Home 2019 Recent Human Rights Controversies in the Supreme Court

Recent Human Rights Controversies in the Supreme Court

by Colin Gonsalves
Recent Human Rights Controversies in the Supreme Court


Dr. Ambedkar with members of the Drafting Committee of the Indian Constitution. <Image source: Link>

When I applied for IIT, I had no notion what IIT was all about.   And I sat for the exams and I got through; not so good, but got through. By the second year of IIT, it was very clear to me that I didn’t want to do engineering. And so I took refuge in the Humanities Department. I would spend long hours reading books on philosophy, economics, history and so on. So I was very, let’s say, unsettled. It was also a period of great change in this country, and I think that’s what saved me. There was the Jayaprakash movement with great movements in Bihar, a kind of total revolution. And I was very young and impressionable, and it was a good period to have politics swirling around you, unlike today where you’re bereft of real social movements, social change.  In the early ’70s we were still in the social democratic phase of society, namely nation-building, taking the whole of society along, bridging the gap between the rich and the poor, all these kinds of ideas were paramount. It was a framework where a young person didn’t look to his left or his right or behind him to see who is following. We didn’t need any followers, we were Che Guevara’s. We could do it by ourselves and we’d go ahead and try and change the world, go for strikes, sleep outside the factory gate, join the workers in their strikes, go to the rural areas. So it was a very, very good period. We were not given to much contemplation about where we were going and we went wherever our hearts took us, wherever the wind in our sails took us.

Anyway, we are living today in a period that is going to be very similar to the period of the ’70s and ’80s in the sense that you will have the winds of change swirling around you, but in a very different way.  If engineers or technologists are really to contribute to society, they must have real gusts of change, infusion of social thought and thinking outside the box.  It was actually the winds of change around us then that gave my colleagues much of insight even into technology and engineering. And those winds of change are returning to India once again, but in a different way. And it’s returning in a way that is actually very terrifying. And I think the questioning of the earlier period is gone, the resistance of the earlier period is dying.

And I was very young and impressionable, and it was a good period to have politics swirling around you, unlike today where you’re bereft of real social movements, social change.  In the early ’70s we were still in the social democratic phase of society, namely nation-building, taking the whole of society along, bridging the gap between the rich and the poor, all these kinds of ideas were paramount.

I remember when I accepted the Distinguished Alumni award, I said, “I thank you IIT.” The Director was there. I said, “Thank you Mr. Director, and I thank all the Directors of IIT during my period who gave me a chance to be an iconoclast, a rebel in IIT,” “Thank you for that, And may you always keep your gates open to the rebel among the young. May IIT Bombay always keep its doors open to such kind of people.”

We are in the middle of a crisis of unimaginable proportions. You must have seen the four judges on television protesting against the Chief Justice of India handling politically sensitive cases, assigning cases to certain benches. And the judges were basically saying that when you assign cases to benches it must be done in a transparent and fair manner. I don’t think in the history of independent India that such a meeting has ever been done and such a protest has ever been made. The truth is that the government seeks to undermine the independence of the judiciary. And as you know, if the judiciary crumbles, there’ll be nothing left to save the fundamental rights and the human rights of the people of India. The judiciary really is perhaps one of the last institutional barriers to tyranny. And judges stood firm when the government tried to enact a law so that the government would have primacy in the appointment of judges; that was two years ago and the judges stand firm now. The judges are speaking up for independence from the executive and saying we don’t want the executive to have any connection with any judges and we certainly don’t want judges to toe the line of the Central Government.


And as you know, if the judiciary crumbles, there’ll be nothing left to save the fundamental rights and the human rights of the people of India. The judiciary really is perhaps one of the last institutional barriers to tyranny.

