INTRODUCTION
According to the Universal declaration of Human Rights and the UN Declaration on Human Rights Defenders, everyone has a role to play in the realization of human rights. Everyone should recognize and respect the role of those who work for the protection of human rights and call on their political representatives to ensure that the rights established in the UN Declaration of Human Rights Defenders are respected and supported.
Despite this, in countries across the globe, governments, security, traditional leaders, armed groups or religious leaders place obstacles in the way human rights work. They abuse the rights of citizens and create an atmosphere where human rights are not respected. The idea of promotion and protection of human rights challenges the existing political, economic and cultural power structures to put mechanism in place to ensure the realization of human rights.
The greatest value of human life is best represented in:
- recognition of fundamental rights, and in fully enabling people to enjoy and
- exercise these rights to the extent that preserves their humanity and respects their civility.
Life would be meaningless if, individuals were not able to:
- practice their natural rights or to adopt the political opinions they believed in and
- enjoy security in their communities.
However, mechanism exists at state, regional and international levels, which offer protection to human rights and those working to protect and promote human rights. One of these institutions that promote and protect human rights is the judiciary.
JUDICIARY
The judiciary is the branch of the government which administers justice according to law.
The term is used to refer broadly to:
- the courts,
- the judges,
- magistrates,
- adjudicators and
- other support personnel who run the system.
Significance of judiciary:
- The courts apply the law, and settle disputes and punish law-breakers according to the law.
- Our judicial system is a key aspect of our democratic way of life.
- It upholds peace, order and good government.
- Citizens look to the courts to interpret laws. The judiciary must act without favoring individual parties. A court’s ability to deliver justice depends on its power to enforce its rulings.
- Only a court of appeal can overturn the ruling of a lower court.
Judiciary is the ultimate guardian of human rights of the people. It not only protects the rights enumerated in constitution but also has recognized certain unenumerated rights by interpreting the fundamental rights and widened their scope. As a result people not only enjoy enumerated rights but also unenumerated rights as well.
ROLE OF JUDICIARY IN THE PROTECTION OF HUMAN RIGHTS
Judiciary has a diverse role in protection of human rights, which has been categorized as following:
- General-
- Philosophical:
- Social justice
- Economic justice
- Socio-economic justice
- Concrete:
- Upholding law
- Judicial review
- Constitutional remedies
- Philosophical:
- Specific-
- Women,
- men,
- transgender persons,
- children,
- aged people and
- prisoners.
IN GENERAL-
In general, judiciary has been further categorized in philosophical and concrete categories.
PHILOSOPHICALLY:
Judiciary has been placed to serve the general public with justice, which is when placed to work gets split into two modes:
I. Social justice and
II. Economic justice
III. Socio-economic justice
I. SOCIAL JUSTICE
Social justice concerns with the distribution of benefits and burdens throughout the society entitling every member of the society to enjoy the same level of wellbeing as every other. As has been observed by the Supreme Court social justice, equality, dignity of person, are cornerstones of social democracy.
Case 1: Air India statutory Corpn. V United Labour Union
Supreme Court defined ‘Social Justice’, as “the concept of social justice which the constitution of India grafted, consists of diverse principles essential for the orderly growth and development of personality and every citizen. Social justice is thus an integral part of justice in generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic device to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society…”
Case 2: S.R.Bommai V Union of India
Court held that social justice and judicial review is the basic feature of the Constitution of India.
Case 3: Balbir Kaur V Steel Authority of India
The Supreme Court has firmly rule that, “concept of social justice is yardstick to the justice administration system or the legal justice and it would be an obligation for the law courts to apply the law depending upon the situation in a manner whichever is beneficial to eth society” as the respondent Steel Authority of India was directed to provide compassionate employment to the appellant.
Case 4: Ashok Kumar Gupta V State of Uttar Pradesh
It was held by the Apex Court that “To give proper representation to SC or ST, dalits in services is a social justice which is a fundamental right to the disadvantaged. It cannot be said that reservation in promotions is bad in law or unconstitutional.”
Case 5: Consumer Education and Research Centre V Union of India
It was held that “Social justice is a device to ensure life to be meaningful and livable with human dignity. State has to provide facilities to reach minimum stand of health, economic security and civilized living to the workmen. Social justice is a means to ensure life to be meaningful and livable.”
OTHER MEANS TO ACHIEVE SOCIAL JUSTICE
There are various means to serve social justice to people out there by judiciary. Those means may be food, health, education and environment.
I. FOOD
Case: People’s Union for Civil Liberties V Union of India
In this case, court sought to ensure compliance with the policy of supplying mid-day meals in government run primary schools. The mid-day meal scheme had been launched with much fanfare a few years ago with the multiple objectives of:
- encouraging the enrolment of children from low income backgrounds in schools and
- ensure that they received adequate nutrition.
II. HEALTH
Case: Indian Medical Association V V.P.Shantha
It was ruled that the provision of a medical service (whether diagnose or treatment) in return for monetary consideration amounted to a ‘service’ for the purpose of the Consumer Protection Act, 1986. Consequently the medical practitioner could be held liable under the Act for deficiency in service in the case of negligence.
