in enforcing human rights.

 the cases selected from the law reports of the various High Courts where courts are
alive not only in private litigation but also numerous sensitive and public issues to
protect the right to life of the people.

TEXT

Introduction:
There shall be a High court for each state in India, but the parliament has the power to
establish a common High Court for two or more states. The High Court stands at the head of
the judiciary in the state, when one talks about the protection of human rights and the role of
the High Courts, one is taken to the Article 226 of the constitution. The Article 226 starts
with the marginal note “power of the High courts to issue certain writs”. Notwithstanding
anything contained in Article 32, every High Court shall have the power throughout the
territories in relation to which it exercises its jurisdiction, to issue to any person or authority
including inappropriate cases any government within those territories, directions, orders or
writs in the nature of Habeas corpus, mandamus, prohibition, quo warrant and certiorari any
of them for the enforcement of any of the rights conferred by part III and for any other
purpose.
By reading this provision of Article 226 it is clear that Article 226 is wider in scope than
Article 32. Under Article 32, the Supreme Court may issue writs for enforcement for
fundamental rights only but, under Article 226 the High Court may enforce not only
fundamental rights but also any other legal rights, for example to enforce the right to property
under Article 300A of the constitution which is not a fundamental rights.
An important aspect of the Indian Constitution is the jurisdiction it confers on the High
Courts to issue writs, thereby the High Courts are made the guardians of the peoples’ legal
rights. The writ system provides an expeditious and less expensive remedy than any other
remedy available through a normal Court process.
As far as the protection of human rights is concerned, the powers of the High Courts of
enforcement of human rights guaranteed under the constitution and other legal rights under
Article 226 is required to be reviewed, by referring to the case laws.
Among the human rights, in this discussion, the High Courts’ role in protection of Article
21 of the constitution shall be confined.

Article 21: Right and personal liberty:

Most important of the fundamental rights may be said to be the right to life. Article 21
reads as “no person shall be deprived of his life and personal liberty except according to the
procedure established law.” The High Courts functioning in the states are playing
considerable role in the protection and enforcement of Article 21. In this discussion two
aspects shall be covered, one is the role of the High Courts in the areas of health hygiene and
sanitation. Another area is regarding custodial violence and the reliefs granted by the High
Courts. Some decided cases of the High Courts will be reviewed to appreciate the protection
of human rights by the High Courts.

