Judicial system in india & evolution of rights

The Indian Judicial System is one of the oldest legal systems in the world today. It is part of the inheritance India received from the British after more than 200 years of their Colonial rule, and the same is obvious from the many similarities the Indian legal system shares with the English Legal System. The frame work of the current legal system has been laid down by the Indian Constitution and the judicial system derives its powers from it. The Constitution of India is the supreme law of the country, the fountain source of law in India. It came into effect on 26 January 1950 and is the world’s longest written constitution. It not only laid the framework of Indian judicial system, but has also laid out the powers, duties, procedures and structure of the various branches of the Government at the Union and State levels. Moreover, it also has defined the fundamental rights & duties of the people and the directive principles which are the duties of the State. India has adopted the feature of a federal system of government, the Constitution has provided for the setting up of a single integrated system of courts to administer both Union and State laws. The Supreme Court is the apex court of India, followed by the various High Courts at the state level which cater to one or more number of states. The High Courts exist with the subordinate courts comprising of the District Courts at the district level and other lower courts. An important feature of the Indian Judicial System is that it’s a ‘common law system’. In a common law system, law is developed by the judges through their decisions, orders, or judgments. These are also referred to as precedents. Unlike the British legal system which is entirely based on the common law system, where it had originated from, the Indian system incorporates the common law system along with the statutory law and the regulatory law.

Another important feature of the Indian Judicial system is that our system has been designed on the pattern of the adversarial system. This is to be expected since courts based on the common law system tend to follow the adversarial system of conducting proceedings instead of the inquisitorial system. In an adversarial system, there are two sides in every case and each side presents its arguments to a neutral judge who would then give an order or a judgment based upon the merits of the case. Indian judicial system has adopted features of other legal systems in such a way that they do not conflict with each other while benefitting the nation and the people. For example, the Supreme Court and the High Courts have the power of judicial review. This is a concept prevalent in the American legal system. According to the concept of judicial review, the legislative and executive actions are subject to the scrutiny of the judiciary and the judiciary can invalidate such actions if they are ultra vires of the Constitutional provisions. In other words, the laws made by the legislative and the rules made by the executive need to be in conformity with the Constitution of India.

The cases instituted by the state police and the Central Investigating Agency are adjudicated by the courts. We have a fourtier structure of courts in India. At the bottom level is the Court of Judicial Magistrates. It is competent to try offences punishable with imprisonment of three years or less. Above it is the Court of Chief Judicial Magistrates, which tries offences punishable with less than 7 years. At the district level, there is the Court of District and Sessions Judge, which tries offences punishable with imprisonment of more than 7 years. In fact, the Code specifically enumerates offences which are exclusively triable by the Court of Sessions. The highest court in a state is the High Court. It is an appellate court and hears appeals against the orders of conviction or acquittal passed by the lower courts, apart from having writ jurisdiction. It is also a court of record. The law laid down by the High Court is binding on all the courts subordinate to it in a state. At the apex, there is the Supreme Court of India. It is the highest court in the country. All appeals against the orders of the High Courts in criminal, civil and other matters come to the Supreme Court. This Court, however, is selective in its approach in taking up cases. The law laid down by the Supreme Court is binding on all the courts in the country .

The most significant of the Human Rights is the exclusive right to Constitutional remedies under Articles 32 and 226 of the Constitution of India . Those persons whose rights have been violated have right to directly approach the High Courts and the Supreme Court for judicial rectification, redressal of grievances and enforcement of Fundamental Rights. In such a case the courts are empowered to issue appropriate directions, orders or writs including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-warranto, and Certiorari. By virtue of Article 32, the Supreme Court of India has expanded the ambit of Judicial Review to include review of all those state measures, which either violates the Fundamental Rights or is violative of the Basic Structure of the Constitution. The power of Judicial Review exercised by the Supreme Court is intended to keep every organ of the state within its limits laid down by the Constitution and the laws. It is in exercise of the power of Judicial Review that, the Supreme Court has developed.

