Right To Access Internet Is Part Of Right To Privacy And Right To Education: Kerala HC

It is highly remarkable that the Kerala High Court has just recently on September 19, 2019 in a latest, landmark and extremely laudable judgment titled Faheema Shirin RK Vs State of Kerala and others in WP (C) No. 19716 of 2019 (L) has taken a giant step forward by declaring clearly, categorically and convincingly that right to access internet is a fundamental right forming part of right to privacy under Article 21 of the Constitution of India. This commendable judgment was delivered by a single Bench of Justice PV Asha while allowing a petition filed by a student named Faheema Shirin challenging the unwarranted restrictions on the usage of mobile phones in a girls hostel.   The Kerala High Court also added that it also forms part of the right to education. Very rightly so!

To start with, the ball is set rolling in para 1 of this commendable judgment which briefly states the background of the case by saying that, “A 3rd semester B.A. student of Sree Narayanaguru College, Chelannur, Kozhikode, has filed this Writ Petition aggrieved by her expulsion from the hostel. It is stated that she has been staying in hostel run by the college which is an aided college affiliated to University of Calicut. It is stated that the inmates of the hostel were not allowed to use their mobile phone from 10 p.m. to 6 a.m. within the hostel and that undergraduate students were not allowed to use laptop also in the hostel. While so from 24.06.2019 onwards the duration of the restriction in using the mobile phones was changed as 6 p.m. to 10 p.m. The petitioner claims that though she, along with other inmates of the hostel, met the Deputy Warden – the 5th respondent, requested to convene a meeting of the inmates, explaining the inconveniences caused to them on account of the restrictions, the Deputy Warden or the matron did not respond. It is also stated that though a meeting was convened within a week thereafter, no discussion was made regarding the restriction of the electronic devices. It is stated that the 5th respondent sent a Whatsapp message informing that those who do not abide by the rules would have to vacate the hostel. The petitioner claims that she thereupon approached the Principal on 03.07.2019 and submitted Ext.P2 letter requesting to relax the restrictions. Thereupon, Ext.P3 letter was obtained from her in writing to the effect that she was not willing to abide by the new rule restricting usage of phone between 6 p.m. to 10 p.m. Thereupon her parents were asked to meet the Principal on 05.07.2019; the 4th respondent informed them that the petitioner has to vacate the hostel as she refused to abide by the rules; Ext.P4 memo dated 05.07.2019 was issued to her directing her to vacate the hostel immediately; respondents 4 to 6 convened a meeting of the hostel inmates on 08.07.2019 when the students were informed about the action taken against the petitioner based on her request to relax the rules and that the inmates were asked to give in writing their willingness to abide by the restrictions when all the hostel inmates except the petitioner submitted such willingness; on 11.07.2019, Ext.P5 notice was issued to the petitioner directing her to vacate the hostel within 12 hours; on 15.07.2019, the petitioner submitted Ext.P6 leave letter for the period from 12.7.2019 on 15.7.2019, as it was not possible for her to attend the classes since she had to travel nearly 150 km every day; when the petitioner reached the hostel on 15.7.2019 to vacate her room, it was seen locked and the hostel authorities did not allow her to take her belongings.”

Before proceeding ahead, it would be useful to mention the names of all the 7 respondents. They are as follows: –

1. State of Kerala represented by the Secretary;

2. University of Calicut represented by its Registrar;

3. University Grants Commission represented by its Secretary;

4. Principal Sree Narayanaguru College, Chelannoor, Balussery, P.O. Kozhikkode;

5. Deputy Warden, Women’s Hostel, Sree Narayanaguru College;

6. Matron, Women’s Hostel, Sree Narayanaguru College; and

7. SFLC.IN represented by its Executive Director, New Delhi.

No doubt, it is rightly pointed out in para 8 that, “The question to be considered is whether the restrictions imposed by the hostel authorities on use of mobile phones while enforcing discipline has infringed the fundamental rights of the petitioner, even assuming that such modification was brought about at the request from the parents.”

Going forward, it would be useful to have a quick look at the relevant part of para 9 which states that, “However in this case the question to be examined is whether such enforcement of discipline by restricting the use of mobile phones would result in curtailing the right of the students to acquire knowledge by different means. Using of mobile phones by itself would not cause any harm to anyone. If a restriction is unreasonable and arbitrary and infringes the fundamental right of an inmate, it cannot be said that the student has to abide by such restriction, especially when the inmate is an adult.”

Furthermore, while examining the impact of using mobile phone in hostel, it is then enunciated in para 10 that, “It is therefore necessary to examine whether usage of mobile phone during 6 pm to 10 pm would amount to indiscipline and whether the refusal to abide by the instruction in using it should result in expulsion from the hostel. It is stated that the object behind introducing such a restriction is to see that the students are utilizing their study time for study purposes alone. The respondents have not stated whether usage of mobile phone by the petitioner or by any inmate caused any disturbance to other inmates. Therefore, indiscipline comes only to the extent of disobedience of an instruction. Then the question is whether an instruction or restriction can stand in the way of acquiring knowledge by the inmates. It is also necessary to examine whether they can utilise the study time for study purposes using the mobile phones also, in this advanced world of technology. The college authorities as well as parents should be conscious of the fact that the students in a college hostel are adults who are capable of taking decisions as to how and when they have to study. It is a fact that there is large scale misuse of mobile phones; but that misuse can happen with the laptops also; it can be even before 6 pm and 10 pm, before and after the study time.”