Custodial Violence:
In Dk. Basu Vs. State of West Bengal AIR 1997 S.C. 610, the Supreme Court failed to
read to develop custody jurisprudence and formulate modalities for awarding compensation
to the victim or families of the victims for atrocities and deaths caused in police custody and
for providing the accountabilities of the officers concerned thereafter, the High Courts are
active in issuing necessary orders in the matter of custodial violence.
Custodial deaths are perhaps one of the most important crimes in the civilized society
governed by the rule of law. The rights inherent in Article 21 and 22 of the constitution,
require to be jealously and scrupulously protected. This is well illustrated by the Guwahati
High Court in Kaminibala Talukdar vs. State of Assam 1997 Cr. L.J. 874 (Gau). In this
case, a boy who is said to be a member of unlawful organization came to spend a night out
with his mother at home. In one forenoon, he was in his courtyard playing carom with some
friends. At that time, four motor cycles with pillion riders came and stopped at the gate even
though later on they are identified as police in civil dress, they chased the boy who was
playing and shot him causing his death.
His mother filed a writ petition before the Gauhati High Court under Article 226
complaining that the life of her son has been deprived of without due process of law. The
answer given by the State was that the police attempted to arrest him and in the process firing
was necessitated and as a result he died. The Court had to see as to whether, firing was
necessitated or not. The Court relied upon medical jurisprudence where it is permitted find
out that if firing is done in point blank range i.e. within a distance of three feet, than in all the
entrance of bullets, tattooing mark will be exhibited. In the present case, the post mortem
report had shown that all the bullets which hit the victim have shown tattooing marks. The
Court came to the conclusion that all the firings are done within a distance of three feet and
held that the order to arrest one unarmed boy by eight police personals resorting to firing is
an act depriving the life of a boy not in accordance with the procedure established by law.
The Court awarded compensation to the mother of an amount of Rs. 1.5 lakhs and directed to
the State of Assam to recover this amount from those eight police personals.
Aribam Ongbi Vs. State of Manipur AIR 1999 Gau 9 is another case decided by the
Guwahati High Court. The Husband of the petitioner was employed by a taxi driver. In
course of his professional duty he was killed by the 5th Battalion Manipur Rifles posted at
Iroisemba. The court directed the State Government to appoint a competent officer to make
an enquiry to find out as to whether the petitioner’s husband was killed by 5 th Battalion
Manipur Rifles posted at Iroisemba. The additional District magistrate held the enquiry and
came to the conclusion that the husband of the petitioner died due to the bullet injuries fired
by the personnel of 5th Battalion Manipur Rifles where all together 83 rounds of 303 bullets
were fired upon during the incident.
The State Government put forward its case that on the fateful night at about 7 pm when
the sentry on duty ordered a halt, the driver did not obey and firing was resorted in order to
stop the Jeep. The Court lamented by holding that in order to stop a line Jeep, firing of 83
rounds of bullet was made and fired indiscriminately. The Court further observed that it is a
shocking incident of all right thinking people, at the most it could be termed as “trigger
happy” without any restrain. The Court came to the conclusion that the way so many rounds
of bullets had been fired at unarmed civilians would imply in it that the deceased had been
deprived of his valuable life by abusing and violating human rights. It is definitely a breach
of fundamental rights granted under part III of the constitution and the State is liable
vicariously for the unlawful action of the armed personnel.
In the matters of the granting relief the consideration of the Court, the Court found that the
victim was aged about 43 years and was survived by wife age about 40 years. His surviving
mother is 75 years old and a minor daughter aged about 16 years. Definitely they are left
orphaned without anybody to look after their welfare. The young wife lost a life companion
at the prime time of life. No treasure or earth would be a suitable substitute. The Court
granted for deprivation of the life to pay an amount of 1.5 lakhs against the state to the
petitioner.
As regards custody related problems the reaction of the Delhi High Courts in All India
Lawyers Union vs. Times of India AIR 1999 Delhi 120 is noteworthy. This is not a case of
custodial violence by the police. This is the case of a deprivation of a life of a school child
due to the negligence of the authorities. When the parents leave their children in the school,
they are under the custody of the school or authorities. They are to take care of the children as
would be taken by a careful and prevent parent. The school authorities owe a duty to provide
adequate security to the children to preventive the chances of injury to them.
In the said case, a student of a primary school at Delhi aged about 7 years was crushed to
death by a vehicle while crossing road in front of the school. The child came out of the school
in search of water as he was thirsty. The death of the child could have been averted had the
authorities of the school acted diligently and not negligently. In the circumstances the person
who runs the school was made liable to pay compensation to the parents of the deceased child
amounting to Rs.10 lakhs. The court also expressed its helplessness by observing that money
is not adequate compensation for life. It cannot wipe the tears of the parents of the deceased
child but; there is also no other means to compensate them except monetary compensation.
Various other High Courts also reacted seriously in the matter of custodial violence.
The Bombay High Court found custodial death in Solgabai Powar vs. State of Maharastra
1998 Cr. L.J. 1505, due to the excess and maltreatment in the police custody and awarded
compensation of Rs. 1.5 lakhs against the State, in favour of the petitioners, the widowed
wife of the victim.
In the later cases, the High Courts seemed to award compensation in custodial violence
at high amount. In Phulwati vs. National capital Territory of Delhi 2000 Cr. L.J. 1613
custodial death was caused due to beating by the police. A compensation of Rs.3 lakhs has
been awarded by the Delhi High Court.