In India the Supreme Court is the highest court. Judiciary plays an important role in adjudication as well as interpretation of laws made by legislators. Further in the countries with written Constitution, the judiciary has the important task to do i.e. to maintain the supremacy of the Constitution. In case of a federal

state, judiciary decides the controversies between the Union and state. Judiciary acts as an arbitrator between them and scrutinizes
the laws. Indian judiciary is very vigilant in safeguarding the rights of the people. Mainly it protects the Fundamental Rights of the citizens as well as non citizens. The Supreme Court is the guardian of Fundamental rights as well as Constitutional rights and also the highest court of appeal. Our courts have always invariably tried to protect the basic rights and liberties of individuals in various spheres which include the rights of arrested persons. Judicial Activism is a delicate exercise involving creativity. Great skill and dexterity is required for innovation. Judicial creativity is needed to fill the void occasioned by any gap in the law or inaction of any other functionary, and, thereby, to implement the Rule of Law. Diversion from the traditional course must be made only to the extent necessary to activate the concerned public authorities to discharge their duties under the law and to catalyze the process, but not to usurp their role; the credibility of the judicial process must not get eroded .

The Supreme Court of India in the recent past has been very vigilant against encroachments upon the Human Rights of the prisoners. In this area an attempt is made to explain the some of the provisions of the rights of prisoners under the International and National arenas and also as interpreted by the Supreme Court of India by invoking the Fundamental Rights. Article 21 of the Constitution of India provides that “No person shall be deprived of his life and Personal Liberty except according to procedure established by law”. The rights to life and Personal Liberty are the back bone of the Human Rights in India. Through its positive approach and Activism, the Indian judiciary has served as an institution for providing effective remedy against the violations of Human Rights.

By giving a liberal and comprehensive meaning to “life and personal liberty,” the courts have formulated and have established Plethora of rights. The court gave a very narrow and concrete meaning to the Fundamental Rights enshrined in Article 21. In A.K. Gopalan’s Case , the court had taken the view that each Article dealt with separate rights and there was no relation with each other i.e. they were mutually exclusive. But this view has been held to be wrong in Maneka Gandhi’s case and held that they are not mutually exclusive but form a single scheme in the Constitution, that they are all parts of an integrated scheme in the Constitution. In the instant case, the court stated that “the ambit of Personal Liberty by Article 21 of the Constitution is wide and comprehensive. It embraces both substantive rights to Personal Liberty and the procedure prescribed for their deprivation” and also opined that the procedures prescribed by law must be fair, just and reasonable. Maneka Gandhi, Sunil Batra (I) , M.H.Hoskot and Hussainara Khatoon , the Supreme Court has taken the view that the provisions of part III should be given widest possible interpretation.

Every activity which facilitates the exercise of the named Fundamental Right may be considered integrated part of the Article 21 of the Constitution. It has been held that right to legal aid, speedy trail, right to have interview with friend, relative and lawyer, protection to prisoners in jail from degrading, inhuman, and barbarous treatment, right to travel abroad, right live with human dignity, right to livelihood, etc. though specifically not mentioned are Fundamental Rights under Article 21 of the Constitution .

The Supreme Court in the past few years has been settling many decade long debates on the various issues and has passed

many landmark and important judgments on the way, interpreting laws while expanding the ambit of fundamental rights and changing the course of the Constitution and of India. It all basically started from the case of Golaknath vs. State of Punjab in which the Supreme Court ruled that Parliament could not curtail any of the Fundamental Rights of any individual as provided in the Constitution. Parliament’s underlying ambitions were cut short in the bud in Keshavananda Bharti vs State of Kerala. The Supreme Court in Vishaka v State of Rajasthan laid down the Definition of sexual harrassment and provided the guidelines to deal with it. In Nirbhaya case – March 2014, four out of the five accused in the horrific gang-rape case of Nirbhaya were convicted and given the death sentence. The case also resulted in the introduction of the Criminal Law (Amendment) Act, 2013 which provides for the amendment of the definition of rape under Indian Penal Code, 1860; Code of Criminal Procedures, 1973; the Indian Evidence Act, 1872 and the Protection of Children from Sexual Offences Act, 2012. In fact, this incident also led to the replacement of a Juvenile Justice Act 2000 i.e. the age bar to be tried as an adult was lowered from 18 to 16 years.

The years 2017 & 2018 were a very reformative years with many landmark judgments that changed the course of India. The Supreme Court of India in Shayara Bano vs Union of India and others declared the practice of Triple Talaq as unconstitutional The Supreme Court also in 2017 held Sex with minor girl despite consent, is rape. In 2018’s case of Common Cause (A Regd. Society) vs Union of India and Another, the SC held that the right to die with dignity is a Fundamental Right. In Justice K.S.

