Creative Role of The Supreme Court of India in Enlarging and Protecting Human Rights

Soli J Sorabjee

Fundamental Rights occupy pride of place in Part III of the Indian Constitution. They inter-alia comprise constitutional guarantees of equality, freedom of speech and expression, freedom of assembly and association, freedom of movement, freedom to carry on any profession, trade or business, freedom of conscience and religion. There are guarantees against retrospective criminal laws, double jeopardy and self-incrimination and against deprivation of life and personal liberty. There are constitutional provisions to prevent exploitation of children. Minorities are guaranteed linguistic and cultural rights, and the right to establish and administer educational institutions of their choice.

The Indian judiciary has played a creative role in enlarging and protecting human rights. Fundamental rights which are not specifically mentioned have been spelt out and deduced on the reasoning that certain un-enumerated rights are implicit in the enumerated guarantees.

Let me give some illustrations. Our Constitution does not specifically guarantee freedom of the press as a fundamental right. Our Supreme Court in several decisions has ruled that freedom of the press is implicit in the guarantee of freedom of speech and expression and thus by judicial interpretation freedom of the press has acquired the status of a fundamental right.

The right to travel abroad and return to one’s country, though not expressly mentioned in Part III of the Constitution, has been spelt out from the expression “personal liberty” in Article 21 of the Constitution. Although there is no specific provision in the Constitution prohibiting cruel, inhuman and degrading punishment or treatment, the Court has deduced this guarantee from other provisions of the Constitution. Right to privacy has also been spelled out based on the inherent human right to be left alone.

The expression “life” in Article 21 has received an expansive interpretation. In the case of Francis Coralie Mullin the Supreme Court ruled that “life” does not connote merely physical or animal existence but embraces something more, namely “the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter”. Based on this interpretation our Supreme Court has ruled that the right to live with human dignity encompasses within its ambit, the protection and preservation of an environment free from pollution of air and water. Health and sanitation have also been held to be an integral facet of the right to life guaranteed by Article 21.

The most remarkable craftsmanship displayed by the Supreme Court in promoting human rights has been to incorporate into fundamental rights some of the Directive Principles, such as those imposing an obligation on the State to provide a decent standard of living, a minimum wage, just and humane conditions of work, and to raise the level of nutrition and of public health. This has been achieved by placing a generous interpretation on the expression ‘life’ in Article 21 of the Constitution which has been mentioned above.

Access to justice is recognized as a basic human right. In order to achieve that it is necessary that the doctrine of locus standi should not be rigid. Our Supreme Court has liberalized the rule of standing in public law and declared that where judicial redress is sought for legal injury done to indigent and disadvantaged persons, who on account of economic disabilities are unable to approach the courts themselves, any member of the public acting bonafide and not for oblique considerations, can maintain an action on their behalf.

In countries where fundamental rights are violated extensively, whether in flouting of labour laws, resort to illegal detentions and discriminatory actions, and other violations, a cynic may well taunt and question the utility and efficacy of the Chapter incorporating Fundamental Rights. The answer is that it empowers citizens and groups fighting for justice to approach the court and provides opportunities for vindicating the Rule of Law. It also establishes norms and standards which can be used to educate people to know, demand and enforce their basic human rights. It has a salutary effect on the administration which knows that it has to conform to the discipline of fundamental rights. The effort should be to ensure that fundamental rights guaranteed in a Constitution are made living realities for the weak, vulnerable and marginalized sections of society. Moreover, the Chapter of Fundamental Rights in the Constitution is a constant reminder that the powers of the State are not unlimited and that human personality is sacred and human rights are invaluable. We need these reminders constantly.


The author is a Senior Advocate at the Supreme Court of India, and the former Attorney General for India.

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