The Aspect of health, hygiene and Sanitation

Article 47 of the constitution lays down the duty of the State to raise level of nutrition
and standard of living and public health. Various issues of public health arose in India and
problem relating to persons tested positive for HIV, expresses one aspect. The Bombay High
Court has confronted with such a problem in MX of Bombay Indian Inhabitants Vs. MZY
AIR 1997 Bombay 406.
The petitioner was working as a casual labourer with a corporation through a contractor
in the year 1982. In 1986 the petitioner was interviewed for a vacancy against a regular post
in the corporation and employed as a casual labourer from 1986 to 1994. In the year 1990, the
petitioner was required to undergo a medical examination. In various tests he had no
comments from the doctors of his health, except the presence of HIV antibodies. The report
for ELISA test showed HIV (1 and 2) positive for antibodies. The certificate shows that the
disease is a prolonged one. The patient acquiring the infection can remain asymptomatic for a
long time extending up to one to twelve years.
In the present case, after having the knowledge of the HIV status of the petitioner, the
senior manager of the corporation deleted the name of the petitioners from the selection panel
of the casual labourers, with immediate effect. The petitioner wrote letters to the corporation
with the submission that inspite of having HIV status, he is fit to load drums on the truck and
also that he is the only earning member of the family and if he is rendered out of job, his
family will find difficulty to survive. He also said that he is very poor having his wife and
two children who are dependent on him, the petitioner requested for allowing him to work as
casual labourer as before. The petitioner also wrote a letter to the Additional Director of
Health for making interference in the matter. The Additional Director of Health Maharashtra
wrote a letter to the corporation pointing out that the HIV positive status of the petitioner may
take 8 to 10 years to develop symptoms of AIDS. The additional director also hinted the
corporation that HIV/AIDS is not transmitted by casual contacts or by working together. It is
transmitted when the blood is transfused to other or sexual relations. Barring that two cases,
the petitioner is not going to pose any risk to others.
The High Court observed, HIV infected and AIDS are global problems. The petitioner
prayed for direction for reinstatement in his job by giving directions to the corporation. No
person can be deprived of his right to livelihood, except according to the procedure
established by law. The State or corporation cannot take ruthless and inhuman decision that
they will not employ a person unless they are satisfied that the person will serve during entire
span of service from employment till superannuation. The High Court quashed the order of
the corporation deleting name of the petitioner from the list of the casual labourers on the
ground that the stand taken by the corporation is arbitrary, unjust and unfair. The petitioner
was entitled to Rs.1000/- for forty month i.e. the period approximately calculated form the
date from which he was removed from his job, till the end of march 1997 and accordingly the
corporation was directed to pay Rs.40,000/- to the petitioner as back wages and the petitioner
was to taken back in his job, meaning thereby that the HIV status on the petitioner is not the
ground for terminating his job. He may be employed in some other job in the corporation
which he can execute.
The Gujarat High Court in excuse of its power under Article 226 has shouldered the
doctrine of Parens Patriae and the said doctrine is applied to cases of earthquake victims in
Bipinchandra J.Diwan vs. state of Gujarat AIR 2002 Guj 99.
The concept in jurisprudence of doctrine of Parens Patria is that the state has the inherent
power and authority to provide protection to the person and property of persons non-serijuris
such as minor. Parens Patria has been literally explained to mean the father of the country and
is use to designate the state referring to its sovereign power of Parens Patria jurisdiction. The
necessity to refer to the Paren Partia jurisdiction was felt by the Gujarat High Court that on
the morning of 26th January 2001 an earthquake of the magnitude more than 7 on Richter
Scale shook whole of Gujarat and devastated the entire Kutch district leaving thousands dead,
injured, crippled, orphaned and homeless. The government was unprepared to meet the
unforeseen calamity and find it difficult through its inadequate machinery to carry out the
gigantic task of rescue, relief and rehabilitation of the quake victims. Allegations have been
made that inspite of contributions and donation to quake victims from India and abroad there
is a failure and lapses on the part of the government to provide relief to the earthquake
victims. The reaction of the High Court was that the paradox in a democratic society is that
people expect too much from the elected government and its executive and its distrust in it
and its functionaries. The court felt that it was too early to attribute any failure to the
government machinery and to show distrust in its capacity to meet the situation which has
arisen out of disaster. The court held that the contributions and donations for relief to quake
victims may form part of the consolidated or contingent fund of India. For safe custody of
such fund and maintenance of its account, receipt and expenditure, a periodical check by
audit, was made mandatory. It has also been pointed out that the participation and co-
operation of a body like ombudsman for stupendous task like long range management of
relief and rehabilitation operations, such mechanism was held necessary.
After a long consideration and analysing the magnitude of the problem, the High Court
concluded the case by holding that the petitioners with the help of the individuals and service
organisation and also agencies and authorities to whom the court has issued directions, will
work in a spirit of co-operation between them with one single aim providing relief, remedy
and rehabilitation to earthquake victims within the quickest possible time.

Conclusion
To conclude, it is important to note that the role of the High Courts in the protection of
human rights, is noteworthy. The powers of the Supreme Court to enforce human rights is
limited to the enforcement of the fundamental rights; but the High Court can entertain the
enforcement of not only fundamental rights but also other legal or constitutional rights
The popularity of the powers of the High Court is prominent for other reason that the
High Court is located within the state closer to the inhabitants of the state whereas, the
Supreme Court is located very far. Having the concurrent powers to enforce the fundamental
rights, people choose to go to High Courts to invoke the extraordinary power. Various aspects
of constitutional and legal rights are enforced and High Courts play a very important role in
upholding human rights with its territorial limits. It covers custodial deaths, parens patriae
role, role of an educator and keeping vigil to various invasions of rights. The health, hygiene
and sanitation is also looked into even medical negligence cases are entertained as a matter of
enforcement of human rights as in R.P Sharma vs. State of Rajasthan AIR 2002 Rajasthan
104, the Rajasthan High Court found medical negligence in transfusion of blood of wrong
group causing death of the patient. The court awarded compensation of Rs.3 lakhs against the
state making it vicariously liable and made further order to the state to recover from those
negligent and careless doctors.
There are more scope of extension of the jurisdiction of the High Court by interpretation
and judicial activism in future.