Puttuswamy (Retd.) vs. Union of India and Other , the Supreme Court held privacy to be a fundamental right under the Constitution of India. The Supreme Court in 2018 also removed a ban that prevented women between 10 and 50 years of age from entering Kerala’s Sabarimala temple stating “Devotion cannot be subjected to gender discrimination.” In 2018 there was one more landmark decision of the Supreme Court of India that decriminalized all consensual sex among adults in private, including homosexual sex. The Supreme Court termed Section 377 as ‘irrational, indefensible and manifestly arbitrary’. The Supreme Court also strucked down a 150-year-old law that considered adultery to be an offence committed against a married man by another man. The Supreme Court declared Section 497 as unconstitutional held that Adultery is no longer a crime in India. The past few years has brought a lot of changes in our society which clearly reflected on the laws and hence, on the lives.

One of the most powerful dimensions that arose through Public Interest Litigation is the Human Rights of the prisoners. The Supreme Court of India has considerably widened the scope of Article 21 and has held that its protection will be available for safeguarding the fundamental rights of the prisoners and for effecting prison reforms. The Supreme Court by its progressive interpretation made Article 21, which guarantees the Right to Life and personal liberty, the reservoir of prisoner’s rights. Under the seventh schedule of the Constitution of the India, the prison administration, police and law and order are to be administered by the respective states. The states have generally given low priority to prison administration. In fact, some of the decisions of the

Supreme Court on prison administration have served as eye-

openers for the administrators and directed the states to modernize prison administration .

The Human Rights saviour Supreme Court has protected the prisoners from all types of torture. Judiciary has taken a lead to widen the ambit of Right to Life and personal liberty. The hosts of decisions of the Supreme Court on Article 21 of the Constitution after Maneka Gandhi’s case, through Public Interest Litigation have unfolded the true nature and scope of Article 21. In this thesis, an attempt is made to analyses the new dimensions given by the Supreme Court to Article 21 through Public Interest Litigation to safeguard the fundamental freedom of the individuals who are indigent, illiterate and ignorant. Public Interest Litigation became a focal point to set the judicial process in motion for the protection of the residuary rights of the prisoners. Judicial conscience recognized that Human Rights of the prisoners because of its reformist approach and belief that convicts are also human beings and that the purpose of imprisonment is to reform them rather than to make them hardened criminals.

Regarding the treatment of prisoners, Article 5 of the Universal Declaration of Human Rights, 1948 says “No one shall be subjected to torture or cruel treatment, in human or degrading treatment or punishment”. While Article 6 of the Universal Declaration of Human Rights, 1948 contemplates that “everyone has the right to recognition everywhere as a person before law”. Article 10(1) of the International Covenant on Civil and Political Rights lay down that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. The Supreme Court of India has developed Human Rights jurisprudence for the preservation and protection of prisoner’s Right to Human Dignity. The concern of the Apex judiciary is evident from the various cardinal judicial decisions.

The system of criminal justice, as a person is considered to be a criminal only if and when he is convicted by a court of law; the police should also presume that a person in custody may be innocent, till his guilt is proved. The principle of presumption of innocence is specifically provided in Article 11 (1) of the Universal Declaration of Human Rights, Article 14(2) of the International Covenant on Civil and Political Rights and Rule 84(2) of the Standard Minimum Rules. Since arrested persons are presumed innocent, police may impose only those conditions and restrictions on them as will ensure their appearance at trial, prevent their interference with evidence and further commission of offences. A police station is the most important base-line unit of the police organisation. It is at this cutting edge level of police administration, the people often get in close touch with the police. The lock-up is the first place of detention of arrested persons, regardless of whether they are later acquitted, convicted, fined or placed on probation. Right to speedy trial is a fundamental right of a prisoner implicit in article 21 of the constitution. It ensures ” Just, fair and reasonable ” procedure. The fact that a speedy trial is also in public interest or that it serves the societal interest also, does not make it any the less the right of the accused. But, this right is also violated in many cases. The shocking and dismaying picture of administration of justice was depicted by Hussainara Khatoon in which the writ petition filed before the Supreme Court disclosed that a large number of men and women, including children, were behind prisons for years awaiting trial in courts of law. The court found that continued detention of the under- trial prisoners could not be justified . Many judgements titled Re: Inhuman Conditions in 1382 Prisons have been delivered in relation to overcrowding, unnatural deaths, inadequacy of staff and the inadequate training of staff in the Indian prison system