While underscoring the growing indispensable importance and necessity of mobile phones in routine life, it is then rightly pointed out in para 11 that, “The mobile phones which were unheard of once and later a luxury has now become part and parcel of the day to day life and even to a stage that it is unavoidable to survive with dignity and freedom. Though initially it was a mere replacement of land phone enabling one to connect another and talk, on the advent of internet the connectivity became so wide. On availability of more and more facilities, since the year 1998, the number of users gradually increased and as at present India stands 2nd in the world in the usage of internet. The facilities to access internet, which was initially possible only through desktop computers, later in laptop, is now available in mobile phones which are handy and portable; with more and more applications, connectivity became feasible for everyone everywhere even among the common man. Apart from the facilities to read E-newspapers, e-books, etc. one can undergo online courses also sitting at home or hostel and it is pointed out that there are courses under SWAYAM recognized by the UGC, which students can undergo even when they are undergoing regular studies in colleges. Though the respondent college has stated that there is no restriction for the inmates to use laptops, all the students would not be ordinarily able to afford to have a laptop in addition to mobile phone. Assuming that the purpose is to prevent misuse of mobile phones during study time, such misuse is quite possible with laptops also. Thus the purpose of such restriction would not be achieved. It would not be proper for the college authorities to impose such restrictions on students of the college going age even if it is at the request of parents, in their anxiety to see that their children are studying and not being misdirected through mobile phones. It is a well known fact that these phones as well as the modern technologies are prone to misuse. At the same time, the college authorities as well as the parents cannot be permitted to shut their eyes on the innumerable advantages out of internet on various aspects of learning with world wide connectivity, on its proper usage. Apart from facilities for interaction, exchange of ideas or group discussions, there are several methods by which the devices can be usefully utilised by its proper use by downloading of data or e-books or undergoing other courses, simultaneously utilising the facilities under the Swayam program of UGC, etc; knowledge can be gathered by adopting the method which one chooses. When one student may be interested in garnering knowledge by reference of books in libraries, one may be interested in referring to e-books or downloading data.”

While batting for more freedom for students above 18 years, it is then rightly articulated in para 12 that, “By compelling one that she should utilise the books in the library during the study time or that she should not access the technological means during a particular time or study time may not always yield positive results. A student above the age of 18 years shall be given the freedom to choose the mode for her studies provided it does not cause any disturbance to others. The schools in Kerala promotes digitalisation with smart class rooms and the modern technology has taken its place in all the fields even from primary section. Thus the usage of mobile phones in order to enable the students to have access to internet will only enhance the opportunities of students to acquire knowledge from all available sources based on which they can achieve excellence and enhance quality and standard of education.”

While quoting liberally from the landmark cases, it is then pointed out in para 15 that, “As found by the Apex Court in Charu Khurana v. Union of India (2015) 1 SCC 192, women still face all kinds of discrimination and prejudice and the days when women were treated as fragile, feeble, dependent and subordinate to men, should be a matter of history.” Similarly, it is then held in para 16 that, “In the judgment in Puttaswamy’s case (supra) the Apex Court held that right to privacy is held to be an intrinsic part of the right to life, personal liberty and dignity and hence a fundamental right under part III of the Constitution.”

Be it noted, para 18 then envisages that, “Though it is true that the Principal of the college is the supreme authority to enforce discipline as held by this Court in Manu Wilson’s case, Sojan Francis’ case, Indulekha Joseph’s case (supra) and that there cannot be any dispute that rules and regulations lawfully framed are to be obeyed by the students and that teachers are like foster parents who are required to look after, cultivate and guide the students in their pursuit of education for maintaining excellence of education, the rules should be modified in tune with the modernisation of the technology so as to enable the students to acquire knowledge from all available sources. It would be open to the authorities in the hostel to supervise whether any distraction or disturbance is caused to other students on account of usage of mobile phone or take action when any such complaint is received. The total restriction on its use and the direction to surrender it during the study hours is absolutely unwarranted. When the Human Rights Council of the United Nations have found that right to access to Internet is a fundamental freedom and a tool to ensure right to education, a rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of law.”

What’s more, it is then eruditely pointed out in para 19 that, “It is pertinent to note that the learned counsel for the college vehemently argued that in the absence of any challenge to the rules and regulations, the petitioner cannot be heard to challenge the action taken in accordance with the rules. The learned counsel for the college also argued that in the light of the judgment of the Full Bench of this Court in Pavitran VKM V. State of Kerala & others 2009(4) KLT 20: 2009(4) KHC 4, the rules and regulations of the hostel will stand as long as it is not set aside. But in this case the rule was that the mobile phones shall not be used in the hostel. Therefore, what remains is only the decision/instruction restricting/banning the use of mobile phone from 6 pm to 10 pm and the direction to surrender the mobile phone to the warden. When it is already found that such an action infringes the fundamental freedom as well as privacy and will adversely affect the future and career of students who want to acquire knowledge and compete with their peers, such instruction or restriction cannot be permitted to be enforced.”

