Human rights under Indian Constitution and AFSPA in NE
- Part 1 -

By Jagat Konthoujam *

The genesis of human rights is the Utopian concept of natural rights traceable from the days of the Greeks or even earlier. Human rights are generally, defined as those rights which are inherent in our nature without which we cannot live as human beings. All civilised countries must recognise them. It is the legal duty of the Nation to protect them and also respect them.

For the first time in the history, the representatives of most Governments on earth have agreed that certain rights belong not to any one nation or group but to every human being as a human being. Human rights basically, mean the rights to be human.

The Universal Declaration of Human Rights was adopted by the General Assembly of United Nations on loth December, 1948. It is a unique landmark in the human rights development.

The relevant Articles in the Universal Declaration of Human Rights, 1948 are as under:
Article 3: Everyone has the right to life, liberty and the security of person.
Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 9: No one shall be subjected to arbitrary arrest, detention or exile.
Article 11: Everyone charged with a penal offence has a right to be presumed innocent until proved guilty according to law in the public trial at which he has had all the guarantee necessary for his defence.

The Constitution of Independent India came into force on 26th January, 1950. The part III and IV of the Constitution deal with the fundamental rights and directive principles of State policy respectively. Most of the human rights declared 'as such by the United Nations are incorporated in the Constitution of India either as fundamental rights or in the form of directive principles.

Human rights are inherent in all human beings and find expressions in Constitution. In most of the democratic societies, fundamental human rights and freedoms are more mere paper aspirations. The challenge of violation of human rights faces the mankind in its stark nakedness. The challenge is Universal and the issue is basic.

Article 21 of the Constitution of India guarantees rights to life and personal liberty.

The Article runs as under:
"No person shall be deprived of his life or personal liberty except according to the procedure established by law."

Article 21 of the Constitution of India which guarantees right to life and personal liberty will be denuded of its significant content unless the violation of human rights can reasonably, be prevented in a country governed by the rule of law. Rule of law sustains democracy, but it would be under a serious threat of erosion if scant respect is shown for human rights.

The expression 'life' does not mean mere animal existence, and it means life with dignity. Right to life guaranteed under Article 21 of the Constitution has certain positive aspects and is enforceable as such subject to well-organised limitation apart from an obligation of the state not to deprive a person of his life or personal liberty except in accordance with valid law.

It is heartening to note that the Supreme Court has now, widened the scope of Article 21, though earlier in A.K. Gopalan V. State of Madras, the Supreme Court took a very narrow and restrictive interpretation of Article 21 of the Constitution.

In this case, it was held that the expression "procedure established by law" must mean procedure enacted by the law made by the state and the word "law" in Article 21 of the Constitution of India is thus, to be understood as State-made law and not natural justice on the analogy of due process of law as interpreted by the American Supreme Court.

In this case, the majority of the Supreme Court flatly denied the possibility of admitting into Article 21 any ingredient of American "due process" for even of the 'reasonableness' concept from Article 19 of the Indian Constitution itself to arrive at the proposition that whatever was laid down by the legislature in a penal law would satisfy Article 21 and that the court could not intervene even where the procedure laid down was arbitrary or "harsh, unreasonable, archaic or odious".

The law has not remained static, since then as indeed, it could not remain static. It is in the process of being developed and expanded and that is being done through judiciary's creative process. The judgments delivered by the Supreme Court between 1950 and 1970 were mainly on the language of the Constitution and the requirement of the particular case before the court, but laid down sound foundation for the development of law.

Twenty eight years after the judgment in Gopalan's case, the Supreme Court in Maneka Gandhi's case (AIR 1978 SC 579) pronounced a landmark judgment over ruling Gopalan's case that the procedure established by law within the meaning of Article 21 must be right, just and fair and not fanciful, arbitrary or oppressive.

It must satisfy the test of reasonableness and the principles of natural justice and unless it was so it would be no procedure at all and the requirement of Article 21 would not be satisfied.

The procedure to be fair and just must embody the principles of natural justice. Natural justice is intended to invest law with fairness and to secure justice, the court said, "law should be reasonable law, and not enacted piece of law".

In Madhar Hoskot's case (AIR 1978 SC 1548) also, the Supreme Court delivered a remarkable judgment that free legal service to the poor and needy people was also an essential element of the "reasonable, fair and just procedure". It was felt not enough that the law prescribed some semblance of procedure for depriving a person of his life and liberty, that the procedure prescribed by law to be reasonable, fair and just.

In Sunil Batra V. Delhi Administration Case (AIR 1980 SC 1579), Justice Krishna ,her said that though our Constitution did not have a "due process" clause as in the American Constitution, the same consequence ensured after the decisions of Maneka Gandhi's case. Now, the expression, "procedure established by law" in Article 2] of our Constitution has the meaning similar to that of the American "due process of law".

In USA, the Supreme Court has, under the cover of "due process" clause in the 5th & 14th Amendments to the Constitution possessed the power to declare any legislation or executive action null and void, if the same is found to be inconsistent with the provisions of the Constitution. The purpose of the inclusion of "due process" clause is to protect and preserve the rights of all citizens of America by the Supreme Court against infringement by the legislature and other authorities.

By accepting the concept of natural justice as one of the essential components of law, it is submitted that the court has imported the American concept of 'Due process of law' into the Indian Constitution.

to be continued ....