Now, look at some of the interesting constitutional law cases coming before the court. I’d preface that by saying that the Indian legal system — now this is going to shock you, I suppose — is one of the best in the world notwithstanding the enormous delays and the corruption of judges and all that. The development of public interest law broke with western jurisprudence which is private litigation-oriented. Collective rights developed in India in the ’80s and ’90s through judge-made law and took a sharp turn away from the western notion of individual rights. If you have 1000 people dying of starvation, are you going to do 1000 individual cases or will you club them all together under a collective rights principle? One. Second, when you have 750 million people below a poverty line of $2 a day today, when you have that level of poverty, hunger, how do you expect people to approach a court when they don’t even have the bus fare to go to a lawyer’s office or to type a petition? And so the courts in the ’80s and ’90s developed public interest litigation to welcome people so that they could access justice. In America, nobody can sue except the person directly affected. In the whole of Europe, you can’t do proxy litigation. You can’t do it in Canada, you can’t do it in Australia, New Zealand, in most of the developed world you can’t do it. Then how should a legal system change to accommodate a situation where people don’t have money? And so the Indian courts developed a revolutionary system of locus standi, standing to sue where it is not just the person individually affected, but any group of individuals acting in good faith collecting information assiduously and correctly. And that was such a revolutionary change that India began to open up its doors to the poor through an intermediary which is the public interest litigator who could be anybody. So the court opened up its system. Thirdly, the western concept that a court doesn’t have a right to make an order against the state which would affect the budget of the state. Separation of powers. And then the Supreme Court said, “Let’s take a closer look at this.” What does it mean? If you say human rights to food is not implemented in India and you don’t increase your budgets for food how do you implement a right? And so in the famous Ratlam Municipality case, the Supreme Court said, “The enforcement of human rights constitutes the first charge on the exchequer of the state. This court will not hear an argument when it comes to the enforcement of fundamental rights that the state has no funds. This court will not enquire into paucity of funds. The Court would say that we were invited to look at the budgets of the municipalities, but we declined to do so. We will not enquire into your budgets because that would be an invitation for us to look into your perverse expenditure logic, which we decline to do.” Excellent isn’t it? The State would spend money on air conditioners and fancy cars. The President has a bungalow with like many many rooms. Our embassies abroad have swimming pools and parties with wine and whiskey. How do you do that when you have a country with 750 million poor people. We are known today internationally as the hunger capital of the world. 50% of all men and women malnourished, 27% of all children stunted. A whole generation of young people growing to adulthood disabled because of a lack of food.


In America, nobody can sue except the person directly affected. In the whole of Europe, you can’t do proxy litigation. You can’t do it in Canada, you can’t do it in Australia, New Zealand, in most of the developed world you can’t do it. Then how should a legal system change to accommodate a situation where people don’t have money? And so the Indian courts developed a revolutionary system of locus standi, standing to sue where it is not just the person individually affected, but any group of individuals acting in good faith collecting information assiduously and correctly. And that was such a revolutionary change that India began to open up its doors to the poor through an intermediary which is the public interest litigator who could be anybody.

On the Right to Food case where the World Bank and the IMF had convinced Manmohan Singh to close down the PDS system which is lakhs of the ration shops giving grain to the poor. So the midday meal in the schools was closing down, the Anganwadi system which is supplementary nutrition for pregnant women was closing down, and the ration shops were to be closed. And we went to the Supreme Court in 2000, and I remember, it was one of my first cases in the Supreme Court as a young lawyer. I had moved from Bombay to Delhi and this was one of my first cases. And I remember Chief Justice Kirpal.  He looked at the papers and I was standing in front of him, quite nervous actually; my heart was going thup-thup. And he looked at me and said, “Mr. Gonsalves, this cannot be, this cannot be. Please amend your petition, make it a petition for the whole country.” And on the next day, the Attorney-General, Soli Sorabjee representing the Union of India in his usual flamboyant style gave a long lecture about what a wonderful case this was. “Oh yes, My Lord, we know there’s so much hunger and malnutrition in our country. It’s terrible. We must do something about it and I assure you that the Government of India will do its best to eradicate hunger and malnutrition. But My Lord” — I knew it was coming — “But My Lord, we are a poor country, we have limited finances. There are things we can’t do.” And Justice Kirpal looked at him and said, “Mr. Attorney General, cut the flab somewhere else.” Five words that articulate really a very profound principle of law, that really when it comes to fundamental rights, you enforce your fundamental rights as long as you are a democratically elected government. Otherwise, go. And then when the Attorney General persisted, the Chief Justice told him very calmly, “Will you do it, or shall I tell you how to do it?” 

And so this was a very unique development in world jurisprudence. That’s the magnificence of the Indian system and the conceptual clarity of the system which makes it one of the best legal systems for public interest law in the world.


Secularism is the spine of the Constitution. And the leading judgment is a nine-judge bench decision in S. R. Bommai’s case where the Supreme Court said the state plays no part in religion, the state stands aloof from religion, the state is apart from religion. What a beautiful formulation of secularism.