To put it succinctly, para 20 then states unambiguously that, “While enforcing discipline it is necessary to see the positive aspects of the mobile phone also. As held by this Court in the judgment in Anjitha K. Jose’ case (supra), the restriction should have connection with the discipline and when there is nothing to show that there was any act of indiscipline on account of the usage of mobile phone by the petitioner, that cannot stand. The fact that no other student objected to the restriction or that all others obeyed the instructions will not make a restriction legal if it is otherwise illegal. No student shall be compelled either to use mobile phone or not to use mobile phone. It is for each of the students to decide with self confidence and self determination that she would not misuse it and that she would use it only for improving her quality of education.”

While adding a word of advice for parents, hostel authorities and students, para 21 then states that, “The parents as well as the authorities of the hostel have to consider the fact that almost all the undergraduate students staying in the hostel have attained majority. They have joined the course after passing one or two public examinations. The students in that age group are expected to be conscious of their duty to study properly in exercise of their right to education. The manner in which as well as the time during which each person can study well, vary from person to person.”

More importantly, Justice PV Asha who delivered this landmark judgment then categorically observes in para 22 that, “I am of the view that what is required is a counseling for the students, as well as parents in the colleges. The students in the hostels should be given counseling in order to inculcate in them self restraint in the usage of mobile phones, to make them capable of choosing the right path, to make them aware of the consequences of misuse as well as advantage of its proper use. It should be left to the students to choose the time for using mobile phone. The only restriction that can be imposed is that they should not cause any disturbance to other students. While acting in exercise of right to privacy, persons like the petitioner shall also see that such exercise does not invade the right to privacy of another student residing in the hostel especially in her room.”

While spelling out the boundaries for enforcement of rules and discipline, it is then observed in para 24 that, “Regarding the contention of the respondent that any inmate is bound to abide by the rules and regulations or else she is free to leave the hostel, it is pertinent to note that rules and regulations require reforms to cope up with the advancement of technology and the importance of modern technology in day to day life. As per the University Regulations as well as the UGC Regulations, the college is bound to run a hostel to enable the students to reside near the college in order to enable them to have sufficient time to concentrate in their studies. Therefore, the hostel authorities are expected to enforce only those rules and regulations for enforcing discipline. Enforcement of discipline shall not be by blocking the ways and means of the students to acquire knowledge.”

Finally, it is then held in the last para 25 that, “In view of the aforesaid reasons, I am of the view that imposing of such restrictions is unreasonable and therefore the respondent shall re-admit the petitioner in the hostel without any further delay. It is made clear that the petitioner or her parent shall not do any act in a manner humiliating any of the respondents or any other teacher or warden or Matron in the hostel/college. The petitioner or any other inmate shall also see that no disturbance is caused to others by usage of mobile phone in the hostel. The Writ Petition is allowed to the above extent.”

In the ultimate analysis, what can be easily inferred from the above foregoing discussion is that the Kerala High Court has laid down in no uncertain terms that right to access internet is part of the right to privacy under Article 21 of the Constitution of India and also the right to education. We all know fully well how crucial internet is to acquire invaluable information about anything which cannot be acquired from other sources so easily which makes it all the more important!

It also cannot be denied that even the UN General Assembly had declared right to internet to be a human right in 2014. Even the Kerala Finance Minister Dr Thomas Issac in 2017 in his budget speech had recognized right to internet as a human right and had disclosed that efforts were being made to make internet accessible to all. The only restriction that can be imposed is that the students using mobile phones should not cause disturbance to other students! This was made clear by the Kerala High Court also in this commendable judgments and all students must adhere to it!

Sanjeev Sirohi

Project Insight : A New Surveilance Technology Or Breach of Privacy

Even in a growing and developing economy like India, the so called Emerging Superpower behind China, has a serious problem on Tax Evasion by the General Public. As per Government Data only 3.81% of the population pays income tax. The figure clearly gives a picture on the practicability of the Search and Seizure method of IT Department shown perfectly in Special 26 movie. As technology is getting Advanced so are these Criminals day by day and it’s time for the Department to rise in the same field too. The Panama Paper leak gave an insight on the people evading tax, but all are not covered under the same, hence a permanent solution to the problem was required. Hence as measure to widen Income Tax Department’s (ITD) search Ministry of Finance in May 2017 would launch Project Insight.

The same project would give access to authority to Social Media accounts, and using specialised Data Mining Techniques used by Facebook and Google to track it’s users. Such technique would help to identify potential tax evaders online, and keeping a track of its activities. Many Today like to flaunt their overseas travel, expensive cars etc. online or other keep a track of it but fail to declare accurate income in front of authorities. Hence such authority would be tracked by Tax authority, and on the basis of the Data mining now online raids would be committed. L&T Infotech Ltd would provide the technologies to track such users, the same is tactic currently being used by US Tax Authorities, to raid homes of Rich Instagram users lavishing their lifestyle to the public. Data Mining in layman’s term can be called Track of user Data or Posts online and comparing it with the actual returns to the authority.

If we look at demonetisation one might argue it for various political considerations, but there is one perspective people were unable to see. Demonetisation was a big step to promote paper less transactions through Debit Card, Credit Card etc., and the Finance Act,1998 made quoting of PAN compulsory for a number of transactions such as opening of bank account and deposit exceeding Rs 50,000, as a result, Section 139A of the Income Tax Act, read with rules 114B and 114C, makes quoting of PAN compulsory for certain transactions. Now Income Tax Department as a part of the said Project would have access to these transactions, the authority will track PAN quoted on financial transactions and then tally them with Individual tax filings. Hence now even if a Tax Evaders delete their data from their media, with the new Demonetisation they are forced to do most transactions paper less as a result the same transactions would now be under scrutiny of the Authority all the time.

