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31INDIAN CURRENTS 07 - 13 December 2015 31
EVOLVING RIGHTS
N
atural rights are inalienable and
inherent which distinguishes a
human being from an animal. Human
right although is fairly a modern concept, but
the concept of rights can be traced even in
Babylonian times.
‘The Cyrus Cylinder’, a clay tablet
containing statements of Cyrus the Great is
believed to be the first declaration of human
rights in history. Cyrus after conquering the
city of Babylon in 539 BC freed all slaves.
Much later ‘Magna Carta’ (1215) laid the
foundation for the modern state propounding
that everybody including the Crown was
subject to law. Bill of Rights (1789-91) was
another important document in the arena
of rights that ensured series of personal
freedoms to US citizens.
The initial impetus of current human rights
regime emerged as a reaction to the horror of
holocaust and atrocities caused by the World
War II which led to the formation of United
Nations in 1945 for bolstering global peace.
The concept of rights got a new dimension
when UN adopted the Universal Declaration
of Human Rights (UDHR) on 10th December,
1948. It can be regarded as the modern ‘Magna
Carta’ that recognizes inherent human rights.
In the beginning of the preamble of UDHR,
it says “Whereas recognition of the inherent
dignity and of the equal and inalienable rights
of all members of the human family is the
foundation of freedom, justice and peace in
the world…………” India is a signatory to
UDHR.
Indian jurisprudence has evolved with many landmark
judgments ensuring protection of human rights
BY F. I. CHOUDHURY
British colonial rule in India ended at
midnight of 15th August, 1947. Tilak’s
slogan of freedom and Gandhi’s struggle
for self-governance had great impact on the
freedom movement. Having been freed from
subjugation, thirst for freedom loomed larger
than hunger in independent India. Constitution
of India, the longest constitution in the world
came to be drafted. It gave primary importance
to human rights and incorporated substance
of the inherent human right, proclaimed in the
UDHR.
In ‘Keshavananda Bharati’ case the Supreme
Court observed,
“The Universal Declaration of Human Rights
may not be a legally binding instrument but
it shows how India understood the nature of
human rights at the time the Constitution was
adopted.”
The preamble of the Constitution of India
encapsulates the objectives of an egalitarian
society free from fear and bias. It defines our
fundamental rights and has created Supreme
Court of India as the final interpreter with the
solemn duty to guard and protect our rights.
Its power to protect our fundamental rights
against its illegal invasion is often described as
the “Cornerstone of the Democratic Edifice”.
Article 21 of the constitution ensures that
“No person shall be deprived of his life or
personal liberty except according to procedure
established by law”. This corresponds toArticle
3ofUDHRwhichreads,“Everyonehastheright
to life, liberty and security of person”. Supreme
Court of India interpreted that the word ‘Life’

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32 INDIAN CURRENTS 07 - 13 December 201532
has been used in Article 21 of the Constitution
as a basic human right in the same sense as
understood in the Universal Declaration of
Human Rights. The jurisprudence continued
to evolve.
The country witnessed extreme police
brutality in a series of incidents in between
1989-90inBiharinwhich80suspectedcriminals
were blinded during Police investigation.
Popularly known as ‘Bhagalpur Blinding Case’,
Supreme Court condemned it as “barbaric act
and a crime against mankind” and awarded
compensation to the victims. Justice Bhagwati
said, “If compensation was not to be granted,
Article 21 would be reduced to a nullity, “a
mere rope of sand”.
Enlarging the scope of ‘right to life’, Supreme
Court ruled that the use of third degree method
by police in custody is violative of Article 21. It
has held that inhuman treatment of the accused
in police custody is the gross and blatant
violation of Human Rights. A 22-year-old boy
of Orissa who was taken in police custody for
investigation was found dead later on a railway
track. Dealing with the seriousness of the case,
Supreme Court struck down the doctrine of
‘sovereign immunity in the arena of public law’
and awarded compensation for contravention
of fundamental right to life guaranteed under
Article 21 (Nilabati Behera’s case-1993).
When Bangladeshi national Hanuffa Khatoon
who was gang-raped by the Railway employees
atYatriNiwas,HowrahStationin1998,aserious
debate arose on a foreign national’s right under
public law. Supreme Court observed that
UDHR which has the international recognition
as the “Moral Code of Conduct”, its principles
thereof may have to be read into the domestic
jurisprudence, if so needed. While affirming a
compensation of Rs. 10 Lacs, Supreme Court
held that as a foreign national she could not be
subjected to a treatment, which was below the
dignity, nor could she be subjected to physical
violence by the Government employees who
outraged her modesty. In fact Supreme Court
in a case has already held that “rape” as an
offence which is violative of the Fundamental
Right of a person guaranteed under Article 21
of the Constitution.
Political groups threatened ‘Chakma
refugees’ with dire consequences. Supreme
Court came to its rescue and held that State of
Arunachal Pradesh was under Constitutional
obligation to protect and safeguard the life
of ‘Chakma’ refugees who fled Bangladesh
due to persecution and cannot be sent back
as they may be killed there and that would be
amounting to deprive them of their right to life
under Article 21.