III. EDUCATION
Case: Miss. Mohini Jain V State of Karnatka
For the first time in independent India, “Right to education” of eth Indian citizens and the state obligation to secure the right came under scrutiny at the premises of the apex court. The court said that
“although right to education has not been granted as the fundamental right under Part III of eth Constitution, the Articles 21, 38, 39(a),(f), 41 and 45 together makes it clear that the framers of the constitution made it obligatory for the State to provide education for its citizen. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is a accompanied by right to education.”
IV. ENVIRONMENT
Case 1: Indian Council for Enviro-Legal Action V Union of India
Supreme court recognized the “polluter pays” principle as a fundamental objective of governmental policy to prevent and control pollution.
Case 2: M.C.Mehta V Union of India
Popularly known as Taz Trapwzium case concept of sustainable development recognized.
Case 3: M.C.Mehta V Kamal Nath
Recognizing the State as a trustee of all the natural resources court pronounced the doctrine of ‘Public Trust’.
Court held that the state, as a trustee of all natural resources was under a legal duty to protect them, and that the resources were meant for public use and could not be transferred to private ownership.
II. ECONOMIC JUSTICE:
“From each according to his capacity, to each according to his needs” is underlying principle upon which distributive economic justice works. This concept connotes inter alia, the removal of economic inequality and rectifying the injustice resulting from dealings or transactions between unequal in society. In India there has always been emphasis on mixed economy i.e. along with the public sector, the private sector also has role to play. The government accepts the policy of mixed economy where both public and private sector co-exist side by side.
Further the constitution makers rightly perceived that mere political democracy would be meaningless in the country of poor millions economic justice.
Case 1: Olga Tellis V Bombay Municipal Corporation
The Supreme Court has taken recourse to Article 39(a) to interpret Article 21 to include the ‘right to livelihood’. The Supreme Court has observed
“if there is an obligation upon that state to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life.”
Case 2: Mahesh Gupta V Yashwant Kumar Ahirwar
Keeping the principles embodied in Article 39(a) Supreme Court held that reservation for women or handicapped persons was not subject to the percentage of 50% as prescribed in Indra Sawhney V Union of India.
Case 3: Peoples Union of Democratic Rights V Union of India
The Supreme Court has held that minimum wages must be given and not to pay minimum wages is the violation of human dignity and it is also known as exploitation.
III. SOCIO-ECONOMIC JUSTICE
Case 1: Superintending Engineer, Public Health, U.T. Chandigarh V Kuldeep Singh
The Supreme Court held that, “it is the duty of the authority to take special care of reservations in appointment as a part of the constitutional duties to accord economic and social justice to the reserved categories of communities. If ST candidate is not available, the vacancy has to be given to SC candidate and the reserved roster point has to be filled in accordingly.”
Case 2: People’s Union of Democratic Rights V Union of India
The Supreme Court has held that minimum wages must be given and not to be pay minimum wages is the violation of human dignity and it is also known as exploitation.
CONCRETE-
The Supreme Court of India is the highest authority of the judiciary. All the courts in India are responsible handling and passing decisions on multiple issues, through-
- Upholding the law
- Judicial reviews
- Constitutional remedies
I. UPHOLDING THE LAW
Almost every possible right has been defined, described, expressed and even explained in or by the legislatures. In case, on citizen (or non- citizen) feels that any of such rights are being violated; they can approach and seek it in the proper manner being prescribed from the judiciary. Here, judiciary is the best provider and safeguarding means of Fundament Rights of people out there (or general public).
II. JUDICIAL REVIEW
- Judicial review is a very important principle which plays a pivotal role for the protection of human rights and to ensure law and order (rule of law) in the nation.
- It is concerned with the power of judges to check and control the activities and decisions of governmental bodies, tribunals and courts.
- There are certain pre-conditions or grounds that give rise to judicial review- justifiability, standing, exhausting of local remedy, finality and ripeness.
- To end(solve) these, the courts should follow some principles which are essential to review decisions of administrative agencies like separation of power, judicial economy, fairness and legitimacy.
III. CONSTITUTIONAL REMEDIES
- It is constitutional mandate of judiciary to protect human rights of the citizens.
- Supreme Court and High Court are empowered to take action to enforce these rights, as for redressal is provided under Article 32 and 226 of the Constitution.
- In such cases courts are empowered to issue appropriate order, direction and writs, which are-
- Habeas corpus (to have the body of)
- Mandamus (to command)
- Prohibition (to forbid)
- Quo-warranto (by what authority or warrant)
- Certiorari (to be certified)
IN SPECIFIC:
Role of judiciary, specifically mentions its significance in regard to the protection of human rights of:
- Women,
- Men,
- transgender persons,
- children,
- aged people and
- prisoners.
Note: specific judicial role in protection of human rights (of women, men, transgender persons, children, aged people and prisoners) has been precisely explained in my other blogs.
BIBLIOGRAPHY
The role of the judiciary in the promotion and protection of human rights- by Charles ohene-Amoh
The_role_of_judiciary_in_access_to_socio.pdf by Leela kumar
Factsheet_5.1_RoleOfTheJudiciary.pdf
Farheen Dhanjal 