Critics might argue in future about the serious threat to privacy of an Individual, as the same data many argue curtail right to privacy but when one uploads data on such platforms, he/she expects such data to be streamed by anyone online i.e. the same become easily available in the Public Domain. If we take example of US Internal Revenue Service (IRS) which is similar to our IT department, it has currently assess to all Social Media websites and since 2012 has extensively used all data available at such websites for locating potential tax evaders. The same provoked controversy with respect to people being targeted based on private information too. Initially it was legal for the IRS to use data in public, but later it used private information of a person as well. However finally it settled on not tracking a person’s personal email, but the same confidence was not given on other platforms. Hence in India it is currently not clear with respect private information also being assessed by the authority.
But if we take example of Panama or Swiss Bank account holders, such kind of people are protected just because of privacy and it took decades for our country to finally come to an agreement with such institutions. Hence for such serious crimes which although don’t affect the body but affect the overall economy at large and directly has an impact over our lives, an issue of privacy must be least of our concern. An ordinary middle class man, who regularly pays his taxes and does his best to afford enough for his family would find it least of his concern of Government Agencies tracking him. Although Right to Privacy is a fundamental right of an individual, but such right is not absolute, and as citizens sometimes for a better tomorrow we should sacrifice such right to make all such defaulters accountable for good.

No CCTVs in dance bars : There can’t be right to privacy in a public place

 

dance-bars
No CCTVs in dance bars

The Supreme Court order on March 02, 2016 forbade CCTV monitoring of the performance area in dance bars in Mumbai as it would be a violation of privacy. Cameras will only be allowed at the entry and exit points of the bars, the court directed. The verdict does have raised eyebrows among a section of the people.

For all intents and purposes, a hotel, a guest house or a dance bar are all public places where anybody can enter and get a room by paying the prescribed fee or rent. In the same manner any person can enter dance bars by paying the desired fee as one can enter a cinema house by purchasing a ticket. In a cinema house too, the management and owner does not enjoy unrestrained liberty to screen a film which has not been certified by the Film Censor Board. Otherwise, it is a violation of law.

In films too dance items are shot, but these can be exposed to general public view only after these have passed through the penetrating eye of the Censor Board. But in the case of dance bars, there can be no restriction as per the latest directions. An incident of vulgar display of indecency, obscenity or nudity in dance bars will thus be more difficult to detect and still more arduous to prove.

In our system of democracy, a person does have a right to privacy but only within the four walls of his house or room in a hotel. This cannot be extended to a public place. Can a person claim right to privacy in a park or at the dance floor of a hotel if he wishes to indulge in with his wife or a consenting partner what he otherwise can in the solitude of his bed room? When a person goes to a public place, he voluntarily chooses to shed his right to privacy and exposes him/herself to the prying eyes of all who may be present there. The court has allowed CCTV cameras only at the entry and exit points of the bars. That means every person visiting these bars shall be identified and recorded at the entry and exit gate of the bars. An advocate for bargirls argued that CCTV cameras at the bars would not just show the dancers, but also the patrons, who might not want to be identified. This in itself presupposes that there is something undesirable that the ‘patrons’ would not like to be identified. If something obnoxious and undesirable is not being performed in the dance bar, why should the ‘patrons’ feel shy of being identified?

We have CCTVs at every public place — a road, road-crossing, public park, market place, railway stations, bus stands, public places like Ganga and other river banks where men, women and children take a holy dip. Many big shops, departmental stores, shopping malls, petrol pumps, and other places are under CCTV surveillance. Not only that. Some individuals have CCTV cameras in their private houses where the entry and exit of every individual as also what goes on in the house gets recorded. Does it not violate the privacy of the visitors?

In these circumstances, how can the installation of CCTV at dance bars be a pernicious aggression on the privacy of individuals and not at other places? Right to privacy cannot be exploited as a shield to committing undesirable conduct, behavior and activity at a public place.

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Amba Charan Vashishth

(The writer is a Delhi-based political analyst and commentator)

TRIAL BY MEDIA-“a legal dilemma”

RAJ PRASHAR

Introduction

The media is the gatekeeper and watch dog of the society. The media acts as multifaceted institution with multiple activities.

It takes the message simultaneously from all the parties involved and builds the opinion on an issue,with definitely threatens the establishment from violating rights with the growth of the number of news channels and in increasing popularity of” breaking news” Electronic Media has come to play a major role in stirring public opinion and consciousness public advocacy outside the court through well- established mechanism like lobbying, negotiations and mobilization of public opinion has been effectively undertaken by the media.

The current trend of media on reporting cases commonly known as “Trial by media” has witnessed the sensation of self- manifested stories, half- baked truth resulting in the violation of right of individuals, resulting media reporting transforming into media circus.

Trial by media is a phrase popular in the last few decades to describe the impact of television and print media coverage on a case by creating a wide spread perception of guilt on part of accuse regardless of any verdict in a court of law and hence the accuse is held guilty even prior to his trial. The blatantly violate the code is sell their story and boost their TRP, leaving far reaching injury to the reputation of the accused. The media involves itself so intensely and during such high publicity court cases the media sensationalises the case and provokes atmosphere of public hysteria which not only makes a free and fair trial impossible but also maligns in the reputations of the accused to such degraded level that their rest of life comes under public- hatred and had scrutiny.