from 2016 to December 2018. In Francis Coralie Mullin vs The Administrator it was affirmed that prisoners have a right to periodic meetings with their legal representatives to ensure efficient legal representation. It held that these rights should be extended to guarantee persons on death row a right to periodic visits from mental healthcare workers. It advised the Central and State Governments to bring about changes in prison manuals and regulations to incorporate this directive. In Shatrugan Chauhan v Union of India the Indian Supreme Court acknowledged the impact that the long-term imprisonment of prisoners on death row has on their mental health.

Human rights would become meaningless unless a person is provided with legal aid to enable him to have access to justice in case of violation of his human rights. This is formidable challenge in a country of India’s size and heterogeneity where more than half of the population lives in far flung villages steeped in poverty, destitution and. illiteracy. Legal aid is no longer a matter of charity but is not one of the constitutional rights, and the legal machinery itself is expected to deal specifically with it. In fact legal aid offers a challenging opportunity to a society to redress grievances of tile poor and thereby lay foundation of “Rule of law” To begin with article 22 (1) of the constitution provided a right to every arrested person to consult legal practitioner of his choice. In 1976, a new article 39- dealing with “equal justice and free legal aid” was added in the Constitution of India.

The Judiciary has widened the scope of the Indian Constitution and Indian laws and its interpretations has been time and again defined and redefined, giving it the broadest possible application. No doubt that the Indian Judicial System has played a very important role in lining up the actions of a welfare state.

Several old laws from the pre- independence era which showed that India was stuck in the past in recognising individual’s rights have been struck down. The Supreme Court has delivered many judgments interpreting various laws in order to expand the ambit of fundamental rights. It is not wrong to say that people in India have rights, which with the blessing of Indian Judiciary is evolving at a great pace. In the past few years our society has evolved at a rapid speed which is clearly reflected on the laws and hence, on the lives. But there’s also a sad reality that though Judiciary is playing its part but executive authorities are seriously lacking behind. Even today many laws and rights laid by the judiciary are good on paper but fall flat in reality because either they are not properly executed or are not executed at all. Recently the High Court of Delhi showed it’s concern over the same matter and stated that even after authoritative directions of the Supreme Court of India as well as the repeated judicial pronouncements of the High Court and the clear statutory provisions, 253 prisoners are still languishing in jail. This is one of the examples where the rights of people are ignored and were not valued. Even in 21st century many Fundamental Rights and basic human rights still remain a cherished dream for many. We are better off today, but still far behind!

  • www.supremecourtofindia.in
  • Bakshi P.M. Constitution law of India, Asia Law House, 2010.
  • PERRY, MICHAL J., The constitution, the courts and the human Rights, Willey, Eastman Ltd., New Delhi – 1982
  • A.K. Gopalan vs The State Of Madras, 1950 AIR 27, 1950 SCR 88
  • 1978 AIR 597,1978 SCR (2) 621
  • Sunil Batra vs Delhi Administration, 1980 AIR 1579, 1980 SCR (2) 557
  • Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, 1979 AIR 1360, 1979 SCR (3) 169
  • M.P.Jain, ‘Indian Constitutional law ‘(6TH edition, 2010)
  • 1967 AIR 1643, 1967 SCR (2) 762
  • (1973) 4 SCC 225
  • on 13 August, 1997
  • https://www.dailyo.in/variety/40-landmark-judgments-supreme-court-indian-judiciary-26-11-mumbai-attacks-afzal-guru-arushi-talwar-gujarat-riots/story/1/7798.html
  • Writ Petition (C) No. 118 of 2016
  • Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice
  • Joseph Shine vs Union Of India, WRIT PETITION (CRIMINAL) NO. 194 OF 2017
  • VARSHNI’s, Criminal trial and Judgement, Eastern Book Company – Lucknow, 2010.
  • Justice K. N. Goyai – Human rights and Criminal Justice, Cr. LJ.p.278.
  • Writ Petition (Civil) No. 406 of 2013
  • 1981 AIR 746, 1981 SCR (2) 516
  • Ajay Verma vs Govt of Nct Delhi -W.P.(C) 10689/2017