Human rights in India - fifty years after independence.

• Author: Sripati, Vijayashri

1. Introduction

   August 15, 1997 marked the fiftieth anniversary of India's independence.(1) A momentous day for all citizens of the subcontinent, it is of no less significance to the rest of the world. As the second most populous nation in the world and one occupying a significant geo-strategic location in Asia, the triumph of democracy and the strengthening of its roots in India augur well for international peace and security. Enduring for half a century as a vibrant, democratic and secular nation of teeming millions reflecting a rich diversity of caste, religion, language, culture, economic and social backgrounds is an achievement for India worthy of celebration.

   This celebration has been at one and the same time an inspiring and introspective event. India's fiftieth anniversary provides evidence of survival, as well as an opportunity to pause and take measure of her half century of experience in promoting human rights among her own citizens. While India has come a long way since 1947 and has many impressive achievements to her credit, it would be less than honest not to take cognizance of the number of severe failings that have marked the past five decades. It is imperative that we understand the nature and cause of those failings, and put the lessons of the past to work in charting a future course. In the failure to do so, those deprived of basic rights may "blow up the structure of political democracy" that the founding fathers "so laboriously built up."(2)

   John Hart Ely's remark that "constitutional law appropriately exists for those situations where the representative government cannot be trusted" evidences the crucial role of the judiciary in safeguarding human rights.(3) This is especially true of India where it is the Supreme Court that has been constitutionally vested with wide-ranging powers and the responsibility of protecting the citizens' human rights.(4) The significant, and arguably controversial, role the Court has come to play in the Indian polity can be traced back to this fact. It is sad that despite several economic successes, India is still plagued with the ubiquitous problems of poverty, illiteracy, housing, health, environmental degradation and exploitation, and other grave injustices. Judicial protection of human rights, therefore, takes on a desperate urgency. The challenges faced by the Court are daunting, and its failure to serve as a bastion of liberties could have a potentially explosive impact: threatening the most precious edifice of the Indian polity -- democracy.

   While the seriousness of India's current problems does not permit any slackening of effort by any branch of the government, this essay argues that the Supreme Court must continue to remain at the forefront of enforcing human rights. Article 21 is the life and liberty clause of the Indian Constitution.(5) This essay analyzes the jurisprudence of human rights that the Supreme Court has developed out of this seminal provision since independence. This analysis will be advanced against the backdrop of India's international obligations and international standards laid down in the International Covenant on Civil and Political Rights.(6)

   This essay comprises four parts. Part I is devoted to a discussion of the framing of India's Constitution, an analysis of its Fundamental Rights Chapter and the Supreme Court's role in the first three decades of independence (1947-1977). Part II critically examines the principles and approaches that have guided the Court both in the expansion of Article 21 and its adoption of many procedural innovations beginning in the late seventies. What is the relationship between international law and municipal law in India? How informed is the Indian Judiciary of International Human Rights Law? What use, if any, has the Court made of international legal norms? Part III, entitled "Creative Impact of International Human Rights Norms," analyzes these issues. The concluding part highlights issues most in need of the Court's activist thrust.

2. India's First Hour of Freedom

   1. Framing The Constitution

      On December 9, 1946, eight months prior to the formal transition of power from the British Government to the Indians, the Constituent Assembly(7) convened to draft a constitution that was acceptable to all sections of free India and suitable to its peculiar needs and situation. It was a historic occasion and marked India's first hour of freedom. To use the words of Granville Austin, it was "perhaps the greatest political venture since that originated in Philadelphia in 1787."(8) What emerged after thirty-six months of deliberations was not merely a political document establishing a democratic, secular state but a document embodying the blueprint of a parliamentary form of government with all sovereignty vested in "the people."(9) As articulated in its evocative Preamble,(l0) the Constitution, a social document, envisaged an egalitarian, just, and humane society committed to the dignity and liberty of the individual. It therefore enshrined an array of both Fundamental Rights(11) and Directive Principles,(12) which unlike the former, are non-justiciable, but nonetheless deemed to be "fundamental in the governance of the country," and it was the "duty" of the "State to apply these principles in making laws.(13) Part IV embodies the socio-economic responsibility of the state towards its citizens through provisions such as: securing for all citizens; just and humane conditions of work and maternity relief;(14) free and compulsory education;(15) and the establishment of sound international relations.(16) The communal riots and the bloody carnage that followed partition(17) prompted the framers to add two drastic provisions to safeguard their nascent republic's unity and integrity. The first allowed for preventive detention without trial,(18) even during peacetime; the second for the suspension of certain fundamental rights during an emergency.(19)