Suspects and accused apart, even victim and witnesses suffer from excessive publicity and invasion of their privacy rights.

On the other facet, the trial by media interferes with the administration of justice and tends to lower the authority of courts and finally hampering the functioning of democracy because an independent judiciary to dispense justice without fear or favour is necessary and it strength is the faith of the public in general in that institution.

Further the media meddles with into the investigation thereby, misdirecting the investigation or hindering the functioning of investigating agencies.

Examples –

The media has effectively undertaken the cause of justice for the cases of Jessica Lall, Priyadarshini Mattoo, Nitish Katera, BMW case, Arushi murder case and many more simultaneously, it has on one hand without considering about the inherent or intended effect interfered with the rights of people involved in the case and on the other hand tried to usurp the prerogative of the courts to try the cases.

Freedom and restrictions on freedom of press-

In words of Blackstone “The liberty of press indeed essential to the nature of a free state. Every free man has an undoubted right to lay what sentiment he pleased before the public, to forbid this is to destroy the freedom of the press. But if be published what is improper, mischievous or illegal he must take the consequence of his own temerity.”

Article 19(1)(a) of the constitution of India grant freedom of speech and expression to the citizens of India. The freedom of press is a necessary concomitant of the freedom of expression that involves a right to receive and impart information without which democracy becomes an empty slogan.

But the right is not absolute and is subjected to the reasonable restrictions of defamation and contempt of court among other mentioned in clause(2).

Defamation-

The law of defamation seeks to protect individual reputation. Its central problem is how to reconcile this purpose with the competing demands of free speech. Both interests are highly valued in our society, the one as perhaps the most dearly prized attribute of civilised man, the other foundation of a democratic community.

Without restriction under article 19(1) it is well settled principle of equity at that once freedom to move his arm ends where somebody’s nose starts.

The freedom of speech and expression does not entitle the per cent to injure another in his trade and or to lower him in the esteem or the fellow- beings or to expose him to hatred ridicule or justification.

Truth is the defence in a suit of defamation, but truth cannot be pleaded as defence for publishing derogatory, scurrilous and defamatory material against a private person where no public interest is involved.

The media has to publish that is in public interest and not what “public is interested in.”

Contempt of court and right to free and fair trial-

Under the cover of freedom of speech and expression know no party can be given a licence to misinterpret the proceedings and order of the court and deliberately paint an absolute wrong and incomplete picture which has to tendency to scandalize and bring it into this repute and ridicule.

Lord Denning in Times case observed

“We must not allow trial by a newspaper, a trial by television or trial by any other medium other than a court of law. But in so stating the law, I would emphasise that it applies only when litigation is spending and is actively in suit before the court.To which I would add that there must appears to be a real and substantial danger of prejudice to the trial of the case or the settlement of it”.

A judge is not immune from the society and he’s also suspect able to aura created by the media against the accused.

There is immense likelihood of bias creeping into judges’ mind subconsciously. A judge has to guard himself against any such pressure and he is too guided strictly by rules of law. The malicious and slanderous publication inculcates in mind of people a general dissatisfaction on the judicial determination and indisposes year their elegance to obey them, if the people allegiance to law is fundamentally shaken, it is the most vital and dangerous obstruction of justice.

Right to privacy-

The right to privacy an independent and distinctive concept, like the concept of defamation originated in the field of ‘Torts’.

In trial by media the trend shows that suspects and accused apart even victim and witnesses suffer from excessive publicity and invasion of their privacy rights.

If a private person or agency unilaterally conducts a string operation, it would be violating the privacy of another person and would make it liable for action at law.

Media should refrain from making public any activities or materials related to an individual’s personal and private affairs or which invades an individual’s privacy unless there is an identifiable large public interest.

Conclusion-

Media forms the backbone of the society, as many authors say “eyes and ears of the general public”.

A responsible media needs to take into the consideration the reliance intrusted on it by the general public and confidence and faith as to blindly accept that truth of the news published by media.

In doing so the media should follow certain norms in reporting a crime which is globally accepted:

1. Accuracy and fairness shall be maintained in reporting.

2. Factual accuracy of the report shall be verified before publication.

3. Every caution shall be undertaken against defamatory writings.

4. Right to privacy shall not be intruded or invaded unless over weighted by genuine overriding public interest.

5. Due care shall be exercised in making fair criticism of judgement and reporting court proceedings.

6. Reports shall not be published based on conjecture or surmises or in suspicion.

7. Glorification of an act of violence shall be forbidden.

8. The heading shall not be sensational or provocative and it must justify the matter printed under them.

9. Correction shall be made or published without any delay in cases of error.

Domestic Implementation of Human Rights

Human RightsKAUSHIK DHAR

1. UNIVERSAL DECLARATION OF HUMAN RIGHTS AND INDIAN CONSTITUTION

India was a signatory to the Universal Declaration of Human Rights. The Indian constitution was adopted by the constituent Assembly on Dec 26, 1949, which came into force from Jan 26, 1950. Our Indian constitution was greatly influenced by the Universal Declaration of Human Rights, 1948. Provisions of Part III which stands for Fundamental Rights and Part IV for Directive Principles of State Policy bear a close resemblance to the Universal Declaration of Human Rights. As a result, a number of fundamental rights guaranteed in Part III of the Indian Constitution are similar to the provision of Declaration.