Let me give you some idea of some of the interesting things coming before the court. There was an interesting case filed by an atheist whose child was in school. And in the Kendriya Vidyalayas you have to say a prayer in the morning, ‘Oh Lord,’ that comes again and again, and ‘Om’ and then comes a Hindu prayer . Now I am marriedinto a Hindu family, so for me personally speaking, it’s not a big deal. But when I read it, and he told me “I am an atheist and I don’t want my child saying ‘Oh Lord’ and ‘Om’ and so on. I don’t want a prayer at all. We don’t teach our children prayers.” And all of a sudden his child had to say a prayer. Now if you look at the Constitution of India and the judgments, secularism is said to be part of the basic structure of the Constitution. Secularism is the spine of the Constitution. And the leading judgment is a nine-judge bench decision in S. R. Bommai’s case where the Supreme Court said the state plays no part in religion, the state stands aloof from religion, the state is apart from religion. What a beautiful formulation of secularism. So well, this case was admitted by the Supreme Court by a judge who said this is a petition of enormous consequences and importance, and I was pleasantly surprised to see the Court’s reaction on the demand in the Petition that such a prayer in schools ought to be discontinued.

In this land of Mahatma Gandhi and the proverbial nonviolence and the spiritualism of the east, we have some of the greatest violence being perpetrated against people for eating beef. So we did documentation of this and these cases have now come before the Supreme Court. Can the state prescribe what you eat? Can the state stop you from eating certain types of food? Or is it part of privacy? Is it your right to dignity that you can choose and eat whatever you like? The Aadhar card cases are coming before the Court where the Union Government has made it compulsory to possess such an identity card even to avail of public services. Now we are doing some of the starvation death cases that have happened in Jharkhand, Madhya Pradesh and Orissa. The most tragic case was that of an 11-year-old girl in the village of Jharkhand. Her mother had an Aadhar card. It was not linked due to internet failure in her village which his very common. And so when they went to get their food rations, they sent them back. And they sent them back six times for six months. And in the seventh month, she wasted away and died of hunger-a 11-year-old girl! The general impression is that Aadhar is going to turn out to be one of the most oppressive instruments for the poor. You can imagine in rural areas where people work and their fingerprints are erased because they do very hard manual labour.  Technology is going to be one of the biggest problems in the delivery of food to the people.


The general impression is that Aadhar is going to turn out to be one of the most oppressive instruments for the poor. You can imagine in rural areas where people work and their fingerprints are erased because they do very hard manual labour.  Technology is going to be one of the biggest problems in the delivery of food to the people.


How many of you have seen the transgender judgment of Justice Radhakrishnan? You can see judges of the Supreme Court trying to take the court into path-breaking work. Transgenders were discriminated for many, many decades in India. In police stations, they are routinely arrested, sexually abused and raped. The judge delivered a beautiful judgment on transgender rights protecting the right to life of transgender people, giving them employment opportunities and tracing out in great detail what the rights of sexual minorities are. The Article 377 case was also a historic case. A Supreme Court bench of two judges gave a disastrous order saying that Article 377 – which criminalises LGBTQI communities is perfectly valid. That was  referred to a five-judge Constitutional Bench which declared the section unconstitutional and put an end to legal acceptance of homophobia  India will come of age in terms of sexuality and sexuality rights.

Privacy judgment is another example of historic law making. A nine-judge bench of the Supreme Court laid down, for the first time, what seems to be a simple proposition that the right to privacy is paramount. Before that, the Supreme Court had delivered two judgments saying that the right to privacy is not a fundamental right. But then Chief Justice Khehar assembled a bench of nine judges as he was determined to settle the law on the matter. What was astonishing was the Attorney General’s arguments in the Right to Privacy case that there was no right at all.  

Before that, the Supreme Court had delivered two judgments saying that the right to privacy is not a fundamental right.

“Nothing belongs to you,” he told the court. “Your iris doesn’t belong to you, it belongs to the government. Your fingerprints belong to the government. All information regarding citizens of India belongs to the Government of India. And I say this because it is our duty to protect you. Therefore it is your duty to give us this information.” The Government of India has decided in the public interest to protect its citizens by denying them any right over their own data. Everything belongs to us said the State in Court. And I think after hearing excessive arguments like that, the court was quite happy to denounce these arguments and establish privacy as a fundamental right in no uncertain terms for India.     

I want to end by saying to you:  infuse your learning in technology and engineering with a great deal of social awareness, social study and engagement in political debate. Political debate and discussion among students is the key to resistance. If there’s quietness on the campus, if everybody has agreed and has a monolithic way of thinking and speaking, it would be the end of society as we know it.  We have 750 million people below the poverty line. We have the largest migration taking place in the history of the world which is the migration from rural areas to the small towns and the cities. 300,000 farmers have committed suicide over 30 years. It’s an agrarian crisis of unimaginable proportions. Students in their 20s and 30s must not think that in their 50s and 60s their lives will be as placid as their parents’ was before them. It won’t be, it’s a period of great turmoil and it calls for great alertness, introspection, questioning, and a relentless pursuit of truth. 

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