TRANSCRIPT

Introduction:
There shall be a High court for each state in India, but the parliament has the power to
establish a common High Court for two or more states. The High Court stands at the head of
the judiciary in the state, when one talks about the protection of human rights and the role of
the High Courts, one is taken to the Article 226 of the constitution. The Article 226 starts
with the marginal note “power of the High courts to issue certain writs”. Notwithstanding
anything contained in Article 32, every High Court shall have the power throughout the
territories in relation to which it exercises its jurisdiction, to issue to any person or authority
including in appropriate cases any government within those territories, directions, orders or
writs in the nature of Habeas corpus, mandamus, prohibition, quo warrant and certiorari any
of them for the enforcement of any of the rights conferred by part III and for any other
purpose.

By reading this provision of Article 226 it is clear that Article 226 is wider in scope than
Article 32. Under Article 32, the Supreme Court may issue writs for enforcement for
fundamental rights only but, under Article 226 the High Court may enforce not only
fundamental rights but also any other legal rights, for example to enforce the right to properly
under Article 300A of the constitution which is not a fundamental rights.

An important aspect of the Indian Constitution is the jurisdiction it confers on the High
Courts to issue writs, thereby the High Courts are made the guardians of the peoples’ legal
rights. The writ system provides an expeditious and less expensive remedy than any other
remedy available through a normal Court process.

As far as the protection of human rights is concerned, the powers of the High Courts of
enforcement of human rights guaranteed under the constitution and other legal rights under
Article 226 is required to be reviewed, by referring to the case laws.

Among the human rights, in this discussion, the High Courts’ role in protection of Article
21 of the constitution shall be confined.

Article 21: Right to life and personal liberty:

Most important of the fundamental rights may be said to be right to life. Article 21 reads
as no person shall be deprived of his life and personal liberty except according to the
procedure established law. The High Courts functioning in the states are playing considerable
role in the protection ad enforcement of Article 21. In this discussion two aspects shall be
covered, one is the role of the High Courts in the areas of health hygiene and sanitation.
Another area is regarding custodial violence and the reliefs granted by the High Courts. Some
decided cases of the High Courts will be reviewed to appreciate the protection of human
rights by the High Courts.

Custodial Violence:
Custodial deaths are perhaps one of the most heinous crimes in the civilized society
governed by the rule of law. The rights inherent in Article 21 and 22 of the constitution,
require to be jealously and scrupulously protected. This is well illustrated by the Guwahati
High Court in Kaminibala Talukdar vs. State of Assam 1997 Cr. L.J. 874 (Gau). In this
case, a boy who is said to be a member of unlawful organization came to spend a right out
with his mother at home. In one forenoon, he was in his courtyard playing carom with some
friends. At that time, four motor cycles with pillion riders came and stopped at the gate, (later
on they are identified as police in civil dress) they chased the boy who was playing and fired
shot upon him causing his death.

His mother filed a writ petition before the Gauhati High Court under Article 226
complaining that the life of her son has been deprived of without due process of law. The
answer given by the State was that the police attempted to arrest him and in the process firing
was necessitated and as a result he died. The Court had to see as to whether, firing was
necessitated or not. The Court relied upon medical jurisprudence where it is pointed out that
if firing done in point blank range i.e. within a distance of three feet, than in all the entrance
of bullets, tattooing mark will be exhibited. In the present case, the post mortem report had
shown that all the bullets which hit the victim have shown tattooing marks. The Court came
to the conclusion that all the firings are done within a distance of three feet and held that in
order to arrest one unarmed boy by eight police personals resorting to firing in an act
depriving the life of a boy not in accordance with the procedure established by law. The
Court awarded compensation to the mother of an amount of Rs. 1.5 lac and directed to the
State of Assam to recover this amount from those eight police personals.
 Various other High Courts also reacted seriously in the matter of custodial violence.
The Bombay High Court found custodial death in Solgabai Powar vs. State of Maharastra
1998 Cr. L.J. 1505, due to the excess and maltreatment in the police custody and awarded
compensation of Rs. 1.5 lac against the State, in favour of the petitioners the widowed wife
of the victim.

In the later cases, the High Courts are seen to award compensation in custodial violence
at high amount. In Phulwati vs. National capital Territory of Delhi 2000 Cr. L.J. 1613
custodial death was caused due to beating by the police. A compensation of Rs.3 lac has been
awarded by the Delhi High Court.

The Aspect of health, hygiene and Sanitation

Article 47 of the constitution lays down the duty of the State to raise level of nutrition
and standard of living and public health. Various issues of public health arose in India and
problem relating to persons tested positive for HIV, expresses one aspect. The Bombay High
Court has confronted with such a problem in MX
of Bombay Indian Inhabitants Vs. MZY AIR 1997 Bombay 406.