Name of the Rights Universal Declaration Indian Constitution

Equality before law Art. 7 Art. 14

Prohibition of discrimination Art. 7 Art. 15(1)

Equality of opportunity Art 21(2) Art. 16(1)

Freedom of speech and expression Art. 19 Art.19(1)(a)

Freedom of peaceful assembly Art. 20(1) Art. 19(1)(b)

Right to form association or unions Art. 23(4) Art. 19(1)(c)

Freedom of movement within the border Art. 13(1) Art19(1)(d)

Protection in respect of conviction for offencesArt.11(2) Art. 20(1)

Protection of life and personal liberty Art. 9 Art. 21

Protection of slavery and forced labour Art. 4 Art. 23

Freedom of conscience and religion Art. 18 Art. 25(1)

Freedom of enforcement of rights Art. 8 Art. 32

The above chart shows that the Universal Declaration which was adopted just before the Indian Constitution widely held to have provided the model for Indian Constitution human rights guarantees. It appears that the founders of the Constitution were conscious about the contents of the Declaration and therefore they gave due recognition to its provisions.

In Kesavananda Bharati vs State of Kerala (AIR 1973 SC 1461), the Supreme Court observed that the Universal Declaration of Human Rights may not be a legally binding instrument but it shows how India understood the nature of the Human Rights at the time the Constitution was adopted. Thus, although the Supreme Court has stated that the Declaration cannot create a binding set of rules and even international treaties may at best inform judicial institutions and inspire legislative action, constitutional interpretation in India has been strongly influenced by the Declaration.

In Chairman, Railway Board and others v Mrs. Chandrima Das (AIR 2000 SC 988), the Supreme Court observed that the Declaration has the international recognition as the “Moral code of Conduct” having been adopted by the General Assembly of the United Nations. In a number of cases the Declaration has been referred to in the decisions of the Supreme Court and High Courts.

DOMESTIC IMPLEMENTATION OF HUMAN RIGHTS

India has ratified the International covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights on March 27, 1979. By ratification it has established on the international plane its consent to be bound by them. It has an obligation to provide to the individuals the rights contained in the two Covenants.

3. COVENANT ON CIVIL & POLITICAL RIGHTS AND THE INDIAN CONSTITUTION

The Indian constitution provides a number of rights which are called ‘fundamental rights’. The expression ‘fundamental rights’ denotes that these rights are inherent in all human beings and they are required for blossoming of the human personality and soul. These rights have been given a place of pride in the Constitution. These rights are therefore necessary to protect the dignity of individual and to create conditions in which a person can develop to the fullest extent.

In A.D.M., Jabalpur v Shukla (AIR 1976 SC 1207), Beg J. Observed that the object of making certain rights as fundamental as to guarantee them from the illegal invasion by executive, legislature and judicial organ of the state. The Supreme Court of India has recognised these fundamental rights as ‘natural rights’ or ‘human rights’.

Fundamental rights guaranteed under the Indian Constitution may be divided for the sake of convenience in two categories, i.e. specified fundamental rights and other fundamental rights. The specified fundamental rights are those rights which are there in the Covenant as well as these rights are specifically enumerated in the Indian constitution. This division is helpful in order to make them comparable with the human rights guaranteed to the individuals under the International Covenant on Civil and Political Rights.

Name of the Rights Covenant on Civil and Political Rights Indian Constitution

Forced Labour Art. 8(3) Art. 23

Equality before law Art.14(1) Art. 14

Prohibition of discrimination Art. 26 Art. 15(1)

Equality of opportunity Art. 25(c) Art. 16(1)

Freedom of speech and expression Art. 19(1) & (2) Art. 19(1)(a)

Freedom of peaceful assembly Art. 21 Art. 19(1)(b)

Right of freedom of association Art. 23(4) Art. 19(1)(c)

Right to life and liberty Art. 6(1) &9(1) Art. 21

Freedom of conscience and religion Art. 18(1) Art. 25

However, there are a number of rights which, though are not specified in Part III of the Constitution by name as fundamental rights have been regarded as fundamental by the Supreme Court by enlarging the meaning and scope of the fundamental rights.

Although in A.D.M., Jabalpur v Shukla (AIR 1976 SC 1207), the Supreme Court held by a majority of 4:1 that the Constitution of India did not recognise any natural or common law rights other than that expressly conferred in the Constitution, the trend of the Supreme Court has changed especially after 1978. The Courts on many occasions, by accepting the rule of judicial construction, that regards must be paid to international conventions and norms for constructing domestic law, held that the rights which are not specifically mentioned in the constitution may be regarded as fundamental rights if it is integral part of the fundamental right.

The following are the rights which are contained in the Covenant on Civil and Political Rights are available to the citizens of India in spite of their not being specifically mentioned in the Constitution.

1.1. Right to privacy

By the expression right to privacy we mean the right to be left alone to live one’ s own life with minimum degree of interference. The right to privacy is stipulated in the Covenant on Civil and political Rights under Art. 17(1) which says that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. But this right is not guaranteed in the constitution.

