Observance of the law Day on November 26 and celebration of the World Human Rights Day on December 10 are red letter days in the history of our nation. On November 26,1949, “we the people of India” have solemnly resolved to constitute India into a sovereign, socialist, secular, democratic republic and to secure to all its citizens justice, social, economic, political, in our constituent Assembly which enacted, adopted and gave to ourselves this constitution. Similarly on December 10, 1948 which is being observed world over, there was Universal Declaration of Human Rights charter.
In this backdrop, it is worthwhile to mention that other countries have also tried with democratic governance but it could not sustain for a longer period. However, India has seen successful working of democracy over the years based on rule of law which has taken firm roots in our soil. It is gratifying to note that our constitution has made provisions to safeguard the fundamental rights of the citizens most jealously and the judiciary stands as a vanguard for the protection of those human rights, the most precious of which are life and liberty of millions of our countrymen. As a matter of fact, judiciary in India not only expounds and interprets the law of the land but it acts as a watch-dog of the constitution particularly to safeguard human rights.
It is heartening to say that there has been expanding horizon of Article-21 of the constitution and the word “life” employed in Article-21 has been interpreted by the Supreme Court in a plethora of judgments that it means and includes dignified life for a qualitative existence, not animal existence .This concept has found its best expression in the case of Menaka Gandhi and Francis Cora-lie Mullin’s case. In Menaka case, for the first time, the Supreme Court imported and imbibed the American doctrine of “due process of law” and used the dictum as “procedure established by law” in Article-21 of our constitution.
In the case, the Supreme Court said that any legislation or administrative action has to answer the test of reasonableness of the statute or action of the executive. In other words, any administrative action and legislation must be just, proper and reasonable or else it is liable to be struck down as ultra vires or unconstitutional. It may be recalled that in 1950 when the working of the constitution was at a nascent state, in the case of AK Gopalan which was a preventive detention case, the Supreme Court refused to entertain the American concept of due process of law and the abstract principles of natural justice which was argued at the bar. It will not be out of place to note that the citizen of the country is in the centre –stage of our constitutional system and he is not a cog or coy in the state-craft or in the mighty power of the State. Therefore, upholding of human rights of citizen is of primordial importance.
Extra-judicial killing in the name of encounter, degrading human treatment and torture by police and security personnel are negation of human right and rule of law which has also been expressly prohibited by the constitution. The violation of human right would amount to criminal offence which entails punishment.
So far as administration of criminal justice is concerned, the constitution has envisaged adequate safeguards for the protection of life and liberty of citizens and kept them in fundamental rights chapter in Part-III of the constitution in Article-20 (1), (2), (3), which are in the nature of ex-post fact law which is prohibited, doctrine of double jeopardy and self-incrimination or testimonial compulsion. In this back drop, it will not be out of place to make a mention that so far as basic rights of the citizens are concerned even the Parliament which is the supreme law making body cannot amend the basic structure of the constitution which has been spelt out in unequivocal terms in the preamble. Similarly adequate safeguard has been provided for protection of rights and liberty of citizens in cases of arrest.
After arrest the grounds of arrest has to be informed to the accused and he must be produced before a magistrate within 24 hours and he has to be given opportunity to be defended by a lawyer of his choice. The Supreme Court in the case of DK Basu vs State of West Bengal has given a land mark judgment of far-reaching consequence regarding the rights of an arrested person which acts as a checkmate against arbitrary arrest, false imprisonment and detention without trial. Significantly, the constitution makers did not leave the criminal justice system involving the liberty of a person so lightly in the hands of executive and legislature to be hanging precariously on their whims and caprice but have made these rights part of fundamental right of citizen to be enforceable against violation even from inconceivable quarters.
Therefore “judicial review” and “independence of judiciary” have become the hallmark and bedrock of our democratic governance which is necessary for an egalitarian society based on rule of law. Right to speedy trial has become a part of fundamental right and the Supreme Court has recently emphasized for release of under trial prisoners who have been detained for more than half of the sentence prescribed under law for such offence.
The trial court judges are working on it and therefore there is light at the end of the tunnel so far as freedom of UTP is concerned. Right to legal aid and free legal service at State cost has also become part of fundamental right for which provision in Article-39 (A) has been made and after this constitutional mandate, legal Services Authority Act-1987 has been passed so as to give legal aid to the needy and down-trodden at their doorsteps and to organize look Adalat for settlement of disputes by a way of conciliation, mediation and arbitration without recourse to traditional law courts. This system is called ADR (Alternative Dispute Resolution) which has added another projectile to the majesty of law which has created confidence in public mind about the efficacy of the justice delivery system.
Right to free and compulsory education from the age of 6 to 14 year at the expense of State has become a fundamental right under Article-21 (A). All these aspects taken together are called judicial activism. Because other two organs of the State or wings of governance do not discharge their function effectively or fail to perform the duties assigned by constitution, judiciary has to come to the surface.
In fact this is good for the country that judiciary has taken a pro-active role. However, while entering into the arena of State activities which are the exclusive domain of executive and legislature, judiciary should exercise restraint as constitution has prescribed the theory of separation of powers and system of checks and balances. It will not be out place to mention that Article-14 which is equality before law and equal protection to the laws which are constitutional mandates plus the provisions laid down in Protection of Civil Rights-1955 and the provisions of SC / ST (Prevention of atrocities) Act – 1989 all taken together bears the signature of social justice so as to ameliorate the life and condition of members of SC/ ST community to bring them to the mainstream of national life.
Before parting I would like to say that the significance for the observance of “law Day” and “World Human Rights Day” is to safeguard the constitutional rights of citizens for an egalitarian social order based on rule of law which is the very essence for nourishment of a democratic society.
(The writer is a former CBI Special Judge, Bhubaneswar and a former Prof of law at lal Bahadur Shastri National Academy of Administration, Mussoorie)