The petitioner was working as a casual labourer with a corporation through a contractor
in the year 1982. In 1986 the petitioner was interviewed for a vacancy against a regular post
in the corporation and employed as a casual labourer from 1986 to 1994. In the year 1990, the
petitionor was required to undergo a medical examination. In various tests he had no
comments from the doctors of his unhealthy relating to his bodies, except the presence of
HIV antibodies. The report for ELISA test showed HIV (1 and 2) positive for antibodies. The
certificate shows that the disease is a prolonged one. The patient acquiring the infection can
remain asymptomatic for a long time extending up to one to twelve years.

In the present case, after having the knowledge of the HIV status of the petitioner, the
senior manager of the corporation deleted the name of the petitioners from the selection panel
of the casual labourers, with immediate effect. The petitioner wrote letters to the corporation
with the submission that inspite of having HIV status, he is fit to load drums on the truck and
also that he is the only earning member of the family and if he is rendered out of job, his
family will found difficult to survive. He also said that he is very poor having his wife and
two children dependant on him the petitioner requested for allowing him to work as casual
labourer as before. The petitioner also wrote a letter to the Additional Director of Health for
making intervention in the matters. The Additional Director of Health Maharashtra wrote a
letter to the corporation pointing out that the HIV positive status of the petitioner may take 8
to 10 years to develop symptoms of AIDS. The additional director also hinted the corporation
that HIV/AIDS is not transmitted by casual contacts by working together. It is transmitted
when the blood is transfus to other or sexual relations. Barring that two cases, the petitioner is
not going to pose any risk to others.

The High Court observed, HIV infected and AIDS are global problems. The petitioner
prayed for direction for reinstatement in his job by giving directions to the corporation. No
person can be deprived of his right to livelihood, except according to the procedure
established by law. The State or corporation cannot take ruthless and inhuman decision that
they will not employ a person unless they are satisfied that the person will serve during entire
span of service from employment till superannuation. The High Court quashed the order of
the corporation deleting name of the petitioner from the list of the casual labourers and the
ground that the stand taken by the corporation is arbitrary, unjust and unfair. The petitioner
was entitled to Rs.1000/- for forty month i.e. the period approximately calculated form the
date from which he was removed from his job, till the end of march 1997 and accordingly the
corporation was directed to pay Rs.40,000/- to the petitioner as back wages and the petitioner
was to taken back in his job, meaning thereby that the HIV status on the petitioner is no
ground for terminating his job. He may be employed in some other job in the corporation
which he can execute.

The Gujarat High Court in excuse of its power under Article 226 has shouldered the
doctrine of Parens Patriae and the said doctrine is applied to cases of earthquake victims in
Bipinchandra J.Diwan vs. state of Gujarat AIR 2002 Guj 99.

The concept in jurisprudence of doctrine of Parens Patriae is that the state has the inherent
power and authority to provide protection to the person and property of persons such as
minor and incompetent persons like those render helpless due to earthquake disaster. Parens
Patriae has been literally explained to mean the father of the country and is use to designate
the state referring to its sovereign power of parens Patriae jurisdiction. The necessity to refer
the Paren Partiae jurisdiction was felt by the Gujarat High Court that on the morning of 26 th
January 2001 an earthquake of the magnitude more than 7 on richter Scale Shook whole of
Gujarat and more devastatingly of entire Kutch district leaving thousands dead, injured,
crippled, orphaned and homeless. The government was unprepared to meet the unforeseen
calamity and still find it difficulty through it inadequate machinery to carry out the gigantic
task of rescue, relief and rehabilitation of the quake victims. Allegations have been made that
inspite of contributions and donation to quake victims from India and abroad there is a failure
and lapses on the part of the government to provide relief to the earthquake victims. The
reaction of the High Court was that the paradox in a democratic society is that people expect
too much from the elected government and its executive and its distrust in it and its
functionaries. The court felt that it was too early to attribute any failure to the government
machinery and to show distrust in its capacity to meet the situation which has arisen out of
disaster. The court held that the contributions and donations for relief to quake victims may
form part of the consolidated or contingent fund of India. For safe custody of such fund and
maintenance of its account, receipt and expenditure, a periodical check by audit, was made
mandatory. It has also been pointed out that the participation and co-operation of a body like
ombudsmen as for stupendous task like long range management of relief and rehabilitation
operations, such mechanism was held necessary.