However, in Kharak Sing v State of U.P., [(1964) 1 SCR 33] it was held by the Supreme Court that the domiciliary visits is an infringement of the right to privacy and is violative of the citizen’ s fundamental right guaranteed under Art.21 of the Indian Constitution.

In Govind v State of Madhya Pradesh [1996 (0) MPLJ 649] the right to privacy was assumed to be a part of the personal liberty guaranteed under Art. 21 of the Constitution, by stating that although the right to privacy is not explicitly provided in the Constitution, it is ingrained in the fundamental right of life and personal liberty.

In People’s Union for Civil Liberties v Union of India [1997 AIR (SC) 568], commonly known as telephone tapping case, the Supreme Court held that right to life and personal liberty includes telephone conversation in the office or home and thus telephone tapping is violative of Art. 21.

1.2. Right to travel abroad

The right to travel abroad is a guaranteed right under Art.12 Para 2 of the Covenant; however it is not specifically recognised under Part III of the Constitution as a fundamental right. The Supreme Court in Satwant Sing v Asst. Passport Officer, New Delhi [AIR 1967 SC 1836] held that the right to go abroad is a part of the person’ s personal liberty within the meaning of Art. 21.

In Maneka Gandhi v Union of India [AIR 1978 SC 597] the Supreme Court upheld the decision of the Satwant Sing’s case.

1.3. Right to speedy trial

The Covenant on Civil and Political Rights laid down under Art. 9 Para (3) that anyone arrested or detained on a criminal charge shall be brought before judge….and shall be entitled to trial within a reasonable time or to release. But the Constitution has got no provision for a person to be tried without undue delay.

In Hussainara Khatun v Home Secretary, State of Bihar(no.1) [(1980) 1 SCC 98] it was held by the Supreme Court that though the right to speedy trial is not directly mentioned in the fundamental right but is implicit in the broad sweep of Art.21 which deals with right of life and personal liberty.

In the case Raj Deo Sharma v State of Bihar [(1998) 7 SCC 507] the Supreme Court after having recognised that the speedy trial is the right of the accused, issued certain directions for effective enforcement of this right. The Court directed that in cases where the trial is for an offence punishable with imprisonment for a period not exceeding two years and if the offence of the under trial is punishable with a period exceeding 7 years, the court shall close prosecution evidence on completion of 3 years from the date of recording of the plea or framing of the charge. The whole idea was to speed up the trial in criminal case to prevent the prosecution from becoming a persecution (harassment).

1.4. Right to provide legal assistant

The Covenant on Civil and Political Rights provides under Para 3(d) of Article 14 that everyone shall be entitled to be tried in his presence, and to defend himself in person or through his legal assistance of his own choosing, to be informed, if he does not have legal assistance assigned to him, of this right; and to have legal assistance assigned to him, in any case where the interest of justice so requires, and without payment by him in any such case if he has no sufficient means to pay for it.

In M.H. Hoskot v State of Maharashtra [(1978) 3 SCC 544] that the right to free legal service is an essential ingredients of reasonable, fair and just procedure for a person accused of an offence and is implicit in Art.21 of the Constitution.

In Khatri v State of Bihar [AIR 1981 SC 928] the Supreme Court directed the state of Bihar that it cannot avoid the constitutional obligations to provide free legal services to a poor by pleading feeding financial and administrative inability.

1.5. Right of prisoners to be treated with humanity

Article 10 of the Covenant on Civil and Political Rights under Para (1) lays all person deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. But the Indian Constitution there is no such provision in Part III which can safeguard the brutal treatment given to the prisoners.

However, the Supreme Court in Charles Shobraj v Suerintendent, Central Jail, Tihar, New Delhi recognised that ‘right to life’ is more than mere animal existence. Even iin prison person is required to be treated with dignity and enjoy all those right mentioned in Art.19 and 21.

In Francis Coralie Mullin v The Administrator, Union Territory of Delhi [(1981) 2 SCR 516], it was again observed by the Supreme Court that even a convict is entitled to the protection of the precious right guaranteed by the Art 21 of the Constitution.

In Sunil Batra v Delhi Administration (no 1) [1979 SCR (1) 392], the practice of keeping under trials with convicts in jail was regarded by the Supreme Court as inhuman and violation of Art 21.

In Bandhua Mukti Morcha [1992 AIR SC 38] case, the Supreme Court held that the right to life guaranteed by Art. 21 included the right to live with human dignity free from exploitation.

In D.K. Basu v State of West Bengal [AIR 1997 SC 610], the Supreme Court held that the precious right guaranteed by the Constitution of India cannot be denied to convicts, under trials, detenues and other prisoners in custody except according to the procedure established by law.

1.6. Right to compensation

The Covenant on Civil and Political Right under Art 9 Para 5 laid down that ‘anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.’ This right has not been specifically guaranteed by the Constitution but the court ruled that a suit for compensation against the state is maintainable and the state has no right to take any action which may deprive the citizen of the basic fundamental rights except in accordance with the law which is reasonable, just and fair.

In Rudal Shah v State of Bihar [AIR 1983 SC 1086] the Supreme Court held that Art 21 which says about right to life will be denuded of its significant content if the power of this court were limited to passing orders of release from illegal detention.