   2. Constitutional Expression Of Human Rights

      "Swaraj mera janma sidh adhikar hai" (Freedom is my birthright and I shall have it) was the daring declaration made by a great patriot, Lokmanya B. G. Tilak, before the British Government as far back as 1895. Tilak's and subsequent freedom fighters' demands for the guarantee of basic human rights denied to Indians during British rule found compendious expression in Part III.(20) The Constituent Assembly members debated the subject of fundamental rights, "the most criticized part of the constitution" with great passion for thirty-eight days.(21) They used the American Bill of Rights as their model in drafting the rights.(22) Thus, with respect to Part III, it was "the Potomac and not the Thames that fertilized the flow of Yamuna."(23)

      The Constitution guarantees an impressive array of Fundamental Rights covering a wide range of civil, political, cultural, economic and social rights. These rights are subject to certain exceptions that do not render them illusory. Originally, the Constitution guaranteed a right to property and to obtain compensation for the property acquired by law for a public purpose except in the crucial areas of agrarian reform.(24) The Forty-fourth Constitutional Amendment introduced in 1978 removed property as a fundamental right. Today, the right to property enjoys the status of a mere legal right.

      The right to equality guarantees both equality before law and equal protection of all laws.(25) Specific kinds of discrimination such as those based on religion, race, caste, sex or place of birth are constitutionally prohibited.(26) Further, the Constitution sanctions "special treatment" in favor of women, children, scheduled castes and tribes(27) and "backward classes" of citizens.(28) The Constitution also abolishes untouchability, and forbids its practice in any form.(29) These provisions were designed to eradicate the evils of casteism and untouchability that had been practiced on a relentless scale in India. Unfortunately, they have not yet been totally banished from modern and free Indian society.

      Other crucial rights such as freedoms of speech and expression,(30) to assemble peacefully without arms,(31) to form associations,(32) to move freely and to reside and settle in any part of the country,(33) to acquire, hold and dispose property,(34) and to practice any profession, occupation, trade or business,(35) have all been given constitutional protection. There are explicit grounds on which "reasonable restrictions" can be placed in exercising these freedoms.(36)

      Article 21, which enshrines the most venerable right, reads as follows: "No person shall be deprived of his life or personal liberty except according to procedure established by law." Accepting an American jurist, Felix Frankfurter's, sagacious advice, the framers eliminated the original "due process" clause in this article. The resistance was not to due process as a requirement of fair procedure but to the substantive interpretation that could flow from it.(37) The phrase "due process" was replaced with the "procedure established by law" clause -- a term borrowed from the Japanese Constitution.(38) Articles 20 and 22 provide a host of safeguards designed to assure a fair trial to all citizens. These crucial provisions were inserted at the behest of Dr. B.R. Ambedkar(39) to compensate for the absence of a "due process" clause in Article 21.(40) They guarantee freedom from retroactive crimes,(41) double jeopardy,(42) self-incrimination,(43) imprisonment without being informed of the grounds of arrest,(44) the right to counsel on arrest,(45) the right to be produced before a magistrate within twenty four hours of arrest(46) and the right to magisterial supervision in case of imprisonment for a period beyond twenty four hours.(47) The framers' serious commitment to upholding the dignity of the individual is amply reflected in the constitutional ban on the traffic of human beings,(48) `begar' and other forms of forced labor,(49) and the...