Judicial activism reached its pinnacle when
Dalit social-worker, Bhanwari Devi, was
brutally gang raped by enraged higher-caste
feudal patriarchs of Rajasthan, for her efforts
to prevent a child marriage. Confronted with a
statutory vacuum to address the issue of sexual
harassment at workplace at that relevant
time Supreme Court relied on international
conventions to promulgate guidelines
for protecting inherent rights guaranteed
by the Constitution, popularly known as
Vishakha Guidelines (1996). It re-affirms the
constitutional guarantee of “gender equality”
in the workplace for women in India. Article
14 of the Constitution guarantees equality
and to achieve this dream it has prohibited
discrimination on the basis of caste, religion,
sex etc. and ensured equal opportunity in jobs
amongst others. This provision corresponds to
Article 7 of UDHR which recognizes equality
before the law without any discrimination to
equal protection of the law as our human right.
The recognition of the transgender/ eunuch as
third sex by the Supreme Court in 2014 was a
milestone in the concept of gender equality.
A significant world population dies
periodically out of hunger. Reminiscence of
starvation deaths in Kalahandi and Koraput
districts in Odisha still hounds our memory.
It caused global embarrassment for India. It
kindled our thought for ‘right to food’. It can
guarantee freedom from hunger and access
to safe food. Supreme Court interpreted ‘right

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33INDIAN CURRENTS 07 - 13 December 2015 33
to food’ is an implication of the “right to life”
enshrined in Article 21 of the Constitution while
answering a PIL filed in the wake of starvation
deaths despite excess grain stocks in the State
of Rajasthan in the year 2001. This judgment
re-established the dicta of wherein it was held
long ago that right to life includes the right to
live with human dignity. Article 25 of UDHR
recognizesrighttofoodas inherent human right.
It says “Everyone has the right to a standard of
living adequate for the health and well-being of
himself and his family, including food.”
For long it was not known whether
constitutional guarantee extends to prisoners
also. A new jurisprudence evolved in ‘Sunil
Batra’s case (1978)’ when the court defined that
imposition of solitary confinement on a death
row convict was illegal. Court even condemn
that putting bar fetters to the prisoners would
reduce the prisoner from human being to an
animal. The views reflect the assurances given
inUDHR.Article5ofUDHRsays,“Nooneshall
be subjected to torture or to cruel, inhuman or
degrading treatment or punishment”. While
Article 6 ensures that, “Everyone has the right
to recognition everywhere as a person before
the law”.
Maneka Gandhi’s case (1978) established
the principle that the procedure established
by law to deprive life and personal liberty
as contemplated by Article 21 must be right,
just and fair but not arbitrary, whimsical or
oppressive. This principle was enlarged to
hold that speedy trial is a right guaranteed
in Article 21 of the Constitution. Recently,
Supreme Court commuted death sentences of
15 convicts to life propounding the principle
that inordinate delays in deciding their mercy
pleas had violated their right to life. Right to
speedy trial is now a universally recognized
human right.
Although no express provision in the
constitution protects right to privacy similar
to Article 12 of UDHR which protects an
individual from arbitrary interference with
his privacy, but in a landmark case in Kharak
Singh v. State of UP (1963) Supreme Court
has held that the ‘domiciliary visits’ is an
infringement of the right to privacy and is
violative of personal liberty guaranteed under
Article 21. In recent times it has been affirmed
that the right to privacy is implicit in the right
to life and liberty guaranteed to the citizens by
Article 21 and a citizen has a right to safeguard
his privacy.
Rights-based approach demands guaranteed
access to information, the movement which
led to the enactment of Right to Information
Act, 2005, replacing the erstwhile Freedom
of information Act, 2002. This right has been
recognized as human rights in Article 19 of
the UDHR which states that right to seek and
receive information is included in freedom of
opinionandexpression.SupremeCourtofIndia
has interpreted that the right to information is
a part of the Right to Freedom of Speech and
Expression under the Constitution and has
been elevated it to the status of a human right.
Supreme Court in its land mark judgment in
ParamanandKataravUnionofIndiaestablished
that right to medical aid is a fundamental right.
It ruled that it is the professional obligation of
all doctors, whether government or private, to
extend medical aid to the injured immediately
topreservelifewithoutwaitinglegalformalities
to be complied with by the police. Article 21
of the Constitution casts the obligation on the
State to preserve life. No law or State action
can intervene to delay the discharge of this
paramount obligation of the members of the
medical profession.
Chief Justice Subba Rao in ‘Golak Nath’ case
observed, “Fundamental rights are the modern
name for what have been traditionally known
as natural rights”. Without rights life would
be meaningless. Now it is settled that, any
law violative of fundamental right, is void.
The promises in the Universal Declaration
of Human Rights have been translated into
a reality to a large extent by the evolving
jurisprudence under the Indian Constitution.
(The writer is Advocate, Supreme Court of India.)