1.7. Right to information

The Covenant on Civil and Political Rights laid down under Art 19, Para 2 that everyone shall have the right to freedom f speech and expression. The Indian constitution under Art 19(1) (a) guarantees the right to free speech and expression as fundamental right, the right to information is not specifically mentioned in Part III of the Constitution.

In S.P.Gupta v Union of India [AIR 19S2 SC 149], Justice Bhagwati stated that the concept of open government is the direct emanation from the right to free speech and expression. Therefore disclosures of information in regard to the functioning of government must be the rule and secrecy an exception justified only where the strictest requirement of public interest is required.

Therefore it may be concluded that a number of rights which are not specifically provided in the Constitution in Part III as ‘fundamental rights’ have been regarded as fundamental and are available to the individual because of the bold interpretation given by the Supreme Court of those rights which are specifically provided in the Constitution. We can say the judiciary has been a zealous guardian of the human rights.

4. COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND INDIAN CONSTITUTION

Economic, Social and Cultural Rights of human beings are contained in the Economic, Social and Cultural Rights. The Covenant has significant feature which makes it different from the Covenant on Civil and Political Rights. Under the Covenant on Civil and Political Rights the states are under an obligation to respect and to ensure to all the individual the rights stipulated therein, but under the Covenant on Economic, Social and Cultural Rights the states are not bound to do so. Rights stipulated in the Covenant on Economic, Social and Cultural Rights do not find place in Part III of the Constitution but they are provided in Part IV of the Constitution which stands for the Directive Principles of State Policy. This Part contains a list of directives and instructions to be followed by the present and future governments irrespective of their political complexion. The directive principles are fundamental in governance of the Country. Thus Part IV cast upon the states the duties which they are required to follow. The directive principles which broadly incorporate the economic and social rights are as much as a part of human rights. Many rights enshrined in the Covenant on

Economic, Social and Cultural Rights are incorporated in the directive principles.

Thus we can see that all rights like right to equal pay for equal work for both men and women, the right to protect the childhood of work and for maternity work, the right to work, right to adequate standard of living, etc are recognised in the Covenant as well as in our Indian Constitution. However, these rights being stated in Part IV of the Constitution are not enforceable in the court of law. But recently some of these rights are considered as fundamental by the Supreme Court by enlarging the scope of the ‘fundamental rights’ stipulated in Part III of the constitution. This has done by broadening the ambit of the ‘right to life’ under Art.21 of the Constitution. Some of these rights are as follows:

4.1. Equal pay for equal work

The Covenant of Economic, Social and Cultural Rights under Art 7(a) lays down that fair wages and equal remuneration fro work of equal value without distinction of any kind in particular women being guaranteed conditions of work not inferior to those enjoyed by men. Under the Indian constitution clause (d) of Art.39 of the Directive Principles of State Policy states about the equal pay for equal work for both men and women.

In Randhir Sing v Union of India [1982 AIR 879], the Supreme Court held that the principle of equal pay for equal work though not a fundamental right is certainly a Constitutional gaol and capable through enforcement through Constitutional remedies available under art 32 of the Constitution.

4.2. Right of workmen to medical benefits

‘Safe and healthy working conditions and the creation of conditions which would assure to all medical service and medical attention in the event of sickness’ are the rights which are stated in Art.7, Para (b) and Article 12, Para 2(d) under the Covenant on Economic, Social and Cultural Rights. Right to workmen to medical benefits under the Indian Constitution finds place under Art.38 and Art.39 which is not enforceable. But the Supreme Court in the Regional Director, ESI, Corporation and another v Francis De Costa and another [1996(6) SCC 1] held that under Art. 21 read with Art. 38 and 39 the right to medical and disability benefit to workmen is his fundamental right.

4.3. Right to livelihood

Art. 6 of the Covenant of Economic, Social and Cultural Rights says right to work including the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. The right to livelihood has been incorporated in Art 39(a) and Art 41 of the Indian Constitution.

The Supreme Court in Olga Tellis v Bombay Municipal Corporation [(1985) 3 SCC 545], popularly known as the pavement dwellers, held that right to livelihood is an integral facet of the right to life guaranteed under Art 21 of the Constitution.

4.4. Right to shelter

The Covenant on the Economic, social and Cultural Rights under Art 7 Para (a)(ii) lays down that the States parties recognise the right of everyone for decent living for themselves and their families and Art. 11 they recognise the right of everyone to an adequate standard of living for himself and his family including housing. It shows that right to shelter finds a place in the Covenant but it has not been enumerated specifically in the Indian Constitution. However, the Supreme Court in Chameli Sing v State of U.P. [AIR 1996 SC 1051] it was held that by the Supreme Court that the right to live includes the right to food, water, decent environment, education, medical care and shelter. As of right to shelter is concerned the court held that it includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity and other civil amenities like roads, etc.

BIBLIOGRAPHY

i. Prof. M.P.Jain, INDIAN CONTITUTIONAL LAW, Fifth edition reprint 2009, LexisNexis Butterworths Wadhwa, Butterworths Wadhwa, Nagpur

ii. Prof. Narendra Kumar, CONTITUTIONAL LAW OF INDIA, 5th edition, 2006, Allahabad Law Agency

iii. V. Para Brahma Sastri, RIGHT TO LIFE AND PERSONAL LIBERTY(COMMENTARY AND CASE MATERIALS), 1st edition, 2005, Asia Law House, Hyderabad