After a long consideration and analysing of the magnitude of the problem, the High
Court concluded the case by holding that the petitioners with the help of the individuals and
service organisation and also agencies and authorities to whom the court has issued
directions, will work in a spirit of co-operation between them with one single aim providing
relief, remedy and rehabilitation of earthquake victims within the quickest possible time.

Conclusion
To conclude, it is important to note that the role of the High Courts in the protection of
human rights, to be noteworthy. As the powers of the Supreme Court to enforce human rights
is limited to the enforcement of the fundamental rights, the scope is wider for the High
Courts. The High Court can entertain the enforcement of not only fundamental rights but also
other legal or constitutional rights
 The popularity of the powers of the High Court is prominent for other reason that the
High Court is located within the state closer to the inhabitants of the state whereas, the
Supreme Court is located very far. Having the concurrent powers to enforce the fundamental
rights, people choose to go to High Courts to invoke the extraordinary power. Various aspects
of constitutional and legal rights are enforced and High Courts play a very important role in
upholding human rights with its territorial limits. It covers custodial deaths, Paren Partiae
role, role of an educator and keeping vigil to various invasions of rights. The health, hygiene
and sanitation is also looked into even medical negligence cases are entertained as a matter of
enforcement of human rights.

---

TRANSCRIPT

Introduction:
There shall be a High court for each state in India, but the parliament has the power to
establish a common High Court for two or more states. The High Court stands at the head of
the judiciary in the state, when one talks about the protection of human rights and the role of
the High Courts, one is taken to the Article 226 of the constitution. The Article 226 starts
with the marginal note “power of the High courts to issue certain writs”. Notwithstanding
anything contained in Article 32, every High Court shall have the power throughout the
territories in relation to which it exercises its jurisdiction, to issue to any person or authority
including in appropriate cases any government within those territories, directions, orders or
writs in the nature of Habeas corpus, mandamus, prohibition, quo warrant and certiorari any
of them for the enforcement of any of the rights conferred by part III and for any other
purpose.

By reading this provision of Article 226 it is clear that Article 226 is wider in scope than
Article 32. Under Article 32, the Supreme Court may issue writs for enforcement for
fundamental rights only but, under Article 226 the High Court may enforce not only
fundamental rights but also any other legal rights, for example to enforce the right to properly
under Article 300A of the constitution which is not a fundamental rights.

An important aspect of the Indian Constitution is the jurisdiction it confers on the High
Courts to issue writs, thereby the High Courts are made the guardians of the peoples’ legal
rights. The writ system provides an expeditious and less expensive remedy than any other
remedy available through a normal Court process.

As far as the protection of human rights is concerned, the powers of the High Courts of
enforcement of human rights guaranteed under the constitution and other legal rights under
Article 226 is required to be reviewed, by referring to the case laws.

Among the human rights, in this discussion, the High Courts’ role in protection of Article
21 of the constitution shall be confined.

Article 21: Right to life and personal liberty:

Most important of the fundamental rights may be said to be right to life. Article 21 reads
as no person shall be deprived of his life and personal liberty except according to the
procedure established law. The High Courts functioning in the states are playing considerable
role in the protection ad enforcement of Article 21. In this discussion two aspects shall be
covered, one is the role of the High Courts in the areas of health hygiene and sanitation.
Another area is regarding custodial violence and the reliefs granted by the High Courts. Some
decided cases of the High Courts will be reviewed to appreciate the protection of human
rights by the High Courts.

Custodial Violence:
Custodial deaths are perhaps one of the most heinous crimes in the civilized society
governed by the rule of law. The rights inherent in Article 21 and 22 of the constitution,
require to be jealously and scrupulously protected. This is well illustrated by the Guwahati
High Court in Kaminibala Talukdar vs. State of Assam 1997 Cr. L.J. 874 (Gau). In this
case, a boy who is said to be a member of unlawful organization came to spend a right out
with his mother at home. In one forenoon, he was in his courtyard playing carom with some
friends. At that time, four motor cycles with pillion riders came and stopped at the gate, (later
on they are identified as police in civil dress) they chased the boy who was playing and fired
shot upon him causing his death.

His mother filed a writ petition before the Gauhati High Court under Article 226
complaining that the life of her son has been deprived of without due process of law. The
answer given by the State was that the police attempted to arrest him and in the process firing
was necessitated and as a result he died. The Court had to see as to whether, firing was
necessitated or not. The Court relied upon medical jurisprudence where it is pointed out that
if firing done in point blank range i.e. within a distance of three feet, than in all the entrance
of bullets, tattooing mark will be exhibited. In the present case, the post mortem report had
shown that all the bullets which hit the victim have shown tattooing marks. The Court came
to the conclusion that all the firings are done within a distance of three feet and held that in
order to arrest one unarmed boy by eight police personals resorting to firing in an act
depriving the life of a boy not in accordance with the procedure established by law. The
Court awarded compensation to the mother of an amount of Rs. 1.5 lac and directed to the
State of Assam to recover this amount from those eight police personals.

Various other High Courts also reacted seriously in the matter of custodial violence.
The Bombay High Court found custodial death in Solgabai Powar vs. State of Maharastra
1998 Cr. L.J. 1505, due to the excess and maltreatment in the police custody and awarded
compensation of Rs. 1.5 lac against the State, in favour of the petitioners the widowed wife
of the victim.

In the later cases, the High Courts are seen to award compensation in custodial violence
at high amount. In Phulwati vs. National capital Territory of Delhi 2000 Cr. L.J. 1613
custodial death was caused due to beating by the police. A compensation of Rs.3 lac has been
awarded by the Delhi High Court.

The Aspect of health, hygiene and Sanitation

Article 47 of the constitution lays down the duty of the State to raise level of nutrition
and standard of living and public health. Various issues of public health arose in India and
problem relating to persons tested positive for HIV, expresses one aspect. The Bombay High
Court has confronted with such a problem in MX
of Bombay Indian Inhabitants Vs. MZY AIR 1997 Bombay 406.
 The petitioner was working as a casual labourer with a corporation through a contractor
in the year 1982. In 1986 the petitioner was interviewed for a vacancy against a regular post
in the corporation and employed as a casual labourer from 1986 to 1994. In the year 1990, the
petitionor was required to undergo a medical examination. In various tests he had no
comments from the doctors of his unhealthy relating to his bodies, except the presence of
HIV antibodies. The report for ELISA test showed HIV (1 and 2) positive for antibodies. The
certificate shows that the disease is a prolonged one. The patient acquiring the infection can
remain asymptomatic for a long time extending up to one to twelve years.

In the present case, after having the knowledge of the HIV status of the petitioner, the
senior manager of the corporation deleted the name of the petitioners from the selection panel
of the casual labourers, with immediate effect. The petitioner wrote letters to the corporation
with the submission that inspite of having HIV status, he is fit to load drums on the truck and
also that he is the only earning member of the family and if he is rendered out of job, his
family will found difficult to survive. He also said that he is very poor having his wife and
two children dependant on him the petitioner requested for allowing him to work as casual
labourer as before. The petitioner also wrote a letter to the Additional Director of Health for
making intervention in the matters. The Additional Director of Health Maharashtra wrote a
letter to the corporation pointing out that the HIV positive status of the petitioner may take 8
to 10 years to develop symptoms of AIDS. The additional director also hinted the corporation
that HIV/AIDS is not transmitted by casual contacts by working together. It is transmitted
when the blood is transfus to other or sexual relations. Barring that two cases, the petitioner is
not going to pose any risk to others.

The High Court observed, HIV infected and AIDS are global problems. The petitioner
prayed for direction for reinstatement in his job by giving directions to the corporation. No
person can be deprived of his right to livelihood, except according to the procedure
established by law. The State or corporation cannot take ruthless and inhuman decision that
they will not employ a person unless they are satisfied that the person will serve during entire
span of service from employment till superannuation. The High Court quashed the order of
the corporation deleting name of the petitioner from the list of the casual labourers and the
ground that the stand taken by the corporation is arbitrary, unjust and unfair. The petitioner
was entitled to Rs.1000/- for forty month i.e. the period approximately calculated form the
date from which he was removed from his job, till the end of march 1997 and accordingly the
corporation was directed to pay Rs.40,000/- to the petitioner as back wages and the petitioner
was to taken back in his job, meaning thereby that the HIV status on the petitioner is no
ground for terminating his job. He may be employed in some other job in the corporation
which he can execute.

The Gujarat High Court in excuse of its power under Article 226 has shouldered the
doctrine of Parens Patriae and the said doctrine is applied to cases of earthquake victims in
Bipinchandra J.Diwan vs. state of Gujarat AIR 2002 Guj 99.

The concept in jurisprudence of doctrine of Parens Patriae is that the state has the inherent
power and authority to provide protection to the person and property of persons such as
minor and incompetent persons like those render helpless due to earthquake disaster. Parens
Patriae has been literally explained to mean the father of the country and is use to designate
the state referring to its sovereign power of parens Patriae jurisdiction. The necessity to refer
the Paren Partiae jurisdiction was felt by the Gujarat High Court that on the morning of 26 th
January 2001 an earthquake of the magnitude more than 7 on richter Scale Shook whole of
Gujarat and more devastatingly of entire Kutch district leaving thousands dead, injured,
crippled, orphaned and homeless. The government was unprepared to meet the unforeseen
calamity and still find it difficulty through it inadequate machinery to carry out the gigantic
task of rescue, relief and rehabilitation of the quake victims. Allegations have been made that
inspite of contributions and donation to quake victims from India and abroad there is a failure
and lapses on the part of the government to provide relief to the earthquake victims. The
reaction of the High Court was that the paradox in a democratic society is that people expect
too much from the elected government and its executive and its distrust in it and its
functionaries. The court felt that it was too early to attribute any failure to the government
machinery and to show distrust in its capacity to meet the situation which has arisen out of
disaster. The court held that the contributions and donations for relief to quake victims may
form part of the consolidated or contingent fund of India. For safe custody of such fund and
maintenance of its account, receipt and expenditure, a periodical check by audit, was made
mandatory. It has also been pointed out that the participation and co-operation of a body like
ombudsmen as for stupendous task like long range management of relief and rehabilitation
operations, such mechanism was held necessary.

After a long consideration and analysing of the magnitude of the problem, the High
Court concluded the case by holding that the petitioners with the help of the individuals and
service organisation and also agencies and authorities to whom the court has issued
directions, will work in a spirit of co-operation between them with one single aim providing
relief, remedy and rehabilitation of earthquake victims within the quickest possible time.

Conclusion
To conclude, it is important to note that the role of the High Courts in the protection of
human rights, to be noteworthy. As the powers of the Supreme Court to enforce human rights
is limited to the enforcement of the fundamental rights, the scope is wider for the High
Courts. The High Court can entertain the enforcement of not only fundamental rights but also
other legal or constitutional rights

The popularity of the powers of the High Court is prominent for other reason that the
High Court is located within the state closer to the inhabitants of the state whereas, the
Supreme Court is located very far. Having the concurrent powers to enforce the fundamental
rights, people choose to go to High Courts to invoke the extraordinary power. Various aspects
of constitutional and legal rights are enforced and High Courts play a very important role in
upholding human rights with its territorial limits. It covers custodial deaths, Paren Partiae
role, role of an educator and keeping vigil to various invasions of rights. The health, hygiene
and sanitation is also looked into even medical negligence cases are entertained as a matter of
enforcement of human rights.

---

FAQs:
Q1. Is it correct to say that every state shall have a High Court?
Ans. No. The Parliament has the power to create common High Court for two or more
states.
Q2. What is so often quoted Article 226 of the Constitution provides?
Ans. It is the power of the High Courts to issue certain writs.
Q3. What is the scope of Article 226?
Ans. Every High Court in India has the power throughout the territories in which it
exercises jurisdiction to issue writs like Habeas Corpus etc. For enforcement of
fundamental right and for any other legal right.
Q4. What is the term custodial jurisprudence denote?
Ans. It refers to the custodial violence of detainee by the police causing bodily injuries or
death.
Q5. What is the scope of granting relief in human rights violation formed by the
High Court?
Ans. The court grants compensation for deprivation of life.
Q6. What is the duty of the School Authorities to the children when they are under
their custody in the school time?
Ans. The view of the Delhi High Court is that when a child is in the school hours in the
custody of the school authorities during the school hours the authority is to take care
of the children as would be taken by a prudent parent.
Q7. Is monetary compensation adequate for loss of life?
Ans. No, but there is also no other mode to compensate them except monetary as court
cannot give life of a dead person.
Q8. Is it justified to terminate the employment of an employee on the ground that he
has acquired an HIV status?
Ans. No, the view of the Bombay High Court is that he must be retained in service and
employ in a suitable job.
Q9. What is the role of the High Court exercising parens patria?
Ans. It is the role of the court to exercise the functions akin to a guardian to the
downtrodden mass.
Q10. What can be future scope of the powers of the High Courts?
Ans. By judicial activism and by interpretation the scope is going to be wider in the future.

Glossary:
1. Point Blank range - a shot fired within a distance of 3 feet.

2. Trigger happy - a terminology coined by the Gauhati High Court

defining the uncontrolled firing by armed personnel
crossing all ethical consideration.

3. Paren Patria - a clause explaining the role of the court to be guardian

of vulnerable section of the society.

4. Non serijuris - dependant person such as minor.

5. Ombudsman - an officer whose duty is to keep an eye to the public

maladministration.

References:
1. Basu,D.D. 1994: Human Rights in Constitutional Law, PHI Pvt. Ltd. New Delhi.
2. Bhatt, D.K. 1998: Judicial Activism through Public Interest Litigation, Indian
Experience, AIR Journal 120.
3. Sathe, S.P. 2010: Judicial Activism in India, 2nd ed. Oxford University Press.
4. Takwani, C.K. 2008: Lectures on Administrative Law. 4th ed. Eastern Book Co.

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